[2009] KEHC 2226 (KLR)
The court found that the order allegedly disobeyed was an ex-parte order granted in the absence of the respondents and, under Order XXXIX Rule 3(2), could only subsist for 14 days unless extended after an inter partes hearing or by consent. There was no evidence that the order was ever confirmed or extended, nor was...
Source-derived case information.
- Citation
- [2009] KEHC 2226 (KLR)
- Parties
- Applicant: Olivia Marigu; Respondent: Mwaniki Wamici; Respondent: Nyaga Nyaki; Respondent: Mwaniki Gichoni
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 22 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Committal for Contempt
- Outcome
- application dismissed with costs to the respondents
- Judges
- J Karanja
- Legal Topics
- Contempt of Court, Committal Proceedings, Ex Parte Orders, Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Olivia Marigu
Applicant
Mwaniki Wamici
Respondent
Nyaga Nyaki
Respondent
Mwaniki Gichoni
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Committal for Contempt
Legal Issues
- 1 Whether the respondents disobeyed a valid court order warranting committal for contempt.
- 2 Whether the ex-parte order was still in force at the time of the alleged contempt.
- 3 Whether the application for committal met the required standard of proof.
Ratio Decidendi
The court found that the order allegedly disobeyed was an ex-parte order granted in the absence of the respondents and, under Order XXXIX Rule 3(2), could only subsist for 14 days unless extended after an inter partes hearing or by consent. There was no evidence that the order was ever confirmed or extended, nor was the operative order annexed to the application for committal. The applicant failed to demonstrate that a valid and subsisting order was in place at the time of the alleged contempt, and did not meet the requisite standard of proof for committal proceedings. Consequently, the application for committal was dismissed as an abuse of the court process.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for committal for contempt is dismissed.
- The applicant shall pay costs to the respondents.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISCELLANEOUS CIVIL CASE 22 OF 2008
OLIVIA MARIGU…………………………......……………….APPLICANT
VERSUS
MWANIKI WAMICI……………….………………….1ST RESPONDENT
NYAGA NYAKI…….…………………………………2ND RESPONDENT
MWANIKI GICHONI…………………………………3RD RESPONDENT
RULING
The application before me is for committal to civil jail of the respondents for disobeying the courts orders. The court order said to have been disobeyed is actually not annexed to the notice of motion. That is a serious omission on the part of the applicants counsel. It should have been annexed along with the affidavit of service notwithstanding the fact that the same had been annexed during the application for leave. I have nonetheless considered the application along with the grounds on its face and the rival affidavits. I have also considered both counsel’s submissions in court. First and foremost, it must be appreciated that committal proceedings are serious proceedings. They are quasi-criminal proceedings as they can lead to deprivation of a person’s liberty. It is for that reason that the law requires that the burden of proof in the same be slightly higher than a balance of probability, though slightly below the onus of proof in criminal cases. That therefore imposes on the court the duty to ensure that the order said to have been disobeyed was a proper court order, and that the same was properly served personally on the purported contemnors. In this case, Mr Gitonga has submitted that the order in question was an Ex-parte order which was not supposed to last more than the mandatory 14 days. Although Miss Thungu for the applicant denied this, she did not tell the court when the order after the hearing of the application for injunction inter-parties was granted. A cursory look at the copy of the order annexed to the application for leave shows that same was heard “in absence of the respondent.)
Indeed, the said order reads.
“ That pending the hearing and determination of thisapplication, a temporary injunction is hereby issuedagainst the first, second and 3rd respondents…………”
This clearly supports Mr. Gitonga’s contention that the order was exparte. If the order was ever confirmed, then the confirmed order is what the applicant herein should have annexed to the application for leave. Mr Gitonga is right in the proposition of law that an ex-parte order under Order XXXIX Rule 3 (2) has a life of 14 days. There is no indication that the application was ever heard inter partes or that the order was extended by consent of both parties. Contempt proceedings do not lie in this matter. There is not even a prima facie case for contempt here let alone proof beyond a balance of probabilities. This application is clearly an abuse of the process of the court. The same is hereby dismissed with costs to the respondents.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 30th day of June 2009.
In presence of:-Mr. Kariithi for the Ms Thungu.
W. KARANJA
JUDGE
30/6/2009