Charles Laalia M’ Linkaibua v Joseph Nthilithia M’akwalu; Andrew Kaibunga (Contemptor) [2020] KEELC 3882 (KLR)
The bottom line
#You cannot punish someone for disobeying a Kenyan court order unless you can prove the order was actually served on them.
What this practically means
#Executive summary
#Key legal issues
#Procedure for instituting contempt of court proceedings
Contempt proceedings are governed by section 5 of the Judicature Act and require proof of personal service of the order alleged to have been breached before sanctions can take effect
The court traced the power to punish contempt to section 5 of the Judicature Act, adopted Odunga J's exposition of the committal procedure and Ibrahim J's statement on the obligation to obey court orders. However, on the facts, although the application itself was served, there was no affidavit of service of the extracted order of 14.1.2019. Without proof of service of the order, contempt could not take effect; the court instead issued a show-cause direction.
Breach of the court's judgment orders of 25/07/2018 (mandatory injunction and boundary fixing)
The applicant established, through photographs and the surveyor's report, a prima facie case of destruction of the fence and boundary, justifying enforcement directions and a show-cause summons
The surveyor's report of 9/3/2018 had found encroachment by the Defendant, and judgment issued a mandatory injunction and an order for the sub-county surveyor to fix the boundary. The applicant averred the order was extracted and served on 2/05/2019, boundaries fixed and a fence erected, which was allegedly destroyed by the Respondent and one Andrew Kaibunga with machetes. The court accepted the photographic evidence and directed the Respondent and the contemptor to appear and show cause why sanctions should not be imposed.
Legal principles established
#- It is the plain obligation of every person against whom a court order is made to obey it unless and until it is discharged, even where the person believes the order to be irregular or void
- A committal application must be made in the proceedings in which the order was made, set out the grounds fully, identify each alleged act of contempt separately and numerically, be supported by affidavit, and be served personally on the respondent
- Contempt of court orders cannot take effect without proof that the orders were served
Court orders
#- 1.Prayers 2, 3 and 5 in the application allowed
- 2.The Respondent and the Contemptor directed to personally appear before the Court to show cause why appropriate sanctions cannot be taken against them as prayed in the application
- 3.Respondents condemned to pay costs of the application
- Jurisdiction invoked
- Section 5 of the Judicature Act (Cap 8) Laws of Kenya - power to punish for contempt of court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Laalia M’ Linkaibua v Joseph Nthilithia M’akwalu; Andrew Kaibunga (Contemptor) [2020] KEELC 3882 (KLR)", Case Analysis (2020). Not stated in the judgment (application dated 19th November 2019 in the suit over Tigania/Katharane/1301 & 1323). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3882/eng@2020-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.