[2023] KEHC 24720 (KLR)

In re Estate of Paul Gatete Kiratu (Deceased) (Succession Cause E003 of 2020) [2023] KEHC 24720 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24720 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause E003 of 2020

SM Mohochi, J

November 3, 2023

IN THE MATTER OF THE ESTATE OF PAUL GATETE KIRATU (DECEASED)

Between

Dorcas Njeri Maina

Applicant

and

David Macharia

Respondent

Ruling

1. Before Court for determination is the Application dated June 9, 2023 brough where in the Applicant seeks the following orders;i.Spentii.Spentiii.Spentiv.That upon such appearance an upon hearing the Respondent or their counsel’s this court directs the Respondent to be jailed for a period of 6 months for contempt of court and or breach of the said orders and be ordered to pay a heavy fine for contempt of court for having deliberately disobeyed the said court orders.v.That the cost of the Application be borne by the Respondent.

2. The application is premised on the grounds listed on the face of the application and the annexed Supporting Affidavit of Dorcas Njeri Maina sworn on June 9, 2023. The Applicant’s case was that on November 24, 2022 this court made an order. In summary, that pending the hearing and determination of this succession cause, the Respondent was restrained from intermeddling, leasing or in any way interfering with the assets of the estate of the deceased more particularly rental premises in Nakuru Municipality Block 2/438.

3. The Respondent was to render account to court for all rental income collected from the month of April, 2019 from the rental premises in Nakuru Municipality Block 2/438 withing 45 days from the date therefrom. The tenants occupying the premises to deposit rent into the estate bank and signatories to be prohibited from making any withdrawals.

4. The Applicant states that the Respondent was aware of the said court order and through a letter dated December 9, 2022 informed the tenants of the court order. The Applicant states that the respondent has demanded of the tenants to disregard the said court order and further threatened them with eviction if they failed to pay rent.

5. The Applicant deponed that the Respondent has refused, neglected and or declined to comply with the courts order and seeks the court to commit him to civil fail or impose a heavy fine.

6. The Respondent filed a response on August 3, 2023 and stated that his reasons for staying in that parcel Nakuru Municipality Block 2/438 was that he inherited it from his father who was the son of the deceased. That he has constructed there which was a pre-condition to him occupying the property. The Respondent further states that the witness to the averments was one of his aunts Faith Nyambura Gatete.

7. The Respondent also states that he was the one who completed the works on the property i.e., finishings, electricity and water installation. That the Applicant also contended that prior to his grandfather’s death the Applicant together with the sisters broke into their grandfather’s office and their grandfathers title deeds and event that contributed the deceased falling sick.

8. He contends that the applicant and her co-petitioners are the signatories to the estate account, some of the tea accounts were changed from the name of the deceased to accounts only known to the applicant and co-petitioners and there has been no fairness in handling affairs of the estate since the family of the respondent and have never been included in the affairs of the estate.

9. The parties were directed to file written submissions and the Applicant filed written submissions dated 29th September, 2023 on 5th October, 2023. There are no submissions by the Respondent on record.

10. The Applicant submitted that the Respondent intentionally and willfully disobeyed the court orders and was therefore in contempt. She relied on section 5 of the Judicature Act, rule 73 of the Probate and Administration Rules and section 47 of the Law of Succession Act.

11. To demonstrate that the respondent was in contempt, she submitted that the order from the ruling dated July 24, 2022 was sent to the Respondent including his then advocate on record at that particular time. That the order was served on the Respondent in person on December 9, 2022 with all the tenants in the subject property. She submitted that in spite of being served, he continued disobeying. She relied on Sheila Cassatt Issenberg & another v Anthony Macharia Kinyanjui (2021), Shimmerz Plaza Limited v National Bank of Kenya Limited 2015 eKLR.

12. Now therefore the twin issues to be determined are whether the Respondent is in contempt of court and whether the court should punish the Respondent if contempt has been proved.

13. Mativo J. restated the test for establishing contempt in his decision in Samuel M. N. Mweru &others v National Land Commission & 2 others [2020] eKLR where he stated –“40. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to provei.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:-a.the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendantb.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; andd.the defendant's conduct was deliberate…”

14. The take home from the above decision is that for an order of contempt to succeed the Applicant ought to prove the terms of the order; knowledge of the terms of the order; Failure by the Respondent to comply with the terms of the order and willfulness to disobey by the Respondent.

15. The record that there was a court order dated November 24, 2020 issued by Matheka J.

16. The record further shows that the Respondent was served with the court order through his wife. The Affidavit of Service attached marked DNM2 states that the Process Server proceeded to the Respondent’s home and found the Respondent’s wife. He explained the purpose of the visit wherewith she called the Respondent who informed her to collect the documents on his behalf, although she never acknowledged receipt. The advocate of the Respondent was also aware of the existence of the order and terms of the order since he was served with the ruling of the court through their email owino.kamoingadvocates@gmail.com.

