[2011] KEHC 4112 (KLR)
The court found that the applicant failed to provide sufficient evidence to prove that the respondent was in contempt of the court order restraining construction on the suit property. The applicant's affidavit relied on unspecified information and photographs that only showed the state of the property as at the time...
Source-derived case information.
- Citation
- [2011] KEHC 4112 (KLR)
- Parties
- Applicant: Raphael Ngugi Githuku; Respondent: David Thuo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 33 of 2008
- Procedural Posture
- Civil Suit / Ruling on Contempt Application
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Contempt of Court, Interlocutory Injunctions, Construction Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Ngugi Githuku
Applicant
David Thuo
Respondent
Procedural Posture
Civil Suit / Ruling on Contempt Application
Legal Issues
- 1 Whether the respondent is in contempt of the court order restraining construction on the suit property.
- 2 Whether sufficient evidence has been provided to prove contempt of court by the respondent.
Ratio Decidendi
The court found that the applicant failed to provide sufficient evidence to prove that the respondent was in contempt of the court order restraining construction on the suit property. The applicant's affidavit relied on unspecified information and photographs that only showed the state of the property as at the time the suit was filed, not evidence of ongoing construction after the order. The court emphasized that contempt must be established by clear and credible evidence, which was lacking in this case. Consequently, the application for committal for contempt was dismissed for want of merit.
Court Disposition
application dismissed with costs
Orders
- The application dated 22nd October, 2010 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT (ELC) NO.33 OF 2008
RAPHAEL NGUGI GITHUKU…………PLAINTIFF/APPLICANT
VERSUS
DAVID THUO……………………….DEFENDANT/RESPONDENT
R U L I N G
1. By a notice of motion dated 22nd October, 2010, Raphael Ngugi Githuku, who is the plaintiff in this suit (hereinafter referred to as the applicant), seeks to have the defendant David Thuo, (hereinafter referred to as the respondent), committed to civil jail for contempt of court orders made on 5th May, 2008. The applicant swears that contrary to the consent order made by Osiemo J. on 5th May, 2008, that no construction shall be undertaken on the suit properties pending the hearing and determination of the plaintiff’s suit, the respondent is continuing with construction on the suit property. The applicant contends that the respondent is aware of the court order, having been served with the order and the penal notice on 21st October, 2010.
2. The respondent objects to the application. He swears that since the order in the suit property was made, he has not carried out any construction on the suit property. He therefore denies being in contempt of the court order.
3. I have considered the application before me. Although the applicant contends that the respondent is in contempt of the court orders, no evidence has been tendered in support of this allegation. In his affidavit the applicant refers to “information he has received”. However, the applicant has not revealed the source of that information. The copies of photographs annexed to the applicant’s affidavit, shows that there have been trenches dug on the premises for a foundation. That however appears to have been the position on 7th February, 2008 when the applicant filed this suit as paragraph 7 and 8 of the plaint makes reference to the foundation trenches which were being dug on the suit property. Therefore, I find no evidence that the respondent has continued with any further construction.
4. In the circumstances, I find no merit in this application and do therefore dismiss it with costs.
Dated and delivered this 4th day of February, 2011
H. M. OKWENGU
JUDGE
In the presence of: -
J.K. Gachie for the plaintiff/applicant
Ndegwa H/B for the defendant/defendant
B. Kosgei - Court clerk