Abdulrazak Abdulrehhman Adam v Aslam Abdulrehman Adam & 4 others [2016] KEELC 312 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether contempt can be founded on an unserved order
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
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.
Whether presence of the Respondents' advocates when the ruling was delivered excuses service
The court posed the question but, having found the application failed on want of service with penal notice, did not decide it
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.
Legal principles established
#- 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
#- 1.The application for contempt is dismissed
- 2.Costs of the application to the Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.