[2023] KEHC 27299 (KLR)

GNJ v JMM (Civil Suit 16 of 2017) [2023] KEHC 27299 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27299 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Suit 16 of 2017

SN Mutuku, J

December 11, 2023

Between

DR. GNJ

Applicant

and

JMM

Respondent

Ruling

1. This Ruling relates to a Notice of Motion application dated 7th April, 2021 brought by Dr. Gabriel Njue Joseph, the Applicant, under sections 1A, 1B and 3A of the Civil Procedure Act, Section 5 of the Judicature Act, Section 36 of the High Court (Organization and Administration) Act 2015 and Rule 81. 4 & 81. 10 of the Civil Procedure (Amendment No 2) Rules 2012 of England, Order 51 rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law seeking the following orders:i.Spent.ii.Spent.iii.This Honourable Court be pleased to make factual finding that the Respondent herein is ex facie in Contempt of clear Court orders made on the 23rd April, 2020 and 5th March, 2021. iv.That this Honourable Court do issue a Notice to the Respondent requiring the aforesaid to show cause why Contempt of Court proceedings should not be commenced against her personally.v.In the event the Respondent fails to show cause as set out under paragraph (4) this Honourable Court do proceed to cite the aforesaid Respondent of Contempt of the Order issued on 5th March, 2021 and impose a sentence upon them as stipulated by law.vi.That this Honourable Court be pleased to convict the Respondent for Contempt and sentence her to civil jail for a period of six months or any other period that this Honourable Court will deem fit and appropriate in the circumstances.vii.That costs of this Application be provided for.

2. The application is premised on the grounds listed on the face of the application and the Supporting Affidavit dated 7th April 2021 and Further Affidavit Affidavit dated 6th September 2021 sworn by the Applicant, the contents of which I have read and understood.

3. The Application is opposed by JMM, the Respondent, through her Replying Affidavit dated 10th May 2021, Further Affidavit dated 6th September, 2021 and Supplementary Affidavit dated 20th January, 2022. I have read the contents of each affidavit and understood them.

4. The parties are former husband and wife respectively. Their marriage has been dissolved. The Applicant sought division of property known as Kajiado/Kaputiei-North/XXXX. On 11th December 2019, this court (Nyakundi J) resolved the issue through a judgment delivered by Justice Mwita. The court determined that the block of flats situated on the above property constitutes matrimonial property with each party having an equal share to it.

5. The Respondent sought stay of execution of that judgment and through a ruling delivered on 23rd April 2020, the court granted stay of the judgment of 11th December 2019 pending the hearing and determination of the appeal and directed that all rents and income from the matrimonial property be deposited in a joint interest earning account in the names of advocates for the parties with effect from the date of that ruling.

6. The joint account was opened in August 2020 but the Respondent, as argued by the Applicant did not make deposits to that account. The record shows that the Applicant and the Respondent each filed applications seeking review of the orders of the court granted through the ruling of 23rd April 2020. The Applicant’s application is dated 15th July 2020 and the Respondent’s is dated 20th July 2020. In a ruling delivered- on 5th March 2021 the court reviewed, partly, the earlier orders to the effect that in default of opening the joint account and depositing the rental income therein within thirty (30) days from the date of that ruling, the order of stay of execution shall stand set aside.

7. The argument of the Applicant is that the Respondent failed to comply with the orders and therefore the order for stay of execution lapsed. He took possession of the property and started collecting rent.

Applicant’s Evidence 8. This court directed that this matter be heard through oral evidence in open court. On 18th July, 2022 the Applicant testified that the Respondent was his wife between 2008 and 2014 and that they divorced in 2018. That she had no job and was managing the construction of their matrimonial property. That when they separated in September, 2014 the building was on 3rd floor and was fully occupied. That all the 24 suites were fully occupied in 2015. That at that time the Respondent had left the marriage, and all the rental proceeds were in her possession.

