[2022] KEHC 9793 (KLR)

Emukule v Baraza & another (Miscellaneous Civil Application E184 of 2021) [2022] KEHC 9793 (KLR) (4 May 2022) (Ruling)

Neutral citation: [2022] KEHC 9793 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Civil Application E184 of 2021

MW Muigai, J

May 4, 2022

Between

Gideon Osoma Emukule

Applicant

and

Benson Baraza - Office Commanding Makuyu Police Station

1st Respondent

David Juma Ikapuyun

2nd Respondent

Ruling

1. By a Notice of Motion dated September 20, 2021, the Applicants seek the following orders:-1. That the Honorable Court be pleased to declare and hold that having been made aware of the warrant of arrest issued on October 19, 2020by the Mavoko Chief Magistrate’s Court vide Mavoko CMCC No. 601 of 2017 and having willfully disobeyed, disregarded and/or failed to execute the warrant of arrest against the 2nd Respondent, the 1st Respondent Mr. Benson Baraza is in contempt of Court.2. That this Honourable Court do impose a fine of Kshs.100,000/- upon the 1st Respondent Benson Baraza and/or commit him to a prison term of 6 months or such other period as the Court may in its absolute discretion deem expedient upon finding that he is in contempt of Court.3. That the Officer Commanding Makuyu Police Station Division do personally facilitate the arrest of the 1st Respondent Benson Baraza in execution of prayer 2 above.4. That the costs of this application as well as those of the suit be borne by the Respondent in this suit.

2. The Application is supported by the affidavit of Gideon Osoma Emukule sworn on September 20, 2021. According to the deponent, the application is premised on ground that the 1st Respondent neglected, failed and/or refused to execute the warrant of arrest dated October 19, 2020 issued by the Mavoko Chief Magistrate’s Court against the 2nd Respondent hence in contempt of the valid court orders.

3. Based on the legal advice of his advocate, he averred that their process server, Mr. Daniel Maithya proceeded to effect service of a letter dated April 20, 2021 that enclosed correspondences dated February 17, 2021, October 27, 2020 and the warrant of arrest upon the 1st Respondent in person on April 23, 2021 as averred in the process server’s affidavit of service annexed as ‘G0E 3’ dated June 20, 2021. On the legal advice, he averred that the 2nd Respondent is well known by the 1st Respondent and works for the National Intelligence Services (NIS) within the 1st Respondent’s area of jurisdiction.

4. According to the Applicant, the refusal to execute the warrant of arrest is merely calculated to deny him the fruits of his litigation and unless the contempt is purged the 1st Respondent shall continue to make a mockery of the warrant of arrest orders. The Applicant averred that the ends of justice will be served if the application herein is allowed as prayed.

1st Respondent’s Replying Affidavit 5. In opposition to the application, the 1st Respondent swore a replying affidavit on November 8, 2021 wherein he averred that he had not refused and/or ignored to execute the warrants as alleged by the Applicant. The Officer averred that he was informed by the 2nd Respondent’s advocates, Kilenyet & Company Advocates that the 2nd Respondent had paid Kshs.975,240/- which had been deposited to the Applicant’s advocates account name Nalyanya, Muruka, Wawira & Company Advocates; Kenya Commercial Bank Prestige Plaza Branch; Account No. xxxx.

6. According to the Officer, it was difficult to execute the warrant of arrest against the 2nd Respondent either at his office or place of abode since the 2nd Respondent has been in and out of the hospital. He has averred that the 2nd Respondent has been faced with financial difficulties as a result of the Covid 19 pandemic and lockdown that has led to his relocation to his rural home in Kitale Trans Nzoia County from Muranga County since September, 2020.

7. Based on the legal advice of his advocates, Rije Esther & Co. Advocates, he verily believes that the committal to civil jail would amount to humiliation and disentitling his human dignity as enshrined in the Constitution, 2010. He averred that the application for contempt against him has been brought in bad faith and it should be dismissed with costs.

8. The Officer urged the court to allow him more time to look for the 2nd Respondent and allow the 2nd Respondent to start paying a reasonable amount.

