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ELCDismissedNotice of Motion dated 12th February 2014 (arising from suit over L.R. No. 209/1297/1)· [2015] KEELC 703 (KLR)

Fredrick Kathanzu Kavuthi t/a Kanyuni Constructors & another v Al-haiee Investments Limited [2015] KEELC 703 (KLR)

High Court of Kenya
23 January 2015
MGMARY M. GITUMBI
1,195 words in judgment
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The bottom line

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You cannot jail someone for defying a Kenyan court order unless you prove they were personally served with it — this contempt application failed for exactly that reason.

What this practically means

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Executive summary

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The Plaintiffs filed a Notice of Motion dated 12th February 2014 seeking committal to civil jail of Abdullatiff Abeid Oywer, Diamond Hasham Lalji, advocate Maurice Otieno Omuga and OCS Embakasi Victor Nyongesa for disobeying a temporary injunction issued on 7th February 2014 restraining the Defendant from evicting or interfering with the Plaintiffs' possession of L.R. No. 209/1297/1. The Plaintiffs alleged that on 12th February 2014 the named persons entered the suit property, assaulted workers, erected a wall and gate, and had some workers arrested on fabricated trespass charges. The Defendant, through the Replying Affidavit of its advocate, denied the Plaintiffs ever occupied the property, asserting instead that an armed group forced entry on the night of 11th February 2014 and that police apprehended five intruders now charged in court. The court, per Mary M. Gitumbi J, relied on Section 63(c) of the Civil Procedure Act and Order 40 Rule 3(1) of the Civil Procedure Rules, and on authority that personal service of the order plus a penal notice is trite prerequisite for committal. Examining the Affidavit of Service, the court found personal service only on the Defendant's advocate and one policeman; there was no evidence of personal service on Victor Nyongesa, Abdullatif Abeid Oywer or Diamond Lalji, whose awareness of the order was thus not established. The application for committal was dismissed with costs in the cause. The underlying temporary injunction remains in force pending determination of the application dated 7th February 2014.

Key legal issues

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01

Whether personal service of the injunction order is a prerequisite to committal for contempt

Holding

Committal cannot issue where the Plaintiffs have not demonstrated personal service of the order or knowledge of it by the alleged contemnors

Reasoning

The court accepted that a temporary injunction issued on 7th February 2014 directed at the Defendant and remains in force. However, the Affidavit of Service showed personal service only on the Defendant's advocate Maurice Otieno Omuga and one Peter Maraga, a policeman. There was no evidence of personal service on Victor Nyongesa, Abdullatif Abeid Oywer or Diamond Lalji, so their awareness of the order was not established and they could not be declared contemnors.

p. 3

Legal principles established

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  • For a committal for contempt to succeed, there must be personal service of the order and a penal notice upon the alleged contemnor

Court orders

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  1. 1.The Notice of Motion dated 12th February 2014 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 63(c)
  • Civil Procedure Rules, 2010Order 40 Rule 3(1)

Cases cited (2)

  • Refrigeration and Kitchen Equipment Utensils Ltd –vs Shah & Others
    1990 LLR 294 (CAK)
  • Anne Wanjiru Kabiru v. Bedan M. Chege (t/a Bedans Auctioneering Services)
    Misc. Appl. No. 114 of 2007 (2008) eKLR
Jurisdiction invoked
Section 63(c) of the Civil Procedure Act, 2010 and Order 40 Rule 3(1) of the Civil Procedure Rules, 2010

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, "Fredrick Kathanzu Kavuthi t/a Kanyuni Constructors & another v Al-haiee Investments Limited [2015] KEELC 703 (KLR)", Case Analysis (2015). Notice of Motion dated 12th February 2014 (arising from suit over L.R. No. 209/1297/1). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/703/eng@2015-01-23

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