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ELCDismissedNotice of Motion dated 22nd February 2011 (within the main suit)· [2017] KEELC 1928 (KLR)

Moses Kingati Wangari & 2 others v Joseph Thugo Mwaura & 4 others [2017] KEELC 1928 (KLR)

High Court of Kenya
1 September 2017
MGMary Gitumbi
197 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court refused to jail three men for contempt because the application was supported by an affidavit sworn by someone with no proven authority.

What this practically means

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Executive summary

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This first-instance ruling by the High Court in Nairobi (Mary Gitumbi J) determined a Notice of Motion dated 22nd February 2011 by which the 5th Defendant sought to have the three Plaintiffs - Moses Kingati Wangari, Michael Mwenda Manyara and Joseph Musyoka Wambua - committed to civil jail for contempt of court orders made on 4th November 2010 by Honourable Justice Mbogholi Msagha. The application was grounded on the face of the motion and on a Supporting Affidavit sworn by June Koinange, described as a daughter of the 4th Defendant and sister of the 5th Defendant. Koinange averred that she had the 5th Defendant's authority and permission to swear the affidavit, but she did not annex that authority and was not herself a party to the suit. The court held that her affidavit could not be relied upon for those reasons, and that on those grounds the application had to fail. The motion for committal was dismissed in its entirety, with costs ordered to be in the cause. The judgment was delivered, dated and signed at Nairobi on 1st September 2017. The decision establishes that a contempt application cannot be sustained on a supporting affidavit sworn by a non-party who neither annexes nor demonstrates authority from the applicant. No authorities or statutes were cited in the ruling.

Key legal issues

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Validity of a supporting affidavit sworn by a non-party without authority

Holding

The application for committal failed because the only supporting affidavit was sworn by June Koinange, a daughter/sister of the defendants, who was not a party to the suit and did not annex the authority she claimed to have from the 5th Defendant.

Reasoning

Committal for contempt is a serious remedy requiring a properly supported application. The deponent asserted she had the 5th Defendant's authority and permission to swear the affidavit but did not annex that authority. Being neither a party nor an authorised agent on paper, her affidavit was inadmissible as support for the motion. Without a valid supporting affidavit, the application for committal to civil jail could not stand and was dismissed with costs in the cause.

p. 2

Legal principles established

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  • A supporting affidavit sworn by a non-party who has no authority to swear it on behalf of the applicant cannot be relied upon to support an application

Court orders

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  1. 1.The 5th Defendant/Applicant's Notice of Motion dated 22nd February 2011 is dismissed
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Inherent jurisdiction of the High Court to punish contempt of its orders (order of 4th November 2010 by Honourable Justice Mbogholi Msagha)

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, "Moses Kingati Wangari & 2 others v Joseph Thugo Mwaura & 4 others [2017] KEELC 1928 (KLR)", Case Analysis (2017). Notice of Motion dated 22nd February 2011 (within the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1928/eng@2017-09-01

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