[2015] KEHC 3514 (KLR)
The High Court held that it lacked jurisdiction to entertain the application for committal for contempt because the injunction order allegedly disobeyed was issued by the magistrate's court. Order 40 Rule 3(1) of the Civil Procedure Rules expressly provides that the court granting the injunction is the proper forum...
Source-derived case information.
- Citation
- [2015] KEHC 3514 (KLR)
- Parties
- Applicant: Ramadhani Salim; Respondent: Evans M. Maabi t/a Murphy Auctioneers; Respondent: Winfred Wanjiku Gaitho
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 123 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Committal for Contempt
- Outcome
- Application struck out for want of jurisdiction; costs awarded to the respondents.
- Judges
- MM Kasango
- Legal Topics
- Contempt of Court, Injunction Orders, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ramadhani Salim
Applicant
Evans M. Maabi t/a Murphy Auctioneers
Respondent
Winfred Wanjiku Gaitho
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Committal for Contempt
Legal Issues
- 1 Whether the High Court is the proper forum to hear an application for contempt of court arising from an injunction issued by a magistrate's court.
- 2 Whether the application for committal for contempt should be struck out for want of jurisdiction.
Ratio Decidendi
The High Court held that it lacked jurisdiction to entertain the application for committal for contempt because the injunction order allegedly disobeyed was issued by the magistrate's court. Order 40 Rule 3(1) of the Civil Procedure Rules expressly provides that the court granting the injunction is the proper forum to hear contempt proceedings for breach of its order. As such, the applicant's Notice of Motion was struck out for being filed in the wrong forum.
Court Disposition
Application struck out for want of jurisdiction; costs awarded to the respondents.
Orders
- The Notice of Motion dated 25th May 2015 is struck out.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC APPLICATION NO. 123 OF 2015
IN THE MATTER OF: AN APPLICATION BY THE APPLICANT AN ORDER OF
COMMITAL TO CIVIL JAIL FOR CONTEMPT OF COURT
AND
IN THE MATTER OF: CIVIL SUIT NO. 1198 OF 2014 RAMANDAHANI
SALIM VERSUS EVANS M.MAABI T/A MURPHY
AUCTIONEERS AND ANOTHER.
RAMADHANI SALIM……..………………………….....……………. APPLICANT
AND
EVANS M. MAABI t/a MURPHY AUCTIONEERS………….1ST RESPONDENT
WINFRED WANJIKU GAITHO……………………..………..2ND RESPONDENT
RULING
1. Although the applicant Ramadhan Salim seeks the court’s finding that the respondents Evans M. Maabi t/a Murphy auctioneers and Winfred Wanjiku Gaitho are in contempt of court, in this Ruling I will avoid going into the merits because I am of the view that the applicant is in the wrong forum. I will therefore strike out applicant Notice of Motion dated 25th May 2015.
2. Applicant seeks by that Notice of Motion a finding that the respondents have failed to obey an order of injunction made by magistrates court in Mombasa SRMCC No. 1198 of 2014. The order of injunction, as can be seen from applicant’s exhibit “RSK2,” was made under Order 40 of the Civil Procedure Rules. When an injunction is issued under Order 40 it is the court that issues that order that is competent to hear an application of contempt when there is a disobedience of the order. It is so provided in Order 40 Rule 3 (1), viz:
(1) In cases of disobedience, or of breach of any such terms the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release. (Emphasis mine)
3. Since the applicant by the terms of Order 40 Rule 3(1) is before the wrong forum I shall strike out the application.
4. In the end therefore I do hereby strike out the Notice of Motion dated 25th May 2015, for the reasons stated above, with costs of that application being awarded to the respondent.
DATED and DELIVERED at MOMBASA this 30TH day of JULY, 2015.
MARY KASANGO
JUDGE
Coram
Before Justice Mary Kasango
C/A Kavuku
For Applicant:
For Respondent:
Court
Ruling delivered in their presence/absence in open court.
MARY KASANGO
JUDGE