Jackson Omwenga T/A Jackson Omwenga & Co. Advocates v Harambee Sacco Society Ltd & another [2014] KEELC 37 (KLR)
The bottom line
#Kenya's High Court dismissed a contempt application because the plaintiff never properly served the court order and couldn't prove disobedience beyond doubt.
What this practically means
#Executive summary
#Key legal issues
#Personal service of the orders of 4/12/2013 and notice of penal consequences
There was service on the 2nd Defendant only; there was no personal service on the 1st Defendant as required by Order 5 Rule 3 of the Civil Procedure Rules, so the 1st Defendant cannot be culpable of disobedience
The affidavit of service by Eunice Moraa Nyabio attested only to service on the 2nd Defendant on 9th December 2013. The 1st Defendant being a limited liability company, service ought to have been effected on its directors or officials under Order 5 Rule 3 of the Civil Procedure Rules. The plaint did not indicate that the 2nd Defendant was sued as an officer of the 1st Defendant, so she was sued in her personal capacity.
Whether the 2nd Defendant was culpable of contempt
No; the Plaintiff failed to prove contempt beyond the applicable standard. The photographs did not show that access to the Plaintiff's offices was blocked or structures at the entrance, nor when they were taken
The order restrained construction of structures at the entrance to the Plaintiff's offices. The photographs produced showed a door and reception constructed in the common areas but did not demonstrate blocked access, structures at the entrance, or the timing of the alleged construction. The Plaintiff thus failed to meet the higher-than-civil threshold of proof for contempt.
Whether the remedies sought (committal, fine, appointment of auctioneers) were available
Not granted, as contempt was not established; the application was declined with costs to the Plaintiff
Since the court found no personal service on the 1st Defendant and insufficient proof of breach by the 2nd Defendant, the consequential remedies of committal to civil jail, a fine, and appointment of auctioneers to remove structures could not issue.
Legal principles established
#- Personal service of a court order and a notice of penal consequences is a prerequisite to enforcement by committal unless dispensed with
- The threshold of proof in contempt of court is higher than in normal civil cases
- Where personal awareness of a court order by the alleged contemnor is demonstrated, culpability may be found even absent personal service of a penal notice
Court orders
#- 1.The Plaintiff's Notice of Motion dated 24th February 2014 is declined
- 2.The Plaintiff shall pay the costs of the said Notice of Motion
- Jurisdiction invoked
- Section 5(1) of the Judicature Act (power to punish for contempt of court) and Order 40 Rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Omwenga T/A Jackson Omwenga & Co. Advocates v Harambee Sacco Society Ltd & another [2014] KEELC 37 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/37/eng@2014-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.