ABDI KADIR ADAN v IBREIN BORE CHEDA [2010] KEHC 168 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & TAX DIVISION – MILIMANI

MISC. APPLICATION NO. 470 OF 2010

ABDI KADIR ADAN ........................................................................PLAINTIFF

VERSUS

IBREIN BORE CHEDA.....................................................................DEFENDANT

R U L I N G

Before the Court is an application by a Notice of Motion dated 25th May, 2010 and brought under Order 52 Rule 3 (1) of the Supreme Court of England Rules, and all other enabling provisions of the law. The Applicant seeks from the Court the following orders –

1. An order of this Honourable Court that Mr. Ibrein Bore Cheda, who is a Defendant in the Chief Magistrate’s Court Civil Case No. 727 of 2010, Milimani Commercial Courts, Nairobi, upon whom the Court orders dated 10th May, 2010 were directed and properly served on the 11th May, 2010, “The Contemnor” be cited for contempt of a valid Court order and be committed to civil jail for a period deemed just and sufficient by this Honourable Court and such further orders be made as the Court may deem necessary for contempt of Court by disobeying this Honourable Court’s order, facts which are well within his/their knowledge.

2. An order directing or compelling that “The Contemnor”, his servants, agents, and authorized representatives be ordered to comply with the Court order issued on 10th May, 2010, more particularly paragraph 2 of the same order which required the above-named contemnor to restrain from entering, interfering with, constructing or developing any structures or otherwise on in any way dealing with the suit property known as Plot No. B 116, MATOPENI-KAYOLE ESTATE, NAIROBI, pending the inter partes hearing of the suit.

3. An order that this Honourable Court do impose a mandatory penalty to be paid by the Respondent.

4. An order that the officer commanding Kayole Police Station do execute the orders herein.

5. The costs of this application be provided for.

The application is supported by annexed affidavit of Abdi Kadir Adan, swon on 25th May, 2010, and also by the statutory statement and verifying affidavit of the said deponent.

When the application came for hearing, Mr. Jaoko Alexander appeared for the Applicant but the Respondent neither appeared not was he represented. As there was an affidavit of service to the effect that the Respondent had been served in sufficient time to attend, the Court proceeded ex parte.

The Applicant’s case is that the Respondent has disobeyed the Court order dated 10th May, 2010 and properly served upon him on 11th May, 2010. In paragraph 4 of the supporting affidavit, the Applicant deposes that “that the Respondent was duly served with the Court order restraining him or his servants, agents and authorized representatives from encroaching upon the suit property on the 11th May, 2010, which order he has disobeyed and continues constructions on the said property.” And in paragraph 6 of the same affidavit, he continues to aver that annxed to the application and marked ‘AKD 1’ and ‘AKD 2’ are “the copies of the Court order and affidavit of service upon the Respondent referred to above.”

The Court order marked ‘AKD 1’ merely reads, inter alia,- ‘IT IS ORDERD

1. THAT application dated 5th May, 2010 be and is hereby (sic) certified urgent.

2. THAT injunctive orders of 1st April, 2010 be and hereby reinstated pending the hearing inter partes of this application.”

The orders made on 1st April, 2010, were made in the Milimani CMCC NO. 727 OF 2010 and therefore are not on this case file. Copies thereof ought to have been attached to this application but, sadly, they were not so attached. This Court is therefore in the shadows as to the import and scope of those orders.

Even more important, there is ample case law directing that in cases of contempt of Court, it should be demonstrated that the orders allegedly disobeyed were served personally on the contemnor. In paragraph 4 of the affidavit of Service, Felix Omondi Otieno, the process server, deposed that on 11th May, 2010, at around 10 a.m., he proceeded to Kayole Matopeni area where the subject suit property, Plot No. B 116, is situated and enquired about the whereabouts and/or the residence of the Defendant herein, and he was directed to his place of business within Eastleigh Estate. He proceeded to Eastleigh on 10th Street, 2nd Avenue, but on enquiring, he was told the Defendant had just left for an unknown destination. He then went back to Plot No. B 116 (the suit property) and affixed an original Court order at a conspicuous place on the door of the suit property.

On his own admission the process server did not effect personal service on the person or the Respondent. At its best, the service effected was substituted service which can only be effected on the authority of a Court order. In the absence of such an order, the service by affixing the Court order on the door was of no legal consequence as we cannot be certain that the Respondent ever got to see that Court order which he is alleged to have disobeyed.

Before one can be found guilty of contempt of Court by disobeying a Court order, it is imperative that one should have been served with the Court order alleged to be disobeyed. Such service is a condition precedent to finding the alleged contemnor guilty of contempt of Court, and the service should be effected on him or her personally. Suffice to say that in the case of OCHINO & ANOR. v. OKOMBO & ORS. [1989] KLR 165, the Court of Appeal held that as a general rule, no order of the Court requiring a person to do or abstain from doing any act may be enforced by committing him for contempt unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question. The copy of the order served must also be endorsed with a notice informing the person on whom the copy is served that if he disobeys the order, he is liable to the process of execution to compel him to obey it. In the instant case, since a copy of the order allegedly served on the Respondent is not attached to the application, it is not possible to tell whether such copy was properly endorsed as required by law.

In the circumstances, and seeing that service of the Court order was not properly effected, this application cannot succeed and it is hereby struck out. As the Respondent neither filed any pleadings nor attended Court, there will no order as to costs.

Orders accordingly.

DATED and DELIVERED at NAIROBI this 21st day of October, 2010.

L. NJAGI

JUDGE