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ELCOtherEx-parte Chamber Summons dated 19th November 2018· [2019] KEELC 4808 (KLR)

Kangara Mutugi Kamau & 4 others v Nancy Wanjiku Maina & another [2019] KEELC 4808 (KLR)

Environment and Land Court
25 January 2019
ECE.C. CHERONO
942 words in judgment
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The bottom line

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A Kenyan court ruled that you cannot secretly ask for permission to sue someone for disobeying a court order — the other side must be told and heard first.

What this practically means

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Executive summary

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The Ex-parte Applicant sought leave under Order 51 Rule 1 CPR and Section 5 of the Judicature Act to commence contempt proceedings against Nancy Wanjiku Maina and Eunice Wangui Wanjohi for disobeying temporary injunction orders issued on 31st October 2018 restraining interference with land parcels KIINE/NYANGIO/504 and KIRINYAGA/MARURUMO/57, which the Applicant averred were served on 3rd November 2018 but disregarded. The court, E.C. Cherono J, considered whether the leave application could proceed ex-parte. Applying Section 11 of the Interpretation and General Provisions Act, the court held that applied English law must be read with such modifications as Kenyan circumstances permit, and that the English practice of ex-parte leave applications modelled on judicial review no longer holds good in Kenya. The court applied the Court of Appeal's decision in the Goldenberg commission case, which directs that where leave is sought in ongoing litigation and the intended party can adduce relevant material without prejudice, an inter-partes hearing is preferred. Finding no demonstrated prejudice to the Applicant from service, the court directed that the application for leave be served for inter-partes hearing on 25th February 2019, with costs of the application to abide the event. The application was therefore not granted outright nor dismissed; directions were issued for its inter-partes hearing.

Key legal issues

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01

Mode of hearing an application for leave to commence contempt proceedings

Holding

The ex-parte mode borrowed from English practice does not obtain in Kenya; in ongoing litigation the intended contemnor should be served and allowed to participate absent prejudice

Reasoning

Section 5(1) of the Judicature Act applies English contempt law, but by Section 11 of the Interpretation and General Provisions Act applied law must be read with modifications to fit local circumstances. Relying on the Goldenberg decision of the Court of Appeal, the court held that where leave is sought in ongoing litigation and no prejudice is shown, the ends of justice demand an inter-partes hearing.

p. 1

Legal principles established

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  • Applied English law under the Judicature Act must be read with formal modifications to fit Kenyan circumstances
  • Leave applications for contempt in ongoing litigation should ordinarily be heard inter-partes where no prejudice is shown

Court orders

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  1. 1.This application for leave to commence contempt proceedings as against the Respondents be served for inter-partes hearing on 25th February 2019
  2. 2.The costs of the application to abide the event

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Interpretation and General Provisions ActSection 11
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of KenyaSection 60(1)

Cases cited (1)

  • REPUBLIC VS JUDICIAL COMMISSION OF INQUIRY INTO THE GOLDENBERG AFFAIR & ANOTHER EX-PARTE KOINANGE & 3 OTHERS (NO. 2)
    (2003) K.L.R at Page 606
Jurisdiction invoked
Section 5(1) of the Judicature Act (Cap 8) and Order 51 Rule 1 CPR

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, "Kangara Mutugi Kamau & 4 others v Nancy Wanjiku Maina & another [2019] KEELC 4808 (KLR)", Case Analysis (2019). Ex-parte Chamber Summons dated 19th November 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4808/eng@2019-01-25

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