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ELCDismissed· [2018] KEELC 1187 (KLR)

Janefer Chebii Kimetto (Suing as the personal representative of the estate of the estate of Jonah Kipkoske arap Chumo) v Board of Governors Chebwagan Youth Polytechnic [2018] KEELC 1187 (KLR)

Environment and Land Court
25 October 2018
989 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho court dismissed a contempt case because the applicant never proved the school's board chairman was personally served with, or even knew about, the court order he allegedly broke.

What this practically means

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Executive summary

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This was a contempt-of-court application by the Plaintiff/Applicant seeking to have the current members of the Defendant's Board of Governors committed for disobeying a court order dated 2nd August 2016 restraining further construction on land parcel KERICHO/LITEIN/330. The applicant alleged that construction had continued and that the Governor of Kericho County had recruited 600 National Youth Service soldiers residing on the suit land, necessitating more classrooms. The respondent, through its chairman Samuel Sigei, denied contempt, contending he was never personally served with the order (service having been effected on former Board members whose contempt convictions were set aside on 16th March 2018) and that developments on the property were managed by the County Government of Kericho. The court agreed with the respondent that the application was misconceived and an abuse of process: a similar application had already been heard and determined by a ruling of 12th July 2017, resulting in committal of persons who were no longer Board members, and those orders had been set aside. Applying the principle from Teachers Service Commission v KNUT that contempt proceedings are quasi-criminal and personal service is generally required, and distinguishing Basil Criticos on knowledge, the court held there was no evidence that the current chairman was served with or aware of the order. The application dated 22nd June 2018 was dismissed with costs to the respondents.

Key legal issues

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01

Whether contempt can be established against persons not personally served with the order where no knowledge is proved

Holding

No — absent proof of personal service or actual knowledge of the order, contempt cannot be established against the current Board of Governors chairman

Reasoning

The court noted that personal service is the general rule in contempt proceedings, which are quasi-criminal. While Lenaola J in Basil Criticos held that knowledge supersedes personal service, the applicant here placed no evidence before the court that the current chairman was served or aware of the 2nd August 2016 order. The court could not assume he was aware of it, not knowing when he took office. The prior contempt orders had been set aside on 16th March 2018 because the jailed members were no longer in office.

p. 2
02

Whether the application was an abuse of the court process as a repeat application

Holding

Yes — the applicant had previously filed a similar application on 22nd February 2017 which was heard and determined, and the resulting committal orders were set aside

Reasoning

The applicant had already sought committal of the Board members by an application dated 22nd February 2017, which produced a ruling dated 12th July 2017 and committal to civil jail. Those orders were set aside on 16th March 2018 after it emerged the jailed persons were no longer Board members. Bringing a similar application against the current chairman, without proof of service on him, was misconceived and an abuse of process.

p. 2

Legal principles established

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  • As a general rule, no order of court requiring a person to do or abstain from doing an act may be enforced in contempt proceedings unless a copy of the order has been served personally on the person required to do or abstain from doing the act
  • Contempt proceedings are quasi-criminal in nature and personal service of the order is a requirement in the normal scheme of things, though knowledge of the order may in some cases supersede personal service

Court orders

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  1. 1.The applicant's Notice of Motion dated 22nd June 2018 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Contempt of Court Act No. 46 of 2016Section 4(1)(a)
  • England Supreme Court RulesOrder 52 Rule 3(1) (explanatory notes)

Cases cited (2)

  • Teachers Service Commission V Kenya National Union of Teachers & 2 Others
    (2013) eKLR
  • Basil Criticos V A.G
    (2012) eKLR
Jurisdiction invoked
Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Section 4(1)(a) of the Contempt of Court Act No. 46 of 2016

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, "Janefer Chebii Kimetto (Suing as the personal representative of the estate of the estate of Jonah Kipkoske arap Chumo) v Board of Governors Chebwagan Youth Polytechnic [2018] KEELC 1187 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1187/eng@2018-10-25

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