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High CourtPartially AllowedMisc. Application No. 607 of 2004

Kabuito Contractors Ltd v Nairobi City Council

High Court of Kenya
29 July 2004
1,589 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Ignoring a court order, even if you know about it, can lead to being held in contempt and facing jail time.

What this practically means

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Executive summary

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Kabuito Contractors Ltd, decree-holder in High Court Civil Case No. 1323 of 1999 against Nairobi City Council, obtained leave on 26 May 2004 to commence contempt proceedings against the Town Clerk. It sought a declaration that the Council was in contempt and the committal of the Town Clerk (Franklin Magaju) to civil jail for up to six months, having abandoned a prayer to freeze the Council's bank accounts. The court was satisfied the application was duly served on the Town Clerk's office, and further found that the order of 28 April 2003 in Misc. Application No. 1410 of 2002 and the decree of 17 September 2002 had been received by Magaju first as the Council's Senior Counsel and later, as Town Clerk, personally served with a certified copy of the order, decree and penal notice. The Council had paid only Kshs.200,000 towards the decree and thereafter made no proposals to settle the balance. Applying Aaron Gitonga Ringera v P.K. Muite and Hadkinson v Hadkinson, the court held that knowledge of an order dispenses with service and that obedience to court orders is an unqualified obligation. The Respondent was declared in contempt (prayer 1 granted). However, immediate committal was not ordered; instead a warrant of arrest issued against the Town Clerk to show cause why he should not be committed to civil jail for up to six months, with the Bailiff and Central Police Station OCS directed to assist. Further orders were reserved pending execution. No costs order was recorded.

Key legal issues

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01

Whether knowledge of a court order dispenses with personal service for contempt

Holding

Knowledge of the order suffices; the court held on a balance of probability that the Council and its Town Clerk not only knew of the orders but were personally served.

Reasoning

The court relied on affidavits of service showing the order of 28 April 2003 and decree were received by Franklin Magaju as Senior Counsel, later served personally as Town Clerk with a penal notice, and a part-payment cheque signed by him. Following Ringera v Muite, prior knowledge made formal service unnecessary.

p. 2
02

Whether non-payment of a decree constitutes contempt

Holding

Yes; contempt arises both from disobeying the order by non-payment and from disregarding it without coming to court to explain default.

Reasoning

The Council paid only Kshs.200,000 towards the decree then went silent, making no proposals to pay the balance. The court held this part-payment itself contemptuous given the total debt and the silence as to the balance.

p. 3
03

Whether the Town Clerk should be committed to civil jail

Holding

Committal was not immediately ordered; a warrant of arrest was issued requiring him to show cause, the court noting his liberty is a fundamental right and this is not a personal liability.

Reasoning

The court found contempt established (prayer 1) but declined immediate committal, instead issuing a warrant of arrest to bring the Town Clerk before the court to show cause, balancing his fundamental right to liberty against his public duty as Accounting Officer.

p. 3

Legal principles established

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  • A person against whom a court order is made is bound to obey it until discharged, even if he believes the order void
  • Personal service of a court order is not necessary where the person already has knowledge of the order

Court orders

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  1. 1.A declaratory order that the Respondent is in contempt of the court (prayer 1 granted)
  2. 2.A Warrant of Arrest to issue against the Town Clerk, Mr. Franklin Magaju, to be arrested and brought before the court to show cause why he should not be committed to civil jail for up to six months
  3. 3.The Warrant to be executed and enforced by the Bailiff of the Court, with the Officer-In-Charge of the Central Police Station directed to assist and provide security
  4. 4.Further orders/directions to be given upon execution of the order
Jurisdiction invoked
Leave granted by the High Court to commence contempt proceedings against the Town Clerk, Nairobi City Council (order of 26 May 2004)

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, "Kabuito Contractors Ltd v Nairobi City Council", Case Analysis (2004). Misc. Application No. 607 of 2004. Source: 

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