2nd Respondent’s Replying Affidavit 9. In his replying affidavit sworn on 8th November, 2021, the 2nd Respondent averred that the court issued an order that he pay the Applicant Kshs. 1,032,487 in a monthly installment of Kshs.191, 365/- for a period of 8 months. He averred that he has not deliberately failed to comply with the court order in Civil Case No. 601 of 2017 issued by the Mavoko Chief Magistrate as he has managed to pay Kshs. 975,240/-.

10. He averred that in the month of February, 2020 he became ill hence unable to raise any amount since he used the little amount he had in medication and treatment and as a result of the Covid 19 pandemic which has not ceased to date that affected his business operations. According to him, since the outbreak of Covid 19, he relocated to Kitale Trans Nzoia because of the illness. According to him, his business of selling cows was drastically affected as all cowsheds were closed in an effort to curb the spread of Corona.

11. According to the 2nd Respondent, committal to civil jail was not the only remedy available for execution of the decree and warrant of arrest and it would amount to humiliation and disentitling his dignity as enshrined in the Constitution, 2010.

12. He averred that he has tried to negotiate payment installments plan from payment of a monthly installment of Kshs. 191, 365/- as court had ordered to kshs. 50,000/- due to hard economic times that he was going through but the Applicant had refused, ignored and/or neglected to be amenable to the request. He urged the court to allow him to start paying a reasonable amount.

13. On the legal advice of his advocate, he believes that this Court has jurisdiction to vary a consent judgment for the reasons of economic turmoil and financial difficulties that he was going through.

Applicant’s Further Affidavits 14. In response to the 1st Respondent’s replying affidavit, the Applicant further averred that the 1st Respondent duty is administrative and limited to execution of warrants of arrest hence he cannot refuse to execute a valid court order and instead arrogate himself the role equivalent to that of an appellate court or any other court purporting to question the merits and circumstances under which the warrant of arrest was issued against the 2nd Respondent before proceeding to execute it.

15. According to the Applicant, the 1st Respondent is not impartial since he has deliberately refused to discharge his duties for the 2nd Respondent’s benefit.

16. On the legal advice of his counsel, he averred that regarding whether or not the 2nd Respondent had indeed fully complied with terms of the consent recorded in court on August 6, 2019 in Mavoko CMCC No. 601 of 2017, the same were canvassed by the 2nd Respondent before the Trial Court which proceeded to issue warrant of arrest against the 2nd Respondent and later dismissed the application seeking review of the decision on April 14, 2021 hence the issue is res judicata and the 2nd Respondent cannot relitigate the issue .

17. He averred that the 1st Respondent has neither enumerated nor adduced any evidence to substantiate his averments regarding the efforts he allegedly made with a view of executing the warrant of arrest that had been issued against the 2nd Respondent. According to the Applicant, the averments made by the 1st Respondent that he has never disobeyed any court orders is immaterial before this court since the warrant of arrest issued herein dated October 19, 2022 was specific against the 2nd Respondent.

18. On the legal advice of his counsel, he averred that orders seeking committal jail of the Defendants who fail to comply with a valid court order has never been declared unconstitutional.

19. In response to the 2nd Respondent’s replying affidavit, on the legal advice of his counsel, the Applicant further averred that the 2nd Respondent was actually ordered to pay Kshs. 1,530,920/- pursuant to the terms of the consent that was adopted in court on August 6, 2019. According to the Applicant, the 2nd Respondent has on diverse dates decided to make payments after 5th of every month less than what had been prescribed hence in breach of the terms of the consent.

20. According to the Applicant, the 2nd Respondent has not tendered in court any medical or treatment report or his employer to substantiate the claim and in any case his obligation to settle the sum due had not been suspended. The Applicant assert that the 2nd Respondent has always had a salary even during Covid 19 pandemic as he is employed by the National Intelligence Services. The Applicant also assert that the 2nd Respondent did not substantiate his assertions that he was engaged in selling cows business which he alleged to have been affected by the Covid 19 pandemic.

21. The Applicant averred that the 1st Respondent has without just cause, will fully neglected and/or otherwise refused to execute a valid and subsisting warrant of arrest against the 2nd Respondent which warrant cited the 1st Respondent for contempt of court.

