Simon Kimani v Geoffrey Kimani Gathigi & another [2014] KEELC 49 (KLR)
The bottom line
#A Kenyan property owner's bid to jail his neighbour for contempt failed because the court order was never personally served on him.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was personal service of the orders issued by the court on 13th June 2014 and a notice of penal consequences on the 1st Defendant
- 2.If there was such service, whether the 1st Defendant is culpable for contempt of court
- 3.If the 1st Defendant is found culpable, whether the Plaintiff can be granted the remedies sought
Key legal issues
#Whether service of the order on the 1st Defendant's employee constituted personal service
It did not; the affidavit of service showed service on an employee, Wesley Kimeli, and could not evidence personal service on or personal notification of the 1st Defendant
The process server's affidavit detailed how he reached the site, met the 1st Defendant's caretaker Wesley Kimeli, and left the order and penal notice with him after a phone call. The court held that since the employee, not the process server, was alleged to have communicated the order's existence to the 1st Defendant, the affidavit could not prove personal service or personal awareness by the Defendant.
Whether personal service is unnecessary for prohibitory injunctions
The court rejected the Plaintiff's submission; personal service is required for contempt proceedings unless dispensed with by the court, with no rule exempting prohibitory orders
The court applied Rule 81.8 of the English Civil Procedure Rules (imported via section 5(1) of the Judicature Act), which permits dispensation only where the person was present when the order was made or was notified of its terms by telephone, email or otherwise. The court found no law or rule dispensing with service for prohibitory injunctions and held the notification and awareness must be personal to the contemnor.
Whether the 1st Defendant was culpable of contempt
No; the standard of proof in contempt was not met as service and personal awareness were not established
Because the Plaintiff could not show personal service or personal awareness of the orders of 13th June 2014, the 1st Defendant could not be found culpable of disobeying them as at 15th June 2014, the date the Plaintiff alleged construction was ongoing. The application was accordingly dismissed with costs to the Plaintiff.
Legal principles established
#- Personal service of a court order and penal notice is required before committal for contempt unless service is dispensed with by the court
- Personal service may be dispensed with for prohibitory orders only where the alleged contemnor had notice of the order by being present when it was made or being notified of its terms
- An alleged contemnor may be committed despite absence of personal service where personal awareness of the orders is demonstrated
- The awareness of orders required for contempt is personal to the alleged contemnor and cannot rest on the employee's communication with the contemnor rather than the process server's evidence
Court orders
#- 1.The prayers sought in the Plaintiff's Notice of Motion dated 17th June 2014 are declined
- 2.The Plaintiff shall meet the costs of the said Notice of Motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the High Court over contempt of court, exercised under section 5(1) of the Judicature Act and Order 40 Rule 3 of the Civil Procedure Rules
Relief refused
#Committal of the 1st Defendant to civil jail for up to six months for contempt of the order of 13th June 2014
No personal service of the order and penal notice on the 1st Defendant, and no proof of personal awareness of the orders
Direction to the OCS Kabete Police Station to enforce the orders of 13th June 2014 and restrain further construction
Contempt was not established, so the ancillary enforcement prayers failed
Costs of the application against the 1st Defendant
The application failed; costs were awarded against the Plaintiff instead
Costs
The Plaintiff shall meet the costs of the Notice of Motion dated 17th June 2014
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is evident from the aforementioned affidavit of service that there was no personal service of the court order and notice of penal consequences on the 1st Defendant.
for the record there is no law or rule that states that in the case of prohibitory injunctions no such personal service of orders is required
The notification and awareness of the orders required is personal to the person sought to committed for contempt of court.
The prayers sought in the Plaintiff's Notice of Motion dated 17th June 2014 are accordingly declined for the foregoing reasons and the Plaintiff shall meet the costs of the said Notice of Motion.
Issues in the judgment
#The 1st Defendant's replying affidavit is dated 25th June 2014 but he depones to learning of the order on 15th June 2015, an apparent typographical error in the date
The 1st Defendant's name appears variously as Geoffrey Kimani Gathigi, Geoffrey Kimani Githungi and Geoffrey Kimni Gathiga within the judgment
The process server's affidavit gives the caretaker's mobile number as 0723853740 in one paragraph and 0723855740 in the next
The judgment refers to the 'English Civil Procedure (Amendment No 2) Rules 2012' in the Defendant's submissions, while the court's own statement of law refers to the English Civil Procedure Rules of 1998
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Kimani v Geoffrey Kimani Gathigi & another [2014] KEELC 49 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/49/eng@2014-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.