[2004] KEHC 1636 (KLR)
The court found that the applicants failed to prove that the Managing Director or Chief Executive Officer of the Kenya Ports Authority was personally served with the court order dated 3/10/03 endorsed with a penal notice, as required by law for committal proceedings. In the absence of such proof of personal service,...
Source-derived case information.
- Citation
- [2004] KEHC 1636 (KLR)
- Parties
- Applicant: Waa Ship Garbage Collector; Applicant: Bakriz Holdings Limited; Applicant: Mwowako Shipping Agencies; Applicant: Aliyat Investments Limited; Applicant: Subira Shipping; Applicant: Kaburu & Sons Ship Cont; Applicant: Sorica Enterprises; Applicant: Ngala Marine; Applicant: Scorpian Shipping Agent; Applicant: Bina Freighters; Applicant: Winyo Kenya Limited; Applicant: Le Wals Agencies; Applicant: Blue Cat Port Services; Applicant: Sajimule Freighters; Applicant: Mohamed Boat Service; Applicant: Hamza Boat Service; Respondent: Minister for Transport & Communications, Mr. John Michuki; Respondent: Kenya Ports Authority; Respondent: National Environment Management Authority
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 54 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Committal for Contempt of Court
- Outcome
- application dismissed
- Legal Topics
- Contempt of Court, Service of Process, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Waa Ship Garbage Collector
Applicant
Bakriz Holdings Limited
Applicant
Mwowako Shipping Agencies
Applicant
Aliyat Investments Limited
Applicant
Subira Shipping
Applicant
Kaburu & Sons Ship Cont
Applicant
Sorica Enterprises
Applicant
Ngala Marine
Applicant
Scorpian Shipping Agent
Applicant
Bina Freighters
Applicant
Winyo Kenya Limited
Applicant
Le Wals Agencies
Applicant
Blue Cat Port Services
Applicant
Sajimule Freighters
Applicant
Mohamed Boat Service
Applicant
Hamza Boat Service
Applicant
Minister for Transport & Communications, Mr. John Michuki
Respondent
Kenya Ports Authority
Respondent
National Environment Management Authority
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Committal for Contempt of Court
Legal Issues
- 1 Whether the Executive Officer(s) of the Kenya Ports Authority willfully disobeyed the court order issued on 3/10/2003.
- 2 Whether personal service of the court order endorsed with a penal notice was effected on the Managing Director of Kenya Ports Authority.
- 3 Whether the requirements for committal for contempt of court were satisfied.
Ratio Decidendi
The court found that the applicants failed to prove that the Managing Director or Chief Executive Officer of the Kenya Ports Authority was personally served with the court order dated 3/10/03 endorsed with a penal notice, as required by law for committal proceedings. In the absence of such proof of personal service, the essential procedural requirement for contempt was not met. Consequently, the court held that contempt of court was not established and dismissed the application for committal. The applicants were advised to await the outcome of the pending judicial review application regarding their continued operation at the port.
Court Disposition
application dismissed
Orders
- The application for committal for contempt of court is dismissed.
- Costs to be in the cause of the judicial review.
Full Case Text
Judgment text and source record
47 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISCELLANEOUS CIVIL APPLICATION NO.54 OF 2004
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS
OF COMMITTAL TO PRISON FOR CONTEMPT OF COURT
A N D
IN THE MATTER OF SECTION 5 OF THE JUDICATURE ACT (CAP.8) LAWS OF
KENYA AND ORDER 52, RULE 2 OF THE SUPREME COURT OF ENGLAND
IN THE MATTER OF: AN APPLICATION BY:-
1. WAA SHIP GARBAGE COLLECTOR
2. BAKRIZ HOLDINGS LIMITED
3. MWOWAKO SHIPPING AGENCIES
4. ALIYAT INVESTMENTS LIMITED
5. SUBIRA SHIPPING
6. KABURU & SONS SHIP CONT
7. SORICA ENTERPRISES
8. NGALA MARINE
9. SCORPIAN SHIPPING AGENT
10. BINA FREIGHTERS
11. WINYO KENYA LIMITED
12. LE WALS AGENCIES
13. BLUE CAT PORT SERVICES
14. SAJIMULE FREIGHTERS
15. MOHAMED BOAT SERVICE
16. HAMZA BOAT SERVICE
(ALL HEREINAFTER REFERRED TO AS
‘SLUDGE REMOVERS’ FOR EASE OF REFERENCE…………………………APPLICANTS
V E R S U S
1. MINISTER FOR TRANSPORT &COMMUNICATIONS, MR. JOHN MICHUKI…………………..1ST RESPONDENT
2. KENYA PORTS AUTHORITY…………………………………...........................................………2ND RESPONDENT
3. NATIONAL ENVIRONMENTMANAGEMENT AUTHORITY……….............................…………..3RDRESPONDENT
R U L I N G
Application dated 15/2/04 is for orders of committal of the Executive Officer(s) of the 2nd Respondent (KPA) for willfully disobeying and continuing to disobey the court’s order issued in this application on 3/10/2003. The grounds upon which the application is made are set out on the body of the application and supported by the affidavit of Ali Salim Mohamed. The Managing Director of K.P.A. has filed an affidavit in reply paragraph 8 of which he denies the allegations of disobedience of the court order. The issue of the applicants licences to operate as sludge collectors at the Port was in respect of licences issued for the year 2003 (now past) which were terminated and were expiring on 31/12/03. New applications were not made by Applicants for the year 2004.
The Replying Affidavit states that the Managing Director (Chief Executive Officer) of the K.P.A. was never served with the order dated 3/10/03 endorsed with a Penal Notice.
I have perused the material before the court. The issue as to whether the Applicants in the Judicial Review can continue operating at the Port at all is subject to a determination of the application pending. I am informed the same has been argued and it is pending Ruling in the near future. It is subject to application of International Law of Treaties and Conventions of the Sea.
Regarding this application the procedure governing issue of committal orders is well established. The extracted order endorsed with a Penal Notice must be served upon the person who is to obey it. Service is personal in the case of a corporation. Service of process is upon its Chief Executive Officer or Managing Director. In this case personal service is denied and thee is no proof of the same.
In the circumstances no order can now be made. The Applicants must await remedy in the Judicial Review determination. I therefore do not find contempt of court order proved. The application is hereby dismissed with costs in the Judicial Review.
Dated at Mombasa this 18th day of June, 2004.
JOYCE KHAMINWA
J U D G E
18/6/04
Khaminwa, J.
Chege – Court Clerk
Mr. Kibaara – 2nd Respondent
Ms. Umaara – for State
Ruling read in their presence.