22. According to the Applicant, the terms of the consent recorded in court by the parties cannot be unilaterally reviewed through the 2nd Respondent’s replying affidavit. He averred that in the event this court is inclined to vary the sum currently due, the 2nd Respondent is still obligated to pay him Kshs. 756, 250/- plus accrued interest as of December 9, 2021.

23. The Applicant urged the court to disregard in toto the contents of the 2nd Respondent’s affidavit dated November 8, 2021.

Applicant’s Submissions 24. On behalf of the Applicant, two issues were proposed for determination, the issues being;a.Whether the 1st Respondent is in contempt of the Court order dated October 19, 2020 issued in Mavoko CMCC No. 601 of 2017;b.Whether there is any legal basis for the Court to review the orders issued by the Trial Court in Mavoko CMCC No. 601 of 2017.

25. Regarding the first issue, reliance was placed on Section 5 of the Judicature Act which empowers the High Court to punish individuals who are in contempt and in the case of Cecil Miller vs. Jackson Njeru & Another[2017]eKLR where the Njuguna, J. stated:-“As to whether the Respondent is guilty of contempt of court, the element of a Civil Contempt as espoused in a book titled “Contempt in Modern Newzealand, were set out as follows: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 conduct was deliberate..”

26. Regarding the duty of the person whom a court order is directed for execution, reliance was placed on the case of Jimi Wanjigi & another vs. Insprctor General of Police & 3 others [2021] eKLR where Mrima J. cited the case of Hadkinson vs. Hadkinson (1952) ALL ER 567, where the court stated as follows:-“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 it is discharged. The uncomprising 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…”

27. On the rational for issuance of contempt of court orders, the Applicant placed reliance on the case of Teachers Service Commission vs. Kenya National Union of Teachers & 2 Others(2013)eKLR where Ndolo, J. held that:"38. The reason why Courts will punish for contempt of court then is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the Judiciary or the Court or even the personal ego of the Presiding Judge. Neither is it about placating the applicant who moves the Court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law.”

28. It is submitted that first, in the affidavit of service dated June 30, 2021marked as annexture ‘G0E 3’ the Applicant clearly demonstrated the manner in which the 1st Respondent was personally served with the warrant of arrest dated October 19, 2020 on February 18, 2021. According to the Applicant, this fact was not denied and/or controverted in the 1st Respondent’s replying affidavit dated November 8, 2021.

29. Secondly that the 1st Respondent did not deny the fact that he understood the directions of the court given in the warrant of arrest, an inference that it was clear and unambiguous.

30. Regarding the assertions that the 2nd Respondent had relocated to the rural home, it is submitted that the 1st Respondent’s failure to avail material/facts/ particulars such as specific dates when he allegedly sought to execute the warrant of arrest against the 2nd Respondent and details of when the 2nd Respondent left his area of jurisdiction n is a clear indication that there is no truth to the assertions. The Applicant urged the court to take judicial notice that the 2nd Respondent works with National Intelligence Services hence an abuse to the court’s intelligence for the 1st Respondent to purport to allege that he would not be aware where the 2nd Respondent was leaving or on sick leave or otherwise.

31. It is submitted that the 1st Respondent duty was to execute the warrant of arrest and not to arrogate itself the role of an appellate court to check the propriety of the decision arrived at by the Trial Court in Mavoko PMCC No.601 of 2017.

32. In summation, the Applicant submitted that the 1st Respondent failed to discharge the burden of proof set out in Section 109 of the Evidence Act rendering him culpable for contempt of Court.

33. On the second issue, it is submitted that the 2nd Respondent’s averment contained in paragraph 6,7,8,13,15 and 17 of his replying affidavit(supra) purporting to attribute his failure to comply with the terms of the Order issued on 22nd August, 2019 to his illness and the effect of Covid 19 pandemic on his business were raised and ventilated before the Trial Court in Mavoko CMCC No.601 of 2017 on two occasions namely when in response to the Applicant’s application seeking to have him committed to civil jail which was determined on 18th November, 2020 and later when he sought review of the decision issuing the warrant of arrest against him vide the Notice of Motion dated 9th November, 2020. According to the Applicant, the issues are res judicata.

