https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12996

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E127 OF 2023** **HAMZA MOHAMMED OSMAN EGAL……..……...….…PETITIONER** **VERSUS** **DIRECTOR GENERAL OF KENYA CITIZENS** **AND FOREIGN NATIONAL SERVICES……….…..1ST RESPONDENT** **HON ATTORNEY GENERAL……...………………...2ND RESPONDENT** **THE CABINET SECRETARY,** **MINISTRY OF FOREIGN AFFAIRS……………...…3RD RESPONDENT** **R U L I N G** **Introduction** 1. The Notice of Motion Application dated 30th July 2025 seeks orders that a Notice to Show Cause do issue to the Respondents to state why they should not be committed to civil jail for the disobedience of the orders of the court issued on 19/1/2024. Further, that the the Respondents be committed to civil jail and detained in prison for six months or both fine and imprisonment for contempt of Court of the Honourable’s court’s orders issued on 19/1/2024. 1. The application is unopposed. **The Petitioner’s/Applicant’s Case** 1. On 19th January 2024, the instant court delivered its judgement in which it found that the Respondents violated the Petitioner’s right to fair administrative action under Article 47(1) & (2) of the Constitution by declaring him inadmissible without giving reasons and delaying his citizenship Application since 2017. 2. The court further issued an order of mandamus compelling the 1st Respondent to expedite the processing of his application for Kenyan citizenship within six months from the date of the judgment. 3. The Petitioner reveals that his advocates duly served the judgment on all the Respondents on 22nd January 2024 and sent formal reminders on 15th March 2024 and 10th May 2024 urging compliance. The Respondents have neither complied with the judgment nor filed any Appeal or Application for review thereby confirming deliberate and wilful disobedience of this Court’s orders. He further states that the Respondents have blatantly refused to process his citizenship applications as ordered; lift the unlawful red alert issued against him and allow him to re-enter his motherland and place of residence which has left him stigmatized and unable to resume his business, reunite with his community or discharge cultural obligations. 1. The Petitioners depones that the continued contempt has caused grave harm including destruction of businesses and losses exceeding Kshs. 45 million; legal fees incurred over the past years to protect his constitutional rights; psychological trauma and emotional suffering to his wife and children who have endured displacement and fear and denial of the right to bury his father-in-law and attend critical family obligations resulting in cultural and personal anguish. He further asserts that the Respondents are personally aware of the court’s orders and have failed to comply. Their wilful inaction is contemptuous of this Honourable Court, it ridicules its authority and undermines the sanctity of the judicial process. 1. The Petitioner put in written submissions. **The Petitioner’s Submissions** 1. The Petitioner identified three issues for determination as follows: 1. **whether the respondents had knowledge of the orders of the Honourable Court** 2. **whether the respondents wilfully disobeyed the orders of the Honourable court and if yes,** 3. **what are the appropriate orders in the circumstances.** 2. The Petitioner submitted that in its judgment, the Court found that the failure of the Respondents to process his citizenship Application since 2017 was unlawful and a breach of Article 47(1) of the Constitution and further that the issuance of a red alert and declaring him inadmissible into Kenya without giving him written reasons was unconstitutional and violated Article 47(2) of the 3. Constitution. The court ruled in his favour and found that he is entitled to Kenyan citizenship by birth and that the actions of the Respondents have been unlawful and in breach of the constitution. He further submitted that he effected service of the judgment upon the Respondents for their action and wrote several reminders to the respondents. Therefore, the Respondents have had knowledge of the orders. 4. The Petitioner argued that knowledge supersedes service. To buttress that point he relied on the case of **Basil Criticos vs Attorney General & 8 Others [2012] eKLR** where it was held that where a party clearly acts and shows that he had knowledge of a court order, the strict requirement that personal service must be proved is rendered unnecessary. Further reliance was placed in the cases of **Shimmers Plaza Limited vs National Bank of Kenya Limited [2015] eKLR** and **Wachuri Farmers Co-op Society Ltd Njuriga Farmers Co-op Society Ltd vs Mburu Mungai t/a Mburu Mungai & Associates the Registrar of Co-op Societies [2003] eKLR**. The Petitioner argued that the respondents had knowledge of the existence of the orders and what they were expected to do in compliance thereof but knowingly, blatantly, flagrantly and wilfully disobeyed the court orders. 1. The Petitioner submitted that he has not been allowed to return home and he has not received any remedy or recognition for the violations he endured at the hands of the Respondents. Furthermore, the Respondents never filed a response to rebut the allegations. He further submitted that the continued refusal by the respondents to implement this Court’s orders is not only contempt of court but also amounts to continued violation of Articles 14, 47, 28 and 39 of the Constitution, a breach of international obligations including Article 12 of the International Convention on Civil and political Rights on freedom to return to one’s country, Article 15 of the Universal Declaration of Human Rights (UDHR) on the right to nationality and Articles 5 and 12 of the African Charter on Human and people’s Rights. The Petitioner asserted that the contempt complained of is continuing as the respondents have not purged contempt and deserve no mercy from the court. To buttress that point the petitioner relied on the case of **Godfrey Njeru vs Republic Criminal Appeal No. 20 of 1993** cited with approval in **Image Apparels Ltd vs Freight in Time Limited [2008] eKLR** which outlined the ingredients forming the basis for punishing for contempt, inter alia that contempt of court orders tends to undermine the court system and tends to inhibit citizens from availing themselves of it for the settlement of their disputes. Further reliance was placed in the case of **Johnson vs Grant 1923 SC 789 cited with approval in trust Bank Ltd (in liquidation) vs Shanzu Villas Ltd & 3 Others [2004] eKLR** where it was held that the law does not exist to protect the personal dignity of the judiciary nor the private rights of parties or litigants; it is not the dignity of the court which is offended. It is the fundamental supremacy of the law which is challenged. 