[2017] KEHC 2508 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL SUIT NO. 222 OF 2015

JEAN CLAUDE ADZALLA.........................................................................PLAINTIFF

VERSUS

JACKLINE WANJIRU MUIRURI.....................................................1ST DEFENDANT

THE BLOSSOM INTERNATIONAL SCHOOL LIMITED..............2ND DEFENDANT

RULING

This Ruling seeks to determine two applications, one dated 27/1/2016 and the other dated 6/7/2016.

Application dated 27/1/2016

The Plaintiff filed the application on 28/1/2016 seeking orders that;

(a) The 1st Defendant/Respondent be penalised by this Honourable Court for failure to comply with its orders of 18th June, 2015.

(b) The penalties do include;

(i) The seizure and transfer to the Plaintiff of the following motor vehicles , KCA 245M, KCA 263M and KBM 184D

(ii) Production of full properly audited accounts for the 2nd Defendant for the last five years, within a time to be specified by the court.

(iii) Incarceration and/or fine and damages to the Plaintiff; and

(iv) Such other penalties as the Court shall deem proper

(c) Costs hereof to be paid by the 1st Respondent

The Application is based on the grounds that the 1st Defendant continues to deposit school fees in her personal account and to use the same at will, in disregard of the Court Order and the rights of the Plaintiff and the 2nd Defendant. This application is supported by what is being referred to as the second Supporting Affidavit of Anthony B. Khamati, an Advocate representing the Plaintiff. He contends that the 1st defendant is in contempt of the court orders. The Plaintiff filed another affidavit dated 19th July, 2016 in which he averred that the 1st Defendant should be compelled to honor court order and give a full statement of accounts for the 2nd Defendant for the last four years and that she should be punished for contempt of court.

The application is opposed by the 1st Defendant through a Replying Affidavit dated 9th April, 2016 who averred that the ex parte orders were specific that the 1st Defendant should not bank any company’s money into her personal account and not to interfere with or remove the subject motor vehicles from the jurisdiction of this court. The 1st Defendant avers that she has not banked any such monies in her personal account since the date of the order neither has she removed the said vehicles from the Court’s jurisdiction. She contends that the Plaintiff has not demonstrated how she has failed to comply and that the Applicant instead of prosecuting the inter partes application dated 18th June, 2016, is using this application to seek orders sought in the said application. The respondent also states that the Affidavit is sworn by an advocate who is not privy to the factual matters concering the same.

Both parties filed their submissions which were highlighted in court on 11th May, 2017.

I have considered all the Affidavits on record as well as the submissions of the parties herein. This application is brought under the judicature Act. Section 5 of the Act deals with contempt of Court and thus 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 such power shall extend to upholding the authority and dignity of subordinate courts.

“(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.”

I have looked at the said order of 18th June, 2015 which forms the subject of this application. The order reads;

“3. THAT an interim Order restraining the Respondent or agents and servants from banking company funds , school fees, income etc. in personal account be and is hereby issued until 1st July, 2015.

4. THAT pending the hearing and final determination of the application dated 15th June, 2015, the 1st defendant be and is hereby restrained by an interim order from selling the motor vehicles KCA 246M, KCA 263M and KBU 184D or anyway tempering with their condition and locking systems or removing them from the jurisdiction of this Honourable Court.”

The standard required to proof contempt of court is normally higher than the one required in civil cases. In the case of Gatharia K.Mutikika vs. Baharini Farm Ltd which was quoted with approval in Katsuri Limited v Kapurchand Depar Shah [2016] eKLR the Court held that:-

"The Courts take the view that where the liberty of the subject is, or might be involved, the breach for which the alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved... It must be higher than proof on a 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 offence, which can be said to be quasi-criminal in nature. However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge... Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is no other mode which is not open to the objection of arbitrariness, and which can be brought to bear upon the subject. A judge must be careful to see that the cause cannot be mode of dealing with persons brought before him. Necessary though the jurisdiction may be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found... Applying the test that the standard of proof should be consistent with the gravity of the alleged contempt................................. it is competent for the court where a contempt is threatened or has been committed, and on an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not."

In Kasembeli Sanane Vs Manhu Muli alias Fredrick Saname & 4 Others [2013] eKLR, the judge held “proof of contempt of court must be beyond reasonable doubt”.

It follows that a claim of contempt of court must be strictly proved as the consequences are dire and includes committal to jail. In this case the Plaintiff has not tabled any evidence before the Court to show that the orders were not obliged. No bank statement has been produced to show that the school fees are not being banked in the 2nd Defendants account. The 1st Defendant in her Replying Affidavit states that the motor vehicles are within the jurisdiction of the court and she has not interfered with them in any way. Those were the two substantive orders given and this Court finds that the Applicant has not made any attempt to demonstrate how the same have been disobeyed.