9. He testified that in 2017 he moved this court to have the property declared as matrimonial property. That via a judgement delivered on 11th December, 2019 the block of flats was declared as matrimonial property in the ratio of 50:50. That the property was to be valued within 30 days and the Respondent was at liberty to buy him off. It was his case that a ruling was delivered on 23rd 4april 2020 which granted the Respondent stay of execution and that all rent was to be deposited to a joint interest account in both the advocates names.

10. That an account at Consolidated Bank, being account number 10XXXXX in the names of MD and SWK was opened but the Respondent has not deposited any money into that account. That upon his application for review dated 15th July, 2020 this Court through its ruling dated 5th March, 2021 gave the Respondents 30 days to deposit the rental income in the joint account failure to which the stay orders shall be vacated. That Respondent did not comply with these orders. It was his evidence that the collection of rent for one month is Kshs 225,000/- on total occupancy. That 70% of this amount is about Kshs150,000 to Kshs 180,000 per month and that this is what she ought to have been depositing from the date the orders were granted to the date when the orders for stay were lifted.

11. The Applicant told the court, further, that after the order for stay lapsed he took over the management of the property and informed the tenants through a letter dated 8th April 2021 that he would be bringing in valuers to value the property and that they should give access to the said valuers. It is his case that he informed the Respondent of what he was doing through her email address, but the Respondent did not provide the keys to enable them gain access, necessitating him to seek assistance of the police to force-open the doors by breaking windows. He testified that the Respondent had failed to obey court orders thereby necessitating his actions and that prior to the lapsing of the orders for stay, the Respondent had collected rent for 2 years and that all money she collected ought to have been deposited.

Respondent’s Evidence 12. The Respondent adopted her Supplementary Affidavit dated 20th January 2022 as her evidence. She admitted that the court made its determination that the property, flats constructed on Kajiado/Kaputiei-North/19876 is matrimonial property in the ratio of 50:50%. She confirmed seeking stay of execution of the judgment through her application dated 16th January, 2020 pending an appeal. She confirmed managing the property from 23rd April 2020 to 4th April, 2021 and collecting rent during that period.

13. She stated that she was aware that the joint account was opened and admitted to not depositing rent for the months of April, May, June, July, August, September, October, November and December 2020 as well as between 1st January, 2021 to March 2021. She stated that in April, 2021 the Applicant was collecting the rent. She stated that on 10th April, 2021 the Applicant visited the premises and vandalized the property. That she reported the matter to the police on the same day.

14. In addition to the oral evidence, parties filed written submissions which I have read and understood.

Submissions 15. The Applicant filed their submissions dated 5th August, 2022. He identified one issue for determination: Whether the Respondent is in continuous breach and violation of the orders issued on 23rd April 2020 and 5th March 2021. The Applicant cited Katsuri Limited v Kapurchand Depar Shah [2016] eKLR on the definition of what constitutes contempt of court. In this case it was held that:“According to the Black’s Law Dictionary,“(14) Contempt is a disregard of, disobedience to, the rules, or orders of a legislative or judicial body, or an interpretation 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.”

16. The Applicant also cited Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] eKLR where the court stated as follows:“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. 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 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.”

17. The Applicant further cited A.B & Another v R.B [2016] eKLR, which cited with approval the Constitutional Court of South Africa’s decision in Burchell v Burchell Case NO 364 of 2005 where it was held 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.”

18. It is his submissions that contempt of court proceedings are necessary for the rule of law and administration of justice to be effective and efficacious in securing compliance with the orders of the court. It is submitted that the Respondent has not offered any valid explanation for non- compliance with the court orders of 23rd April, 2020 and 5th March, 2021; that the Respondent has attempted to seek relief through her Supplementary Affidavit of 20th January, 2022 and that the said relief should have been sought through an application and that there is clear and willful disobedience of court orders by the Applicant and this court should allow this application.

19. The Respondent filed her submissions dated 9th August, 2022 and raised three issues for determination:i.What really Is the meaning and/import of Contempt of Court?ii.What is the legal threshold to be met for Contempt of Court to be invoked and whether the present application has met that threshold?iii.What are the appropriate prayers to be made by this Honourable Court?

