[2017] KEHC 2394 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

MISC APPLICATION NO. 11 OF 2013

DOROTHY KANYUA MBAKA …………........…... 1ST RESPONDENT

MARY SYONTHI MUSYOKA …………......…… 2ND RESPONDENT

-VERSUS-

P.S. MINISTRY OF DEFENCE ………………...….. 1ST APPLICANT

ATTORNEY GENERAL ………………...……...…. 2ND APPLICANT

AND

MISC. APPLICATION NO. 23 OF 2013

MOHAMED ABDI …………………..………..………. RESPONDENT

-VERSUS-

P.S. MINISTRY OF INTERIOR AND COORDINATION OF NATIONAL

GOVERNMENT ………………...............................1ST APPLICANT

ATTORNEY GENERAL ………………….…..…… 2ND APPLICANT

_____________________________________________________________________________________________

RULING

[1] Before me is a Notice of Motion Application dated 14th May 2017 brought pursuant to Order 45 1 (a) of the Civil Procedure Rules in which the 2nd Applicant has sought the following orders:

1. THAT this honourable court be pleased to review and set aside its orders requiring the personal attendance of the Attorney General.

2. THAT this honourable court be pleased to review and set aside the orders of 20th April 2017 whereby a Notice to Show Cause was issued requiring the Attorney General to appear in Court to show cause why he should not be cited and punished for contempt.

3. THAT the costs of this application be provided for.

When the matter came up for hearing on 18th May 2017, it was agreed that the application herein shall be canvassed by way of written submissions. I will therefore consider the application, the affidavit and the submissions filed.

Applicant’s case

[2] The application is premised on the grounds inter alia:-

(a) That there is an error apparent on the face of the court records,

(b) That the Attorney General is protected from personal liability under section 8 (2) of the Office of the Attorney General Act No. 49 of 2012,

(c) That under Article 156 (4) (a) and (b) of the Constitution, the Attorney General is the Principal Legal Advisor of the Government and represents national government in civil proceedings and as such conducts the duties of an advocate and hence should not be held liable for his client’s obligations,

(d) That under section 30 (2) of the Contempt of Court Act, it is the accounting officers of a state organ, government department, ministry or corporation who should be held liable for their obligations and not the Attorney General; and

(e) That under Section 34 of the Contempt of Court Act, no court should initiate any proceedings for contempt either on its own motion or otherwise after the expiry of a period of 6 months from the date on which the contempt of court is alleged to have been committed.

[3] The 2nd Applicant filed submissions and reiterated the grounds set out in the application. He submitted inter alia that in the present case there are several errors on substantial points of law which are staring on the face. The error consists in the Judge issuing Summons and the Notice to Show Cause against the Attorney General who does not bear any personal liability on the matters in issue. They cited the case of REPUBLIC V ATTORNEY GENERAL AND ANOTHER, EX PARTE ORBIT CHEMICAL LIMITED (2017) eKLRto support their said stand point. It was further submitted that under Section 30 of the Contempt of Court Act, it is the accounting officer of a state organ, government department, ministry or corporation concerned who should be held liable for their obligations and not the Attorney General. Thus, the litany of errors in this matter should entitle the 2ndApplicant to get review of the impugned orders.

Respondent’s case

[4] The legal counsel for the Respondent in the Replying Affidavit filed in court on 18th May 2017, deposes inter alia that there was no irregularity in this court’s order requiring the personal attendance of the Hon Attorney General or any other government officer serving the Republic of Kenya. He averred further that the judgment in the primary suit the subject of these proceedings was delivered on 1st April 2014 and that all the relevant documents were promptly and duly served upon the Principal Secretary Ministry of Defence and the Hon. Attorney General’s office. And the Attorney General was always duly represented in court throughout the hearing. He argued that the Contempt of Court Act No. 46 of 2016 which the 2nd Applicant seeks to rely on commenced on 13th January 2017 when these proceedings were already in place, thus, the said Act does not apply retrospectively.

