[2015] KEHC 2329 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. APP NO. 990 OF 2013

BHANDERI ENTERPRISES LTD....................................................................................APPLICANT

VERSUS

DANIEL KAMUNDA T/A KAMUNDA NJUE& COMPANY ADVOCATES............1ST RESPONDENT

GEORGE GITONGA MUCHIRI T/AFANTASY AUCTIONEERS...........................2ND RESPONDENT

MARTIN MWANIKI..............................................................................................3RD RESPONDENT

BENVAR ESTATES LIMITED...............................................................................4TH RESPONDENT

RULING

BhandEri Enterprises Ltd, the Applicant herein, took out the further amended notice of motion dated 13. 7.2015 in which is sought for the following orders:

THAT this Honourable court do find that the 1st, 2nd, 3rd and 4th Respondents are in contempt of court for deliberately disobeying orders of the court issued on 7th August 2013 and 4th October 2013 by hon. A. N. Ogonda, Resident Magistrate Thika.

THAT upon grant of prayer 1. Above, Daniel Kamunda, George Gitonga Mushiri, Martin Mwaniki & the directors of Benvar Estates Ltd be committed to civil jail for a period of 6 months.

2A. THAT pending hearing and determination of this application an order be and is hereby issued directing the respondents their servants, agents or any other person acting under their instructions to forthwith and unconditionally release the applicant’s lorries being motor vehicles registration numbers KBK 504Q and KBK 405Q.

THAT this honourable court do issue an order directing the respondents to compensate the applicant for the loss of business to the tune of kshs.60,000/= per day incurred by it due to the respondents’ disobedience of the court orders.

THAT costs of and occasioned by this motion and for obtaining leave thereto be paid by the respondents.

The motion is supported by the affidavit of Ashwin Bhandari. When served the Respondents filed replying affidavits to oppose the motion. When the application came up for hearing, learned counsels recorded a consent order to have the same disposed of by written submissions.

I have considered the rival written submissions together with the material placed before this court. It is the submission of the Applicant that the Respondent disobeyed the court orders issued on 7th August 2013 and on 4th October 2013 by Hon. A. N. Ogonda learned Resident Magistrate, Thika. It is argued that the 1st Respondents on the instructions of the 4th Respondent instructed the 2nd Respondent to proceed with the execution of the decree issued vide Thika CMCC no. 488 of 2013 yet there was an order for stay of execution pending the interpartes hearing of the application dated 7th August 2013. The 2nd and 3rd Defendants are alleged to have proceeded to attach motor vehicles registration KBK 504Q and KBK 405Q and have adamantly refused to release the same despite the applicant obtaining a court order. It is said that the Respondents are still holding those motor vehicles despite having been served with a court order and for the above reason this court was beseeched to cite the Respondents for contempt.

The Respondents are of the view that they cannot be held in contempt because there was no evidence of service and therefore they had no knowledge of the existence of any court order. The Respondents averred that the learned Resident Magistrate did not dispense with personal service which according to them is compulsory. The Respondents further argue that they were not made aware of the terms of the order.

It is also argued that the applicants have failed to state how and when the order was breached. The Respondents argue that the exparte orders were never extended on 13th August 2013, hence there was no order to be breached. The Respondents further argued that the Applicant has failed to prove that the 1st Respondent executed the decree either before or after 13. 08. 2013.

The Respondents have further attacked the prayer for compensation stating that it cannot be available through such proceedings.

After a careful consideration of the material placed before me it is not in dispute that an order for stay of execution was issued by the Resident Magistrate’s court. It is also not in dispute that motor vehicles registration no. KBK 504Q and KBK 405Q were attached in execution of the decree issued vide Thika C.M.C.C no. 488 of 2013.

The issue which must be determined is whether or not execution proceeded in breach of a court order. The Respondents have of course stated that they were not aware of the existence of the court order and that even if they had knowledge of existence of those court orders, the attachment took place when those orders had lapsed. The order annexed to the affidavit of Ashwin Bhandari sworn on 13th July 2013 and filed in support of the further Amended Motion of the same date indicates that the order for stay of execution was issued to last until the application dated 7th August 2013 was heard and determined. It is therefore clear in my mind that the assertion by the Respondents that the orders lapsed on 13th August 2013 does not stand. The orders were to last until the application is heard and determined. A careful perusal of the affidavit of service of Oscar Ameyo sworn on 9th October 2013 clearly shows that the order issued on 7th August 2013 was served upon the office secretary of Mr. Daniel Kamunda T/A Kamunda Njue & Co. Advocates on 8th August 2013. The secretary duly acknowledged receipt of service by stamping on the documents and order.

I am therefore convinced that the 1st Respondent was properly served with the court order. The 1st Respondent has argued that the order was not extended when the application dated 7th August 2013 came up for interprets hearing. I have already stated the order was to last until the application was heard and determined. By the time the order was alleged to have been breached the application dated 7th August 2013 had not been heard and determined.

The process server’s affidavit shows that he served the order upon the office secretary of Fantasy Auctioneers, the 2nd Respondent herein and Martin Mwaniki on 8th August 2013. There is a denial by the 2nd and 3rd Respondents that they were not personally served but I am satisfied that they were served.

The order was served upon their offices situated at Richmond House. In any case the 1st Respondent in his letter dated 23rd August 2013 instructed them to proceed to execute the decree since the orders for stay had not been extended.

It is surprising for 2nd and the 3rd Respondents to deny knowledge of the existence of the stay orders yet they were made aware upon service and by way of the aforesaid letter.

I am convinced that pursuant to the instructions of the 1st Respondent, the 2nd and 3rd Respondent proceeded to attach and carry the applicant’s motor vehicles registration number KBK 504Q and KBK 405Q. The two did so in blatant breach of the orders issued by the learned Resident Magistrate on 7th August 2013. I find them guilty for contempt of aforesaid court orders.

The Applicant obtained a court order from the same court on 4th October 2013 directing the 2nd and 3rd Respondents to release to the applicant motor vehicles registration no. KBK 504Q and KBK 405Q but the duo have adamantly refused to obey the court orders claiming they have not been authorised by the 1st Respondent. I am satisfied by the affidavit of service of Oscar Ameyo sworn on 8. 10. 2013 that the order issued on 4th October 2013 were served upon the 1st Respondent on 7th October 2013 and the 2nd and 3rd Respondents were served on 4th October 2013. Again, I am convinced that the 1st, 2nd and 3rd Respondents are in breach of the court orders issued on the 4th October 2013.

This dispute has now been complicated by the fact that the

judgement which gave rise to the decree which the 1st, 2nd and 3rd executed was wet aside on 14th August 2014 by Hon. S. N. Telewa, learned Resident Magistrate. The substratum of the Plaintiff’s claim has therefore collapsed. Despite those facts being made available to the Respondents the trio have continued to hold on to the Applicant’s trucks.

There is no iota of evidence to link Benvar Estates Limited,

the 4th Respondent to the breach of the court orders apart from the fact that the 4th respondent had unsuccessfully made applications seeking for orders to allow the auctioneers to continue holding the aforesaid trucks. I therefore do not find the 4th Respondent guilty for contempt.

Having convicted the 1st, 2nd and 3rd Respondent for contempt of the orders issued on 7th August 2013 and 4th October 2013, I now invite them to make oral submissions in mitigation to enable this court pronounce the appropriate sentence.

Dated and delivered in open court this 25th day of September, 2015.

J. K. SERGON

JUDGE

In the presence of:

………………………………………. for the Applicant

……………………………………….for the Respondent