[2006] KEHC 3110 (KLR)
The court held that the application to amend the Notice of Motion to cite additional officers for contempt was incompetent. The court reasoned that Notices of Motion generally cannot be amended to add new parties, especially where there is no evidence that the proposed contemnors were served with the court order or...
Source-derived case information.
- Citation
- [2006] KEHC 3110 (KLR)
- Parties
- Plaintiff: Titus Gatitu Njau; Defendant: Municipal Council of Eldoret
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 35 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Notice of Motion for Contempt
- Outcome
- application struck out as incompetent
- Judges
- JW Gacheche
- Legal Topics
- Amendment of Pleadings, Contempt of Court, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titus Gatitu Njau
Plaintiff
Municipal Council of Eldoret
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Amend Notice of Motion for Contempt
Legal Issues
- 1 Whether a Notice of Motion can be amended to cite additional parties for contempt of court.
- 2 Whether the applicant provided sufficient evidence that the alleged contemnors were served with the court order and were aware of the penal consequences.
- 3 Whether the court can issue contempt orders against persons who are not parties to the suit.
Ratio Decidendi
The court held that the application to amend the Notice of Motion to cite additional officers for contempt was incompetent. The court reasoned that Notices of Motion generally cannot be amended to add new parties, especially where there is no evidence that the proposed contemnors were served with the court order or were aware of the penal consequences. The court emphasized that for contempt proceedings to be sustained, the alleged contemnors must be parties to the suit and must have been properly served. In the absence of sufficient evidence of service and awareness, and given the procedural impropriety of amending the Notice of Motion in this manner, the application could not be allowed.
Court Disposition
application struck out as incompetent
Orders
- The application to amend the Notice of Motion is struck out.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Civil Suit 35 of 2005
TITUS GATITU NJAU ……………...…………………………………………… PLAINTIFF
VERSUS
MUNICIPAL COUNCIL OF ELDORET ……………………………………… DEFENDANT
R U L I N G
James Gatitu Njau, who is the applicant herein seeks an order to amend his Notice of Motion to cite J. K. Sitienei, who is the Administrative Officer of Eldoret Municipal Council, and the Town Engineer of Municipal Council for contempt of Court, so that they can be imprisoned for a period of six months or such a period as this Court may deem reasonable period as the Court may deem reasonable.
The application which is based on several grounds but mainly that the Municipal Council of Eldoret (“the Council”) has disobeyed a lawful order and is thus is contemptuous of this Court. It also his ground that Sitienei and the Council proceeded to demolish the applicant’s building on 27/4/2005, despite having been served with the said order on 25/4/2005.
The application is however opposed on the grounds that a Notice of Motion cannot be amended and that the applicant has not given reasons for not having enjoined the said officer prior hereto and that in any event, he never obtained leave to enjoin the said officer.
I have taken the submissions of both able Counsel into account and it is clear from the pleadings that the persons who the applicant wishes to cite for contempt are not parties to the suit. The issue that arises then is how would the Court issue an order against a party who is not a party to the suit? It is very trite that before one is cited for contempt, he should be a party to the suit and even after that, it must be shown satisfactorily that the named person was served with the order, which it is now alleged he has defied and that he has been well aware of the penal consequences.
The general position in law is that Notices of Motion can not be amended. However, the court would allow an amendment where it is shown that there would be no alteration in material particulars such as change of parties. The original application was for injunctive orders to issue against the Council, either acting by itself, its servants, staff and/or agents. There is no doubt that the said Sitienei is an officer or member of staff of the Council, and in my humble opinion, an order and this court would be binding not only on him but also on his colleagues, subject to effective service upon the defendant.
It would be expected that the applicant would have to depone under oath in support of this application that the persons who he wishes to have cited were served with the said order. Save for it being one of the grounds on which this application is based, there is no ample evidence in this application to show that the defendant, Sitienei or for that matter the unnamed Town Engineer were ever served with the order and that they were aware of the penal consequences, for had he shown so, and though Notices of Motion are not generally amended, I would have allowed this application, mainly because the said officers were named in the order in their capacity as servants of the defendant, and they would be liable for contempt of court.
Because of the aforementioned lapses, I am not convinced that the applicant has made out a case for the order which he seeks.
I do therefore strike out the application which is in my view incompetent. Costs to the respondents.
Dated and delivered at Eldoret this 23rd day of March 2006.
JEANNE GACHECHE
JUDGE
Delivered in the presence of:
Mr. Manani for the plaintiff/applicant
Mr. Shivaji for the defendant/respondent