[2024] KECPT 1388 (KLR)

Kangethe v Ndetika Rural Sacco Society Limited & another (Tribunal Case 375 of 2013) [2024] KECPT 1388 (KLR) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1388 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 375 of 2013

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 29, 2024

Between

Josephine Mwicigi Kangethe

Claimant

and

Ndetika Rural Sacco Society Limited

1st Respondent

Paul Kangethe Ndungu

2nd Respondent

Ruling

1. The issue for determination is Notice of Motion dated 6/11/2023 brought under Section 1A, 1B and 2A Civil Procedures Act, 2010 Section 83. The Application seeks for orders.i.Spent.ii.That the 1st Respondent’s Chief Executive Office be cited for contempt of Court and committed to civil jail for a term of six(6) months and/or be ordered to purge the contempt on terms the Tribunal will deem just.iii.That summons be issued against the 1st Respondent to appear before the Tribunal and show cause why he should not be committed to civil jail.iv.That this Honourable Court be pleased to grant any other or further orders of the Court geared towards protecting the best interests of the subject issues as well as the dignity and authority of the court; and,v.That costs for this Application be provided for.

2. The same is supported by Affidavit of Josephine Mwicigi Kangethe sworn on 6/11/2023 to which the Applicant states that the 1st Respondent; Ndetika Rural Sacco Limited was to release Title Deed Sigona/592. The case was that the Claimant/Applicant took a Loan and gave her title deed as security; upon clearing payment, the 1st Respondent failed to release the title deed.

3. On 10/6/2022, a consent was recorded by parties dated 1st February, 2023 and was adopted by the Court/Tribunal.The consent read:“We, the advocates of the parties would be most obliged if you would record the following orders:By consent.1. That the 1st Defendant herein shall release the Certificate of Title Deed for the property known as Sigona/592 into the custody of the Plaintiff or her advocates on records.That this suit shall be marked as settled upon the Plaintiff or his advocate on record acknowledging receipt of the said certificate…”

4. Unfortunately, it seems the said consent did not come to fruition the reason why we have this Application for determination. Unfortunately there is no response from the 1st or 2nd Respondent on the Application and the same can be deemed unopposed.Despite being unopposed, we shall look into what a contempt of court is and whether indeed the 1st Respondent is in contempt of the order of the Tribunal.

5. Contempt of Court is disobedience or disrespect towards a Court of Law directions or orders. Upon the Contempt of Court Act Cap 81 (Rev 2022) being declared unconstitutional. What is used in this instance as a guide is Section 5 Judicature Act.In the case of Samuel M. N. Mucero and others -vs- National Land Commission and 2 others [2020] eKLR, Justice Matimo as he was then.40It 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 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 few 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 (of 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: andd.The defendant’s conduct was deliberate…”

6. In the instant case, there is a consent dated 1st February, 2023 which the Claimant advocate signed on 1st February, 2023 and 1st Defendant Advocate signed on 9th August 2023 and adopted by the Tribunal as an order on 20/4/2023. What then can we ask as 1st Respondent has checked all requirements for contempt of court being;1. The terms were clear between the parties.2. 1st Respondent knew what he was signing and agreed to it.3. 1st Respondent is in breach of the terms of the consent.Question. Is the Applicant entitled to the orders sought?The 1st Respondent having been in breach of the consent and having not Responded to the Application despite satisfactory service as per Affidavit of Service of Kevin Mbugua sworn on 12/7/2024. The Tribunal finds the 1st Respondent guilty of disobedience of the Court’s orders.As such, we direct the Chairman, Secretary and Treasurer of the 1st Respondent to appear before the Tribunal on 14/11/2024 to show cause why he should not be committed to civil jail.

Upshot. 1. The Application dated 6/11/2023 is merited and allowed as prayed.

2. The 1st Respondent is guilty of disobedience of the Courts orders; as such we order for the Chairman- Elias Maingi,Secretary and Treasurer to appear before the Tribunal on 14/11/2024 to show cause why he should not be committed to Civil jail.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA - CHAIRPERSON SIGNED 29. 8.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29. 8.2024HON. BEATRICE SAWE - MEMBER SIGNED 29. 8.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 29. 8.2024HON. PHILIP GICHUKI - MEMBER SIGNED 29. 8.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 29. 8.2024HON. PAUL AOL - MEMBER SIGNED 29. 8.2024Tribunal Clerk JonahRerimoi advocate holding brief for Kayoko Lewis advocate for the Applicant.Ndetika Rural Sacco – No appearance.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024.