1. The Petitioner argued that if allowed to continue, the said actions will render the enforcement of the court’s orders futile. Reliance was placed in **Hadkinson vs Hadkinson [1952] 2 All ER 567** cited with approval in **Regine Butt vs Haroon Butt & Another [2016] eKLR** where it was held that it is the plain and unqualified obligation of every person against or in respect of, whom an order is made by a court of contempt jurisdiction to obey it unless and until that order is discharged. Similar reliance was placed in **Shimmers Plaza** **Limited vs National Bank of Kenya Limited** (supra) where the Court of Appeal held that the courts should not fold their hands in helplessness and watch as their orders are disobeyed with impunity left, right and centre. The Petitioner further argued that the alleged contemnors should not be heard until they purge contempt. It is trite law that a party that has no regard to the due process of the law and the appurtenant orders does not deserve orders in his favour in the first place. 1. The Petitioner stressed that it is trite law that contempt proceedings have elements of public interest and not mere dispute between the parties. The Court of Appeal has consistently held that contempt proceedings are special in nature in the case of **Beijing Industrial Designing & Researching Institute vs Lagoon Development Limited [2015] eKLR** where the court declined to allow a company to discontinue a suit, because the intention was to let off the hook the Directors of the plaintiff company who had a pending contempt application against them since contempt proceedings involve much more than private interests and implicate the public interest at large. Further reliance was placed in **Kiru Tea Factory** **Co. Ltd vs Stephen Maina Githiga & 13 Others [2018] eKLR** where the court of appeal declined to allow an application to withdraw an application for contempt. 1. The Petitioner argued that the conduct of the respondents is contemptuous of the court and court process and has put the authority and dignity of the Honourable Court to ridicule. All the Respondents are state officers who should be at the forefront in upholding the rule of law in the country. Reliance was placed in the case of **Republic vs Kenya School of Law & 2 Others *ex parte* Juliet Wanjiru Njoroge & 5 Others [2015] eKLR** where the court held that those who disobey court orders risk being declared by the court to have breached Article 10 of the Constitution which prescribes national values and principles of governance with the attendant consequences among other appropriate sanctions. Thus, in addition to punishment for contempt of the respondents, the Petitioner urged the court to issue an order for declaration that the Respondents who are public officers have violated the Constitution hence they are unfit to hold public office. **Analysis And Determination** 1. The main issue for determination is whether the Respondents deliberately and wilfully disobeyed the judgment of the court delivered on 19th January 2024 thereby constituting contempt of court. **Whether the respondents deliberately and wilfully disobeyed the judgment of the court delivered on 19th January 2024 thereby constituting contempt of court** 1. It is trite law that contempt of Court connotes any act that defies or is disrespectful to the Court and may be manifested in different ways. This included deliberate refusal to obey a court order, showing disrespect towards the Court during judicial proceedings (*Contempt in the face of the Court*) or scandalizing the Court with misinformation. 1. The law governing contempt of Court proceedings in Kenya was explained in the case of **Alfred Mutua v Boniface Mwangi (2022) eKLR** as follows: **“13. Before the enactment of the nullified Contempt of Court Act which deleted section 5 of the Judicature Act Cap 8 Laws of Kenya, the first port of call with respect to the procedure for institution contempt of Court proceedings in this country was and therefore is section 5 of the Judicature Act Cap 8 Laws of Kenya. That section provides:** **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.** **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 original criminal jurisdiction of the High Court.** **14. Therefore, the law that governs contempt of court proceedings is the English law applicable in England at the time the contempt was committed. The procedure in the High Court of Justice in England was considered in detail by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others [2014] eKLR. In that case the Court recognised that the only statutory basis for contempt of court law in so far as the Court of Appeal and the High Court are concerned is section 5 of the Judicature Act.** **15. Under Rule 81.4 of the English Civil Procedure Rules (Amendment No. 3) Rules, 2020 provides for the requirements of a contempt application and provides that:** * + 1. **Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.