[5] On 20thJuly 2017, it emerged that counsel for the Respondents relied upon submissions filed in a related file being MERU MISC APPLICATION NO. (JR) 11OF 2015. In the submissions, it was argued inter alia that the matter before court was judicial review which was not civil or criminal in nature, but, sui generis. Therefore, Order 45 of the Civil Procedure Rules on which the application was premised is not available in these proceedings. To that extent, they urged that this application is misplaced and incompetent. They also stated that, in ordering the personal attendance of the Attorney General in court, the court was not exercising its civil or criminal jurisdiction but rather a sui generis jurisdiction.

DETERMINATION

[6]This decision relates to two files, namely; (1) MERU HC JR NO 11 OF 2015 and (2) MERU HC JR NO 23 OF 2013. It is given upon the request by the Honourable Attorney General that this court reviews or sets aside the orders of 20th April 2017 which required the Attorney General to appear in court and show cause why he should not be cited and punished for contempt of court. I have carefully considered this Application and the rival submissions by the parties. What I understand the Honourable Attorney General to be saying is that the said order requiring the personal attendance of the Attorney General in court on 18th May 2017 to show cause why he should not be cited and punished for contempt was irregular, and, constituted errors apparent on the face of the court record; and should be reviewed. An application based on the ground that the order is irregular must establish that the order is a nullity and should be set aside ex debito justitiae.It is only such order which is a nullity in plain eye-sight of the court is irregular; and does not require copious explanations to discern that constitutes an error on the face of record. Any other order which ought to be challenged on appeal will not constitute error on the face of record. See the decision in the case ofMACFOY V UNITED AFRICA CO. LTD [1961] 3 All ER 1169 at pg. 1172:

“the defendant here sought to say therefore that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse ”.

Are the orders herein of a nature that must be set aside as a matter of judicial duty in order to uphold the integrity of the judicial process itself.

[7] A little look at the record is necessary. On 29. 9.2016 the court wanted the Attorney General as a party in these proceedings (see JR 11 OF 2015), defender of public interest and principal legal advisor to the government to come to court to explain whether it was government’s official policy not to obey court orders. See article 156 of the Constitution of Kenya. The court so directed after the office of the Attorney General made many promises in vain. Towards this end, the following incidents are useful.

[8] On 15th December 2016, Mr. Kieti for the Applicants intimated to court that in June 2015, he had made presentations before court on payment and further requested for a mention date on 16th February 2017. On 16th February 2017, Mr. Kiongo for the Applicants again intimated to court that information was transmitted to the Attorney General but no feedback was forthcoming from his office and that he had nothing else to say on the matter as he had made personal efforts in vain. These incidents prompted the court to issue an order requiring the Attorney General to attend court on 20th April 2017, to show cause why he should not be cited and punished for contempt. On the said date the Attorney General did not appear in court as directed whereupon on 18th May 2017, Mr. Onyiso for the Applicants intimated to court that the Attorney General had been out of the country and that was the reason why he was unable to come and that further they had filed the instant application for review.

[9] Similarly inMERU MISC APPLICATION NO. 11 OF 2015, Mr. Kiongo holding brief for Ms Kung’u for the Applicants requested for the 30 days to pay the decretal sum which request was acceded to by the court with a further mention date slated for 21st January 2016.

On 21st January 2016 there was no appearance by the Applicants whereupon the court took great exception with the Applicants conduct and issued summons directed to the Principal Secretary, Ministry of Defence to appear before court personally on 10th March 2016 to explain why he had not complied with orders of court.

[10] On 10th March 2016, Ms Kung’u for the Applicants once again requested for 60-90 days to pay the decretal sum whereupon the court ordered the Principal Secretary to attend d court on 26th May 2016unless there was a feasible commitment on his/her part.

Again, on 26th May 2016, Mr. Kimathi for the Applicants intimated to court that the Principal Secretary was not in court and requested for more time to serve him whereupon the court reluctantly accepted his explanation and further directed the Principal Secretary to appear in court on 2nd June 2016 and explain what the decretal sum could not be paid forthwith.

On 2ndJune 2016 the Principal Secretary was absent; the court expressed dismay over blatant disobedience of court orders by government officers and further issued a warrant of arrest against the Principal Secretary which warrant was to be executed by the Inspector General of police.

