BISHOP MICHAEL MBUTHIA & TWO OTHERS v BISHOP ELIJAH WAMBURI [2010] KEHC 2452 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU

Civil Case 1 of 2010

BISHOP MICHAEL MBUTHIA………………1ST PLAINTIFF

PASTOR JOSEPH KIMANI GITAMAKA…..2ND PLAINTIFF

JORAM MUREITHI WAMBUGU…………...3RD PLAINTIFF

VERSUS

BISHO ELIJAH WAMBURI P …………....1ST DEFENDANT

REV. SIMON KAMAU…………………..….2ND DEFENDANT

SAMUEL GITHINJI MWIKO……………..3RD DEFENDANT

KEPHA MWANGI RUA………………..…..4TH DEFENDANT

RULING

On

29th April 2010I revised the Senior Resident Magistrate’s order of26th April 2010in Nakuru CMCC No. 176 of 2001 in which he had committed the applicants to civil jail for a period of six months for contempt of court and reserved the reasons for that ruling.I now give the reasons.

The committal order was pursuant to an application made under Order 39 Rule 2(2) and (3) of the Civil Procedure Rules and Section 5 of the Judicature Act.The former provision empowers the court to commit a party to civil jail for disobedience of an injunction order.

There was no injunction order issued in that case as the trial court had dismissed the plaintiff’s case with costs.A subordinate court has jurisdiction to punish for contempt of court under the Judicature Act.The Senior Resident Magistrate had therefore no basis whatsoever for issuing the committal order.In the circumstances I set it aside and substitute it with an order dismissing the defendant’s application in that case with costs.

DATED and Delivered this 18th day of May, 2010.

D. K. MARAGA

JUDGE.