[2017] KEELC 1928 (KLR)
The court found that the supporting affidavit to the contempt application was sworn by June Koinange, who is not a party to the suit and did not annex any authority to swear the affidavit on behalf of the 5th Defendant/Applicant. As such, the affidavit was invalid and could not be relied upon. Without a valid...
Source-derived case information.
- Citation
- [2017] KEELC 1928 (KLR)
- Parties
- Plaintiff: Moses Kingati Wangari; Plaintiff: Michael Mwenda Manyara; Plaintiff: Joseph Musyoka Wambua; Defendant: Joseph Thugo Mwaura; Defendant: David Kiarie Waiya; Defendant: Silas Kinyanjui Kimemia; Defendant: Dinah Muthoni Mbugua; Defendant: David Gitau Mbuthia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 623 of 2009
- Procedural Posture
- Notice of Motion / Ruling on Contempt Application
- Outcome
- application dismissed
- Judges
- MM Gitumbi
- Legal Topics
- Contempt of Court, Affidavit Authority, Civil Jail, Court Orders, Society Representation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Kingati Wangari
Plaintiff
Michael Mwenda Manyara
Plaintiff
Joseph Musyoka Wambua
Plaintiff
Joseph Thugo Mwaura
Defendant
David Kiarie Waiya
Defendant
Silas Kinyanjui Kimemia
Defendant
Dinah Muthoni Mbugua
Defendant
David Gitau Mbuthia
Defendant
Procedural Posture
Notice of Motion / Ruling on Contempt Application
Legal Issues
- 1 Whether the supporting affidavit to the contempt application was valid and could be relied upon by the court.
- 2 Whether the plaintiffs were in contempt of the court's orders made on 4th November 2010.
Ratio Decidendi
The court found that the supporting affidavit to the contempt application was sworn by June Koinange, who is not a party to the suit and did not annex any authority to swear the affidavit on behalf of the 5th Defendant/Applicant. As such, the affidavit was invalid and could not be relied upon. Without a valid supporting affidavit, the application for contempt could not stand. The court therefore dismissed the application on this procedural ground, without addressing the substantive issue of whether the plaintiffs were in contempt of the court's orders.
Court Disposition
application dismissed
Orders
- The application dated 22nd February 2011 is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC. CASE NO. 623 OF 2009
MOSES KINGATI WANGARI
MICHAEL MWENDA MANYARA
JOSEPH MUSYOKA WAMBUA ………………….PLAINTIFFS
(Suing as The Secretary, Organizing Secretary &
Member on their own behalf and on behalf of
Githurai Mwihoti Settlement society)
VERSUS
JOSEPH THUGO MWAURA……..….……….1ST DEFENDANT
DAVID KIARIE WAIYA………………...……...2ND DEFENDANT
SILAS KINYANJUI KIMEMIA……….………..3RD DEFENDANT
DINAH MUTHONI MBUGUA……….…….....4TH DEFENDANT
DAVID GITAU MBUTHIA..……………………5TH DEFENDANT
RULING
Coming up before me for determination is the Notice of Motion dated 22nd February 2011 in which the 5th Defendant/Applicant seeks for orders that the Plaintiffs/Respondents namely Moses Kingati Wangari, Michael Mwenda Manyara and Joseph Musyoka Wambua be committed to civil jail for being in contempt of this court’s orders made on 4th November 2010 by Honourable Justice Mbogholi Msagha.
The Application is premised on the grounds appearing on its face together with the Supporting Affidavit of June Koinange, a daughter to the 4th Defendant and a sister to the 5th Defendant/Applicant. She averred that she has the 5th Defendant’s authority and permission to swear the Affidavit. She, however, did not annex that authority and she is not a party to this suit. It is clear to the court that the said June Koinange’s Supporting Affidavit cannot be relied on based on the fact that she not a party herein and has no authority to swear the same on behalf of the Applicant. On those grounds this Application must fail.
The Application is therefore dismissed. Costs shall be in the cause.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 1ST DAY OF SEPTEMBER 2017.
MARY GITUMBI
JUDGE