Samson Ratemo Momanyi v Vane Misoko & Another [2016] KEELC 925 (KLR)
The bottom line
#A Kenyan High Court dismissed a contempt application because the plaintiff couldn't prove the defendants were ever served with the court order they allegedly disobeyed.
What this practically means
#Executive summary
#Key legal issues
#Whether leave is a condition precedent to contempt proceedings under section 5 of the Judicature Act
Leave is not required; the applicable English law is now the Contempt of Court Act 1981 and Part 81 of the Civil Procedure (Amendment No. 2) Rules 2012, not Order 52
The court, citing Shimmers Plaza Ltd v National Bank of Kenya, noted that section 5 of the Judicature Act subjects contempt proceedings in Kenya to current English law. Order 52 of the Supreme Court Rules has been replaced by Part 81 of the Civil Procedure (Amendment No. 2) Rules 2012, and Rule 81.10 requires no leave. The defendants' objection that the application was incompetent for want of leave therefore failed.
Whether the plaintiff proved service of, and knowledge of, the order of 13th May 2014
The plaintiff failed: no affidavit of service on the order of 13th May 2014 existed, and the affidavit relied on was sworn before the order was made
The only affidavit of service relied upon (William Ogwara's of 18th February 2014) did not refer to the order of 13th May 2014 and could not have proved its service since it predated the order. Rule 81.5 requires service of an order endorsed with a penal notice before enforcement, unless dispensed with. The court found the defendants were neither served nor aware of the order, so the primary elements of contempt were not proved.
Legal principles established
#- Under the current English law governing contempt (Contempt of Court Act 1981 and Part 81 of the Civil Procedure (Amendment No. 2) Rules 2012, which replaced Order 52), an applicant does not need leave to commence committal proceedings
- A judgment or order may not be enforced by committal unless served on the person required to do or not do the act in question, unless service is dispensed with
Court orders
#- 1.The Notice of Motion dated 16th June 2014 is dismissed
- 2.Costs of the application awarded to the defendants
- Jurisdiction invoked
- Section 5 of the Judicature Act and Order 52 of the Rules of the Supreme Court of England
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Ratemo Momanyi v Vane Misoko & Another [2016] KEELC 925 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/925/eng@2016-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.