[11] On 18th August 2016, it appeared that the Principal Secretary had not been arrested and the court directed the Inspector General of Police to appear before court and explain why he had not arrested the Principal Secretary.

[12] On 29th September 2016, Ms Kung’u for the Applicants again sought more time to sort the issue of payment; the court sadly noted that the State Officers and in particular the executive arm of government were flouting court orders with impunity; the court gave the Applicants up to 5th December 2016, to pay up the decretal sum failure to which the court would require the personal attendance of the Attorney General to explain to the court whether it was the unwritten policy of the Government not to obey court orders. It further directed the entire proceedings to be served on the Attorney General.

[13] On 15th december2016 it appeared to court that the decretal sum had not been paid and the court issued summons upon the Attorney General of the Republic of Kenya the Government’s legal adviser and defender of public interest thus provoking the instant application.

[14] The error as stated by the 2nd Applicant is that the order requiring the attendance of the Attorney General was irregular and therefore an error apparent on the face of the record. I am content to cite the case of Muyodi vs. Industrial and Commercial Development Corporation & Another [2006] 1 EA 243,in which theCourt of Appeal described an error apparent on the face of the record as follows:

“ In Nyamogo & Nyamogo -vs- Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error as wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”(emphasis mine)

[15] Applying the above test, the contention by the Applicants that the Attorney General is protected from personal liability under Section 8 (2) of the Office of the Attorney General Act No. 49 of 2012 is without basis as the court has not sought to hold the Attorney General personally liable for the decree herein. The court is seeking to enforce an order that was specifically directed at the Attorney General to explain to court whether it was government’s policy not to obey court orders. That distinction is important. Therefore, section 30 (2) of the Contempt of Court Act does not apply as the accounting officers of a state organ, government department, ministry or corporation remain liable for their obligations herein. Thus, in light of the nature of the order herein, the attendance of the Attorney General is therefore absolutely necessary especially noting the office of the Attorney General is a party in the proceedings; principal advisor of the government and defender of public interest. I thought that observance of the rule of law and orders of court is a matter of grave public interest for which the Attorney General should readily come out to uphold, protect and defend without compulsion by court. Again protection and accommodation of persons with disability like the Ex parte Applicants is of such constitutional vitality and public interest that the Attorney General should also be quick to stand for and defend. The arguments I have seen is that the order for Notice to Show Cause is a nullity; it is not; indeed it is a course the court may legally take in appropriate cases as this one. Accordingly, the order is not an error in the sense of order 45 of the Civil Procedure Rules. I am aware that even if the AG feels the course taken by this court was wrong, is certainly no ground for a review but it may be for an appeal.In any event section8 (2) of the Office of the Attorney General Act relied upon by the Attorney General provides as follows:

“No matter or thing done by the Attorney-General, the Solicitor-General or a subordinate office shall, if the matter or thing is done in good faith for executing the functions, powers or duties of the Commission, render the Attorney-General, Solicitor- General or other subordinate officer personally liable to any action, claim or demand whatsoever.”

Needless to ask; in the circumstances of this case, has the Office of the Attorney General acted in good faith in the execution of his functions? In these cases I see continuous disobedience of lawful court orders by government officials without any justifiable cause or explanation. Is it therefore strange that the court should call upon the Attorney General to explain this sad state of affairs? Similarly I doubt there could be any legitimate expectation that the provisions of the Contempt of Court Act cited by the Applicants will apply in this case when the said statute came into force long after matters complained of had taken place. Taking into totality all the circumstances in this case, I find the Applicant’s application to be without merit and is hereby dismissed with no order as to costs. Accordingly, the Attorney General of the Republic of Kenya is hereby summoned to appear in court at a date I shall appoint specifically to show cause why he should not be cited and punished for contempt of court. It is so ordered.

Dated, signed and delivered in open court at Meru this 11th day of October 2017

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F. GIKONYO

JUDGE

In the presence of:

Mr. Riungu advocate for ex-parte applicants

M/s. Mbuikiata advocate for Onyiso advocate for respondent.

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F. GIKONYO

JUDGE