20. She has submitted that she was not in contempt of the court order of 23rd April, 2020 as the same was ambiguous in that order (b) failed to rule on who was managing the disputed block of flats erected on Parcel No Kajiado/Kaputei North/XXXX as at 23rd April, 2020; who was to make the deposits of the rent and income to the joint account and how much rent and income was to be deposited from the date of ruling on 23rd April, 2020.

21. She submitted that the Applicant, on 16th December 2019 after the Judgement was delivered, wrote a letter to the tenants informing them of his 50% ownership of the flats; that as a result she could not comply with the order as she did not have control of the management of the property and that from that date the Applicant has had control over the management of the flats and yet he has never deposited the rent in the said joint account.

22. On the second issue the Respondent relied on the Court of Appeal case of Mutitika -vs- Baharini Farm Limited [1985]KLR 229, 234 where the standard of proof in cases of Contempt of Court was addressed as follows:“In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt … The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.”

23. It is her submissions that the Applicant needed to demonstrate that the terms of the order were clear and unambiguous and were binding on her, that she had knowledge of or proper notice of the terms of the order and that she acted in breach of those terms; and that her conduct was willful and deliberate as was held in J.Z Ochino & Another-vs- George A. Okombo, Nairobi Civil Appeal No 30 of 1989 [1989] eKLR.

24. It is her submission that the Applicant has not met the legal threshold required for contempt of court proceedings.

Analysis and Determination 1. The power of the Court to punish for contempt of court is donated to this court by Section 5 of the Judicature Act. This Section was discussed by the court (Nyamweya J, as she then was) in Republic v Kajiado County & 2 others Exparte Kilimanjaro Safari Club Limited [2019] eKLR as follows:“…….The applicable law as regards contempt of court existing before the enactment of the Contempt of Court Act was restated by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others, [2014] eKLR. In that case the Court found that the English law on committal for contempt of court under Rule 81. 4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertakings, was applied by virtue of section 5(1) of the Judicature Act which provided that:‘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.This section was repealed by section 38 of the Contempt of Act of 2016, and as the said Act has since been declared invalid, the consequential effect in law is that it had no legal effect on, and therefore did not repeal section 5 of the Judicature Act, which therefore continues to apply. In addition, the substance of the common law is still applicable under section 3 of the Judicature Act. This Court is in this regard guided by the applicable English Law which is Part 81 of the English Civil Procedure Rules of 1998 as variously amended, and the requirement for personal service of court orders in contempt of Court proceedings is found in Rule 81. 8 of the English Civil Procedure Rules.”

25. The court, (Mativo, J, as he then was) in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR cited the above case with approval when he stated that:“I agree with the above reasoning that since the act that repealed section 5 of the Judicature Act[17] has been declared unconstitutional, the effect is that section 5 of the Judicature Act still stands.”

26. The issue for determination in this matter is whether the Respondent herein breached the Orders made on 23rd April, 2020 and 5th March, 2021. The case for the Applicant is that the Respondent did not deposit rent for 2 years. The Respondent had denied breaching the orders of the court. I understand the Respondent to be saying that the orders of the court were not clear in that order (b) of the ruling delivered on 5th March 2021 failed to state who was managing the disputed block of flats erected on Parcel No Kajiado/Kaputei North/19876 as at 23rd April, 2020; who was to make the deposits of the rent and income to the joint account and how much rent and income was to be deposited from the date of ruling on 23rd April, 2020 (emphasis added).

27. I find her evidence contradictory. She has claimed that she did not breach the orders. At the same time she stated that order (b) was not clear as shown above and again in her evidence on cross-examination she admitted to not having deposited the rental income in the joint account for the months of April, May, June, July, August, September, October, November and December 2020 and January, February and March 2021. It was her case however that the Applicant was collecting rent in April, 2021.

