https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7906

Baracom Services Limited v Safaricom PLC (Commercial Miscellaneous Application E001 of 2025) [2026] KEHC 7906 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 7906 (KLR) Republic of Kenya In the High Court at Homa Bay Commercial Miscellaneous Application E001 of 2025 OA Sewe, J May 15, 2026 Between Baracom Services Limited Applicant and Safaricom PLC Respondent Ruling 1.Before the Court for determination is the Notice of Motion dated 3rd April 2025. The said application was filed by the plaintiff under Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act, Cap 21 and Order 40 Rule 3 of the Civil Procedure Rules, 2010. The applicant prayed for the following orders:(a)Spent(b)That the defendant and its agents, representatives specifically Daniel Mwenja Ndeba (Legal Department) and Juliet Kariuki (M-pesa Department be cited for contempt and be committed to prison for a maximum of six months for contempt of the orders issued by this Court on 26th March 2025.(c)Spent(d)That the costs of the application be paid by the defendant. 2.The application was premised on the grounds that the plaintiff filed an application under Certificate of Urgency dated 24th March 2025 seeking an order of interim measures of protection pending reference of the dispute between the parties to arbitration and that the said application was certified urgent and interim orders given by the Court as indicated in Prayer 3 of the Motion to the effect that the defendant was restrained from deducting the applicant’s monthly M-Pesa commissions, interfering with M-pesa web portal, dealer portal and Safaricom partner portal, M-pesa stores both aggregated and owned stores, both working and float accounts pending the hearing and determination of the application inter partes. 3.The plaintiff further averred that, although the orders were extracted by way of a formal Order of the Court and served on the defendant along with a penal notice appended thereto, the defendant went ahead to willfully disobey the orders by continuing to deduct from the plaintiff’s dues monthly M-pesa commissions and suspending working accounts which were the subject matter of the order dated 26th March 2025. Accordingly, the plaintiff was constrained to file the instant application for the Court’s consideration and intervention. 4.The application was supported by the affidavit sworn on 3rd April 2025 by Eunice Awuor Barrack, one of the directors of the plaintiff company. The applicant averred that there is an urgent need for the Court to issue orders with a view of supervising the enforcement of interim orders issued on 26th March 2025. The plaintiff also averred that the respondent was duly served with the order to which a penal notice was appended, but has declined to respect the same. By way of an example of disobedience, the plaintiff cited the deduction of March 2025 M-pesa commission. 5.Accordingly, the plaintiff posited that, given the circumstances, it is only fair and just that the orders sought be granted to safeguard the dignity of this Court. The plaintiff further averred that, unless the orders sought are granted, the defendant will continue deducting the monthly M-pesa commissions and interfering with its M-pesa web portal, to the detriment of the its business. In the plaintiff’s view, no prejudice will be suffered by either party if the orders sought are granted. 6.The defendant opposed the application. It relied on its Replying Affidavit sworn on 4th June 2025 by Daniel Mwenja Ndabo. The defendant contended that the plaintiff misstated material facts at paragraph 2 of its Supporting Affidavit by alleging that the deductions were illegal and that her accounts had been suspended. The defendant averred that the commissions in question were deducted in accordance with Clause 8.9 of the Dealership Agreement and Clause 11.5 of the Cash Merchant Agreement dated 23rd September 2019. 7.The defendant conceded to having been served with the Court Order dated 26th March 2025 along with the plaintiff’s Notice of Motion dated 24th March 2025. It complained that the orders given were incapable of compliance in so far as the transactions in issue involve third party financial institution such as KCB Bank, Stanbic Bank and Okoa Float. The defendant adverted to sanctity of contract and the principle that courts should not re-write contracts for parties. 8.Further to the foregoing, the defendant averred that it had already purged the alleged contempt by paying the commissions due at the end of March 2025 by 1st April 2025. Documents in proof of the payment were annexed to the Replying Affidavit as Annexure DMN-2. The defendant also pointed out that, on the 12th May 2025, the plaintiff’s director, Eunice Awuor, admitted in court that the plaintiff had indeed been paid the commissions for March 2025 in April 2025. 9.Regarding the alleged suspension of the plaintiff’s accounts with the defendant, the response was that that was not true. The defendant annexed documents to its Replying Affidavit marked Annexure DMN-4 to demonstrate that the accounts were active. It urged the court to find that the deduction of commissions was a system-programmed activity and was not done deliberately in defiance of the Court Order dated 26th March 2026 as alleged by the plaintiff. Accordingly, the defendant averred that, since the contempt has been purged, the application for contempt has been overtaken by events and ought therefore to be dismissed with costs. 