[2013] KEHC 2819 (KLR)
The court found that the affidavit of service was unsatisfactory as it did not specifically name the persons served, nor did it provide sufficient detail to establish that the respondents were personally served with the court order as required by law. The process server's assertion of personal knowledge of the...
Source-derived case information.
- Citation
- [2013] KEHC 2819 (KLR)
- Parties
- Applicant: Sammy Kiilu Musaki; Applicant: Jackson Mutuku Kavoi; Respondent: Mwisho Mutunga; Respondent: Muema Mutunga; Respondent: Masyula Mutunga; Respondent: Mwikuyu Mutunga alias Mwai Mutunga; Respondent: Rose Kaluu Mutunga
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 37 of 2006
- Procedural Posture
- Civil Case / Ruling on Contempt Application
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Contempt of Court, Service of Process, Injunction Orders, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Sammy Kiilu Musaki
Applicant
Jackson Mutuku Kavoi
Applicant
Mwisho Mutunga
Respondent
Muema Mutunga
Respondent
Masyula Mutunga
Respondent
Mwikuyu Mutunga alias Mwai Mutunga
Respondent
Rose Kaluu Mutunga
Respondent
Procedural Posture
Civil Case / Ruling on Contempt Application
Legal Issues
- 1 Whether the respondents were properly served with the court order of injunction.
- 2 Whether contempt of court can be established without personal service of the order on the respondents.
- 3 Whether technical objections raised by the respondents are fatal to the application.
Ratio Decidendi
The court found that the affidavit of service was unsatisfactory as it did not specifically name the persons served, nor did it provide sufficient detail to establish that the respondents were personally served with the court order as required by law. The process server's assertion of personal knowledge of the respondents was unsupported by previous affidavits of service on record. In the absence of proper or personal service, the court held that contempt proceedings could not be sustained against the respondents. Technical objections raised by the respondents were not fatal to the application, but the lack of proper service was determinative. Consequently, the application for contempt...
Court Disposition
application dismissed
Orders
- The application dated 5/6/2009 is dismissed with costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 37 OF 2006
SAMMY KIILU MUSAKI
JACKSON MUTUKU KAVOI ….………… PLAINTIFFS/APPLICANTS
VERSUS
MWISHO MUTUNGA
MUEMA MUTUNGA
MASYULA MUTUNGA
MWIKUYU MUTUNGA alias MWAI MUTUNGA
ROSE KALUU MUTUNGA ………..DEFENDANTS/RESPONDENTS
R U L I N G
The application dated 5/6/2009 is brought under Order XXXIX Rules 2 (3) Section 5 (1)of the Judicature Act, Section 60 (1)of theConstitution of Kenya, Section 3Aand 63 (a)of theCivil Procedure Act.
The application is supported by the affidavit sworn by the 2nd Applicant, Jackson Mutuku on 5/6/2009.
The background facts as set out in the said affidavit is that the Applicants filed an application seeking an order of injunction against the Respondents and the said orders were granted on 10th June 2008. The Respondents were served with the said orders on the 15th November 2008. The Applicant’s complaint is that the 1st – 4th Respondent continued to disobey the said orders by grazing cattle on the land, cutting down trees and burning charcoal and committing other acts of waste on the land that is the subject matter of this suit.
In opposition to the application, the 2nd Respondent, Muema Mutunga, swore a replying affidavit on 3/11/2009. The Respondents have denied that they were served with the order in question. According to the Respondents, they became aware of the order after they were served with the application herein. The Respondents termed the application as defective stating that the name of the deponent of the said affidavit is not the same one that appears on the jurant.
The application was canvassed by way of written submissions which I have duly considered. I have scrutinized the affidavit of service sworn by the process server, Jacob M Muthenya on 21/11/2008. Paragraph No. 4 of the said affidavit states as follows:-
“That I introduced myself to them and the purposes of my visit whereby I served each of them with a copy of the hearing notice and an order which service they tried to refuse telling me to go and serve the same to the firm of F.M. Mulwa & Co. Advocates.”
The said paragraph and indeed the entire affidavit of service does not specifically state the persons who were served. The persons served have not been named. Although the process server has deponed that he personally knew the Defendants because he had previously served them, the affidavit of service does not reveal through which previously filed affidavits of service this happened. I have perused the court file and the previous affidavits of service on record. I have not seen any affidavit of service that specifically refers to the Respondents herein.
As stated by the Court of Appeal in Jacob Zedekiah Ochino & Another –vs- George Aura Okombo & 4 Others Nairobi Civil Appeal No. 36 of 1989(UR):-
“……….no order of a court requiring a person to do or abstain from doing any act may be enforced by committing him for contempt unless a copy of the order has been served personally on the person required to do or abstain from doing an act”.
The affidavit of service herein is so unsatisfactory that service cannot be considered to have taken place.
The Respondents have criticized the order dated 10th June 2008 as exparte and they have denied having committed the acts complained of. However, it is observed that this is not the correct forum to raise those issues. If the Respondents wish is to have the said orders set aside, then it is upon them to file an appropriate application.
No objections raised on the basis of technicalities are fatal. I would agree with the persuasive authority in Isaac J. Wanjohi & Another –vs- Roseline Macharia Nairobi HCCC No. 450 1995 (ur) that no leave is required if contempt proceedings are pursuant to an order of injunction under Order XXXIX (new Order 40) of the Civil Procedure Rules.
However, having found that there was no service or proper service, the application has no merits and is dismissed with costs.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 18thday of July2013.
………………………………………
B. THURANIRA JADEN
JUDGE