PETER KINYUA NGACHA v JAMES WACHIRA MUNENE [2008] KEHC 839 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 72 of 2007

PETER KINYUA NGACHA ………...………………………  PLAINTIFF

VERSUS

JAMES WACHIRA MUNENE …………………………..  DEFENDANT

RULING

CONTEMPT PROCEEDINGSAPPLICATION OF 25TH JUNE 2008

I:    Background

1.   This is an application for contempt proceeding.

2.   A brief background is that the defendant/respondent herein had been given access to pluck the and sell the same by his late father.

3.   The reason his father did this was that he was unable to look after himself.  He requested the respondent to do this.  It is alleged that he failed to do this but collected earning from the tea proceeds without supporting his father.

4.   His father allegedly sold the land and left the defendant respondent without ownership.

5.   The purchaser and plaintiff herein filed suit to restrain the defendant/respondent from claiming and or plucking the tea in question.

6.   This court duly granted orders of injunction against the defendant and in favour of the plaintiff on 9 May 2007.  The defendant is alleged to have continued with his destruction of plucking the tea.

7.   It was then that the applicant filed the application dated 25th June 2008 for contempt.

II:   Procedure

8.   During the inter party hearing the applicant informed the court  that the destruction is still continuing of tea plucking by the defendant.  The advocate for the defendant argued that the procedure to come to court was irregular.  One has to first seek the leave of the court before applying for contempt proceedings.

9.   In this matter no leave was made on the application  to the court.  The case law of:

Andalo & Another

V

James Gleen Russel Ltd

(1990) KLR 54 Aluoch, J.

Where it  was held inter alia that procedure to come to court is under Order 52 rule 2 of the rules of the Supreme Court that requires an application for an order of committal that requires leave.  Orders of contempt would take the form of prerogative orders.

In a second case of:

Awadh v Marumbu

(2004) I KLR 454, Sergon J.

Where in that case also leave was required to be sought in an exparte application before contempt proceeding was raised.

10.  The position of this case is that no leave was sought.   The arguments put by R.M. Mutiso was that there are conflicting decision on how the contempt proceeding is to be done.  To some extent he is correct.  If a wrong is committed before the court the judge or magistrate can punish immediately for contempt.  If it is done not in the presence of the court a penal notice must issue and service of the order not to be discharged  is therefore given to the person being restrained and whom such party must be party to the case before any decision is cited.

11.  I further note from the authorities before me that the High Court in Kenya would adopt the Supreme Court  rules of Kenya by virtue of section 5 of the Judicature Act.  The court has powers to punish for disobedience of an injunction.

12.  I therefore note that leave has to be obtained in the case of disobedience.

Conclusion.

13.  In this case I hereby find that this application must fail and be accordingly dismissed.

14.  I bring to the defendant respondent the terms of the injunction which terms I expect he must obey.

15.  I make no orders as to costs.

DATED THIS 25TH DAY OF SEPTEMBER 2008 AT NAIROBI.

M.A. ANG’AWA

JUDGE

R.M. Mutiso instructed by r.M. Mutiso & Co. Advocates for the plaintiff – present

K. Kahigah instructed by Kahigah & Co. Advocates for the defendant - present