** 2. **A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—** - 1. ***the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);*** 2. ***the date and terms of any order allegedly breached or disobeyed;*** 3. ***confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;*** 4. ***if the court dispensed with personal service, the terms and date of the court's order dispensing with personal service.*** 5. ***confirmation that any order allegedly breached or disobeyed included a penal notice;*** 6. ***the date and terms of any undertaking allegedly breached;*** 7. ***confirmation of the claimant's belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;*** 8. ***a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;*** 9. ***that the defendant has the right to be legally represented in the contempt proceedings;*** 10. ***that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;*** 11. ***that the defendant may be entitled to the services of an interpreter;*** 12. ***that the defendant is entitled to a reasonable time to prepare for the hearing;*** 13. ***that the defendant is entitled but not obliged to give written and oral evidence in their defence;*** 14. ***that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;*** 15. ***that the court may proceed in the defendant's absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;*** 16. ***that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;*** 17. ***that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;*** 18. ***that the court's findings will be provided in writing as soon as practicable after the hearing; and*** 19. ***that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public.”*** 1. The Court in **Republic v Kenya School of Law & 2 others *Ex parte* Juliet Wanjiru Njoroge & 5 others (2015) eKLR** underscored the significance of the contempt proceedings as tool for the observance of the rule of law as follows: **“23. In my considered view, Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders the honourable thing to do is to come back to court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal. In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim, J (as he then was) stated:** **“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. 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 void”.** 1. Nevertheless, a party that moves the Court in an application for contempt must satisfy the requisite threshold as laid down in **Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR** where the Court held as follows: **“40. It is an established principle of law that in order to succeed in civil contempt proceedings, the Applicant has to prove** 1. **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:-** * + - 1. **the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;** 2. **the defendant had knowledge of or proper notice of the terms of the order;** 3. **the defendant has acted in breach of the terms of the order; and** 4. **the defendant's conduct was deliberate.”** 1. The specific orders issued by this court in its judgment delivered on 19th January 2024 were as follows: - 2. **A declaration be and is hereby issued that by arbitrarily declaring the Petitioner an inadmissible person without specifying the reasons to him and further failing to provide him with the written reasons for the decision even after he had sought the same, the 1st Respondent violated the Petitioner’s right to fair administrative action under Article 47(2) of the Constitution.** 3. **A declaration be and is hereby issued that there has been inordinate delay by the respondents in processing the petitioner’s application to regain citizenship which is a violation to the petitioner’s right to an expeditious administrative action under article 47(1) of the Constitution and Section 4 of the Fair Administrative Actions Act.** 4. **An order of mandamus be and is hereby issued compelling the 1st respondent to expedite the processing of the application for regaining of Kenyan citizenship by the petitioner and advise the petitioner on the results of his application not later than six months from the date of this order.** 5. These orders are explicit. They are in the form of declarations and an order of mandamus compelling the 1st Respondent to expedite the processing of the Petitioner’s Application for regaining Kenyan citizenship. 6. The record shows that this judgment was not served upon the respondents. The affidavit sworn by the Petitioner avers that Counsel served the Respondents with the judgment on 22nd January 2024. 7. However, from the court record and the CTS, Counsel for the Petitioner wrote to the court to request for a copy of the judgment. There is no affidavit of service to show proof of service of the judgment upon the respondents. 8. Furthermore, the Petitioner further averred that formal reminders were made to the respondents on 15th March 2024 and 10th May 2024 urging compliance. On perusal of the record and the CTS, there is no record of these letters. In fact, the supporting affidavit to the Application does not have any annextures attached to it. 1. Without proof of service, the Court finds it difficult to make a conclusive finding that the Respondents are aware of the orders of the court issued on 19th January 2024. The only document the Petitioner has shown he has served are the directions issued pursuant to the instant application which was filed under certificate of urgency. The Petitioner filed an affidavit of service dated 4th August 2025 showing that he served the Respondents with the directions issued on 31st July 2025. 1. It is thus crystal clear that the petitioner has not substantiated the fact that the respondents know about the orders issued by the court but have deliberately chosen to disobey them. 2. In light of the foregoing reasons, it is my considered view that the Petitioner has not established a case for civil contempt against the Respondents. 3. Accordingly, the Notice of Application dated 30th July 2025 lacks merit and is hereby dismissed. 4. The Court makes no orders as to costs. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY AUGUST, 2026.*** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L N MUGAMBI** **JUDGE**