10.In a Further Affidavit sworn on its behalf by Eunice Awuor, the plaintiff deposed that after purging its contempt and paying the commissions for April and the following months, the defendant again resorted to deduction of its commissions for the months of November and December 2025 and caused the same to be paid to Stanbic Bank. The plaintiff was in effect saying that the defendant’s acts of contempt had not entirely ceased. 11.The application was canvassed by way of written submissions, pursuant to the directions given herein on 3rd June 2025. In the plaintiff’s submissions dated 3rd June 2025, it relied on Section 29 of the Contempt of Court Act, Cap 8F and proposed the following issues for determination:(a)Whether the application for contempt has merit;(b)Whether the respondent is in contempt of court; and,(c)Whether the orders sought should be granted. 12.The plaintiff submitted that, in continuing to deduct its monthly M-pesa commissions, the defendant is in breach of the Court Order issued herein on 26th March 2025. It therefore prayed that its application be allowed and the orders sought therein granted. 13.There is no indication that the defendant filed written submissions. 14.The Contempt of Court Act, 2016, having been declared invalid on 9 November 2018 for lack of public participation in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR, the applicable law in this regard is that which obtained prior to the passing of the Contempt of Court Act; as per Section 5 of the Judicature Act, Chapter 8 of the Laws of Kenya. That provision states:(1)The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of the subordinate courts.(2)An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary criminal jurisdiction of the High Court.” 15.In the case of Republic v Kajiado County & 2 others Ex parte Kilimanjaro Safari Club Limited [2019] eKLR, Hon. Nyamweya, J. (as she then was) took the view, which view I am in agreement with, that:26.The applicable law as regards contempt of court existing before the enactment of the Contempt of Court Act was restated by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others, [2014] eKLR. In that case the Court found that the English law on committal for contempt of court under Rule 81.4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertakings, was applied by virtue of section 5(1) of the Judicature Act which provided that:The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.”27.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. 16.It was therefore erroneous for the plaintiff to rely on the Contempt of Court Act. 17.Needless to say that contempt of court is an offence of a quasi-criminal character, and therefore an application of this nature requires credible proof of the requisite elements beyond the standard applicable to ordinary civil cases to warrant the Court’s sanction. The standard of proof in this regard was discussed by the Court of Appeal in Mutitika v Baharini Farm Ltd [1985] eKLR thus:In, Re Breamblevale Ltd [1969] 3 All ER 1062, Lord Denning MR. (as he then was), at page 1063, had this to say,A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt”.With the greatest possible respect to that eminent English judge, that proof is much too high for an offence “of a criminal character” and, ipso facto, not a criminal offence properly so defined...…In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi-criminal in nature…” 18.Contempt of court has been defined to mean conduct or action that defies or disrespects the authority of the Court. Hence, in Sheila Cassat Issenberg & Another v Antony Machatha Kinyanjui (supra) it was held:57.As was again stated by the Supreme Court of India in Mahinderjit Singh Bitta v Union of India & Others 1 A NO. 10 of 2010 (13th October, 2011):In exercise of its contempt jurisdiction, the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and willful violation of the order of the court, even to constitute a civil contempt. Every party is lis before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution. (Emphasis). 19.As to the elements that must be proved for an alleged contemnor to be held to be in contempt of court, the court in the Sheila Cassat Issenberg & Another v Anthony Machatha Kinyanjui (supra), after reviewing applicable precedents, continued thus:58.The emphasis as shown in the above cases is that there must be “willful and deliberate disobedience of court orders.” There cannot be deliberate and willful disobedience, unless the contemnor had knowledge of the existence of that order. And because contempt is of a criminal nature, it is always important that breach of the order be proved to the required standard; first, that the contemnor was aware of the order having been served or having personal knowledge of it, and second; that he deliberately and willfully disobeyed it.59.In Peter K Yego & others v Pauline Wekesa Kode, (Acc No. 194 of 2014, the court stated that “it must be proved that one had actually disobeyed the court order before being cited to contempt.”60.And in Katsuri Limited v Kapurchand Depor Shah [2016] eKLR, citing Kristen Carla Burchell v Barry Grant Burchell (Eastern Cape Division case No 364 of 2005), it was stated that “in order for an applicant to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, knowledge of the terms by the respondent, failure by the respondent to comply with the terms of the order.”61.The Cromwell J, writing for the Supreme of Canada in Carey v Laiken, 2015 SCC 17 (16th April 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus:i)The order alleged to have been breached “must state clearly and unequivocally what should and should not be done.” This ensures that a party will not be found in contempt where an order is unclear. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning.ii)The party alleged to have breached the order must have had actual knowledge of it. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the willful blindness doctrine.iii)The party alleged to be in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels. (emphasis)…” 20.Similarly, in case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR Mativo, J (as he then was) held as follows: -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….” 21.Hence, the main issue for determination is whether the plaintiff has proved the four elements of contempt of court. In particular, the applicant needed to prove that:(a)there was an order of the court;(b)the order was clear and unambiguous;(c)the order was duly served on the respondent and the alleged contemnors; and(d)the order was wilfully and intentionally disobeyed? 22.It is plain from the factual basis of the instant application that order was issued herein on the 26th March 2025, and that it was clear and unambiguous. The defendant also conceded that it was duly served with the order. It must be emphasized that it matters not that the order was made on the basis of misstatement of facts, or amounted in the defendant’s view to a re-writing of the contract by the court. The defendant was duty bound to comply unless and until the same was set aside, varied or discharged. This principle was aptly stated by Romer LJ in Hadkinson v Hadkinson [1952] AllER 567 thus:It is the plain and unqualified obligation of every person, against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.For, a person who knows of an order, whether null or valid, regular or irregular cannot be permitted to disobey it. It would be most dangerous to hold that the suitors or their solicitors could themselves judge whether an order was null or valid. Whether it was regular or irregular, that they should come to the court and not take upon themselves to determine such question. That the course of a party knowing of an order which was null and irregular, and who might be affected by it, was plain, he should apply to court that it might be discharged. As long as it exists, it should not be disobeyed." (Also see Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] KLR 828) 23.The defendant explained that the deductions for March 2025 was programmed and effected by the system in place at the time, which system involves third party institutions. It further averred, which averment was conceded to by the plaintiff, that it immediately complied and refunded the said deductions upon the matter being brought to its attention. It was therefore the contention of the defendant that it did not act wilfully or deliberately as alleged by the plaintiff. 24.The evidence placed before the Court by the defendant by way of Annexure DMN-2 confirms the payments. It is a statement of account showing that the plaintiff received payment. In its Further Affidavit, the plaintiff conceded that, for the year 2025, only the commissions for November and December were not paid. That, if anything, is an admission that the accounts were operational. Moreover, the defendant also presented documents to show that the accounts were not suspended as alleged by the plaintiff. 25.Regarding the commissions for November and December 2025, it is notable that in paragraph 2 of its Supporting Affidavit, the plaintiff had averred that the deductions were illegal. It did not disclose that it was indebted to third party financial institutions or that it was part of their arrangement that deductions be made from the commissions due to it from the defendant towards repayment of those financial obligations. It was therefore incumbent on the plaintiff to demonstrate that the deductions for November and December, which were paid to Stanbic Bank were indeed illegal and that it had honoured its obligations to those third party financial institutions at the time those deductions were made. 26.It is also notable that, in prayer 3 of the Notice of Motion dated 24th March 2025, there was no specific mention of the payments due to Stanbic Bank. If indeed, the plaintiff is indebted as alleged by the respondent, it cannot be said that the plaintiff demonstrated wilful and intentional disobedience. 27.Accordingly, I find no merit in the application dated 3rd April 2025. The same is hereby dismissed with an order that the costs thereof be in the cause.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY 2026.…………………………………OLGA SEWEJUDGE