[2012] KEHC 513 (KLR)
The court found that the application for contempt was not properly served on the respondent. Although an affidavit of service was filed, the purported signature acknowledging service was by a third party, Ken Macharia, whose authority or relationship to the respondent was not established. The court held that...
Source-derived case information.
- Citation
- [2012] KEHC 513 (KLR)
- Parties
- Applicant: Zubeda Matandi Tunje; Applicant: Bakari Ali Gatende; Respondent: Titus Keith Wambua (Chatu)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 278 of 2008
- Procedural Posture
- Succession Cause / Ruling on Contempt Application
- Outcome
- Application for contempt dismissed for improper service; original orders remain valid.
- Judges
- JV Juma
- Legal Topics
- Contempt of Court, Service of Process, Enforcement of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zubeda Matandi Tunje
Applicant
Bakari Ali Gatende
Applicant
Titus Keith Wambua (Chatu)
Respondent
Procedural Posture
Succession Cause / Ruling on Contempt Application
Legal Issues
- 1 Whether the respondent was properly served with the contempt application.
- 2 Whether the respondent is in contempt of valid court orders.
- 3 Whether the orders of 1st July 2009 remain valid and enforceable.
Ratio Decidendi
The court found that the application for contempt was not properly served on the respondent. Although an affidavit of service was filed, the purported signature acknowledging service was by a third party, Ken Macharia, whose authority or relationship to the respondent was not established. The court held that personal service is a strict requirement in contempt proceedings, and failure to effect such service is fatal to the application. Consequently, the prayers for contempt could not be granted. Additionally, the court clarified that the status quo orders made on 24th March 2010 lapsed after 30 days, and since the respondent did not prosecute his application to set aside the original...
Court Disposition
Application for contempt dismissed for improper service; original orders remain valid.
Orders
- Prayers (2) and (3) of the application dated 26th September 2012 are not granted.
- Orders of 1st July 2009 remain valid and enforceable.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
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IN THE MATTER OF THE ESTATE OF ALI BAKARI GATENDE .... DECEASED
ZUBEDA MATANDI TUNJE .............................. 1ST APPLICANT
BAKARI ALI GATENDE .................................. 2ND APPLICANT
=VERSUS=
TITUS KEITH WAMBUA (CHATU) .................. RESPONDENT
RULING
This present application dated 26th September 2012 sought various prayers including that the Respondent be summoned to court to show cause why he should not be held in contempt of court orders. The Respondent did appear personally in court on 28th November 2012.
I have carefully perused the record of these proceedings. I note that on 1st July 2009 Hon. Justice Azangalala gave orders in favour of the Applicant in the absence of the Respondent. On 5th March 2010 the Respondent filed a Chamber Summons under Certificate of Urgency seeking to have the orders made by Justice Azangalala set aside on 23rd March 2010. The matter was before the Hon. Judge on 24th March 2010 when in the presence and with the agreement of both parties orders were given that the status quo be maintained. The status was only to prevail for 30 days from 24th March 2010 and was subject to the Respondent prosecuting his application to set aside the initial orders. The Respondent has taken no steps to prosecute the application to set aside. The position is that 30 days after the 24th March 2010 the orders of status quo lapsed and the situation reverted to what prevailed prior to 24th March 2010. In other words having not been set aside the orders of 1st July 2009 remain valid and enforceable.
I move now to consider whether this present application for contempt was properly served. Mr. Mutugi for Respondent told court that he was not served. Indeed there is no return of service indicating that Mr. Mutugi was served. The Respondent also claims that he was never served with the application. The proper procedure where a party wishes to have another cited for contempt is that the party to be so cited must be served personally. This clearly did not happen here. Although the Affidavit of Service filed on 11th October 2012 indicates that the Respondent was served personally on 4th October 2012, the order supposedly signed by the Respondent is actually signed by one Ken Macharia on behalf of the Respondent. We are not told what relationship this Ken Macharia had with the Respondent or whether he was authorised to receive service on his behalf. I am not satisfied that service was proper at all and for that reason I will not grant prayers (2) and (3) of the Application dated 26th September 2012.
Finally I find that the status quo orders made on 24th March 201o lapsed 30 days. As such the orders made by Hon. Justice Azangalala on 1st July 2009 remain valid and enforceable.
Dated and Delivered in Mombasa this 7th day of December 2012.
M. ODERO
JUDGE
In the presence of:
Mr. Mutugi for Respondent
Mr. Onjoro holding brief for Mr. Were for Applicant