[2008] KEHC 839 (KLR)
The court held that the application for contempt must fail because the applicant did not obtain leave of court before instituting contempt proceedings, as required by the applicable procedural rules. The court relied on established case law and the Judicature Act, which mandate that leave must be sought ex parte...
Source-derived case information.
- Citation
- [2008] KEHC 839 (KLR)
- Parties
- Plaintiff: Peter Kinyua Ngacha; Defendant: James Wachira Munene
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 72 of 2007
- Procedural Posture
- Civil Case / Ruling on Contempt Application
- Outcome
- application dismissed
- Legal Topics
- Contempt of Court, Injunctions, Procedure for Contempt, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kinyua Ngacha
Plaintiff
James Wachira Munene
Defendant
Procedural Posture
Civil Case / Ruling on Contempt Application
Legal Issues
- 1 Whether leave of court is required before instituting contempt proceedings for breach of injunction.
- 2 Whether the defendant was in contempt of court for disobeying an injunction order.
Ratio Decidendi
The court held that the application for contempt must fail because the applicant did not obtain leave of court before instituting contempt proceedings, as required by the applicable procedural rules. The court relied on established case law and the Judicature Act, which mandate that leave must be sought ex parte before filing a substantive contempt application for disobedience of a court order not committed in the face of the court. The judge further noted that while there may be conflicting decisions on the procedure, the prevailing legal position is that leave is a necessary prerequisite. As such, the failure to comply with this procedural requirement was fatal to the application,...
Court Disposition
application dismissed
Orders
- The application for contempt is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 72 of 2007
PETER KINYUA NGACHA ………...……………………… PLAINTIFF
VERSUS
JAMES WACHIRA MUNENE ………………………….. DEFENDANT
RULING
CONTEMPT PROCEEDINGSAPPLICATION OF 25TH JUNE 2008
I: Background
1. This is an application for contempt proceeding.
2. A brief background is that the defendant/respondent herein had been given access to pluck the and sell the same by his late father.
3. The reason his father did this was that he was unable to look after himself. He requested the respondent to do this. It is alleged that he failed to do this but collected earning from the tea proceeds without supporting his father.
4. His father allegedly sold the land and left the defendant respondent without ownership.
5. The purchaser and plaintiff herein filed suit to restrain the defendant/respondent from claiming and or plucking the tea in question.
6. This court duly granted orders of injunction against the defendant and in favour of the plaintiff on 9 May 2007. The defendant is alleged to have continued with his destruction of plucking the tea.
7. It was then that the applicant filed the application dated 25th June 2008 for contempt.
II: Procedure
8. During the inter party hearing the applicant informed the court that the destruction is still continuing of tea plucking by the defendant. The advocate for the defendant argued that the procedure to come to court was irregular. One has to first seek the leave of the court before applying for contempt proceedings.
9. In this matter no leave was made on the application to the court. The case law of:
Andalo & Another
V
James Gleen Russel Ltd
(1990) KLR 54 Aluoch, J.
Where it was held inter alia that procedure to come to court is under Order 52 rule 2 of the rules of the Supreme Court that requires an application for an order of committal that requires leave. Orders of contempt would take the form of prerogative orders.
In a second case of:
Awadh v Marumbu
(2004) I KLR 454, Sergon J.
Where in that case also leave was required to be sought in an exparte application before contempt proceeding was raised.
10. The position of this case is that no leave was sought. The arguments put by R.M. Mutiso was that there are conflicting decision on how the contempt proceeding is to be done. To some extent he is correct. If a wrong is committed before the court the judge or magistrate can punish immediately for contempt. If it is done not in the presence of the court a penal notice must issue and service of the order not to be discharged is therefore given to the person being restrained and whom such party must be party to the case before any decision is cited.
11. I further note from the authorities before me that the High Court in Kenya would adopt the Supreme Court rules of Kenya by virtue of section 5 of the Judicature Act. The court has powers to punish for disobedience of an injunction.
12. I therefore note that leave has to be obtained in the case of disobedience.
Conclusion.
13. In this case I hereby find that this application must fail and be accordingly dismissed.
14. I bring to the defendant respondent the terms of the injunction which terms I expect he must obey.
15. I make no orders as to costs.
DATED THIS 25TH DAY OF SEPTEMBER 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
R.M. Mutiso instructed by r.M. Mutiso & Co. Advocates for the plaintiff – present
K. Kahigah instructed by Kahigah & Co. Advocates for the defendant - present