High Court at Nairobi (Milimani Law Courts)
Kariuki & 2 others v Hon Najib Balala, Minister for Gender,Sports,Culture & Social Services & 2 others
Kariuki & 2 others v Minister for Gender, Sports, Culture & Social Services & 2 others  eKLR
Kariuki & 2 others v Minister for Gender, Sports,
Culture & Social Services & 2 others
High Court, at Nairobi June 4, 2004
Lenaola Ag J
Miscellaneous Civil Application No 389 of 2004
Contempt of Court - service of court order – failure to effect personal service - no Penal Notice indorsed on court order – whether one can be held guilty for contempt in the circumstances inspite of knowledge of the order - whether service on contemnor’s advocate constitutes personal service.
On 26th March 2004, the Court issued orders that leave be granted to the applicants to commence judicial review proceedings to challenge the Minister’s decision to remove the applicants as officials of the Kenya Football Federation (KFF) and appoint a Stakeholders Transitional Committee in its place. The Court also ordered that the leave so granted do operate as a stay of the decision.
The Minister nevertheless proceeded with the inauguration of the Committee.
An application was made to court to commit the Minister for contempt. The Minister, in reply, contended that he was not served with a court order by one of the applicants and any service effected on the law firm appointed by the Attorney General was not proper service and no personal service was effected on him. In any event, the Minister further contended, no Penal Notice was indorsed on the face of the court orders as by law required.
1. The argument that in contempt of court proceedings, personal service need not be effected on a Minister is weak, unsubstantiated and unsupported by Kenyan authorities.
2. In England, as a general rule, no order of court requiring a person to do or restrain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question. The copy of the order served must be endorsed with a notice informing the person on whom the order is served that if he disobeys the order, he is liable to the process of execution to compel him to obey it.
3. The Court orders must be obeyed whether one agrees with them or not. If one does not agree with an order, then he ought to move the court to discharge the same. To blatantly ignore it and expect that the court would turn its eye away is to underestimate and belittle the purpose for which courts are set up.
4. Service on the alleged contemnor’s advocates did not constitute personal service and even if the alleged contemnor had knowledge of the court order, he would not be liable for contempt.
1. Nyamogo v KPTC Court of Appeal Application No Nai 264/1993
2. Wildlife Lodges Ltd v County Council of Narok & another High Court Civil Case No 1248 of 2003
3. Githunguri v Republic  KLR 1
4. Banda, Kampanje v Hon Gwanda Chakuamba Civil Cause No 1841 of 2001 (High Court of Malawi)
5. Wang’ondu, Mwangi v Nairobi City Commission Civil Appeal No 95 of 1988
6. Ochino, Jacob Zedekiah & another v George Aura Okombo Civil Application No 6 of 1989
7. Chimna, Dr Peter v Hon Gwanda Malawi Supreme Court No 2 of 2000
8. Wanjohi, Isaac & another v Rosalina Macharia Civil Case No 450 of 1995
9. Hadkinson v Hadkinson  2 All ER 567;  285
Hailsham, Lord et al (Eds) (1974) Halsbury’s Laws of England London: Butterworths 4th Edn Vol IX
No statutes referred.
Mr Mailanyi for the Applicant
Mr Nyamondi for the Respondent