https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13119

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (CONSTITUTIONAL AND HUMAN RIGHTS DIVISION) PETITION NO. E498 OF 2025** **INSURANCE INSTITUTE OF EAST AFRICA………………….…………..PETITIONER** **VERSUS** **INSURANCE INSTITUTE OF KENYA……………..……………………..RESPONDENT** **RULING** **Introduction** 1. The Petitioner/Applicant filed the petition dated 6th August 2025, together with the Notice of Motion application, under a certificate of urgency of even date. By the said Motion, the Petitioner/Applicant sought, in so far as is relevant, the following order:- ***“That this Honourable Court be pleased to issue a temporary conservatory order maintaining the status quo obtaining as at 3 July 2025, in allowing the Institute to continue with full operations pending the hearing and determination of this application.”*** 1. Upon considering the matter *ex parte*, in the first instance, this court, per **Mwamuye, J,** issued an order to wit:- ***“Pending the interpartes hearing and determination of the Petitioner/Applicant’s Notice of Motion application dated 6th August 2025 a conservatory order be and is hereby issued maintaining the status quo between the parties as it obtained on 3rd July 2025 in terms of the recognition of the trainings certificates, and qualifications issued by the Petitioner as well as the Petitioner’s operations regarding and the Petitioner’s issuance of the same.”*** **The Notice of Motion dated 19th September 2025** 1. The Petitioner/Applicant contends that the Respondent failed to comply with the order issued by this Court. In an application dated 19th September 2025, it sought to have the Respondent's officials, namely Peter Kagia, Ann Macharia, George Ogutu, Simon Gitonga, Elijah Githinji, Bernard Githinji, Jane Onimbo, Mary Njeri Wahome, Michael Ochieng Omondi, Francis Muendo Mutinda, Angela Njeri Kamau, Ann Chelagat, Esther Macharia, Elizabeth Kisebu, Stella Gatogo and Gideon Gachie, cited, held and declared guilty of disobedience of the court orders issued on 11th August 2025. **Responses of the Respondents** 1. The grounds for the contempt application are that this Honourable Court issued conservatory orders against the Respondent pending the hearing and determination of the Petitioners/Applicants' motion dated 6th August 2025. It was contended in the said grounds as well as in the supporting affidavit of Mr Elijah Mogere sworn on 15th September 2025 that the orders were served on the Respondent on 11th August 2025 but that it had, through several of its named officials, flagrantly breached and disobeyed the said court orders with wanton abandon. The Petitioner/Applicant stated that the Respondent rejected the applications of several graduates of the Petitioner/Applicant who had completed their studies, did not issue certificates and, in some instances, downgraded the membership of some of the graduates of the Petitioner from “Associates” to " Affiliates” of the Respondent. Further, the Respondent launched the Insurance Professionals Act, 2025, at Kenyatta International Conference Centre, Nairobi (hereafter “KICC”), without inviting the Petitioner/Applicant. 2. In support of the application, the Petitioner/Applicant attached various documents among which are emails written by a Mr Gideon Gachie (in response to correspondence from Habari Insurance Brokers), Stella Gatogo (written in response to an email written by Millicent Gikonyo and Anthony Mungai), as well as the correspondence between counsel. **The Response of the Respondent** 1. The application was opposed. The Respondent, through its director Peter Kagia, filed a replying affidavit sworn on 13th October 2025 in which it averred that the Respondent had complied with the Court orders. Regarding the launch of the Act at KICC, he deposed that the same was a publicity event which the court had not barred. He contended that by holding it the Respondent did not disobey court orders and was not therefore in contempt of court. 2. Mr Kagia stated that the application was vexatious and frivolous and urged that the same be dismissed with costs. 3. In a further Replying affidavit sworn on 27th March 2026, Mr Kagia deposed that what the court did was to order that the *status quo* as at 3rd July 2025 continue to hold. He contended that this meant that the Respondent would continue to issue affiliate membership grades to the graduates of the Petitioner/Applicant as they were not qualified to be admitted as Associates, which was reserved for students who had attained ACII, Diploma from College of Insurance, AIIK or FLMII qualifications “*as those are the recognized designations and standard qualifications for Associate Membership of the Respondent*.” 1. Mr Kagia further deposed that the Affiliate membership status is granted to any individuals with qualifications other than those of an Associate, including qualifications known as Australian & New Zealand Institute of Insurance & Finance (ANZIIF), which is offered by the Petitioner/Applicant. He was categorical that prior to the operationalization of the new Act the Petitioner/Applicant’s students had always been admitted as *“affiliates”* and not as *“associates”.* **Hearing of the application** 1. The application was canvassed by way of written submissions. I will set out briefly the submissions of the parties. **The Submissions of the Petitioner/Applicant** 1. The Petitioner/Applicant's submissions are dated 28th November 2025. The Petitioner urged that it served the order on the Respondent and all the alleged contemnors, as evidenced by the affidavit of service. 2. Counsel relied on the case of **Bia Tosha Distributors Ltd v Kenya Breweries Ltd & Others [2023] KESC 14 (KLR)** as well as **Republic v Mohammed & another [2019] KESC 47 (KLR)** where it was held that:- ***“28.*** *There is no doubt that an act in contempt of the court constitutes an affront to judicial authority; and the court has the liberty and empowerment to mete out penalty for such conduct, in a proper case. The object is, firstly, to vindicate the court’s authority; secondly, to uphold honourable conduct among Advocates, in their standing as officers of the court; and thirdly, to safeguard its processes for assuring compliance, so as to sustain the rule of law and the administration of justice.