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ELCDismissedNot stated in judgment· [2016] KEELC 312 (KLR)

Abdulrazak Abdulrehhman Adam v Aslam Abdulrehman Adam & 4 others [2016] KEELC 312 (KLR)

Not expressly stated in the judgment (delivered at Mombasa; a contempt application arising from land/disposal proceedings before a Judge)
7 September 2016
1,308 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to punish siblings for disobeying a court order because the order was never properly served on them with a penal notice.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by notice of motion dated 15th October 2015 seeking that the Respondents be cited for contempt and detained in prison for six months for disobeying orders issued on 15th July 2014 by Mukunya J, on the ground that the order had been extracted and served and that the Respondents continued construction on the suit property on or about 30th September 2015. The Respondents, siblings of the applicant, opposed the application through a replying affidavit of the 2nd Respondent, Shamim Abdulrehman Adam, contending that the orders of 1st July 2014 had lapsed by operation of law, that the reinstated orders were never served on them or accompanied by a penal notice, and that the application failed to specify the particulars of the alleged breach. Both parties filed written submissions. The court, A. Omollo J, restated that contempt proceedings are criminal or quasi-criminal and that the criminal standard of proof applies, citing Re Bramblevale Ltd and the Court of Appeal decision in Christine Wanjiru. Relying on Edward Njuguna Kangethe, Highlands Plant Ltd and Monica Waithera Munyua, the court held that personal service of the order and the penal notice is mandatory under section 5 of the Judicature Act read with Order 39 rule 2 of the Civil Procedure Rules. Finding it not in dispute that the Respondents were not served, the court declined to determine whether a subsisting order had been breached and dismissed the application with costs on 7th September 2016.

Key legal issues

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01

Whether contempt can be founded on an unserved order

Holding

The application fails because the order relied on was not served with the mandatory penal notice; the court declined to consider whether an order existed or was breached

Reasoning

The court treated contempt as quasi-criminal, requiring strict compliance with the procedures for instituting committal proceedings under section 5 of the Judicature Act and Order 39 rule 2 of the Civil Procedure Rules. Relying on English CPR rule 81.5(5) as quoted in Edward Njuguna Kangethe, the court held that an order may not be enforced in contempt unless served on the person required to do or not do the act. Since service and the penal notice were absent, committal could not lie, and the court did not need to reach the merits.

p. 3
02

Whether presence of the Respondents' advocates when the ruling was delivered excuses service

Holding

The court posed the question but, having found the application failed on want of service with penal notice, did not decide it

Reasoning

The applicant argued the Respondents' advocates were in court when the ruling of 17th April 2015 was delivered, so personal service was unnecessary. The court noted the record confirmed counsel's presence, framed the question of whether this exempted service, and cited English rule 81.5(5) requiring service unless dispensed with. It did not expressly answer the question, instead dismissing the application on the service/penal notice ground.

p. 2

Legal principles established

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  • Personal service of the court order together with the penal notice is mandatory before contempt/committal proceedings may succeed
  • Contempt proceedings are quasi-criminal and the criminal standard of proof applies

Court orders

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  1. 1.The application for contempt is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Judicature Actsection 5(2); section 5
  • Civil Procedure RulesOrder 39 rule 2
  • Civil Procedure (Amendment No 2) Rules 2012 (England)rules 81.4, 81.5(5), 81.6, 81.7, 81.8

Cases cited (7)

  • Wildlife Lodges Ltd vs County Council of Narok & Another
    (2005) 2 EA 344
  • Malawi Railways Ltd vs Nyasulu
    (1998) MW SC 3
  • Josephine Muthinya vs Lilian Muthama & 2 Others
    (2014) eKLR
  • Christine Wanjiru & Elizabeth Wanjiru Evans & 11 others
    (2014) eKLR
  • Edward Njuguna Kangethe vs Another
    (2014) eKLR
  • Highlands Plant Ltd vs Alice Wairimu Mwangi
    (2005) eKLR
  • Monica Waithera Munyua vs Joshua Sorora & 3 Others
    (2005) eKLR
Jurisdiction invoked
Contempt of court jurisdiction under section 5 of the Judicature Act as read with Order 39 rule 2 of the Civil Procedure Rules

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, "Abdulrazak Abdulrehhman Adam v Aslam Abdulrehman Adam & 4 others [2016] KEELC 312 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/312/eng@2016-09-07

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