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ELCDismissedNotice of Motion dated 2nd November, 2018 (Petition dated 24th September, 2018)· [2020] KEELC 722 (KLR)

David K. Kaitany & 18 others v Head Teacher/Secretary the School Management Committee, Ng’olong Primary School & 10 others [2020] KEELC 722 (KLR)

Environment and Land Court
13 November 2020
1,847 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to jail school officials for ignoring a court order because the order was served on watchmen, not authorised officers.

What this practically means

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Executive summary

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The Petitioners moved the Court by Notice of Motion dated 2nd November, 2018 seeking the arrest and committal to civil jail of the 1st, 4th and 5th Respondents for disobeying an interim order issued on 11th October, 2018 restraining invasion, construction or dumping of materials on land parcel Ewalel/Seretunin/632 pending hearing of an earlier application. The 1st Respondent, through its head teacher Solomon K. Limo, denied any construction, denied service of the order, asserted the secondary school was a separate legal entity, and contended the order was ambiguous and incapable of obedience. The Court framed two issues: whether disobedience was proved and costs. It found that the order of 11th October, 2018, as extracted, described the parcel as 'Ewalel/Kabomoti/632', which differs from the two parcels in the Motion of 24th September, 2018, casting doubt on the extracted order. Service had been effected on a security guard, a watchman, and the 4th Respondent's wife; the Court held service on watchmen without authority under Order 5 Rule 8 of the Civil Procedure Rules was not good service, and no effort had been made to trace authorised recipients. There was no evidence of how the 5th Respondent disobeyed. The Court concluded the Petitioners failed to prove, on a balance of probabilities, that the Respondents were served and willingly disobeyed the order. The Motion was dismissed with costs to the 1st Respondent, the only Respondent that participated in the underlying Motion. The ruling was to be transmitted digitally to counsel.

Key legal issues

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01

Whether the alleged contempt was proved

Holding

Not proved. The order allegedly disobeyed described a parcel (Ewalel/Kabomoti/632) different from the parcels in the application; service on watchmen was not valid service; and no evidence showed how the 5th Respondent disobeyed.

Reasoning

The Court compared the order of 11th October, 2018 with the Motion of 24th September, 2018 and found the land description inconsistent, raising doubt whether the extracted order reflected the court's order. Service was effected on a watchman and a security guard on a Saturday without attempting to trace authorised officers, contrary to Order 5 Rule 8. No evidence was tendered against the 5th Respondent. Contempt requires proof on a balance of probabilities of service and willing disobedience.

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02

Adequacy of service of the contempt order

Holding

Service on watchmen did not constitute good service on the 1st and 4th Respondents.

Reasoning

The process server left a copy under the headmaster's office door after the watchman declined to sign, and served the 4th Respondent's wife who declined to acknowledge. The Court held watchmen are not shown to have authority to receive service under Order 5 Rule 8, and no effort was made to trace the Respondents or authorised officers, so receipt of the orders could not be confirmed.

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03

Effect of the order of 1st April, 2019 on earlier Motions

Holding

The injunction issued on 1st April, 2019 effectively settled or compromised the Petitioners' Motions dated 24th September 2018, 12th November 2018 and 16th January, 2019.

Reasoning

Following the County Surveyor's report confirming the two parcels were distinct but with a 3.841-hectare overlap, the Court on 1st April, 2019 granted an injunction restraining any further construction on both parcels pending determination of the suit, which disposed of the earlier Motions.

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Legal principles established

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  • Service on watchmen at a school and county offices, without effort to trace officers authorised to receive service, does not amount to good service under Order 5 Rule 8 of the Civil Procedure Rules, and contempt cannot be founded on such service.
  • Contempt must be proved to the balance of probabilities, including proof that the party was served and willingly disobeyed the order.
  • A court order whose description of the suit property differs from that in the application it purports to enforce is doubtful and cannot ground committal for contempt.

Court orders

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  1. 1.The Petitioners' Motion dated 2nd November, 2018 is dismissed.
  2. 2.Costs awarded to the 1st Respondent.
  3. 3.The Ruling to be transmitted digitally by the Deputy Registrar to Counsel on record through their e-mail addresses.

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 8
Jurisdiction invoked
Contempt of court jurisdiction in respect of an interim injunction order issued pending hearing of a Motion in a land petition

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, "David K. Kaitany & 18 others v Head Teacher/Secretary the School Management Committee, Ng’olong Primary School & 10 others [2020] KEELC 722 (KLR)", Case Analysis (2020). Notice of Motion dated 2nd November, 2018 (Petition dated 24th September, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/722/eng@2020-11-13

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