Hasmo Agencies Limited v National Social Security Fund; Koros & 3 others (Contemnor) (Land Case E052 of 2023) [2024] KEELC 6528 (KLR)

The court examined the affidavit of service of Stephen Shikanda, who claimed service by email and M-Pesa confirmed phone contact and service at the legal office. It found no delivery receipt was annexed as required for electronic service, and the method did not constitute personal service on the contemnors. Given that contempt proceedings carry penal consequences against persons in their personal capacity, strict compliance with service rules was necessary, and its absence deprived the contemnors of the opportunity to be heard.

Although the plaintiff argued that Hellen Koech had the authority of the contemnors to swear a replying affidavit on their behalf, the court held this did not substitute for the required personal service. It noted the contempt proceedings, while directed at the officers in their official capacities, carried penal consequences enforceable personally. The 1st contemnor's express denial of authority to Koech in his further affidavit reinforced that her representation could not bind the individual contemnors.

The court invoked its inherent power under Sections 3 and 3A of the Civil Procedure Act and Order 51 Rule 15, which allows setting aside ex parte orders. Following Shah v Mbogo, the discretion to set aside exists to avoid injustice resulting from accident, inadvertence or excusable mistake. Since the contemnors were not duly served and were denied a fair hearing before being found in contempt, justice required setting aside the ruling and allowing them to respond to the contempt application.