[2014] KEHC 2127 (KLR)
The court held that, in line with the Court of Appeal's decision in Christine Wangari Gachege v Elizabeth Wanjiru Evans and the current law as reflected in the English Civil Procedure Rules, leave (now called 'permission') is not required to institute contempt proceedings where the alleged contempt arises from...
Source-derived case information.
- Citation
- [2014] KEHC 2127 (KLR)
- Parties
- Plaintiff: Stephen R.G.G. Munyi; Defendant: The Board of Governors Kutus Secondary School
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Land Case 20 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Commence Contempt Proceedings
- Outcome
- application struck out
- Judges
- BN Olao
- Legal Topics
- Contempt of Court, Leave to Institute Proceedings, Status Quo Orders, Breach of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen R.G.G. Munyi
Plaintiff
The Board of Governors Kutus Secondary School
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Commence Contempt Proceedings
Legal Issues
- 1 Whether leave is required to commence contempt of court proceedings where the alleged contempt arises from breach of a court order.
- 2 Whether the application for leave to commence contempt proceedings is competent.
Ratio Decidendi
The court held that, in line with the Court of Appeal's decision in Christine Wangari Gachege v Elizabeth Wanjiru Evans and the current law as reflected in the English Civil Procedure Rules, leave (now called 'permission') is not required to institute contempt proceedings where the alleged contempt arises from breach of a court order. The application before the court, which sought leave to commence contempt proceedings, was therefore incompetent and had to be struck out. The court noted that both parties had erroneously assumed that leave was necessary, but clarified that the law no longer requires such leave in these circumstances.
Court Disposition
application struck out
Orders
- The application dated 3rd February, 2014 is struck out.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC CASE NO. 20 OF 2012
STEPHEN R.G.G. MUNYI.................................................................................PLAINTIFF
VERSUS
THE BOARD OF GOVERNORS KUTUS SECONDARY SCHOOL .........DEFENDANT
RULING
By his application dated 3rd February, 2014 the applicant seeks leave to commence contempt of Court proceedings against one GRACE NDUNGU the Secretary Board of Governors Kutus Secondary School who are the respondent herein.
The application is brought under the provisions of the Judicature Act and is supported by the applicant’s affidavit in which he depones, inter alia, that contrary to the orders issued by this Court on 9th April, 2013 that status quo in respect to the land subject of this case be maintained, the respondents have undertaken agricultural activities on the same.
Submissions have been filed by both parties and I have considered them. The submissions seem to have gone beyond what is really required and have addressed the contempt itself.
The matter complained of arose from an order issued by this Court on 9th April, 2013. Both counsels have filed submissions on the assumption that leave is required to bring contempt proceedings where the order said to have been disobeyed is a Court order. That is not the position now. I would advise counsels to familiarize themselves with the Court of Appeal’s decision in CHRISTINE WANGARI GACHEGE VS ELIZABETH WANJIRU EVANS C.A. CIVIL APPLICATION NO. 233 of 2007 NBI (UR 144/2007) wherein the Court addressed itself as follows on the issue of leave:-
“We find on the basis of the new Civil Procedure Rules (of England) which are now contained in the second supplement to the 2012 White Book that no leave is required before bringing an application like the one before us, for committal for contempt relating to breach of this Court’s order”.
The Court stated that although the common practice has been for leave to be sought before instituting contempt proceedings, that is no longer the law where the contempt arises out of a Court order. After considering various cases and the law as it now obtains in England, the Court of Appeal made the following statement:-
“It is clear from this summary that leave now called “permission” is not required where committal proceedings relate to a breach of a judgment, order or undertaking”.
The Court then proceeded to strike out the application for leave.
That is the same scenario in this case. The contemplated contempt proceedings relate to an order issued by this Court and going by the decision in the CHRISTINE WANGARI GACHEGE case (supra), leave is not necessary and this application is incompetent. It ought to be struck out.
Having said so, both parties proceeded to file submissions touching on the contempt itself. Indeed I have enough material on which to proceed with the contempt but that is not the application now before me. That will be dealt with at an appropriate time when the contempt matter comes up.
For now, this application is struck out and since the parties both proceeded on the assumption that leave was necessary, there shall be no order as to costs.
It is so ordered.
B.N. OLAO
JUDGE
14TH OCTOBER, 2014
14/10/2014
Before
B.N. Olao – Judge
Mwangi – CC
Mr. Magee for Plaintiff – present
Mr. Mutahi for Wainaina for Defendant – present
COURT: Ruling delivered this 14th day of October, 2014 in open Court
Mr. Magee for Plaintiff/Applicant present
Mr. Mutahi for Wainaina for Defendant/Respondent present.
B.N. OLAO
JUDGE
14TH OCTOBER, 2014