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ELCPartially AllowedELC Civil Suit No 930 of 2012· [2015] KEELC 527 (KLR)

Joseph Wathoa Kigwe & another v Kenya National Highways Authority & 4 others [2015] KEELC 527 (KLR)

High Court of Kenya
16 April 2015
LGL. Gacheru
2,201 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court found Athi Water Services Board's top officials in contempt for ignoring a court order to reconnect a property to the sewer line.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 28th February 2014 by the plaintiffs in an ELC suit seeking contempt sanctions against the 3rd Defendant, Athi Water Services Board, and its Chief Executive Officer/Managing Director, Eng. Maraqin Milgo, and its Chairman, for disobeying orders of 20th/25th November 2013 requiring the 3rd Defendant to reconnect the plaintiffs' property, LR No. 209/5821/12 in Parklands along Forest Road, to the main sewer line within 30 days. The applicants argued the order was served on the 3rd Defendant and its advocates on 4th December 2013 with a notice of penal consequences, yet no reconnection had occurred. The 3rd Defendant, through a replying affidavit of its Legal Officer, Emily Kyalo, denied willful disobedience, contending that works and consultations with KeNHA and other stakeholders were ongoing. The court found the order was properly served with penal consequences endorsed, that the order was directed to the 3rd Defendant alone, and that the Defendant had not reconnected the plaintiffs' property, nor sought an extension of time. Relying on Order 40 Rule 3 of the Civil Procedure Rules, Section 63(c) of the Civil Procedure Act, Section 29 of the Environment and Land Court Act, and Hadkinson v Hadkinson, the court held the 3rd Defendant in blatant disobedience and found the Managing Director and Chairman liable to be punished for contempt. Rather than committing them immediately, the court directed them to appear and show cause why they should not be committed to prison or otherwise penalized, ordered summons to issue, and awarded the applicants costs. The prayer to deny the 3rd Defendant audience was not granted.

Key legal issues

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01

Whether service of the order with penal consequences was proved

Holding

The court found service on both the 3rd Defendant and its advocates duly acknowledged, so the Defendant knew the penal consequences of non-compliance

Reasoning

The extracted order bore a receipt stamp from Kipkenda & Co. Advocates dated 4th December 2013 and the stamp of the 3rd Defendant of even date. The order carried a notice of penal consequences warning of prosecution for contempt and imprisonment of up to six months. Service on the Managing Director was also established.

p. 3
02

Whether the 3rd Defendant was in contempt despite claims of ongoing consultations and works

Holding

The 3rd Defendant was in blatant disobedience; the order directed it to reconnect the plaintiffs' property first, and consultations with KeNHA did not excuse non-compliance

Reasoning

The court order was clear and directed to the 3rd Defendant alone, requiring reconnection of LR No. 209/5821/12 within 30 days. The Defendant's reliance on a letter dated 5th June 2014 came after the application was filed, and it neither complied nor sought an extension of time. Its obligations could not be delegated to the 1st Defendant.

p. 3

Legal principles established

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  • Every person against whom a court order is made is under a plain and unqualified obligation to obey it unless and until it is discharged, even if they believe the order to be irregular or void
  • A party ordered to perform an obligation within a fixed period who fails to comply and does not seek extension of time is in blatant disobedience of the court order

Court orders

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  1. 1.The Managing Director (Eng. Maraqin Milgo) and Chairman of Athi Water Services Board held in contempt of the Court Orders issued on 20th November 2013 and liable to be punished for contempt
  2. 2.Eng. Maraqin Milgo, the Chief Executive Officer/Managing Director, and the Chairman of Athi Water Services Board to appear in Court and show cause why they should not be committed to prison or otherwise penalized for contempt
  3. 3.Summons to issue to the said persons and to be served by the Plaintiffs' counsel
  4. 4.The applicants awarded costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Civil Procedure Act, Cap 21Section 3A
  • Civil Procedure Act, Cap 21Section 63(c)
  • Environment and Land Court Act No. 19 of 2011Section 29

Cases cited (1)

  • Hadkinson Vs Hadkinson
    (1952) 2 All ER 567
Jurisdiction invoked
Order 40 Rule 3 of the Civil Procedure Rules; Sections 3A and 63 of the Civil Procedure Act, Cap 21; Section 29 of the Environment and Land Court Act No. 19 of 2011

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, "Joseph Wathoa Kigwe & another v Kenya National Highways Authority & 4 others [2015] KEELC 527 (KLR)", Case Analysis (2015). ELC Civil Suit No 930 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/527/eng@2015-04-16

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