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ELCDismissedNot stated in the judgment text provided· [2015] KEELC 572 (KLR)

Anne Barongo v Awliyo Abdi Ahmed & 2 others [2015] KEELC 572 (KLR)

High Court of Kenya
5 March 2015
PNP. Nyamweya
2,333 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a contempt application because the court order was never personally served on the person accused of disobeying it.

What this practically means

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Executive summary

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The Plaintiff sought a Notice of Motion dated 15th September 2014 finding the 1st Defendant and his agents in contempt of a temporary injunction issued on 12th June 2014 restraining interference with L.R No. NRB/BLK 79/1463/303 Tassia Estate II, and seeking warrants of arrest, committal to civil jail for up to six months, and attachment of the 1st Defendant's property. She alleged the 1st Defendant continued constructing a perimeter wall and erected iron sheets despite the order, supported by an affidavit of her advocate and photographs of service. The 1st Defendant opposed, arguing no personal service of the order, failure to obtain leave and issue notices as conditions precedent, and that he was in the United Kingdom when the orders were issued and served; he also asserted his property, NRB/BLK 97/1463/301, is distinct from the suit property. The court framed three issues: personal service, culpability, and remedies. Applying section 5(1) of the Judicature Act and Part 81 of the English Civil Procedure Rules, the court held that no leave or prior notice to the Registrar and Attorney General is required, following Christine Wangari Gachege. However, the affidavit of service showed service only on NSSF and Geoinfo Surveys Limited, not on the 1st Defendant personally, and no penal notice was served. Awareness of an order for contempt purposes is personal to the alleged contemnor; his advocate's awareness did not suffice, and his evidence of being abroad was uncontroverted. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Personal service of injunction orders as a precondition to committal

Holding

The 1st Defendant was not personally served and was not shown to be personally aware of the orders, so contempt could not be established

Reasoning

The affidavit of service showed service only on NSSF and Geoinfo Surveys Limited through a legal clerk and a secretary, not on the 1st Defendant personally. Rule 81.6 of the English CPR requires personal service, and Rule 81.9 requires a penal notice. Awareness must be personal to the alleged contemnor; the advocate's awareness is insufficient. The Defendant's evidence that he was out of the country was uncontroverted.

p. 4
02

Whether leave and notice to the Registrar and Attorney General are conditions precedent to contempt proceedings

Holding

No leave and no such notice are now required under the applicable English Civil Procedure Rules

Reasoning

Order 52 of the Rules of the Supreme Court, which required leave, has largely been repealed by Part 81 of the English CPR. The Court of Appeal in Christine Wangari Gachege confirmed no leave is required, and the court extended the same reasoning to the requirement of notice to the Registrar and Attorney General.

p. 3

Legal principles established

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  • No leave is required before bringing an application for committal for contempt relating to breach of a court order under the applicable English CPR Part 81
  • A judgment or order may not be enforced by committal unless personally served with a prominently displayed penal notice, unless dispensed by the court
  • Awareness of orders for contempt purposes is personal to the person sought to be committed; an advocate's awareness does not suffice

Court orders

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  1. 1.The prayers sought in the Plaintiff's Notice of Motion dated 15th September 2014 are denied
  2. 2.The Plaintiff shall meet the costs of the said Notice of Motion

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Judicature ActSection 5(1)
  • English Civil Procedure Rules of 1998Part 81, Rules 81.6, 81.8, 81.9(1) and (2)
  • Rules of the Supreme Court (England)Order 52 and parts of Order 45 (repealed)

Cases cited (9)

  • Africa Management Communication International Limited vs Joesph Mathenge Mugo
    (2013) eKLR
  • Alken Connections Ltd vs Safaricom Limited & 2 Others
    (2013) eKLR
  • Sahihi Housing Ltd vs Ferdinand Ndungu Waititu
    (2014) eKLR
  • Alvine Kamande vs Esther Njeri Njenga
    (2014) eKLR
  • George Kinuthia & 15 Others vs Municipal Council of Nakuru
    (2005) eKLR
  • Mutitika vs Baharani Farm Limited
    (1985) KLR 229
  • Christine Wangari Gachege V Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Nyamogo & Another v Kenya Posts and Telecommunications Corporation
    (1994) KLR 1
  • Ochino & Another v Okombo & 4 Others
    (1989) KLR 165
Jurisdiction invoked
Section 5(1) of the Judicature Act (power to punish for contempt) and Order 40 Rule 3 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Anne Barongo v Awliyo Abdi Ahmed & 2 others [2015] KEELC 572 (KLR)", Case Analysis (2015). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/572/eng@2015-03-05

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