[2021] KEHC 3248 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

MISC. CIVIL APPLICATION NO. E122 OF 2021

BETWEEN

DIRECTLINE ASSURANCE COMPANY LIMITED....................... APPLICANT

VERSUS

MERCY NYAMBURA WANGUI(suing as the Legal Representative of the estate of

BRYAN NJOROGE NYAMBURA.....................................................RESPONDENT

RULING

1. DIRECTLINE ASSURANCE CO. LTD(herein after Directline) has filed a Notice of Motion dated 11th June, 2021 and the prayers that subsist and are before me for consideration of that application are as follows:-

THAT the honourable court be pleased to issue the following orders against the respondent for deliberately defying and disobeying the court orders issued by the honourable court on 31st may, 2021.

a) The respondents be fined such sums of money as this honourable Court may direct and that the same be paid into court forthwith.

b) Property belonging to the respondent be attached to the extent of such value as this honourable court may direct and

c) The respondents be committed to and/or detained in prison for a term of six (6) months.

BACKGROUND

2. Mercy Nyambura Wangui (hereinafter Mercy) the respondent filed a declaratory suit against Directline before the Kiambu Chief Magistrate’s Court. Mercy Applied for the striking out of the defence of Directline in that case. By a Ruling dated 20th April, 2021 the Chief Magistrate found the said defence to be a sham and an abuse of the court process and proceeded to strike out that defence and entered judgment for Mercy. Directline filed before this Court a Notice of Motion application dated 28th May, 2021 whereby it sought stay of execution of that judgment by the Chief Magistrate, and also sought leave to file an appeal against that Ruling of the Chief Magistrate out of time.

3. That application was placed before me on 31st May, 2021 and I granted the following orders:-

“ORDER

UPON READING an application brought under certificate of urgency AND UPON FURTHER READING of the affidavit of Pauline Waruhiu Nyambura sworn at Nairobi on 28th May, 2021 in support thereof and the annextures thereto:-

IT IS HEREBY ORDERED THAT:

1. There shall be interim stay of execution of against the judgment and decree issued on 20th April, 2021 in Kiambu CMCC No. 45 of 2020MERCY NYAMBURA WANGUI(suing as the legal representative of the ESTATE OF BRYAN NJOROGE NYAMBURA) VS. DIRECTLINE ASSURANCE COMPANY LIMITEDon Condition the applicant does deposit Kshs.1million (one million) into court.

2. The application shall be fixed for inter partes hearing at the registry.”

4. Directlinefiled the application of Notice of Motion dated 11th June, 2021, which is under consideration by the Ruling. The application was placed before me on 14th June, 2021 and the following orders were issued thereof:-

IT IS HEREBY ORDERED:-

1. THAT for avoidance of doubt there shall be stay of execution until further orders of this Court in Kiambu CMCC 45 of 2020.

2. THAT the respondents, their servants and or agents of whosoever are hereby restrained from selling the applicants attached good.

3. THAT the respondents, their servant and or agents or whosoever is in possession of the applicant’s goods are hereby ordered unconditionally and forthwith release/restore the same to the applicant.

4. THAT the Notice of Motion dated 11th June, 2021 shall be heard inter partes on 21st June, 2021.

5. It is the above orders that Directlinealleges were disobeyed by Mercy, her advocate John Njuguna Kamau and Mbuseri Auctioneers and hence now Directline seeks for orders reproduced above, that is for the finding that the aforesaid persons and entity are in contempt of court.

ANALYSIS

6. There is always an obligation to obey court orders. This was distinctively restated by the Court of appeal in the case WOBURN ESTATE LIMITED VS. MARGARET BASHFORTH (2016) thus:-

“SeeREFRIGERATION AND KITCHEN UTENSILS LTD Vs. GULABCHAND POPATLAL SHAH & ANOTHER, Civil Application No.39 of 1990, where it was observed.

‘A party 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 a question… he should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.’”

7. In the above case, the Court of Appeal reiterated that contempt proceedings being quasi criminal in nature and because a person can lose his right to liberty, each stage of the procedure must be scrupulously followed and observed. The Court of Appeal in so reiterating cited the case RE BRAMBLEVALE (1970) 1 CH 128 as follows:-

“A contempt of court is an offence of criminal character. A man may be sent to prison for it. It must be satisfactorily proved showing that when the man was asked about it, he told lies. There must be some further evidence to incriminate him.”

