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ELCDismissedELC 202 of 2012· [2019] KEELC 1170 (KLR)

Lilian Muthoni Njoroge & another v Nelson Mathu Njoroge & another [2019] KEELC 1170 (KLR)

Environment and Land Court
17 October 2019
LKL. Komingoi
704 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 jail parties for disobeying an injunction because the order was never properly served on them personally.

What this practically means

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Executive summary

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The applicant, the plaintiff in ELC 202 of 2012, moved the court by notice of motion dated 15th April 2014 under Order 40 rules 1 and 3(1) of the Civil Procedure Rules, section 3 of the Civil Procedure Act and section 5(1) of the Judicature Act, seeking an order of committal to prison for six months of Rose Wambui and Lilian Muthoni for disobeying an order of 20th December 2013 restraining them from remaining in occupation of, entering, interfering with, alienating or dealing in LR No. Muguga/Muguga/1647 pending determination of the suit. The application was opposed by a replying affidavit of the 1st respondent denying service, and canvassed by written submissions. The court framed a single issue: whether the applicant had demonstrated that the respondents were in contempt of the 20th December 2013 order and ought to be punished. Examining the affidavit of service sworn by the process server, Francis Kimuyu Nzangi, the court found that although copies of the order and penal notice were handed over, the 1st respondent was not personally served with the order and penal notice, and service on Lilian Muthoni at Githurai market was likewise unproven. The court also noted that the 1st respondent was the applicant's wife and had explained her continued presence on the suit property. Holding that the applicant failed to demonstrate wilful disobedience, the court dismissed the application with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the respondents were in contempt of the orders of 20th December 2013

Holding

The application for committal failed because the applicant did not prove personal service of the order and penal notice on the 1st respondent, nor wilful disobedience

Reasoning

The applicant relied on an affidavit of service by a process server. That affidavit showed the 1st respondent declined to sign but the court found she was not personally served with the order and penal notice. As regards Lilian Muthoni, service at Githurai market without signature was not enough. The court also noted the 1st respondent is the applicant's wife and had explained her continued presence on the suit property, so wilful disobedience was not established.

p. 2

Legal principles established

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  • A party cannot be committed for contempt of a court order unless proper personal service of the order and the penal notice is proved and wilful disobedience demonstrated

Court orders

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  1. 1.The notice of motion dated 15th April 2014 seeking committal of the respondents for contempt is dismissed
  2. 2.The costs of the application to abide the outcome of the main suit
Jurisdiction invoked
Order 40 rules 1 and 3(1) of the Civil Procedure Rules, section 3 of the Civil Procedure Act and section 5(1) of the Judicature Act

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, "Lilian Muthoni Njoroge & another v Nelson Mathu Njoroge & another [2019] KEELC 1170 (KLR)", Case Analysis (2019). ELC 202 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1170/eng@2019-10-17

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