[2007] KEHC 155 (KLR)
The court found that the application for contempt was fatally defective because it was brought under the wrong provisions of the Civil Procedure Code, specifically Order 50 and Section 3A instead of Order 39 Rule 2A, which governs punishment for breach of injunctions. Additionally, the court was not satisfied that...
Source-derived case information.
- Citation
- [2007] KEHC 155 (KLR)
- Parties
- Plaintiff: Phedes Ciarunji Njeru; Defendant: Namu Kirungia; Defendant: Kariuki Nyaga Kirungia
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 51 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Contempt Application
- Outcome
- application dismissed with costs to respondent
- Legal Topics
- Contempt of Court, Interlocutory Injunctions, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phedes Ciarunji Njeru
Plaintiff
Namu Kirungia
Defendant
Kariuki Nyaga Kirungia
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Contempt Application
Legal Issues
- 1 Whether the application for contempt was properly brought under the correct provisions of law.
- 2 Whether there was sufficient proof of service of the court order on the alleged contemnor.
- 3 Whether the breach of the interlocutory injunction was established to the required standard.
Ratio Decidendi
The court found that the application for contempt was fatally defective because it was brought under the wrong provisions of the Civil Procedure Code, specifically Order 50 and Section 3A instead of Order 39 Rule 2A, which governs punishment for breach of injunctions. Additionally, the court was not satisfied that proper service of the court order was effected on the alleged contemnor, as the affidavit of service indicated the order was signed for by the contemnor's brother, not the contemnor himself. Given the seriousness of committal to civil jail and the lack of clear evidence of service and breach, the court held that the application was not proved to the required standard and...
Court Disposition
application dismissed with costs to respondent
Orders
- The application for contempt is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Misc Civ Appli 51 of 2007
PHEDES CIARUNJI NJERU………………………………….PLAINTIFF
VERSUS
NAMU KIRUNGIA…………………………….………..1ST DEFENDANT
KARIUKI NYAGA KIRUNGIA………………....……….2ND DEFENDANT
RULING
The proceedings for contempt are brought under Order 50 and Section 3A of CPC. It is alleged that an interlocutory injunction has been breached. The correct provision for punishment for breach is contained in Order 39 Rule 2 A. The omission of invoking correct orders is fatal to this application. I am referred to HCC No. 28/2001 High Court decision which I agree with. Also authority of Law Society of Kenya Journal at page 57 dealing with Civil contempt has been cited by Respondent. There are issues also as to whether service of order was effected. The affidavit of service is not clear as whether the alleged contemnor -ever saw the order as it was signed for by his brother. All in all committal to civil jail is a serious matter curtailing the liberty of a person. I am not satisfied that the application has been proved.
I therefore dismiss the application with costs to Respondent.
Dated this 31st October, 2007.
J. N. KHAMINWA
JUDGE