[2009] KEHC 3312 (KLR)
The court found that there was a material contradiction between the affidavit in support of the application, which claimed service of the order on 4th December 2007, and the affidavit of service, which stated service was effected on 7th December 2007. This inconsistency created doubt as to whether the defendant was...
Source-derived case information.
- Citation
- [2009] KEHC 3312 (KLR)
- Parties
- Plaintiff: Peter K. Yego; Plaintiff: Musa Boit; Plaintiff: Michael Kipruto t/a Airnoptich Borehole Water Project; Defendant: Pauline Nekesa Kode
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 194 of 2004
- Procedural Posture
- Civil Case / Ruling on Contempt Application
- Outcome
- application dismissed with costs
- Legal Topics
- Contempt of Court, Service of Process, Injunction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter K. Yego
Plaintiff
Musa Boit
Plaintiff
Michael Kipruto t/a Airnoptich Borehole Water Project
Plaintiff
Pauline Nekesa Kode
Defendant
Procedural Posture
Civil Case / Ruling on Contempt Application
Legal Issues
- 1 Whether the defendant was properly served with the court order alleged to have been disobeyed.
- 2 Whether the defendant is in contempt of court for disobeying the injunction order.
Ratio Decidendi
The court found that there was a material contradiction between the affidavit in support of the application, which claimed service of the order on 4th December 2007, and the affidavit of service, which stated service was effected on 7th December 2007. This inconsistency created doubt as to whether the defendant was ever properly served with the court order. Since service is a fundamental element that must be strictly proved in contempt proceedings, and the evidence before the court was unclear and contradictory, the court held that the plaintiffs had failed to establish the necessary elements for contempt. Consequently, the application for contempt was dismissed for lack of proof of service.
Court Disposition
application dismissed with costs
Orders
- The application for contempt is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAKURU
CIVIL CASE 194 OF 2004
PETER K. YEGO……………………….………1ST PLAINTIFF
MUSA BOIT……………………………...….….2ND PLAINTIFF
MICHAEL KIPRUTO…………………....……..3RD PLAINTIFF
MICHAEL KIPRUTO T/A AIRNOPTICH
BOREHOLE WATER PROJECT……………….3RD PLAINTIFF
VERSUS
PAULINE NEKESA KODE………................….….DEFENDANT
RULING
By their notice of motion dated 27th May 2008, the plaintiffs seek under Order 39 Rule 2A(2) of the Civil Procedure Rules and Section 5 of the Judicature Act to cite the defendant for contempt of court. What the defendant is alleged to have disobeyed is the order of temporary injunction granted by this court on 13th May 2005 which restrained her, her servants or agents from subdividing, disposing off, constructing on, cultivating or cutting trees on the suit piece of land known as Title No. Miti Mingi/Mbaruk/3/505 [Baruti].
It is alleged in the affidavit in support of the application that the defendant was served with a copy of that order on 4th December 2007.
The application is opposed on the ground that the defendant was never served with the order. Mr. Okeke for the defendant submitted that the affidavit of service if obviously false as the defendant is an old illiterate woman who does not know how to write. The question of her having refused to sign does not therefore arise. He also pointed out that the affidavit in support of this application contradicts the one of service on the date of the alleged service.
I have considered these submissions and read the record. As contempt of court is criminal, it must be proved that one has actually disobeyed the court order before one is cited for contempt. One of the most important elements to be proved in such a charge is service of the order upon the alleged contemnor. In this case the affidavit in support of the application claims that the defendant was served on 4th December 2007 while the affidavit of service says the service was effected on 7th December 2007. It is therefore not clear when, if at all, the defendant was served with the order she is alleged to have flouted. In the circumstances I find no basis for this application and I dismiss it with costs.
DATED and delivered this 27th May 2009.
D. K. M ARAGA
JUDGE.