[2001] KEHC 394 (KLR)
The court found that the Penal Notice was not properly served on the respondents as required by Order V Rule 12 of the Civil Procedure Rules. The process server made only one attempt and served the notice on the respondents' son without demonstrating that reasonable efforts had been made to serve the respondents...
Source-derived case information.
- Citation
- [2001] KEHC 394 (KLR)
- Parties
- Applicant: Jack Kaguu Githae; Respondent: Waithaka Kareithi; Respondent: Warau Waithaka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 92 of 1998
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Contempt of Court
- Outcome
- Application dismissed for improper service of Penal Notice.
- Legal Topics
- Guardianship of Minors, Contempt of Court, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jack Kaguu Githae
Applicant
Waithaka Kareithi
Respondent
Warau Waithaka
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Contempt of Court
Legal Issues
- 1 Whether the respondents were properly served with the Penal Notice as required for contempt proceedings.
- 2 Whether failure to personally serve the respondents invalidates the contempt application.
Ratio Decidendi
The court found that the Penal Notice was not properly served on the respondents as required by Order V Rule 12 of the Civil Procedure Rules. The process server made only one attempt and served the notice on the respondents' son without demonstrating that reasonable efforts had been made to serve the respondents personally. Given the serious consequences of contempt proceedings, strict compliance with service requirements is mandatory. As such, the application for contempt could not succeed due to improper service.
Court Disposition
Application dismissed for improper service of Penal Notice.
Orders
- The application for contempt is dismissed.
- The applicant shall bear the costs of the application.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
MISC. CIVIL APPLICATION NO. 92 OF 1998
IN THE MATTER OF GUARDSHIP OF INFANTS ACT (CAP 144 OF THE LAWS OF KENYA)
AND
IN THE MATTER OF INFANTS EDWIN WAITHAKA AND DENNIS MUREITHI
B E T W E E N
1. WAITHAKA KAREITHI
2. WARAU WAITHAKA………………RESPONDENT/PLAINTIFF
AND
JACK KAGUU GITHAE………………….APPLICANT/DEFENDANT
R U L I N G
On 24th August 1998, this court in setting aside its earlier order issued the following orders
‘……………that the child Denies Mureithi taken by the respondents plaintiff be returned to the applicant defendant.
The applicant contends that the respondent have not complied with the said order and he is now back to court and seeks orders to institute contempt of court proceedings against them for breach of the said court order, and that pending the hearing and determination of the substantive application the respondents be denied audience by the court unless and until they pay the contempt. He also prays for an order that the respondents be jointly and/or severally be committed to jail for a term of six months for breach of a court order.
During the hearing of this applicant the main point that was argued before me is whether or not service of the Penal Notice was proper. Council for the respondent submitted that his client had not been personally served with the Penal Notice, in which case the application should fail.
However, the applicant maintains that they were served with the Penal Notice on 19th October 1998. I have perused the affidavit of service and it clearly indicates that the Penal Notice was served upon a Mr. Irungu, who was identified as a son of the respondents. He declined to sign the Penal Notice. In my opinion that cannot be effective service of a Penal Notice. It would have led more credence had several attempts been made to serve the notices on the respondents personally specially in view of the very serious consequence of non-compliance with the said notice.
The requirement under order V rule 12 which makes it clear that such service can only be served on any adult member of the defendants or the plaintiff family as in this case in instances where the defendant or the person to be served cannot be found. It is therefore imperative that efforts to trace the said party be made in all instances. The process server has not indicated having made any efforts towards that end. He depones that upon arriving at the home of the plaintiff, he did not find them but that he served the notice on their son. That was done at the first attempt.
For the above reasons, I find that service was not properly effected and I decline to grant the orders that are being sought in this application.
The applicant shall bear the costs of the application.
Dated and delivered this 30th day of January 2001.
JEANNE W. GACHECHE
COMMISSIONER OF ASSIZE
Delivered in the presence of Mr. G. Oluoch for the respondent and Mr. Ogola holding brief for Mr. M. Kariuki for the applicant.