[2014] KEHC 7130 (KLR)
The court found that although the applicants alleged and provided evidence of the respondents' defiance of a court order, the application for contempt was fatally defective due to non-compliance with mandatory procedural requirements. Specifically, the applicants failed to notify the Attorney General of the...
Source-derived case information.
- Citation
- [2014] KEHC 7130 (KLR)
- Parties
- Plaintiff: Paul Ndivo Ndambuki; Plaintiff: Job Muia Kitavi; Defendant: Wilson Mulota Sila; Defendant: John Kitavi Kioko; Defendant: Isaac Mwangangi Kioko
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 108 of 2010
- Procedural Posture
- Civil Suit / Ruling on Contempt Application
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Contempt of Court, Injunctive Orders, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Ndivo Ndambuki
Plaintiff
Job Muia Kitavi
Plaintiff
Wilson Mulota Sila
Defendant
John Kitavi Kioko
Defendant
Isaac Mwangangi Kioko
Defendant
Procedural Posture
Civil Suit / Ruling on Contempt Application
Legal Issues
- 1 Whether the respondents are in contempt of court for defying the injunctive order issued on 16/3/2011.
- 2 Whether the application for contempt was properly instituted in accordance with the law.
Ratio Decidendi
The court found that although the applicants alleged and provided evidence of the respondents' defiance of a court order, the application for contempt was fatally defective due to non-compliance with mandatory procedural requirements. Specifically, the applicants failed to notify the Attorney General of the intention to institute contempt proceedings, a substantive requirement given the quasi-criminal nature of such proceedings. The court held that this omission rendered the application incompetent and incapable of being entertained, regardless of the merits of the underlying allegations. Consequently, the application was dismissed for want of procedural compliance.
Court Disposition
application dismissed
Orders
- The application is dismissed for non-compliance with procedural requirements for contempt proceedings.
- No orders as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
No.194/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL SUIT NO. 108 OF 2010
PAUL NDIV0 NDAMBUKI.......................................1ST PLAINTIFF
JOB MUIA KITAVI .................................................2ND PLAINTIFF
VERSUS
WILSON MULOTA SILA....................................1ST DEFENDANT
JOHN KITAVI KIOKO.........................................2ND DEFENDANT
ISAAC MWANGANGI KIOKO............................3RD DEFENDANT
RULING
By way of Notice of Motion the Applicants/Plaintiffs have sought to move this court pursuant to the provisions of Section 1A and Bof the Civil Procedure Act and Order 40 rules 2 and 3of the Civil Procedure Rules; for an order that the respondents herein be committed to civil jail for a period of six (6) months for defying with impunity the order of injunction issued on 16/3/2011 accompanied by Penal Noticeon18/3/2011.
The application is premised on grounds that the court issued orders of injunction restraining the respondents from trespassing, encroaching or in any manner interfering with the plaintiff’s use, enjoyment and quiet possession of the suit land; the Court Orders and Penal Notice were served upon the respondents and they have defied the court order with impunity and have sold the suit land to unsuspecting people who have fenced it off and blocked two (2) access roads leading to the homestead of the applicant. Therefore the respondents should be punished for contempt.
The application is supported by an affidavit sworn by the 1st applicant who reiterates what is stated in the grounds in support of the application; and an affidavit deponed by Phillip Mwoki who effected service of the court order on the defendants.
The application herein is brought pursuant to the Provisionsof Order 40 rule 2 and 3of the Civil Procedure Rules. Breach of an injunctive Order is punishable by imprisonment. This court derives the jurisdiction to punish for contempt from statute. Section 5 of the Judicature Act provides thus:-
“(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.
(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court”.
The procedure of instituting an application for contempt in England is provided for under Order 52 of theSupremeCourt Practise Rules. Which state thus:
“... 2(1) No application... for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with the rule.
2. An application for such leave must be made exparte to... court... and must be supported by a statement setting out the name and description of the applicant, the name description and address of the person sought to be committed and the grounds on which his committal is sought, and an affidavit, to be filed before the application is made, verifying the facts relied on”.
3) The applicant must give notice of the application for leave not later than the preceding day to the crow office and must at the same time lodge in that office copies of the statement and affidavit”.
It is imperative for the Attorney General to be notified of the proceedings because the proceedings are quasi- criminal in nature. The contemnor has to be incarcerated by the State if the order is granted. Therefore failure to notify the Attorney General of the intention to institute proceedings is a matter of substance that cannot be overlooked (see John Mugo Gachuki versus New Nyamakima Co. Ltd Civil Case No. 456of2011).
The applicant herein failed to comply with the law hence the application is incompetent. Being unmerited, it is dismissed with no orders as to costs.
DATED, SIGNED and DELIVERED at MACHAKOS this 12TH day of FEBRUARY 2014
L.N. MUTENDE
JUDGE