[2011] KEHC 4267 (KLR)
The court held that it would be inappropriate to proceed with contempt proceedings against the Town Clerk until the effective date of the court order is clarified. The ambiguity as to whether the order took effect upon issuance or upon service creates a genuine dilemma for the Town Clerk, and proceeding with...
Source-derived case information.
- Citation
- [2011] KEHC 4267 (KLR)
- Parties
- Applicant: Republic; Respondent: Hon. Musalia Mudavadi; Respondent: Town Clerk, Malindi; Applicant: Ibrahim Abdi Athman; Respondent: Mr. Mrima (for interested party)
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 2 of 2011
- Procedural Posture
- Judicial Review Miscellaneous Application / Ruling on Procedural Directions and Contempt Proceedings
- Outcome
- Contempt proceedings halted pending clarification; application to be heard on scheduled date.
- Judges
- DO Ohungo
- Legal Topics
- Judicial Review, Contempt of Court, Effect of Court Orders, Gazettement and Degazettement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Hon. Musalia Mudavadi
Respondent
Town Clerk, Malindi
Respondent
Ibrahim Abdi Athman
Applicant
Mr. Mrima (for interested party)
Respondent
Procedural Posture
Judicial Review Miscellaneous Application / Ruling on Procedural Directions and Contempt Proceedings
Legal Issues
- 1 When does a court order take effect for purposes of compliance and contempt proceedings.
- 2 Whether contempt proceedings can proceed before clarifying the effective date of the court order.
- 3 Whether the application dated 16th March 2011 addresses both the contempt and swearing-in issues.
Ratio Decidendi
The court held that it would be inappropriate to proceed with contempt proceedings against the Town Clerk until the effective date of the court order is clarified. The ambiguity as to whether the order took effect upon issuance or upon service creates a genuine dilemma for the Town Clerk, and proceeding with contempt in such circumstances would be unjust. The court further directed that the application dated 16th March 2011, which addresses both the contempt and the swearing-in of the interested party, be served and heard on the next scheduled date. The court's interpretation of the order's effect, after hearing all parties, will resolve the outstanding issues.
Court Disposition
Contempt proceedings halted pending clarification; application to be heard on scheduled date.
Orders
- The application dated 16th March 2011 to be served on Mr. Mrima and heard on 29th March 2011.
- Contempt proceedings are stayed until the court clarifies the effective date of the order.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
JUDICIAL REVIEW MISC. APPLICATION NO. 2 OF 2011
IN THE MATTER OF:APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW, ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION
AND
IN THE MATTER OF:THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF:THE NOTICE OF REVOCATION OF NOMINATION DATED 12TH JANUARY, 2011 ISSUED BY HON. MUSALIA MUDAVADI D.P.M. AND MINISTER FOR LOCAL GOVERNMENT
BETWEEN
REPUBLIC ……………………………………………………….….APPLICANT
VERSUS
HON. MUSALIA MUDAVADI ………………..……..………1ST RESPONDENT
TOWN CLERK, MALINDI ………………………………… 2ND RESPONDENT
AND
IBRAHIM ABDI ATHMAN …………………………..EX-PARTE APPLICANT
RULING
I appreciate the difficulty the Town clerk must be having regarding the order – is it deemed to take effect the moment the Hon. Judge issued it or did it only take effect once service was effected. This is what placed the Town clerk between the rock and a hard place, and of course depending on which camp benefits by the two interpretations, the Town Clerk is unable to move.
It then becomes difficult to first deal with the contempt proceedings because I detect from what is presented in this agreements that the clerk’s defence is “I have not refused to effect the orders, but clarify when they take effect.”
If they took effect only when service was effected then it would mean they were overtaken by events because the Minister had already published the notice of de-gazettement, if they took effect the moment the Honourable Judge’s order was delivered, then it means he ought to act but before that matter is clarified then the contempt proceedings must halt.
Related to this is the other matter involving the interested party who is represented by Mr. Mrima and who has sought to be sworn in – still on account of the same gazette notice – my view is that the application filed by Mr. Kibaara’s client on 16th March 2011 will take care of both interests. I direct that the same be served on Mr. Mrima, and since the matter had been set for mention on 24th March 2011 for parties to file written submissions, then the application dated 16th March 2011 be heard on that day. An interpretation by the court as to the effect of that order, once arguments by all Counsel involved have been made, will certainly take care of the issue regarding contempt and the issue regarding swearing in of the interested party.
H. A. Omondi
JUDGE
17-03-11
Mr. Kibaara- we are urging court to list it for 29th March 2011 when I had two other matters.
H. A. Omondi
JUDGE
17-03-11
Mr. Binyenye – I agree
H. A. Omondi
JUDGE
17-03-11
COURT – listed for mention on 29-3-11. Taken out of causelist from 23-3-11 and notice is that effect be served on Mr. Mrima so that he attends court on 29-3-11.
A typed copy of the ruling be made available to all counsel upon payment of relevant court fees.
Delivered and dated this 17th day of March 2011 at Malindi.
H. A. Omondi
JUDGE