28. The Respondent is captured on record to have told the court in cross-examination that: “I am aware of the orders of 23rd April 2020. Stay application was granted and joint account was supposed to be opened. I was in active management of the property from 23rd April 2023 to 4th April 2021. I was collecting rent. I was aware of the opening of the account in joint names of Mutunga and yourself (in reference to Mr. Shadrack Wambui who was cross-examining her). I did not deposit rent for April, May, June, July, August, September, October, November, December 2020 and between 1st January to March 2021. ”

29. She proceeded to testify in cross-examination that:“I am aware that on 5th March 2021 Justice Mwita dismissed my application. I was given 30 days to comply. By 5th April 2021, I had not deposited rent in the joint account. To this minute, I have not deposited rent in the joint account.”

30. It is clear to this court that the Respondent is not truthful when she pleads that the orders of the court were not clear in certain respects as shown on 26 above. From her evidence in court, she was aware of the court orders, and she had understood them. She has admitted as much in her evidence in cross-examination.

31. I agree with the reasoning of the court in Gulabchand Popatlal Shah & Another (unreported), that:“…… 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.”

32. Did the Applicant meet the threshold of proof in contempt of court proceedings? In Mutitika v Baharini Farm Limited [1985] KLR 229, 234 [supra] the Court of Appeal held that:“The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged “contemnor’s conduct was deliberate, in the sense that he or she willfully acted in a manner that flouted the Court Order.”

33. In Samuel M. N. Mweru & Others v National Land Commission & 2 others, cited above, the court on paragraph 40 stated that:“It is an established principle of law 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. 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”.

35. I have considered this matter. It is not in doubt that the Respondent was aware of the court orders. She has admitted as much. She has also admitted that she was the one managing the property as at the time of the order of 23rd April, 2020, and that she was aware that a joint account had been opened. She has admitted that she did not deposit the rent despite being aware of the order. She also admitted that the Applicant started to collect rent after the order had lapsed. Although the Respondent attempted to confuse issues, this court is persuaded that she knew the import of the order and deliberately disobeyed the same. I find no ambiguity in the orders of the court. The order dated 23rd April 2020 reads as follows:“All rents and income from parcel No. Kajiado/Kaputei North /XXXX be deposited in a joint interest account in the names of advocates for the parties with effect from the date of this ruling.”

36. And the order dated 5th March 2021 to the effect that:“The order made on 23rd April 2020 is hereby reviewed in order (b) thereof to the extent that in default of opening the joint back account and depositing the rental income therein within thirty (30) days from the date hereof, the order for stay of execution shall stand set aside.”

37. Before making final orders, I wish to state that contempt of court proceedings is quasi-criminal in nature. I have noted the orders sought by the Applicant. I want to believe that this court has inherent jurisdiction conferred to this court under section 3A to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Section 3A of the Civil Procedure Act provides that:3A. Saving of inherent powers of court.Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

38. It is my view that by virtue of that criminal element in contempt of court proceedings and by invoking the inherent jurisdiction of this court, this court has powers to punish for contempt of court by imposing any other penalty that that which has been sought for by the Applicant. I believe the result is the same that the contemnor is subjected to sanctions and punishment for having been found in contempt of court.

39. It is my finding and I so hold that the Respondent is in contempt of court and grant the following orders that:i.This Honourable Court hereby makes a finding that the Respondent herein is in Contempt Court orders issued on the 23rd April, 2020 and 5th March, 2021. ii.This Honourable Court does hereby cite the Respondent for Contempt of the Order issued on 5th March, 2021. iii.That this Honourable Court hereby convicts the Respondent for Contempt of Court and sentences her to pay a fine of Kshs 300,000 in default to serve six months imprisonment.

40. Orders shall issue accordingly.

41. I take this chance to offer my un solicitated advice to both ‘applicant and Respondent, that given the issues surrounding the two of them in respect of this matter, they can benefit from mediation.

DATED, SIGNED AND DELIVERED THIS 11TH DAY OF DECEMBER 2023. S. N. MUTUKUJUDGE