Justus Nyaribo v Clerk Nyamira County Assembly [2013] KEMC 94 (KLR)
The bottom line
#A Kenyan court refused to punish a county clerk for defying a court order because nobody could prove she actually knew about the order.
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 service of the court order on the Respondent
- 2.Whether personal service is mandatory in contempt proceedings
- 3.Whether the Respondent had knowledge of the court order
Key legal issues
#Whether there was personal service of the order dated 22/03/2013 on the Respondent
No personal service was effected; the process server was barred by police and merely threw a copy of the order through a door while speaking to the sergeant at arms
The Affidavit of Service showed the process server was prevented by police officers acting on the master of ceremony's instructions from entering the hall. Paragraph 4 revealed he only managed to throw a copy of the order inside while talking with the sergeant at arms. The court therefore found no personal service on the Respondent.
Whether personal service is mandatory in contempt proceedings
Personal service is not mandatory; the court adopted the school of thought that knowledge of a court order supersedes personal service
Order 5 Rule 8(1) of the Civil Procedure Rules contemplates service on an agent where personal service is impracticable. The court reviewed conflicting High Court authorities: Lenaola J in Kariuki (service higher than knowledge) and later in Criticos, and Kimaru J, versus Majanja J in Mike Maina Kamau. The court aligned with the former, holding knowledge higher than personal service.
Whether the Respondent had knowledge of the court order so as to be guilty of contempt
Knowledge was not proved; the court could only speculate whether the order reached the Respondent and could not find her in contempt
Because the process server was barred from the hall and merely threw the order inside, there was no evidence that news of the order reached the Respondent or those conducting the election. The court declined to speculate and found that contempt was not established. The court also declined to decide whether it had jurisdiction to punish for contempt.
The applicable standard of proof in contempt proceedings
The standard is higher than balance of probabilities, almost but not exactly beyond reasonable doubt, contempt being quasi-criminal
Rejecting the Respondent's submission that proof beyond reasonable doubt applied, the court relied on the Court of Appeal decision in Mutitika v Baharini Farm Limited, holding that the criminal standard belongs to criminal cases and should not be extended to contempt, which is quasi-criminal in nature.
Legal principles established
#- Personal service of a court order is not mandatory; where practicable service shall be personal but knowledge of an order can suffice for contempt
- Knowledge of a court order is higher than personal service; a party who clearly acts with knowledge of an order need not have been personally served
- The standard of proof in contempt proceedings is higher than balance of probabilities but not beyond reasonable doubt, contempt being quasi-criminal
- Court orders must be obeyed unless and until discharged, whether or not the affected person agrees with them
Court orders
#- 1.The petitioner's Notice of Motion dated 12th April 2013 seeking to cite the Respondent for contempt is dismissed
- 2.Costs be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent contempt jurisdiction of the court (application to cite for contempt of a court order dated 22/03/2013); contempt proceedings quasi-criminal in nature
Relief refused
#Order citing the Respondent for contempt of the court order dated 22/03/2013 and sentencing her
Service on the Respondent was not proved and knowledge of the order could not be established, leaving the court to speculate whether the order reached her
Costs of the application to the Petitioner
Application dismissed with costs in the cause
Costs
Costs be in the cause.
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.
Between the two (2) schools of thought above I am inclined to side with the first school of thought. I therefore hold that knowledge is higher than personal service.
Wherever it is practicable, service shall be made on the defendant in person unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient
For my earlier reason that knowledge of the court order by the Respondents has not been established, I dismiss the application. Costs be in the cause.
It was the plain and unqualified obligations of every person against, or in respect of, whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged
Issues in the judgment
#Judgment states 'The law, according to Lenaola-Judge, currently puts the knowledge of a court order above personal service' immediately after quoting that in Kariuki Lenaola J held service higher than knowledge - the passage is internally inconsistent in its phrasing, though clarified later by the court adopting the knowledge school
Counsel is referred to variously as Mr. Bosire and the firm of Bosire Gichana & Co. Advocates while the petitioner's counsel is Mr. Soire, but the Respondent's counsel in the proceedings is elsewhere the same named person - the judgment is inconsistent in identifying counsel roles only in the presentation line (N. Okumu signature block lists 'N/A for the Petitioner' despite Mr. Soire having argued the matter)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justus Nyaribo v Clerk Nyamira County Assembly [2013] KEMC 94 (KLR)", Case Analysis (2013). Petitioner's Notice of Motion dated 12th April 2013 (Nyamira County Assembly Speaker Election Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/94/eng@2013-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.