34. Reliance was placed on Section 7 of the Civil Procedure Act and in Invesco Assurance Company Limited & 2 Others vs. Auctioneers Licensing Board & Another, Kinyanjui Njuguna & Company Advocates & Another (Interested Parties) [2020]eKLR on the proposition that all ingredients to the doctrine of res judicata have to be present for the doctrine to apply.

35. Regarding setting aside or varying the consent order, reliance was placed on the case of Lazarus Kirech vs. KisorioArap Barno[2018]eKLR where court held that:“It is trite law that consent order can be varied where it is proved that it has been obtained by fraud or collusion or by an agreement contrary to public policy of the court or the consent was given with sufficient material facts or in misapprehension or ignorance of material facts or in general for a reason which would enable the court to set aside an agreement.”

36. It is submitted that the 2nd Respondent has not adduced any evidence to show that the consent order was either obtained through either of the above grounds cited in Lazrus Kirech case (supra). According to the Applicant, the issue of illness and the devastating effect of Covid 19 relied upon to seek review of the consent were not substantiated by the 2nd Respondent.

37. According to the Applicant, if the court is inclined to vary and/or review its findings regarding the actual sum due, it is submitted that the 2nd Respondent is obligated to pay the Applicant in total the sum of Kshs. 756, 250/- comprising of the unpaid sums plus accrued interest.

38. In conclusion, the Applicant urged the court to exercise its powers under Section 5 of the Judicature Act and the cases of TSC vs. KNUT & 2 Others [2013] eKLR, Jimi Wanjigi & Another vs Inspector General of Police & 3 Others [2021] eKLR by committing the 1st Respondent to civil jail for disregarding the valid court orders. According to the Applicant, the issues raised by the 2nd Respondent are res judicata and constitutes an abuse of the court process. It is submitted that the 2nd Respondent is not entitled to any relief sought since he has not come to court with clean hands having failed on diverse dates to comply with the valid court order and misrepresented the court to get a favorable outcome from the court.

39. Lastly, that if the court is inclined to indulge the 2nd Respondent by granting him the reliefs sought, the court should order the 2nd Respondent to pay the sums enumerated in paragraph 15 of the Applicant’s further affidavit dated December 7, 2021 plus costs of the suit within a reasonable time not exceeding 6 months to avoid prejudicing the Applicant’s right to enjoy the fruits of his litigation.

1st Respondent’s Submissions 40. On behalf of the 1st Respondent, it is submitted that in compliance with the consent judgment issued by the Chief Magistrate C. Oluoch at Mavoko law courts on 23rd August, 2019, the 2nd Respondent pay Kshs.1,530, 920/-, the 2nd Respondent has managed to pay Kshs. 1,222,000/- as demonstrated in his submissions.

41. According to the 1st Respondent, the only issue for determination would be whether the 1st Respondent is in contempt of court of Hon. C. Oluoch orders in Mavoko CMCC No. 610 of 2017. It is submitted that in execution of the said consent order, the 2nd Respondent has paid as evinced in the receipts by deposition money into the Applicant’s advocates account/.

42. It is submitted that as at the date of the warrant of arrest dated October 19, 2020, the 2nd Respondent had a balance of Kshs. 530, 392/-. According to the Applicant, from the amount demanded in the warrant of arrest , the 2nd Respondent remain with an unpaid balance of Kshs. 310,392/- having paid a total of Kshs. 1,220,920/-.

43. According to the 1st Respondent, the 2nd Respondent has been ill and faced with financial difficulties hence the sole reason why the warrants of arrest has never been executed. It is submitted that the Applicant proceeded to file a notice to show cause against the 2nd Respondent in disregard of the economic turmoil that the country was and is still going through as result of the Covid 19 pandemic. According to the 1st Respondent, the Applicant ought to have annexed the bank statements or evidence to show that the 2nd Respondent had deposited monthly instalments to their account since the issuance of the warrant of arrest.

44. According to the 1st Respondent, he is not in contempt of the court orders for the reasons that:a.The 2nd Respondent has not been in his place of abode herein Muranga being the 1st Respondent’s area of jurisdiction since September, 2020 to be able to effect warrant of arrest in executionb.The 2nd Respondent has demonstrated willingness in complying with the court order issued by the Hon. Chief Magistrate in CMCC NO. 601 of 2017 despite the economic turmoil that the country is going through by paying Kshs. 1,222,000/- by depositing to the Applicants Bank account foretastedc.No evidence has been placed before the court to demonstrate that the 1st Respondent is in contempt of the court order to warrant the application of the Applicant to be allowed.

