[2014] KEHC 7808 (KLR)
The court found that the Town Clerk and the City Council of Nairobi, against whom the committal order was sought, no longer exist. Although the applicant amended the name of the respondent in the application, he failed to amend the prayers to reflect the correct and existing office or entity. As a result, any order...
Source-derived case information.
- Citation
- [2014] KEHC 7808 (KLR)
- Parties
- Applicant: Republic; Respondent: Interim County Secretary; Applicant: Charles Malenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 540 of 2006
- Procedural Posture
- Judicial Review / Ruling on Amended Notice of Motion for Committal for Contempt
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Mandamus Orders, Contempt of Court, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Interim County Secretary
Respondent
Charles Malenya
Applicant
Procedural Posture
Judicial Review / Ruling on Amended Notice of Motion for Committal for Contempt
Legal Issues
- 1 Whether the Town Clerk of Nairobi City Council can be committed for contempt for disobeying a court order when the office and entity no longer exist.
- 2 Whether the amended application properly identifies the respondent against whom the order can be executed.
Ratio Decidendi
The court found that the Town Clerk and the City Council of Nairobi, against whom the committal order was sought, no longer exist. Although the applicant amended the name of the respondent in the application, he failed to amend the prayers to reflect the correct and existing office or entity. As a result, any order issued would be incapable of execution. The court therefore dismissed the application, holding that it cannot grant orders against non-existent parties, and that proper parties must be named for effective enforcement of court orders.
Court Disposition
application dismissed
Orders
- The amended notice of motion dated 7th May, 2013 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR CASE NO 540 OF 2006
REPUBLIC....................................................................APPLICANT
VERSUS
INTERIM COUNTRY SECRETARY........................RESPONDENT
Ex-parte
CHARLES MALENYA
RULING
The applicant’s amended notice of motion dated 7th May, 2013 is brought pursuant to Section 5 of the Judicature Act (Cap. 8), Order 50 Rules 1 and 3 of the Civil Procedure Rules (CPR) and Order 52 (2) of the Supreme Court Practice 1988 Edition (sic). The initial application is dated 8th December, 2008 but it has been amended four times. In the amended application dated 7th May, 2013 the Interim County Secretary is named as the respondent.
Through the application, the applicant (Charles Malenya) prays for orders that:
“1. AN ORDER OF CERTIORARI be and is hereby issued committing the Town Clerk, Nairobi City Council, to civil jail for six months for disobeying this court’s Order of Mandamus issued on 13th day of February, 2007.
2. AN ORDER for cost of this Application.”
The application is supported by the ground that the Town Clerk has disobeyed the Court’s Order of Mandamus given on 13th February, 2007 and unless an order of committal is issued, the Town Clerk will continue disobeying the Court’s order.
The application is not opposed.
In submissions dated 30th December, 2013 and filed on 8th January, 2014 the applicant informs the Court that on 13th February, 2007 this Court (Wendoh, J) issued an order of mandamus directing the City Council of Nairobi to pay the applicant the sum of Kshs.699,557. 60 together with costs. So far the applicant has been paid Kshs.740,286. 90 but the outstanding amount of Kshs 104,240. 75 as at 31st January, 2012 has not been paid. That is why this application has been filed.
I have closely looked at the application and find that the order sought cannot be granted. The order is sought against the Town Clerk of the City Council of Nairobi. The Town Clerk and the City Council of Nairobi no longer exist. Any order issued cannot be executed. Whereas the applicant amended the name of the respondent, he failed to amend the prayers.
The amended notice of motion dated 7th May, 2013 is therefore dismissed with no order as to costs.
Dated, signed and delivered at Nairobi this 30th day of April, 2014
W. KORIR,
JUDGE OF THE HIGH COURT