[2014] KEHC 4858 (KLR)
The court found that the 1st respondent was properly served with the court order and penal notice, as evidenced by the affidavit of service and the acknowledgment of receipt by an authorized officer. There was no dispute regarding service, and the 1st respondent failed to comply with the order requiring it to give...
Source-derived case information.
- Citation
- [2014] KEHC 4858 (KLR)
- Parties
- Applicant: The Republic; Respondent: County Council of Olekejuado; Respondent: Continental Intergrated Industries Ltd; Respondent: James Kagonia Warui; Applicant: National Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 5 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Contempt Application
- Outcome
- Application for contempt allowed; summons to issue for Town Clerk to show cause; costs to applicant.
- Judges
- LN Mutende
- Legal Topics
- Contempt of Court, Service of Court Orders, Judicial Review Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Republic
Applicant
County Council of Olekejuado
Respondent
Continental Intergrated Industries Ltd
Respondent
James Kagonia Warui
Respondent
National Bank of Kenya Ltd
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Contempt Application
Legal Issues
- 1 Whether the 1st respondent was properly served with the court order requiring consent for transfer of property.
- 2 Whether the 1st respondent is in contempt of court for failing to comply with the court order.
Ratio Decidendi
The court found that the 1st respondent was properly served with the court order and penal notice, as evidenced by the affidavit of service and the acknowledgment of receipt by an authorized officer. There was no dispute regarding service, and the 1st respondent failed to comply with the order requiring it to give consent for the transfer of the property. The 1st respondent did not file any response or appear to contest the application. The court held that the deliberate disobedience of the court order by the 1st respondent constituted contempt of court. Accordingly, the officer serving in the capacity of Town Clerk of the 1st respondent was ordered to appear before the court to show...
Court Disposition
Application for contempt allowed; summons to issue for Town Clerk to show cause; costs to applicant.
Orders
- Summons to issue for the officer serving as Town Clerk of the 1st respondent to appear before the court to show cause why he/she should not be committed to civil jail for six months for contempt of the court order dated 18th September, 2012.
- Costs of the application to be borne by the 1st respondent.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISCELLANEOUS (JR) NO. 5 OF 2012
THE REPUBLIC ...................................................................................APPLICANT
VERSUS
COUNTY COUNCIL OF OLEKEJUADO.......................................1ST RESPONDENT
CONTINENTAL INTERGRATED
INDUSTRIES LTD.....................................................................2ND RESPONDENT
JAMES KAGONIA WARUI ......................................................3RD RESPONDENT
AND
NATIONAL BANK OF KENYA LTD ……………………..EX-PARTE APPLICANT
R U L I N G
In an application dated 13th January, 2014 brought by way of Notice of Motion, the Ex-parte Applicant seeks the following orders;-
That the 1st respondent be cited for contempt of court for disobeying the Honourable court’s order made on 18th September, 2012
that the Town Clerk (or the official serving in equal capacity of County Council of Olkejuado, the 1st Respondent herein be committed and detained in civil Jail for a period not exceeding six(6) months for contempt of the orders of the Honourable court made on 18th September, 2012.
That the costs of this application and for obtaining leave be borne by the 1st respondent.
The application is premised on the following grounds:-
That the 1st respondent has failed/refused and or neglected to comply with the Orders of the Honourable Court of Certiorari, Prohibition and Mandamusmade on 18th September, 2012, which orders compelled the 1st respondent to give its consent for transfer of Title No. Ngong Township/Block II/284 to James Kagonia Warui, the 3rd Respondent herein.
That despite service of the order upon the 1st respondent together with Notice of Penal consequences, the 1st respondent has failed/neglected and/or refused to Honour the order to the detriment of the 3rd respondent who was the purchaser of the suit property and the applicant who was a chargee exercising its statutory powers of sale.
That there is no order of the Honourable Court that has been granted in favour of the 1st respondent to stay the orders made on 18th September, 2012,nor has any appeal been lodged by the 1st respondent against the said orders.
That the applicant made an application seeking leave to cite the 1st respondent for contempt, which leave was granted by the Honourable Court.
Further, it is supported by an affidavit deponed by Clifford Okello Rachuonyo.
Asike-Makhandia ,J (as he then was) granted orders of certiorari, prohibition and mandamusagainst the 1st respondent, compelling it to give consent for transfer of Title No. Ngong Township/Block/11/284 to the 3rd respondent.
The order with the Penal Notice was served upon the 1st respondent who has neglected and/or failed to comply with the order of the court.
Leave to institute contempt proceeding was granted by this court on the 9thday of December, 2013.
The 1st respondent on being served with the application instructed its advocate who appeared on the 20th day of May, 2014. He sought leave of the court to file a response to the application. Leave was duly granted. However, he neither filed a reply to the motion nor appeared in court on the date scheduled for hearing. The application was therefore unopposed.
Issues for determination are;-
Whether the 1st respondent was served with the order of the court.
Whether the purported contemnor is indeed in contempt of court.
An affidavit deponed by Haggai Ochieng Akellostates that he went to the office of the 1st respondent and effected service of the order upon the 1st respondent’s authorized officer who accepted service and even duly appended his signature on the copy of the document. This averment is not in dispute. Having acknowledged service at the office of the 1st respondent and being an authorized officer to receive the documents, service was proper.
It is not in dispute that the order made by the court requiring the 1st respondent to consent for transfer of the property in issue has not been complied with. It was stated in the case of Mwangi H.C. Wangondu versus Nairobi City Commission, Nairobi Civil Appeal No. 95 of 1998 that the threshold of proof required in a case of contempt of court is higher that the proof required in civil case. One can only be committed to jail or otherwise penalized if there is satisfactory evidence that leaves no doubt as to the contemnor’s guilt.
This is a case where it is not in dispute that the 1st respondent has deliberately disobeyed the court order. Consequently, I find the contemnor being in contempt of the court.
It is ordered that summons shall issue for the officer serving in the capacity of the Town Clerk, of the 1st Respondent to appear before this court to show cause why he/she should not be committed to civil jail for a period of six (6) months for contempt of the order of the court dated 18th September, 2012.
Costs of the application shall be borne by the 1st respondent.
Mention on the 30th June, 2014 for directions/further orders.
DATED, SIGNEDand DELIVERED at MACHAKOS this27THday of MAY, 2014.
L.N. MUTENDE
JUDGE