45. The 1st Respondent urged the court to dismiss the Application with costs and allow the 2nd Respondent to pay the remaining balance of Kshs. 310,920/-.

2nd Respondent’s Submissions 46. On behalf of the 2nd Respondent, the two issues that were proposed for determination are;i.Whether the warrant of arrest issued at Mavoko Law Courts by Hon. C. Oluoch onAugust 23, 2019be liftedii.Whether the court should review the orders of Hon. C. Oluoch issued at Mavoko Law Courts onAugust 23, 2019.

47. On the first issue, it is submitted that since the issuance of the court order on August 22, 2019, the 2nd Respondent has managed to pay the decretal sum on diverse dates. According to the 2nd Respondent the receipts and the bank statements demonstrate that he has paid the decretal sum by depositing into the Applicant’s advocates account and the unpaid balance now is Kshs. 310,392/-.

48. According to the 2nd Respondent, in February, 2020 he became very ill hence unable to the raise the amount and due to the Covid 19 pandemic, he relocated to his rural home in Kitale because of the illness. It is submitted that his business operations were affected hence unable to raise the agreed installments. According to the 2nd Respondent, the Applicant ought to have annexed the bank statements or evidence for the months that the 2nd Respondent had deposited the monthly installments to the Applicant’s advocates account. It is submitted that the Applicant refused, ignored and/or neglected to negotiate with the 2nd Respondent on the payment terms and proceeded to file for warrants of arrest. The 2nd Respondent urged the court to lift the warrant of arrest to allow the 2nd Respondent pay the balance of the decretal amount.

49. As to whether this court should review the terms of the consent order issued on 23rd August, 2019, it is submitted that the 2nd Respondent has a right to fair hearing enshrined under Article 50(2) (q) of the Constitution. According to the 2nd Respondent, this court has jurisdiction to find any other reason which would enable it to vary and/or review the orders of the lower court. According to the 2nd Respondent, Covid 19 pandemic affected his business operations but despite hard economic turmoil, he has been able to pay Kshs. 1,220, 920/- by depositing the amount into the Applicant’s account.

50. According to the 2nd Respondent, a review application is not a new suit as implied by the Applicant hence not res judicata as contemplated under Section 7 of the Civil Procedure Act. The Respondent urged the court to vary and/or review the orders of the Chief Magistrate C. Oluoch in CMCC No. 601 of 2017 and dismiss the application herein with costs.

Determination 51. I have considered the application, affidavits in support and in opposition, submissions and authorities relied upon by parties The Trial Court order is not disputed. The issues for determination are:-1. Whether the 1st Respondent decision not to execute the warrant of arrest warrants citing him for contempt of court?2. Whether committal to civil jail amounts to humiliation and disentitlement of the 1st Respondent’s human dignity3. What orders may the court grant.

Whether the 1st Respondent decision not to execute the warrant of arrest warrant citing him for contempt of court? 52. The application is premised on Section 5 of the Judicature Act, Cap.8 which provides:-(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 that power shall extend to upholding the authority and dignity of subordinate courts.

53. From the above proviso, I note that a duty is imposed upon the High Court and Court of Appeal to ascertain the applicable law of contempt in the High Court of Justice in England, at the time the application is brought as noted by Platt J. and Porter J In the matter of an application by Gurbaresh Singh & Sons Ltd Misc Civil Case No. 50 of 1983.

54. In Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others [2014] eKLR the Court of Appeal held that:“By dint of section 5 of the Judicature Act, the procedure of instituting contempt of court proceedings in Kenya is set out in PART 81 of the Civil Procedure of the UK which entirely replaced Order 52 of the Rules of the Supreme Court England (RSC) through the Civil Procedure (Amendment No.2) Rules of 2012. The court observed that the repealing of the said Order 52 brought certain changes in the procedure for bringing contempt applications which are relevant to the objection herein.” See the Court of Appeal in Shimmers Plaza Limited vs. National Bank of Kenya Limited [2015] eKLR.

