[2023] KEHC 24834 (KLR)

Amoth & another v Amoth & 2 others (Succession Cause 341 of 2002) [2023] KEHC 24834 (KLR) (30 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24834 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 341 of 2002

RE Aburili, J

October 30, 2023

Between

Livingstone Ragen Amoth

1st Applicant

Cornel Rasanga Amoth

2nd Applicant

and

Joachim Owira Amoth

1st Respondent

Eric Wango Amoth

2nd Respondent

Rebman Owira Amoth

3rd Respondent

Ruling

1. This ruling determines the Notice of Motion Application dated 21st October 2022. The Applicants seek orders That:i.The administrator – Erick Wango Amoth be summoned to appear before court and show cause why he should not be committed to civil jail for a term of six (6) months until he purges his contempt and complies with orders of this Honourable Court given on the 14th March, 2022 and dated 17th day of March, 2022. ii.That the former Administrators – Joachim Owira Amoth and Rebman Owira Amoth be summoned to appear before this court and show cause why they should not be committed to civil jail for a term of six (6) months until they purge themselves of contempt and comply with orders of the Honourable Court given on the 14th day of March, 2022. iii.The former administrator – Erick Wango Amoth be arrested and/or committed to civil jail for such a time as the Honourable court shall deem just and expedient for being in disobedience of this Honourable court’s orders of the 14th March, 2022. iv.The former administrator – Joachim Owira Amoth and Rebman Owira Amoth be arrested and/or committed to civil jail for such time as the Honourable court shall deem just and expedient for being in disobedience of this Honourable court’s orders of the 14th March 2022. v.That in the alternative, the former administrator be cited for contempt of court and fined a sum of at least Kshs. 200,000. vi.That the court does make any such orders for purposes of enforcing the orders dated 14th March, 2022. vii.That cost of the application be borne by the respondents’ former administrators.

2. The application is anchored on the grounds on the face of the application and supported by the affidavit of Livingstone Ragen Amoth, the first applicant.

3. It was the applicant’s case that they moved court via their application dated 14th February 2019 in which they sought revocation of the grant of letters of administration intestate that had been issued to the respondents herein.

4. The applicants further averred in deposition that after the court revoked the aforementioned grant, the court ordered the then administrators/petitioners, respondents herein, to jointly and severally render a true and just account of the assets and liabilities of the estate of the deceased that they had handled since the grant was made to them until the date of delivery of such accounts.

5. The applicants further averred that the respondents failed to deliver the accounts within the time stipulated by court and the court gave a ruling dated the 14th March 2022 directing the respondents to render the aforementioned accounts with supporting documents within 30 days which period expired on the 14th day of April 2022 or alternatively on the 22nd day of April 2022 which was the day the time elapsed since the date of service of the court order dated 14th March 2022 upon the respondents.

6. The applicants averred that the respondents have failed to comply with the court orders to date, more than 6 months after expiry of the 30 days and are thus in contempt of court and thus it was in the interest of the administration of justice that they be held in contempt.

7. The applicants averred that the respondents had the opportunity to purge the contempt but to date they had not attempted to do so. It was their case that for the whole of 2019, the court granted the parties herein an opportunity to negotiate but the respondents refused to appear for mediation.

8. In response, the 2nd respondent filed a replying affidavit, which was titled supporting affidavit, dated 5th May 2023 in which the respondents contend that their advocates on record were not given an opportunity to participate in the application leading to the delivery of the ruling of 14th March 2022.

9. The 2nd respondent deposed that the said application leading up to the ruling issued on the 14th March 2022 was in itself an abuse of the court process as it was duplicitous of a previous and similar application that was and is still pending adjudication and thus it was therefore improper and irregular for the court to proceed with the same.

10. Further, the 2nd respondent deposed that at all material times there were 4 applications pending in respect to the same prayers.

11. It was further deposed by the 2nd respondent that he had rendered the statement of accounts prepared in compliance with the international accounting standards.

12. The 2nd respondent further deposed that as the issues before this court essentially involved a family dispute, all the beneficiaries acknowledged and agreed to the statement of accounts as rendered, a fact the court failed to take into account and if it had done then the orders made herein would have not been made.

13. Mr. Ochieng counsel for the respondents submitted in court that his client felt that the accounts demanded of them were not capable of being produced as they included taking care of a needy mother and that alternatively an inquisitorial process would perhaps help resolve the impasse.

Analysis & Determination 14. I have considered the application, response thereto and the submissions by counsel for the parties. What is before this court is an application to cite the respondents for contempt of court albeit couched in many words. The issue for determination is whether the application is merited.

15. The applicants’ case is that the respondents violated this court’s ruling dated 14th March 2022 and subsequent orders issued on the 17th March 2022.

16. The applicants have stated that the respondents were served with the order as attested by the affidavit of service dated 22nd March 2022. The applicants have, therefore, sought to cite the respondents for contempt of court for disobedience of that order.

