[2004] KEHC 1076 (KLR)
The court held that the requirement for personal service of the application for contempt, including the notice of motion, supporting affidavit, and statement, on the alleged contemnor is mandatory under Order 52 Rule 3(3) of the English Supreme Court Practice Rules. Service on the contemnor's advocates does not...
Source-derived case information.
- Citation
- [2004] KEHC 1076 (KLR)
- Parties
- Applicant: Swaleh Salim Hadi; Respondent: The Resident Magistrate (G.N. Katasi); Defendant: Awiti Bolo (Hezron Awiti Bolo)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 187 of 1998
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Contempt of Court
- Outcome
- application struck out with costs to the respondent
- Legal Topics
- Judicial Review, Contempt of Court, Personal Service, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Swaleh Salim Hadi
Applicant
The Resident Magistrate (G.N. Katasi)
Respondent
Awiti Bolo (Hezron Awiti Bolo)
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Contempt of Court
Legal Issues
- 1 Whether the application for contempt of court is incompetent for failure to personally serve the alleged contemnor as required by procedural rules.
- 2 Whether service on the contemnor's advocates satisfies the mandatory requirement for personal service in contempt proceedings.
Ratio Decidendi
The court held that the requirement for personal service of the application for contempt, including the notice of motion, supporting affidavit, and statement, on the alleged contemnor is mandatory under Order 52 Rule 3(3) of the English Supreme Court Practice Rules. Service on the contemnor's advocates does not satisfy this requirement. The penal consequences of contempt proceedings demand strict compliance with procedural rules. Since the applicant failed to personally serve the alleged contemnor and instead served the documents on his advocates, the application was fatally defective and incompetent. The court therefore struck out the application with costs to the respondent.
Court Disposition
application struck out with costs to the respondent
Orders
- The application for contempt of court is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISCELLANEOUS CASE NO. 187 OF 1998
IN THE MATTER OF: ORDER LIII RULES 1 CIVIL PROCEDURE
RULES
A N D
IN THE MATTER OF: AN APPLICATION BY SWALEH SALIM
HADI FOR LEAVE TO APPLY FOR JUDICIAL
REVIEW
A N D
IN THE MATTER OF: CRIMINAL CASE NO. 418 OF 1998
(MUNICIPAL COURT) OF THE RESIDENT
MAGISTRATE’S COURT AT MOMBASA
(REPUBLIC VS AWITI BOLO)
B E T W E E N
THE REPUBLIC
- Versus -
THE RESIDENT MAGISTRATE
(G.N. KATASI) …………………………….. ……………………… RESPONDENT
- Versus -
AWITI BOLO ……………………………………………… INTERESTED PARTY
EX-PARTE
SWALEH SALIM HADI ……………………………………………. APPLICANT
R U L I N G
By his application by way of Notice of Motion dated the 13th February 1998, the Ex-parte Applicant, Swaleh Salim Hadi seeks to have the interested party, Awiti Bolo also known as Hezron Awiti Bolo, cited for contempt of court. It is alleged that he disobeyed the order of this court given in HCMisc. App. No. 206 of 1998 on the 30th October 1998 by demolishing the premises occupied by the Applicant on the 14th November 1998, 5th December 1998 and 18th December 1998.
The Application is strenuously opposed. One of the issues raised by Mr. Asige, counsel for the alleged contemnor, is that the application is incompetent for failure by the Applicant to personally serve the alleged contemnor with copies of the application for leave together with the supporting affidavit as well as the statement as required by Rule 3(3) of Order 52 of the English Supreme Court Practice Rules. That rule provides that:-
“52/3(3) subject to paragraph (4), the notice of motion accompanied by a copy of the statement and affidavit in support of the application for leave under Rule 2, must be served personally on the person sought to be committed”
This provision is clearly mandatory. The documents must be served personally on the alleged contemnor. Mr. Njoroge, quite properly, conceded that they were not. Instead they were served upon M/s Asige Keverenge & Anyanzwa Advocates. InNyamodi Ochieng – Nyamogo & Another Vs Kenya Posts and Telecommunication Corporation, Civil Application No. NAI 264 of 1993 the Court of Appeal while dealing with the issue of service of the order alleged to have been disobeyed stated that service on counsel for the alleged contemnor was “a wasted effort”. In the same judgment the court stated:-
“The consequences of a finding of disobedience being penal, the party who calls upon the court to make such finding must show that he has himself strictly complied with the procedural requirements and his failure to so comply cannot be answered by merely saying that the other side was aware or ought to have been aware of what the order required him to do.”
In the circumstances the Applicant having failed to personally serve the Respondent with copies of the application for leave together with the supporting affidavit as well as the accompanying statement this application is incompetent and the same is hereby struck out with costs to the Respondent.
DATED and delivered this 2nd day of November, 2004.
D.K. Maraga
Ag. JUDGE