Irungu Gachago v Joyce Watiri Macharia & another [2019] KEELC 1711 (KLR)

The Court traced the law of contempt to section 5 of the Judicature Act, which directs Kenyan courts to apply English law on contempt as at the time of the application. It noted that Order 52 RSC (which required leave) was replaced in its entirety by Part 81 of the Civil Procedure (Amendment No.2) Rules, 2012, and that under Rule 81.4, dealing with breach of a judgment, order or undertaking, no leave is required, as held by the Court of Appeal in Christine Wangari Gachege.

The Court relied on Rule 81.8(1), which permits the Court to dispense with service where there is notice or knowledge of the terms of the order. It relied on Basil Criticos and Justus Kariuki Mate v Martin Wambora for the proposition that knowledge supersedes personal service. The record showed the Respondents' advocate was present when judgment was delivered and a demand letter with the decree followed, so the claim that a decree is not an order was superfluous.

The orders clearly commanded the Defendants to vacate parcel 1301 and move to parcel 1300; the 1st Respondent's contention that the orders were merely declaratory was incorrect. Her complaint that she had not been put in possession of the second plot was a new cause of action not before the Court; the responsibility to vacate, including removal of structures, lay with the Respondents, not the Applicant.