17. The respondents denied violating the court order as alleged and contended in deposition that they and their advocates were denied an opportunity to participate in the proceedings leading up to the ruling of 14th March 2022. They also stated that the issues before court involved a family dispute and that all the beneficiaries acknowledged and agreed to the statement of accounts as rendered by the 2nd respondent, a fact the court failed to take into account and if it had done then the orders made herein would have not been made.

18. Contempt of court is that conduct or action that defies or disrespects authority of court. Black’s Law Dictionary 9th Edition, defines contempt as:“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.”

19. Properly put, contempt is conduct that impairs the fair and efficient administration of justice. Contempt of court is not merely a mechanism for the enforcement of court orders. The jurisdiction of the superior courts to commit recalcitrant litigants for contempt of court when they fail or refuse to obey court orders has at its heart the very effectiveness and legitimacy of the judicial system. That, in turn, means that the court called upon to commit such a litigant for his or her contempt is not only dealing with the individual interest of the frustrated successful litigant but also, as importantly, acting as guardian of the public interest. See the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR.

20. The Contempt of Court Act was declared unconstitutional by the Court in Kenya Human Rights Commission v Attorney General & Another (2018) eKLR. This means that Section 5 of the Judicature Act was reinstated following the nullification of the Contempt of Court Act. This was the positon taken by the Court in Republic v Kajiado County & 2 Others ex parte Kilimanjaro Safari Club Limited which I concur with and wherein the Court stated that:“This section was repealed by section 38 of the Contempt of Act of 2016, and as the said Act has since been declared invalid, the consequential effect in law is that it had no legal effect on, and therefore did not repeal section 5 of the Judicature Act, which therefore continues to apply. In addition, the substance of the common law is still applicable under section 3 of the Judicature Act. This Court is in this regard guided by the applicable English Law which is Part 81 of the English Civil Procedure Rules of 1998 as variously amended, and the requirement for personal service of court orders in contempt of Court proceedings is found in Rule 81. 8 of the English Civil Procedure Rules.”

21. Order 40 rule (3) of the Civil Procedure Rules [2010] provides that in cases of disobedience, or of breach of any terms of a temporary injunction, the court granting that injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release. This application has therefore similarly invoked this court’s powers in terms of Order 40 rule (3).

22. In Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR Mativo J. (as he then was) restated the test for establishing contempt of court and stated that:“40. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove(i)the terms of the order,(ii)Knowledge of these terms by the Respondent,(iii)Failure by the Respondent to comply with the terms of the order.Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated: -“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -(a)the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;(b)the defendant had knowledge of or proper notice of the terms of the order;(c)the defendant has acted in breach of the terms of the order; and(d)the defendant's conduct was deliberate.”

23. In the instant case, there is an order from this court dated 17th March 2022 arising out of this court’s ruling of 14th March 2022 in which it was ordered as follows –i.That the grant that had been issued to the petitioners is hereby revoked.ii.That the administrators are directed to file and serve the complete and accurate statement of accounts within the next 30 days. The said accounts must be accompanied with supporting documents, such as Bank statements; lease Agreements; Receipts; Invoices; and Certificate of Official Search.iii.That the court will mention the case immediately after the lapse of 30 days’ period.iv.The administrators are reminded that the accounts must incorporate the details which were set out by the court on 14th February 2019. v.That the documents which had been filed by the administrators failed to meet the threshold which the court had set.vi.That the costs be paid by the administrators personally, to the Objector.vii.That mention on 30th May 2022 for further directions.viii.That Objectors to serve the petitioners.

24. The Respondents are aware of the court’s ruling and subsequent orders. Despite the 2nd respondent’s deposition that they and their advocates were denied an opportunity to take part in the application leading up to the court’s aforementioned ruling, this is an issue that the respondents ought to have raised in an appeal.

25. As the court’s ruling of 14th March 2022 and the subsequent orders of the 17th March 2022 stand unchallenged and are thus valid, the respondents had no option but to comply with the same. The respondents have not stated that it was impossible to comply with lawful court orders and or what circumstances made it impossible for them to comply. They are reminded that court orders are not suggestions and therefore the allegations that there was an agreement on the manner of compliance by members of the family is irrelevant. Furthermore, the applicants who are also family members of the respondents have moved this court to seek compliance evidencing that there was no agreement at the family level.Taking all the above into consideration, I thus find the respondents herein guilty of disobedience of this Court’s Orders issued on the 14th March 2022 and 17th March 2022 and convict the respondents herein Joachim Owira Amoth, Eric Wango Amoth And Rebman Owira Amothfor being in contempt of the said court orders and direct that they appear before this court for purposes of sentencing.

26. The applicants are similarly awarded costs of the application.I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 30TH DAY OF OCTOBER, 2023R.E. ABURILIJUDGE