An issue was raised by the Respondent on the validity of the Supporting Affidavit sworn by the Advocate in support of the application and states that Advocates should not swear affidavits on contentious matters. The subject matter herein is contempt of court order which orders were to deposit money into a specific account of the 2nd Defendant and not to interfere with motor vehicles. There is no way the Advocate could know whether the money was being deposited in the 2nd Defendant’s Account or in the 1st Defendants personal account since the Advocate is not a signatory to either. She quoted the cases of Barrack Ofulo Otieno Vs. Instarect Limited (2015) eKLR where the Court stated that , “Affidavits filed in High Court must deal only with facts which the witness can prove of his own knowledge …under our law (Advocates Practice Rule) Rule 9 Advocates are not permitted to swear affidavits in contentious matters.”

In the application, no evidence was tabled by the deponent to proof the matters stated therein. This Court finds that the Affidavit was indeed incompetent and the application has no merits.

Application dated 6/7/2016

The application seeks the following orders;

(d) Pending the hearing of this application inter partes, the Defendants and their agents and servants including one Njeri Ng’ang’a at the premises of the 2nd Defendant be restrained from barring the Plaintiff’s Attorney , that is Miss Wairimu Gathogo Advocate from entering the premises of the 2nd Defendant i.e. The Blossom International School Limited and further be restrained from barring the said Attorney from inspecting the School and all its facilities as a Director’s and Shareholder’s representative.

(e) The Defendants be compelled to give all necessary information including access to School, students/pupils’ records, property and financial records and all necessary Co-operation in management of the school.

The Application is based on the Affidavit of Miss Wairimu Gathogo Advocate and on the grounds that the Attorney has encountered hostility from persons acting on behalf of the 1st Defendant and as a result she had been unable to peruse the records of the students and staff members, financial records and has been barred from participating in management of the school on behalf of the Plaintiff.

Annexed to the Affidavit is the power of attorney dated 16th June, 2015 and stamped on 1st July, 2016. The deponent urges the Court to intervene and order the 1st and 2nd Defendants to allow her access to the school and carry out the duties stipulated in the power of attorney.

The Respondent filed Grounds of Opposition dated 25th July, 2016, that; the person swearing the Affidavit is a stranger to the proceedings and that the purported power of attorney is defective. The Respondent submitted that the power of attorney has been tampered with and one cannot be sure whether it was intended to support the case at hand due to the fact that the year in which it was made has been tampered with.

The alteration is quite clear that the year 2016 was altered to 2015 but that notwithstanding, I find that the power of attorney was properly executed and stamped before the instant application was filed regardless of the year of execution.

The Plaintiff further submitted that the Affidavit sworn by the Miss Wairimu Gathogo Advocate is in order and makes reference to the provisions of Order 9 rules 1 and 2 (a) of the Civil Procedure Rules. Order 9 Rules 1 and 2 provides that:

“1. Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf: in person, by recognized agent or by advocate…

2. The recognized agents of parties by whom such appearances, applications and acts may be made or done are—

(a)Subject to approval by the court in any particular suit persons holding powers of attorney authorizing them to make such appearances and applications and do such acts on behalf of parties;

(b)persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications

And acts;

(c)In respect of a corporation, an officer of the corporation duly Authorized under the corporate seal.”

The wording of Order 9 Rule 2 (a) is to the effect that the power of attorney should authorize the agent to make application in court and I quote the specific clause

“ … persons holding powers of attorney authorizing them to make such appearances and applications and do such acts on behalf of parties;” .

I have examined the Specific power of attorney dated 16th June, 2015. In the first page, the last bulletin authorizes the agent to file the instant suit where it is stated;

“represents me in any other administrative and legal proceedings for or against the Blossom International School Ltd.”

The opening clause in the power of attorney gives the attorney power to,

“act on my behalf and perform such acts as are permitted by law as my attorney–in-fact with regard to my interests and responsibilities in the Blossoms International Schools Limited where I am a Director and Shareholder”

It follows that the power of attorney is valid and therefore the Plaintiff’s Attorney was in order to swear the Supporting Affidavit. The Plaintiff’s Advocate submitted that the Plaintiff lives in Togo. The Court finds that since the Plaintiff is not within the jurisdiction of the suit business, it is prudent that her interests in the business are safeguarded.

The Courts Orders are that;

a) that the application dated 27/1/2016 is dismissed

b) the orders sought in the application 6/7/2016 are granted.

Dated, Signed and Delivered at Nairobi this 3rd Day of November, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. For the Plaintiff

…………………………. For the 1st Defendant

……………………………. for the 2nd Defendant