[2005] KEHC 1204 (KLR)
The court found that the affidavit of service provided by the applicant was incomplete and lacked necessary annexures to prove what was served and whether it contained the penal notice. There was no clear or satisfactory proof that the respondents were personally served with the court order as required by law....
Source-derived case information.
- Citation
- [2005] KEHC 1204 (KLR)
- Parties
- Applicant: Monica Waithera Munyua; Respondent: Joshua Sorora; Respondent: Julius Ole Ntayia; Respondent: Olkejuado County Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 464 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Contempt Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- ARM Visram
- Legal Topics
- Contempt of Court, Personal Service, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monica Waithera Munyua
Applicant
Joshua Sorora
Respondent
Julius Ole Ntayia
Respondent
Olkejuado County Council
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Contempt Application
Legal Issues
- 1 Whether the respondents were personally served with the court order endorsed with a penal notice as required for contempt proceedings.
- 2 Whether there is sufficient proof that the respondents breached the court order issued by the lower court.
Ratio Decidendi
The court found that the affidavit of service provided by the applicant was incomplete and lacked necessary annexures to prove what was served and whether it contained the penal notice. There was no clear or satisfactory proof that the respondents were personally served with the court order as required by law. Furthermore, the order alleged to have been breached was directed specifically at the 3rd respondent, and there was no evidence showing how the 1st and 2nd respondents breached the order. As the mandatory requirements for establishing contempt were not met, the application was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Misc Application 464 of 2005
MONICA WAITHERA MUNYUA ……………………..………….. APPLICANT
VERSUS
JOSHUA SORORA ………………...………………….…….. 1ST RESPONDENT
JULIUS OLE NTAYIA …………………..…………….…… 2ND RESPONDENT
OLKEJUADO COUNTY COUNCIL ………………..……. 3RD RESPONDENT
RULING
In this application dated 26th July, 2005, and made under Section 5 (1) of the Judicature Act, Cap 8, the Applicant seeks that the first two respondents, and Mr A M Leima (Clerk to the 3rd Respondent) be committed to prison for contempt of the orders of the lower court issued on 7th February, 2005 in PMCC No. 259 of 2004 at Kajiado.
Annexed to the Supporting Affidavit, as part of the bundle of documents marked MWM 11 is an Order of the lower court said to have been breached by the Respondents.
The Respondents, in their replying affidavit, say they have not been served with the Order. Indeed they argue that personal service, in contempt proceedings, is fundamental, and have cited the case ofMwangi H. C. Wang’ondu vs Nairobi City Commission (C A 95 of 1988, Nairobi).
The Applicant, in her supporting affidavit, says that the respondents have been served, and has annexed an “affidavit of service” sworn by John Macharia Muraguri on 27th July, 2005. I have examined this affidavit of service, and find that it is incomplete in that the document served on which the 2nd and 3rd respondents “accepted service by stamping …” has not been annexed. The affidavit of service has no annextures, and this Court has no way of knowing what was served, and whether it contained the penal notice.
The requirement of personal service of the Court Order, indorsed with the penal notice, is mandatory (See Wang’ondu casesupra). It is very clear that Mr A M Leima was not served personally.
With respect to the other two respondents, this Court is not satisfied and there is no clear proof that they were served personally.
Secondly, the Order no. 1 alleged to have been breached requires the 3rd respondent – not the other two respondents, “to show the applicant plot no. 966 …”. This Court has not been shown how the first two respondents have breached the court order.
Accordingly, and for reasons cited, this application is dismissed with costs to the respondent.
Dated and delivered at Nairobi this 3rd day of November, 2005.
ALNASHIR VISRAM
JUDGE