55. The Applicant has urged this court to cite Mr. Benson Baraza, the 1st Respondent herein for contempt of court for the alleged disobedience, disregard and/or failure to execute the warrant of arrest issued on October 19, 2020 by the Mavoko Chief Magistrate Court in CMCC No. 610 of 2017.

56. In Katsuri Limited vs. Kapurchand Depar Shah [2016] eKLR in defining contempt of court held:“According to Black’s Law Dictionary,(14)“Contempt is a disregard if, disobedience to, the rules, or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body.”

57. In the High Court of South Africa in the case of Kristen Carla Burchell vs. Barry Grant Burchell, Eastern Cape Division Case No. 364 of 2005, court held 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

58. The learned authors of the book ‘Contempt in Modern New Zealand’ 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.

59. In find element (a) and (b) are not disputed by the 1st Respondent. The warrant of arrest was to be executed by the Officer Commanding Makuyu Police against the 2nd Respondent. The 1st Respondent has admitted that he is the Officer Commanding the station. The 1st Respondent has admitted that he was served and had knowledge of the warrant of arrest in execution. The validity of the court order is not contested by any of the Respondents.

60. The 1st Respondent disputes that he has breached the court orders that led to the issuance of the warrant of arrest in execution dated October 19, 2020. The 1st Respondent asserts that he has been unable to execute the warrant of arrest since the 2nd Respondent has been in and out of the hospital hence getting the 2nd Respondent in his office or place of abode was been difficult. According to the 1st Respondent, he has not disobeyed the court orders.

61. The Applicant has vehemently disagreed with the 1st Respondent assertions and submitted that the 1st Respondent’s role was restricted to executing the warrant of arrest against the 2nd Respondent unless and until the same was set aside by court. To the Applicant, the 1st Respondent arrogated himself the role of an appellate court or clothed himself with the discretion of enquiring the propriety of the Trial Court decision while issuing the orders.

62. In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim J. (as he then was) relied on the Court of Appeal decision in Gulabchand Popatlal Shah & Another civil application no. 39 of 1990, (unreported), the Court of Appeal said:“…… It is essential for the maintenance of the Rule of Law and good order that the authority and dignity of our courts are upheld at all times. This court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors ……” In Hadkinson –v- Hadkinson (1952) 2 All ER. 567, it was held that: “It is plain and unqualified obligation of every person against or in respect of, who 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.” See ShimmersPlaza Limited vs. National Bank of Kenya Limited [2015] eKLR.”

63. It was held by the Constitutional Court of South Africa in Burchell v. Burchell, Case No 364/2005 that:-“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the courts and requires other organs of state to assist and protect the courts. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.

64. The validity of the Trial Court order has not been challenged. The 1st Respondent has dwelt on the illness and financial constraints faced by the 2nd Respondent. It is not disputed by the either the 1st or 2nd Respondent that the 2nd Respondent was/is an employee of the National Intelligence Services or that the 2nd Respondent was works within the 1st Respondent’s area of jurisdiction. The 1st Respondent has not stated when the 2nd Respondent fell ill apart from stating that the 2nd Respondent has been in and out of the hospital. The 2nd Respondent states that he fell ill in the February, 2020 but no medical reports have been tendered in court to prove the assertions.

65. The court notes that a Consent order was adopted as an order of the Court on 6th August, 2019 in the presence of Ms. Rije, advocate for the 2nd Respondent. The Consent was for the payment of Kshs. 1,530,920/- to be paid in installments of Kshs. 191,365/- on the 5th of every month with effect from 6th September, 2019 until payment in full in 8 instalments.