****”*** 1. Counsel also cited the case of **Lorkoyo & another v Lorkoyo [2025] KEELC 4835 (KLR)**. It was submitted that the Respondent and its named officers were in contempt of court and should be punished. **The submissions of the Respondents** 1. The Respondent filed written submissions dated 27th March 2026. The Respondent identified the issue for determination as whether the Respondents were in contempt of the conservatory orders issued on 11th August 2025. The Respondent's counsel stated that the court was invited to find contempt on the basis of the allegation that they had rejected the application of the Petitioner/Applicant, downgraded others, and launched the Insurance Professional Act, 2025 on 11th September 2025 to the exclusion of, and without involving or inviting, the Petitioner/Applicant. 2. The Respondent, relying on the case of **Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR)**, submitted that the elements of contempt had not been proved. These elements are the existence of the order, knowledge of the order, the clarity of its terms, the presence of a breach, and the defendant’s deliberate conduct. 3. The Respondent admitted that the conservatory order does in fact exist, that it was served, and that it was aware of it. What it denied was the allegation of noncompliance. 4. It submitted that prior to 3rd July 2025 it had always granted the graduates of the Petitioner/Applicant affiliate membership status, which it stated it continued to do. It was explained that in its view the court did not order the Respondent to admit the students of Petitioner/Applicant as Associate members but merely to maintain the status quo ante, “is recognition and admission of the Petitioner/Applicant’s students as affiliates.” 5. The Respondent indicated that it had always admitted the Petitioner/Applicant's students as Affiliates because their qualifications were insufficient to qualify them as Associate members. It was urged that the conservatory orders did not prevent the operationalization of the Act. Thus, the launch had not been barred by the court orders. 6. Counsel for the Respondent thus urged that the application be dismissed with costs as the same was “misinformed and misplaced”. **Analysis and Determination** 1. It is a common ground that the court issued orders on 11th August 2025 vide which it maintained status quo between the parties that obtained on 3rd July 2025, “*in terms of recognition of the trainings, certificates, and qualifications issued by the Petitioner, as well as the Petitioner’s issuance of the same*.” 2. There is an agreement that the orders were served on the Respondent and that the same was within its knowledge. The court notes that the Respondent is a corporate person. Its knowledge is thus the knowledge of its officials, who the Petitioner/Applicant has listed as contemnors. 3. What is in contention is whether there was disobedience of the court orders, or put another way, whether the Respondent’s actions were at variance with what the court ordered. The Petitioner/Applicant contended that even after the court order was issued, its graduates were not admitted as “associates” but as “affiliates”; a membership status the Petitioner/Applicant contends does not exist in the Insurance Professionals Act, 2025. 4. The Respondent, in response, states that there was no disobedience, on the ground that the graduates of the Petitioner/Applicant had always been admitted as affiliates and not as Associates. In my view, this contention is patently false. This is evidenced upon perusal of the affidavit of Mr Peter Kagia sworn on 27th March 2026. Annexure PK1 has a list of ANZIIF members admitted as Affiliates and members in 2024 and 2025. Those listed as members include Murage Adam Kibui, Ronald Namai, Julie Gaitho, Gachui Margaret Wangui, Wangui Tyrus Githinji, Ruth Wamuhu Ngugi, Njoroge Kelvin Mwangi, Zipporah Wanjiru Kamande and Timothy Karunga (only the latter 3 have further qualifications, *to wit*, AIIF (ITET), COI Diploma, and FLMI respectively. 5. In the case **of Mweru & Others v National Land Commission & 2 Others [2020] KEHC 9233 (KLR),** the court stated that:- ***“****The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fide. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe he/she is entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith)****.”*** 1. The Court went on to hold that: *“It is an established principle of law thatin 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. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealandwho 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* *(d) the defendant's conduct was deliberate.”* 1. Does it follow that the conduct of the Respondent in this case was mala fides? To determine this question, I will look at the Act. 2. Section 4 of the Insurance Professionals Act, 2025 states as follows:- *(b) Associate Members, comprising those members who have successfully completed ACII or AIIK examinations offered by Chartered Insurance Institute of London and Insurance Institute of Kenya respectively or any other institution recognized by the Examinations Board to offer such a qualification (designatory letters A.I.I.K.).* 1. The Petitioner/Applicant isn’t listed in Section 4(2)(b) as an institution whose examinations can lead to admission as associate members, nor has the Examination Board recognized it. In any case, it is common ground that the Examination Board does not presently exist. 2. Since the court order did not void the Act nor did it direct that actions that contravene it be done, I am not persuaded that the conduct of the Respondent was mala fides. 3. I am hesitant to make a finding of contempt, noting that the liberty of the alleged contemnors is at stake. In my view, the admission of the graduates of the Petitioner/Applicant could reasonably be seen as a breach of statute. **Final Orders** 1. The upshot of the foregoing is that I am not persuaded that there was contempt of court. The motion dated 19th September 2025 is dismissed. Noting, however, the genuine issues raised by the Petitioners/Applicant, each party will bear its own costs. 2. It is so ordered. **Dated** and **signed in Nairobi, this 5th day of August 2026.** **Gregory Mutai** **JUDGE** **In the presence of:** Mr **Mokaya** for the **Petitioner;** Ms **Wanjiru** for the **Respondent**; and Ms **Neema Lwambia – Court Assistant**.