[2008] KEHC 2731 (KLR)
The application for contempt fails because, although the Respondent was served with the handwritten court order, the penal notice was not served until after the alleged contempt had occurred. At the time of the alleged contempt, the Respondent had not been duly served with the penal notice, a mandatory requirement...
Source-derived case information.
- Citation
- [2008] KEHC 2731 (KLR)
- Parties
- Applicant: Njoroge s/o George Gakima (also known as William Njoroge Kariuki); Respondent: Esther Wanjiku Kinyanjui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 76 of 2007
- Procedural Posture
- Contempt Application / Ruling
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Contempt of Court, Personal Service, Penal Notice Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njoroge s/o George Gakima (also known as William Njoroge Kariuki)
Applicant
Esther Wanjiku Kinyanjui
Respondent
Procedural Posture
Contempt Application / Ruling
Legal Issues
- 1 Whether the Respondent was personally served with the court order and penal notice as required for contempt proceedings.
- 2 Whether the Respondent was in contempt of the court order of 7th December, 2006 by virtue of the demolition of the Applicant's dwelling.
- 3 Whether the execution of the lower court's eviction order by the police constituted contempt by the Respondent.
Ratio Decidendi
The application for contempt fails because, although the Respondent was served with the handwritten court order, the penal notice was not served until after the alleged contempt had occurred. At the time of the alleged contempt, the Respondent had not been duly served with the penal notice, a mandatory requirement for contempt proceedings. Furthermore, the act complained of—the demolition of the Applicant's dwelling—was executed by the police pursuant to a lower court order directed at the Officer Commanding Kikuyu Police Station, not the Respondent. The High Court order merely required maintenance of the status quo and did not specifically stay the execution of the lower court's order....
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for contempt is dismissed.
- Costs awarded to the Respondent.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE MATTER OF AN APPLICATION FOR AN ORDER OF CONTEMPT OF COURT
AND
IN THE MATTER OF SECTION 5 OF THE JUDICATURE ACT,
CAP. 8 OF THE LAWS OF KENYA
BETWEEN
NJOROGE S/O GEORGEGAKIMA
(ALSO KNOWNAS WILLIAM NJOROGEKARIUKI)...........................APPLICANT
AND
ESTHER WANJIKUKINYANJUI .......................................................RESPONDENT
AND
IN THE MATTER OF CIVIL APPEAL NO. 841 OF 2006 BETWEEN THE SAME PARTIES
R U L I N G
The Applicant herein has applied for committal of the Respondent to prison for alleged contempt of the order of the court made on 7th December, 2006 (Kariuki, J) in Nairobi High Court Civil Appeal No 841 of 2006. It is alleged that the Respondent disobeyed the said order by demolishing the Applicant’s dwelling in the suit land pursuant to an order issued by the Principal Magistrate’s Court, Kikuyu in Miscellaneous Civil Application No. 6 of 2006. It is the Applicant’s case that the Respondent was personally served with a copy of the hand-written order of the court on 8th December, 2006. It is his further case that the requisite penal notice was also duly served.
The Respondent has pleaded that she was never personally served with the order of 7th December, 2006 or penal notice. In any case, she further pleads, she was never in disobedience of the court order because the demolition of the Applicant’s dwelling was done by the police to whom the order of the lower court was directed.
I have considered the submissions of the learned counsel for the Applicant and those of the Respondent who was unrepresented. It is now trite law that for an application for committal of anyone to prison for contempt of court to succeed, there must have been personalservice upon him of the order in question as well as a penal notice. See for instance the case of LOISE MARGARET WAWERU –Vs- STEPHEN NJUGUNA GITHURI, Court of Appeal at Nairobi, Civil Appeal No. 198 of 1998 (unreported). The Court of Appeal stated in that case that the validity of proceedings for contempt depends on personal service of the order in question and penal notice.
I accept that the Respondent was duly served with the handwritten copy of the order of 7th December, 2006. But the penal notice was not served until 24th January, 2007. See the affidavit of service of DANIEL JUMA ALIWA sworn on 9th February, 2007 annexed at paragraph 21 of the supporting affidavit. That was long after the alleged contempt on 9th December, 2006. So, at the time of the alleged contempt, the Respondent had not been duly served with penal notice. Upon that basis alone this present application cannot succeed.
It is also apparent that the act of 9th December, 2006 which the Applicant alleges constitutes contempt on the part of the Respondent of the order of the court of 7th December, 2006 was in fact the execution by the police of the order of the lower court for eviction of the Applicant from the suit land. The order of the lower court specifically stated that the eviction should be carried out by the Officer Commanding Kikuyu Police Station. The order of 7th December, 2006 merely stated that parties should maintain the status quo; it did not specifically stay execution of the order of the lower court. Had it done so, and had that order and a penal notice been duly served upon the Officer Commanding Kikuyu Police Station, that police officer would have been the one in contempt of the order, not the Respondent, as the execution of the order of the lower court was carried out by him and not by the Respondent.
For the above reasons this application must be refused. It is hereby dismissed with costs to the Respondent. It is so ordered.
DATED AT NAIROBI THIS 20TH DAY OF FEBRUARY, 2008
H. P. G. WAWERU
J U D G E
DELIVERED THIS 22nd DAY OF FEBRUARY, 2008