8. This Court issued a conditional order of stay of execution on 31st May, 2021. In other words, interim stay of execution was conditional on Directlinedepositing into court Kshs. 1million.

9. Although Directline attached a non-legible banking slip, I can however see a bank stamp on it reflecting the date 10th June, 2021. I cannot see a court receipt, in the court file, proving that such payment was received by the court. I am however willing to accept that Directline has indeed deposited the amount ordered on 31st May, 2021, that is Kshs. 1milion. That payment it would seem from Directline’sown Banking slip was made on 10th June, 2021. If that is so, and I can find no contrary evidence, the condition for stay of execution was fulfilled on that day, 10th June, 2021. Contempt of the court order of 31st May, 2021 could only have occurred on or after 10th June, 2021. The attachment of Directline’s moveable goods by Mbuseri Auctioneers was on 2nd June, 2021. I am unable to find that Mercy or the other cited parties are in contempt of the order of 31st May, 2021 because Directlinehad failed to honour the condition of stay of execution by the date when the attachment was effected. There is no proof of contempt of court order.

10. Courts do not take contempt of court orders lightly. That is what the Court of Appeal stated in the case ROSE NAJUNA WANYAMA VS. NUSRA NASUBU CHIBANGA & ANOTHER (2019) eKLR. In that case however, the Court also stated thus:-

“In the caseMICHEAL SISTU MWAURA KAMAU V DIRECTOR OF PUBLIC PROSECUTIONS & 4 OTHERS [2018] eKLRthis Court stated:-

‘It is trite that to commit a person for contempt of court, the court must be satisfied that he has willfully(sic)and deliberately disobeyed a court order that he was aware of. That is made absolutely clear by section 4 of the Contempt of Court Act and the ruling of the Supreme Court inREPUBLIC V. AHMAD ABOLFATHI MOHAMMED & ANOTHER(supra). Secondly, as this Court emphasized inJIHAN FREIGHTERS LTD V. HARDWARE & GENERAL STORES LTD AND IN A.B. & ANOTHER V. R. B. [2016] eKLR,to sustain committal for contempt of court, the order of the court that is alleged to have been deliberately disobeyed must be clear and precise so as to leave no doubt as to what a party was supposed to do or to refrain from doing.’”

11. Before concluding this Ruling, I wish to state that it highly irregular for an applicant to bring in parties not parties in the original cause, and seek to obtain orders against such parties without the leave of the court. That is what Directline did here. Directline unilaterally joined John Njuguna Kamau Advocateand Mbuseri Auctioneers. Even if this Court had found there was contempt of a court order, the court would not make orders against non-parties to an action where the joining of such non-parties was not sanctioned by the court.

12. The second matter I wish to bring to attention is that Directline since May, 2021 are enjoying stay orders while pursuing what I can only term as ill-fated contempt application. It will follow that since the initial application for stay of execution dated 25th January, 2021 is fixed for haring inter partes on 19th October, 2021, the stay of execution orders will be ordered to subsist up and until that date.

13. The third matter I wish to address is that, since I have found there was no contempt of court order when the execution took place on 2nd June, 2021, it follows that the Mbuseri Auctioneers fee for that execution shall and are hereby ordered to be paid by Directline.

DISPOSITION

14. In the end, I am satisfied that Mercy Nyambura Wangui, John Njuguna KamauandMbuseri Auctioneers are not in contempt of the court order dated 31st May,2021. Therefore, I make the following orders:-

(a) The Notice of Motion applications dated 11th June, is dismissed and the costs thereof are awarded to Mercy Nyambura Wangui, John Njuguna KamauandMbuseri Auctioneers.

(b)Directline Assurance Company Limited shall pay within 30 days from today Auctioneers’ fees for Mbuseri Auctioneers in respect of the attachment in respect to Kiambu CMCC No. 45 of 2020 carried out on 2nd June, 2021.

(c) The stay of execution of Kiambu CMCC No. 45 of 2020 shall subsist up and until 19th October, 2021.

RULING DATED AND DELIVERED AT KIAMBU THIS 5TH DAY OF OCTOBER, 2021.

MARY KASANGO

JUDGE

CORAM:

COURT ASSISTANT : NDEGE

FOR THE APPLICANT: MISS GULENYA

FOR THE RESPONDENTS : MS. WANJIRU HOLDING BRIEF FOR MR. NJUGUNA

COURT

RULING DELIVERED VIRTUALLY.

MARY KASANGO

JUDGE