PETER K. YEGO, MUSA BOIT, MICHAEL KIPRUTO & MICHAEL KIPRUTO T/A AIRNOPTICH BOREHOLE WATER PROJECT v PAULINE NEKESA KODE [2009] KEHC 3312 (KLR) | Contempt Of Court | Esheria

PETER K. YEGO, MUSA BOIT, MICHAEL KIPRUTO & MICHAEL KIPRUTO T/A AIRNOPTICH BOREHOLE WATER PROJECT v PAULINE NEKESA KODE [2009] KEHC 3312 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE COURT OF APPEAL OF KENYA

AT NAKURU

CIVIL CASE 194 OF 2004

PETER K. YEGO……………………….………1ST PLAINTIFF

MUSA BOIT……………………………...….….2ND PLAINTIFF

MICHAEL KIPRUTO…………………....……..3RD PLAINTIFF

MICHAEL KIPRUTO T/A AIRNOPTICH

BOREHOLE WATER PROJECT……………….3RD PLAINTIFF

VERSUS

PAULINE NEKESA KODE………................….….DEFENDANT

RULING

By their notice of motion dated 27th May 2008, the plaintiffs seek under Order 39 Rule 2A(2) of the Civil Procedure Rules and Section 5 of the Judicature Act to cite the defendant for contempt of court.  What the defendant is alleged to have disobeyed is the order of temporary injunction granted by this court on 13th May 2005 which restrained her, her servants or agents from subdividing, disposing off, constructing on, cultivating or cutting trees on the suit piece of land known as Title No. Miti Mingi/Mbaruk/3/505 [Baruti].

It is alleged in the affidavit in support of the application that the defendant was served with a copy of that order on 4th December 2007.

The application is opposed on the ground that the defendant was never served with the order.  Mr. Okeke for the defendant submitted that the affidavit of service if obviously false as the defendant is an old illiterate woman who does not know how to write.  The question of her having refused to sign does not therefore arise.  He also pointed out that the affidavit in support of this application contradicts the one of service on the date of the alleged service.

I have considered these submissions and read the record.  As contempt of court is criminal, it must be proved that one has actually disobeyed the court order before one is cited for contempt.  One of the most important elements to be proved in such a charge is service of the order upon the alleged contemnor.  In this case the affidavit in support of the application claims that the defendant was served on 4th December 2007 while the affidavit of service says the service was effected on 7th December 2007.  It is therefore not clear when, if at all, the defendant was served with the order she is alleged to have flouted.  In the circumstances I find no basis for this application and I dismiss it with costs.

DATED and delivered this 27th May 2009.

D. K. M ARAGA

JUDGE.