Justus Nyaribo v Clerk Nyamira County Assembly [2013] KEMC 94 (KLR)
The bottom line
#A Kenyan court refused to punish a county clerk for defying a court order because nobody could prove she actually knew about the order.
What this practically means
#Executive summary
#Key legal issues
#Whether there was personal service of the order dated 22/03/2013 on the Respondent
No personal service was effected; the process server was barred by police and merely threw a copy of the order through a door while speaking to the sergeant at arms
The Affidavit of Service showed the process server was prevented by police officers acting on the master of ceremony's instructions from entering the hall. Paragraph 4 revealed he only managed to throw a copy of the order inside while talking with the sergeant at arms. The court therefore found no personal service on the Respondent.
Whether personal service is mandatory in contempt proceedings
Personal service is not mandatory; the court adopted the school of thought that knowledge of a court order supersedes personal service
Order 5 Rule 8(1) of the Civil Procedure Rules contemplates service on an agent where personal service is impracticable. The court reviewed conflicting High Court authorities: Lenaola J in Kariuki (service higher than knowledge) and later in Criticos, and Kimaru J, versus Majanja J in Mike Maina Kamau. The court aligned with the former, holding knowledge higher than personal service.
Whether the Respondent had knowledge of the court order so as to be guilty of contempt
Knowledge was not proved; the court could only speculate whether the order reached the Respondent and could not find her in contempt
Because the process server was barred from the hall and merely threw the order inside, there was no evidence that news of the order reached the Respondent or those conducting the election. The court declined to speculate and found that contempt was not established. The court also declined to decide whether it had jurisdiction to punish for contempt.
The applicable standard of proof in contempt proceedings
The standard is higher than balance of probabilities, almost but not exactly beyond reasonable doubt, contempt being quasi-criminal
Rejecting the Respondent's submission that proof beyond reasonable doubt applied, the court relied on the Court of Appeal decision in Mutitika v Baharini Farm Limited, holding that the criminal standard belongs to criminal cases and should not be extended to contempt, which is quasi-criminal in nature.
Legal principles established
#- Personal service of a court order is not mandatory; where practicable service shall be personal but knowledge of an order can suffice for contempt
- Knowledge of a court order is higher than personal service; a party who clearly acts with knowledge of an order need not have been personally served
- The standard of proof in contempt proceedings is higher than balance of probabilities but not beyond reasonable doubt, contempt being quasi-criminal
- Court orders must be obeyed unless and until discharged, whether or not the affected person agrees with them
Court orders
#- 1.The petitioner's Notice of Motion dated 12th April 2013 seeking to cite the Respondent for contempt is dismissed
- 2.Costs be in the cause
- Jurisdiction invoked
- Inherent contempt jurisdiction of the court (application to cite for contempt of a court order dated 22/03/2013); contempt proceedings quasi-criminal in nature
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justus Nyaribo v Clerk Nyamira County Assembly [2013] KEMC 94 (KLR)", Case Analysis (2013). Petitioner's Notice of Motion dated 12th April 2013 (Nyamira County Assembly Speaker Election Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/94/eng@2013-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.