17. Looking at the Court of Appeal decision in Shimmers Plaza Limited v National Bank of Kenya Limited [2015]eKLR where it was held that“Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings" We hold the view that it does. This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behooves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.”

18. I am convinced that the Respondent was sufficiently aware of the existence of the court order.

19. The Respondent appeared in court in person on July 21, 2023 and was directed to file a response to the application as why this court should not find him in contempt.

20. In his response, the Respondent has stated that he continued to stay in the premises since he was the one who developed the premises and that the property was a gift from his father, now deceased who was also given by his father, the deceased in this succession cause. He has however not explained why he has refused to render books of accounts of the premises as directed. The Respondent has instead brought about the issue of beneficiaries of the estate of the deceased not being enjoined in the succession matter.

21. The present Application must be looked at in its context which is, contempt and not in the context of unrelated succession issues. The Respondent was aware of the order and in his response was aware of the terms of the order, he failed to honour the conditions imposed by the order he has also not explained why he has failed to render accounts for rental income collected.

22. His contention that the reason he is still on the parcel Nakuru/Municipality Block 2/438 is because he is the one who connected water and electricity as well as the finishings on the premises goes to show blatant disregard of existing court orders.

23. If the Respondent had challenges in honouring the court orders he should have moved court to have them set aside or varied.

24. I associate myself with the observations in the case of Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County (Ex Parte David Mugo Mwangi) [2018] eKLR, the Court made the following observations;“30. It must however be remembered that Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying therewith, the honorable 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.…

25. There is no reasonable excuse that has been advanced by the Respondent as to why there was noncompliance with the said orders. I am satisfied the Applicant fulfilled the conditions require for proof of contempt.

26. The second issue is whether the court should punish the Respondent for contempt; This court has inherent powers to make sure processes and orders issued by court are not abused and further to uphold the authority and dignity of courts. To this end, I am guided by the decision by the Court of Appeal in Woburn Estate Limited v Margaret Bashforth (2016)eKLR where it addressed itself thus:-The jurisdiction of the High Court (or any other court for that matter) to punish for the violation of its orders cannot be in question. Apart from section 5 (1) of the Judicature Act that vests in the High Court the power, like those of the High Court of Justice in England, to punish any party who violates its orders, the court, by virtue only of being a court has inherent powers to make sure its process is not abused and its authority and dignity is upheld at all times.”

27. Further, in Samuel M. N. Mweru & Others v National Land Commission & 2 others (supra) Mativo J. was of the view that;“If courts are to perform their duties and functions effectively and remain true to the spirit which they are sacredly entrusted with, the dignity and authority of the courts has to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the Rule of Law and a civilized life in the society. It is for this purpose that courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside courts which tend to undermine their authority and bring them in disrepute and disrespect by scandalizing them and obstructing them from discharging their duties. When the court exercises this power, it does so to uphold the majesty of the law and of the administration of justice. The foundation of judiciary is the trust and confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working the edifice of the judicial system gets eroded.”

28. Similarly, the court in Wildlife Lodges Ltd v County Council of Narok andanother [2005] 2 EA 344 (HCK) expressed itself thus:“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a Court of competent jurisdiction to obey it until that order was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt. A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it………...”

29. By the preceding authorities I think I have emphasized enough on why compliance with court orders is a weighty point at issue. court orders are not issued in vain and should therefore be respected. Courts should enforce serious punishment to any party that fails to obey a court order since failure to punish non-compliance breeds anarchy and disintegration of the rule of law. This court has an obligation to stand firm and protect such an eventuality. This, it would achieve, by strict enforcement of its orders.

30. I therefore find the Respondent in contempt of the orders of this Court and ought to bear the consequences. The Applicant has sought that the Respondent be committed to civil jail or in the alternative impose a hefty fine against the Respondent. Committal to civil jail is one way of dealing with abusers of court processes but the same should a manner of last resort. Deprivation of freedom should not be taken lightly. In the alternative monetary punishment would be more appropriate in the circumstance.

31. In considerations of the issues addressed hereinabove I am cognizant of the fact that this is a family issue, I shall however not impose any punitive orders against the Respondent at this point and instead afford him the last opportunity and direct that;a.The respondent has twenty-one (21) days to purge the contempt finding by fully complying with the orders of November 24, 2022. b.Failure to purge the contempt as directed in (a) above, the respondent is hereby ordered to appear in person before this court on November 28, 2023 for sentencing.c.In the absence of compliance of orders (a) and (b) above warrants of arrests shall forthwith issue.d.The applicant shall have costs of the application.It is so ordered.

DELIVERED, DATED AND SIGNED AT NAKURU THIS 3RD DAY OF NOVEMBER, 2023MOHOCHI S.M.JUDGE OF THE HIGH COURTIn the presence of:Mr. Njoroge for the ApplicantThe firm of Kamoin/Owino for the Respondent