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ELCStruck OutNot stated in judgment (Application dated 24th January 2014)· [2014] KEELC 187 (KLR)

Gulam Rusal Mirdat & another v Said Khamisi Said [2014] KEELC 187 (KLR)

High Court of Kenya
10 October 2014
OAO. A. Angote
701 words in judgment
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The bottom line

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The High Court struck out a contempt application because injunctions issued by magistrates' courts must be enforced by those same courts, not the High Court.

What this practically means

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Executive summary

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The Applicant sought an order that Said Khamisi Said be cited for contempt and detained in prison for six months for disobeying injunction orders issued on 9th March 2012 by the Senior Resident Magistrate's Court at Kilifi in SRMCCC No. 235 of 2011, plus costs. It was alleged that despite being served with the injunctive orders, the Respondent advertised the suit property (plot number 7 group V) for sale and colluded with his mother to dispose of it to a third party. The application was served on the Respondent's sister on 19th March 2014; the Respondent filed no response. The court held that given the serious implications of contempt orders, personal service was required and service on the sister was improper, as the process server had not made the reasonable number of attempts required by Order 5 Rule 12 of the Civil Procedure Rules. On jurisdiction, the court held that punishment for disobedience of an injunction granted under Order 40 Rules 1 and 2 is meted out under Order 40 Rule 3(1) of the Civil Procedure Rules, not section 5(1) of the Judicature Act, and that the trial court which granted such an injunction must enforce it. Only orders other than Order 40 injunctions are enforceable for contempt in the High Court. The application should have been filed in Kilifi SRMCC No. 235 of 2011. The application was struck out with no orders as to costs. (Judgment delivered at Malindi on 10th October 2014 by O. A. Angote, Judge.)

Key legal issues

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01

Service of the contempt application

Holding

Service on the Respondent's sister was improper; personal service was required given the serious consequences of contempt orders

Reasoning

Because the application sought detention in prison, the court held the Respondent should have been personally served. The process server did not make a reasonable number of attempts as required by Order 5 Rule 12 of the Civil Procedure Rules, so service on the sister was improper.

p. 1
02

Jurisdiction to punish contempt of an Order 40 injunction issued by a subordinate court

Holding

The High Court lacks jurisdiction; the trial court that granted the injunction under Order 40 Rules 1 and 2 must enforce it

Reasoning

Where an injunction is granted under Order 40 Rules 1 and 2 and disobeyed, the granting court may commit the Respondent to jail for up to six months under Order 40 Rule 3(1). Such an application cannot be filed in the High Court; it should have been filed in Kilifi SRMCC No. 235 of 2011.

p. 2

Legal principles established

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  • The punishment for disobedience of an injunction granted under Order 40 of the Civil Procedure Rules is under Order 40 Rule 3(1), not section 5(1) of the Judicature Act, and must be enforced by the court that granted the order
  • Only the High Court (and Court of Appeal) may entertain contempt of orders other than Order 40 injunctions; Order 40 injunctions of subordinate courts are enforced by the trial court

Court orders

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  1. 1.The Application dated 24th January 2014 is struck out
  2. 2.No orders as to costs
Jurisdiction invoked
Civil Procedure Rules, Order 40 Rules 1-4 (contempt/enforcement of injunctions); Judicature Act section 5(1) considered

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gulam Rusal Mirdat & another v Said Khamisi Said [2014] KEELC 187 (KLR)", Case Analysis (2014). Not stated in judgment (Application dated 24th January 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/187/eng@2014-10-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.