66. The court’s view is that the conduct of the 1st Respondent clearly establishes disobedience of the court orders.

Whether committal to civil jail amount to humiliation and disentitlement of the 1st Respondent’s human dignity 67. The Respondents argue that it is not the only remedy available for execution of the decree and warrant of arrest. The right to commit a judgment-debtor to civil Jail is provided for under Section 38 of the Civil Procedure Act, Cap 21, which provides for powers of the court to enforce execution. It is provided that:“Subject to such conditions and limitations as may be prescribed, the Court may, on application of decree holder, order execution of the decree –(a)by delivery of any property specifically decreed,(b)by attachment and sale, or by sale without attachment of any property,(c)by attachment of debts(d)by arrest and detention in prison of any person(e)by appointing a receiver or(f)in such other manner as the nature of relief granted may require.Provided that where the decree is for payment of money, execution by detention in prison shall not be ordered unless after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons to be recorded in writing is satisfied –(a)that the judgment-debtor with the object or effect of obstructing or delaying the execution of the decree –(i)is likely to abscond or leave the local limits of the jurisdiction of the Court or(ii)has after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property.(b)That the judgment-debtor has or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects, or has refused or neglected, to pay the same, but in calculating such means there shall be left out of account any property which by or under any law, or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree, or(c)That the decree is for a sum of money which the judgment debtor was bound in a fiduciary capacity to account…”

68. I agree with the Court’s holding in Jayne Wangui Gachoka v Kenya Commercial Bank Limited [2013]eKLR that-“(33)The deprivation of liberty sanctioned by sections 38 and 40 of the Civil Procedure Act is permissible and is not in violation of either the Constitution or ICCPR. The caveat, however, which has been emphasized in all the cases set out above is that before a person can be committed to civil jail for non-payment of a debt, there must be strict adherence to the procedures laid down in the Civil procedure Act and Rules, which provide the due process safeguards essential to making limitation of the right to liberty permitted in this case acceptable in a free and democratic society.” See Jedida Chepkoech Mutai (Suing as The Legal Representative of the Estate of Julius Kipkorir Mutai (Deceased) vs. Cherono Beatrice [2018] eKLR

69. It follows therefore from the above decision that committal to civil jail is a lawful process of executing a decree or court orders as a long as the process of execution is adhered to as per the Civil Procedure Act.

70. The decretal sum is not disputed by the Respondents and arises from a valid Court Order of Trial court. The 2nd Respondent claims to have paid partly the decretal sum. The 2nd Respondent has not disputed that he has had salary paid from National Intelligence Services whom the Applicant claim to be 1st Respondent’s employer. The knowledge of the court order is not disputed by the 1st Respondent and the fact that the 2nd Respondent was employed within the jurisdiction of the 1st Respondent.

71. The court’s view is that despite Section 38 of the Civil Procedure Act providing different ways of executing a decree or court orders, the appropriate method of executing the court order herein is through an order for committal to civil jail against the 1st Respondent who has disobeyed the court order to execute the warrant of arrest against the 2nd Respondent. The 1st Respondent’s reasons for not executing the court orders are unreasonable. The court’s view is that the Application to cite the 1st Respondent is merited.

72. Indeed the Court of Appeal in Shimmers Plaza Limited v National Bank of Kenya Limited(supra) stated:-“Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not.The courts should not fold their hands in helplessness and watch as their orders are disobeyed with impunity left, right and centre. This would amount to abdication of our sacrosanct duty bestowed on us by the Constitution. The dignity, and authority of the Court must be protected, and that is why those who flagrantly disobey them must be punished, lest they lead us all to a state of anarchy .We think we have said enough to send this important message across.”

73. In the case of Sam Nyamweya & Others –V- Kenya Premier League Ltd And Others [2015] EKLR) the Court stated that:-“Contempt of Court is constituted by conduct that denotes wilful defiance of or disrespect towards the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law, whether in civil or criminal proceedings.”

74. In Re Bramblevale (1970) 1 Ch. 128 Lord Denning, affirmed this position when he stated as follows:Contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time -honored phrase, it must be proved beyond all reasonable doubt.

75. In the case of Trusted Society Of Human Rights Alliance Vs. Cabinet Secretary For Devolution And Planning & 3 Others [2017] EKLR provides:…There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard which in civil contempt cases the burden of proof is higher than a balance of probabilities required in civil cases and provides that:i.the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;ii.the defendant had knowledge of or proper notice of the terms of the order;iii.the defendant has acted in breach of the terms of the order; andiv.the defendant's conduct was deliberate…

76. The Applicant commenced Mavoko PMCC 601 of 2017 against the 2nd Respondent on May 23, 2017 to recover Ksh 1,350,000/-with interest and costs. The 2nd Defendant failed to defend the suit and judgment was entered in favor of the Plaintiff/Applicant for Ksh 1,525,570/- .The 2nd Defendant failed to settle the decretal amount and execution proceedings commenced and sought the 2nd Defendant be committed to civil jail. The hearing and determination of the application was compromised after parties’ recorded Consent on 6/8/2019 to have the Respondent settle the outstanding debt due through 8 monthly instalments.

