[2003] KEHC 201 (KLR)
The court found that the applicant had properly served the relevant court orders and the application for committal on both the former and current Town Clerks of the Municipal Council of Mombasa. Despite being given an opportunity to purge the contempt, the Town Clerk failed to take any action to comply with the...
Source-derived case information.
- Citation
- [2003] KEHC 201 (KLR)
- Parties
- Applicant: Agnes Wairimu Waweru; Respondent: Municipal Council of Mombasa; Respondent: Land Registrar – Mombasa; Respondent: Ramadha Mohamed Mwamguno
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 327 of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Commence Contempt Proceedings
- Outcome
- Leave granted to the applicant to apply for committal for contempt of court.
- Legal Topics
- Contempt of Court, Committal Proceedings, Service of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Wairimu Waweru
Applicant
Municipal Council of Mombasa
Respondent
Land Registrar – Mombasa
Respondent
Ramadha Mohamed Mwamguno
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Commence Contempt Proceedings
Legal Issues
- 1 Whether the applicant should be granted leave to apply for committal to prison for contempt of court against the Town Clerk of the Municipal Council of Mombasa.
- 2 Whether there was willful disobedience of valid court orders by the Town Clerk.
- 3 Whether proper service of the court order and application was effected on the Town Clerk.
Ratio Decidendi
The court found that the applicant had properly served the relevant court orders and the application for committal on both the former and current Town Clerks of the Municipal Council of Mombasa. Despite being given an opportunity to purge the contempt, the Town Clerk failed to take any action to comply with the court's orders. The court held that the requirements for granting leave to commence contempt proceedings had been satisfied, as there was evidence of willful disobedience of valid court orders and proper service had been effected. Accordingly, the court granted the applicant leave to apply for orders of committal to prison for contempt of court against the Town Clerk.
Court Disposition
Leave granted to the applicant to apply for committal for contempt of court.
Orders
- Leave is granted to the applicant to apply for orders of committal to prison for contempt of court against the Town Clerk of the Municipal Council of Mombasa.
- The Town Clerk is given an opportunity to purge the contempt before substantive proceedings are prosecuted.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
misc 327 of 2000
AGNES WAIRIMU WAWERU …….………………………. APPLICANT
- VERSUS -
1. MUNICIPAL COUNCIL OF MOMBASA
2. LAND REGISTGRAR – MOMBASA
3. RAMADHA MOHAMED MWAMGUNO ……..…… RESPONDENT
R U L I N G
The Application is brought under the Provisions of Section 5 of the Judicature Act, Order 52 rules 2 and 3 of the Supreme Court of England, order 50 and 39 rule 2A (2) of the Civil Procedure Rules and Sections 3, 3A and 63 of the Civil Procedure Act. It seeks the following orders at this stage:
“That this Honourable Court do grant leave to the Applicant to apply for orders of Committal to prison for contempt of Court and furthe r and/or other consequential orders as may seem just to the Court against the clerk to the Municipal Council, Mombasa for willfully and fragrantly disobeying the valid Court orders dated 20 th day of September, 2002 and issued on the 30 th September, 2002.
The Application first came up on 28th January, 2003 before Commissioner Khaminwa, as she then was and she ordered for the same to be served upon the Town Clerk. The same was served on 16. 4.2003. On record and filed on 13th May, 2003 is an Affidavit of Service sworn Joseph Mutinda a Court Process Server who depones that he had served the Town Clerk with a copy of the Court order on 12. 2.03 and the application herein on 16. 4.03. Since the said service was effected upon the then Town Clerk Mr. Karani, on the 12th May, 2003, the said process server served the order issued on 30th September, 2002 upon the new Town Clerk
Onesmus Mutua. The alleged contempt however as at the 14. 5.03 when the application herein came up for hearing, no attempt had been made to purge the same. Even though Mr. Mburu who is on record for the 1st Respondent(Municipal Council of Mombasa) was aware of the matter and present in court but could not participate at this stage. I would think the reason why the Court in the first instance ordered the service of the application upon the 1st Respondents Town Clerk, was to given them a chance to purge the contempt but they seem not to take such matters seriously. It is upon the said background that I grant the leave sought to apply for orders of Committal to prison for contempt of court. It is my sincere hope that the Town Clerk will wake up and take action before the said proceedings are prosecuted.
Dated and Delivered at Mombasa this 4th day of July, 2003.
P.M. TUTUI
COMMISSIONER OF ASSIZE