77. The Respondent made part payments on 6/9/2019 Ksh 191,310/, 8/10/2019- Ksh 191,310/-, 9/10/2019- Ksh 91,310/-; 13/12/2019- Ksh 191,310/-; 21/1/2020 – Ksh 100,000/-; 9/7/2021- Ksh 10,000/-; 8/11/2021-Ksh 200,000/-; 8/12/2021- Ksh 30,000/- in various amounts of the debt outstanding and then stopped. The warrant of arrest indicated a balance of Ksh 530,392/-.

78. The 2nd Respondent attributed his non -compliance with terms of the Consent due to ill health and the Corvid 19 pandemic that caused him to be financially constrained.

79. The Applicant has not refuted part payments made by virtue of the Consent but questions the contested payment in compliance with the consent. As to Corvid 19 pandemic this Court takes judicial notice as prescribed by Section 60 of the Evidence Act, that the Covid -19 pandemic that included lockdowns and curfews disrupted public, social and economic and even political lives and it is possible to have adversely affected the 2nd Respondent as the rest of society to financially constraint.

80. I find from the circumstances alluded to above, The Trial Court issued Notice to show cause (NTSC) and it was compromised by Consent of both parties. It is the default of compliance of the terms of consent that occasioned the issuance of warrant of arrest against the 2nd Respondent to be executed by the 1st Respondent. The 2nd Respondent failed to approach the Applicant and/or the Trial Court with evidence of ill health and financial constraint and seek restructuring of the debt payment before and only did so after warrant of arrest was issued. This conduct is inferred as deliberate and willful conduct to disobey the Court Order/Consent.

81. This Court is satisfied that the 2nd Respondent is aware of the Court order that was vitiated by parties’ own Consent which he has defaulted albeit due to the explained circumstances.

82. However, the court notes that the 1st Respondent sought the Court’s indulgence to allow him more time to find the 2nd Respondent and execute the court orders as well as allow the 2nd Respondent to pay the balance.

83. The Court associates itself with Mwita J. in Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR who was of the view that even as courts punish for contempt to safeguard the peaceful and development of society and the rule of law, it must be borne in mind that the power to punish for contempt is a discretionary one and should be used sparingly.

84. In Directline Assurance Co Ltd vs. Jamii Bora Bank Ltd & 5 Others (2015) eKLR where it was stated that;“…..When a court orders are being disobeyed, or are about to be disobeyed, and the contemnor comes down and purges the contempt, either out of his own freewill or at the prompt of the court, the court will accept the purge of the contempt unless circumstances exist to suggest that the coming down, or the alleged purging of the contempt, is not genuine, or is done in bad faith, or is in itself a continuation of the original contempt. In accepting the coming down of the contemnor, the court will assess the reasons given for the disobedience, the time taken to come down, and the cost incurred in the process”.

85. The Court finds the commendable orders to make as a way giving the 1st Respondent an opportunity to purge the contempt and mitigating the sentence is to allow the 1st Respondent find the 2nd Respondent and execute the warrant of arrest as well as allow the 2nd Respondent to pay the balance.

Disposition 86. The 1st Respondent’s sentencing for contempt of court is suspended for 90 days to allow the 2nd Respondent’s purge contempt of Court;

87. The 2nd Respondent is granted 90 days to purge Contempt of Court by regularizing payment of the outstanding debt in instalments as agreed by the Consent of the parties;

88. In default, after 90 days; the Applicant shall invoke execution to recover the outstanding amount by invoking Order 22 Rule 42 of CPR 2010; attachment of the 2nd Respondent’s salary and/or allowance through his employer.

89. The costs of this application be borne by the 1st Respondent.

DELIVERED DATED & SIGNED IN OPEN COURT IN MACHAKOS ON 4THMAY 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE