[2022] KEHC 13788 (KLR)

Kanyifa & 2 others (All suing on behalf of members of North Coast Beach Management Committee) v County Secretary & another (Judicial Review Application E035 of 2021) [2022] KEHC 13788 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13788 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review Application E035 of 2021

JM Mativo, J

October 6, 2022

Between

Eusophia Nyaga Kanyifa

1st Applicant

Irene Nduta Njomo

2nd Applicant

Lucy Musinya Mkacharo

3rd Applicant

All suing on behalf of members of North Coast Beach Management Committee

and

County Secretary

1st Respondent

County Government Of Mombasa

2nd Respondent

Ruling

1. Pursuant to this court’s leave granted on November 5, 2021, vide the applicants dated November 22, 2021 beseech this court do find that that the county secretary, the county government of Mombasa is guilty of contempt for violating court orders issued on March 5, 2019 in High Court constitutional petition number 16 of 2019, Eusophia Nyaga Kanyifa & others v The County Government of Mombasa & 4 others. They also pray that the county secretary, county government of Mombasa be committed to civil jail for a period of 6 months or such other sanction this court may deem fit and appropriate. Also, they crave for any other relief this court may grant to end miscarriage of justice. Lastly, they pray for costs of the application to be provided for.

2. The core ground in support of the application is that on March 6, 2019, the court issued conservatory orders in the above case restraining the respondents from unlawfully violating the petitioner’s members use and occupation of plot number LR No MN/17/177 and plotNo MN/17178 pending the hearing and determination of the suit. They aver that the said orders were made in court on March 5, 2019 in the presence of the respondents’ counsel. Further, that the said orders were served upon the 1st respondent who acknowledged receipt.

3. They state that the respondents took advantage of the uncertainty/curfew occasioned by the covid 19 pandemic and demolished the applicants stands/stalls in total disregard of the said orders despite. They urge this court to punish the respondents and condemn them to pay Kshs 365,212,247/= being the costs they incurred

4. The respondents filed the replying affidavit of Jimmy Waliaula, the 2nd respondent’s county attorney dated May 25, 2022. The salient averments deposed are that the 1st applicant has never been served with the application; that the application is a non-starter, incompetent and fatally defective.

5. The applicant’s counsel submitted that the orders were served upon the 1st respondent and also that the order was made in the presence of the respondent’s advocate, so the 1st respondent was aware of the orders but despite knowledge of the order, they acted against the ordesr. She argued that the application is against the county secretary who is the head of county public service.

6. The respondent’s counsel relied on the replying affidavit. He faulted the applicant for improperly approaching the court. He also argued that personal service upon the person sought to be committed is required. He argued that no affidavit of service has been filed to confirm service and relied onSamuel Mweru & others v National Land Commission & others in urging the court to dismiss the application.

7. I will first address the respondent’s counsel’s argument that the applicant did not deploy the correct procedure in approaching this court. The application is expressed under section 5(1) of the Judicature Act, the Contempt of Court Act 1981 of England, sections 3A and 63 (e) of the Civil Procedure Actand section 3 (b) (d) & (e) of the High Court (Organization and Administration) Act and all other enabling provisions of the law. My understanding of the respondents’ advocates argument is that much as the applicants invoked the above provisions and approached the court by was of a notice of motion, that is not the proper procedure. The respondents’ contestation is that after the Contempt of Court Act was nullified by the High Court on November 9, 2018 in Kenya Human Rights Commission v Attorney General &another,the law and the procedure also changed.

8. Useful guidance can be borrowed from the decision in the High Court in Republic v Kajiado County &2 others ex parte Kilimanjaro Safari Club Limitedwhich held :-“Section 39 (2) (g) of the Act enjoins the Chief Justice to make rules to provide for, among other things, the procedure relating to contempt of court. However, the rules to regulate the commencing and prosecuting of contempt of court applications under the Act are yet to be made. The law that previously applied in this regard was the Contempt of Court Act of 2016, until the decision of the High Court (J Chacha Mwita) made on November 9, 2018 in Kenya Human Rights Commission v Attorney General & another, [2018] e KLR. The said decision declared the Contempt of Court Act of 2016 invalid for lack of public participation as required by articles 10 and 118(b) of the Constitution, and for encroaching on the independence of the judiciary.I am in the circumstances obliged to revert to the provisions of the law that operated before the enactment of the Contempt of Court of Act, to avoid a lacuna in the enforcement of court’s orders. It was in this respect observed in Republic v Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya, HCMCA No 13 of 2008, that the High Court has the responsibility for the maintenance of the rule of law, hence there cannot be a gap in the application of the rule of law. In addition, where there is a lacuna with respect to enforcement of remedies provided under the Constitution or an Act of parliament, or if, through the procedure provided under an Act of parliament, an aggrieved party is left with no alternative but to invoke the jurisdiction of the court, the court is perfectly within its rights to adopt such a procedure as would effectually give meaningful relief to the party aggrieved, in exercise of the inherent jurisdiction granted to the court by section 3A of the Civil Procedure Act to grant such orders that meet the ends of justice and avoid abuse of the process of court.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 v 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 Actof 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.”

9. I am in agreement with the above reasoning that the effect of the nullification of the act is that section 5 of the Judicature Actstill stands. Section 5 of theJudicature Actprovides: -(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 that power shall extend to upholding the authority and dignity of subordinate courts.

10. In theJohn Mugo Gachuki v New Nyamakima Co Ltd it was held: -“It is unfortunate that nearly 50 years after independence our procedure, with respect to punishment for contempt in our court is referable to the procedure in High Court of Justice in England. It is saddening that the entities entrusted with updating and drafting our laws have not seen the urgency of enacting our own law relating to such an important aspect of the rule of law. That being the position, ours is not to enact the law but to interpret the law as enacted."

11. Therefore, the law that governs contempt of court proceedings is the English law applicable in England at the time the alleged contempt is committed. Section 5 of the Judicature Act imposes a duty on the High Court, the Court of Appeal and law practitioners to ascertain the applicable law of contempt in the High Court of Justice in England, at the time the application is brought. This duty was noted by Platt J and Porter J in the matter of an application byGurbaresh Singh &Sons Ltd as follows: -“The second aspect concerns the words of section 5-"for the time being", which appear to mean that this court should endeavour to ascertain the law in England at the time of the trial, or application being made. Sometimes it is not known, or may not be known exactly, what powers the court may have. It seems clear that the Contempt of Court Act 1981of England is the prevailing law and that the procedure is still that set out in order 52 of the Supreme Court Rules."(Emphasis supplied)

12. The Court of Appeal in Christine Wangari Chege v Elizabeth Wanjiru Evans &others observed: -“Though the Court of Appeal of England and Wales was established in 1875, some 92 years before the commencement of the Judicature Act, the Act in the cited section 5 simply directs that this court like the High Court must make reference to the powers exercised by the High Court of Justice in England and not those exercised by its counterpart, the Court of Appeal of England and Wales.SupraThe High Court of Justice in England is that level of the court system in England, comprising three divisions, the queen's bench, the chancery and family divisions. That court draws its jurisdiction to punish for contempt of court from both the statute, namely the Contempt of Court Act, 1981and the common law. But the procedure to be followed in commencing, prosecuting and punishing contempt of court cases was, until 2012, as will shortly be explained, provided for by order 52 rules 1 to 4 of the rules of the Supreme Court (RSC), made under the Supreme Court of Judicature Act, 1873 (or simply the Judicature Act, 1873). The Judicature Act, 1873 abolished a cluster of courts in England and Wales dating back to medieval periods, some with overlapping judicial powers, and in their place Supreme Court of judicature, which must not be confused with the Supreme Court of the United Kingdom which was established only on October 1, 2009 assuming the judicial features of the House of Lords.Order 52 RSC, until 2012 as alluded to earlier provide the procedure of commencing contempt of court proceedings. The procedure may be summarized as follows, in so far as it relates to the High Court of Justice:-i.An application to the High Court of England for committal for contempt of court will not be granted unless leave to make such an application has been granted.ii.An application for leave must be made ex parte to a judge in chambers and supported by a statement setting out the particulars of the applicant as well as those of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit verifying the facts relied on.iii.The applicant must give notice of the application for leave not later than the preceding day to the crown office.iv.Where an application for leave is refused by a judge in chambers the applicant may apply afresh to a divisional court for leave within 8 days after the refusal by the Judge.v.When leave has been granted, the substantive application by a motion would be made to a divisional court.vi.The motion must be entered within 14 days after the granting of leave; if not, leave shall lapse.vii.The motion together with the statement and affidavit must be served personally on the person sought to be committed, unless the court thinks otherwise.

13. The courtin the above case pointed out that the rules applicable in the United Kingdom have been applied in Kenya with uneven degree of consistency. It cited several examples.The only consistency in the decided cases is that leave was a requirement. However, following the implementation of the famous Lord Woolf's "Access to Justice Report, 1996," The rules of the Supreme Court of England are gradually being replaced with the Civil Procedure Rules, 1999. On October 1, 2012, the Civil Procedure (Amendment No2) Rules, 2012 came into force and part 81 thereof effectively replaced order 52 RSC in its entirety. Part 81 (Applications and Proceedings in Relation to Contempt of Court) provides different procedure for four different forms of violations.Rules 81. 4 relates to committal for "breach of a judgement, order or undertaking to do or abstain from doing an act."Rule 81. 11- committal for "interference with the due administration of justice" (applicable only in criminal proceedingsRule 81. 16- committal for contempt "in the face of the court"), andRule 81. 17- committal for "making false statement of truth or disclosure statement."

14. An application under rule 81. 4 (breach of judgement, order or undertaking) now referred to as "application notice" (as opposed to a notice of motion) is the relevant one for making the application now under consideration. The application notice must set out fully the grounds on which the committal application is made and must identify separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon. In Christine Wangari Gacheche the Court of Appeal pointed out that leave, now called "permission" is not required where committal proceedings relate to a breach of a judgement, order, or undertaking.

15. After evaluating the above rules, the Court of Appeal concluded that "we find that on the basis of the new Civil Procedure Rules (of England) contained in the second supplement to the 2012 White Book, no leave is required before bringing an application, like the one before us, for committal for contempt relating to breach of this court's order..." On that basis, I find that it was not necessary for the applicant to seek leave before filing this application. The fact that the application before me is a notice of motion as opposed to an application notice in my view does not render it incompetent. I refuse to sacrifice substance over form. As the law stands, it appears that Kenyan courts have to continuously and perpetually check upon the current law in force in England and apply it in exercise of this jurisdiction. This is both the substantive and procedural law applicable in England as at the time the contempt is committed.

16. I now address the application on merit. Unquestionably, a court without contempt power is not a court.The contempt power (both in its civil and criminal form) is so innate in the concept of jurisdictional authority that a court that could not secure compliance with its own judgments and orders is a contradiction in terms, an “oxymoron.” Contempt power is something regarded as intrinsic to the notion of court; even obvious, I would say. In the common lawyer’s eye, the power of contempt “is inherent in courts, and automatically exists by its very nature.”

17. In disputedly, 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, public confidence in courts is eroded.

18. It is essential for the maintenance of the rule of law and order that the authority and the dignity of courts is upheld at all times. Courts cannot condone deliberate disobedience of its orders. It will not shy away from its responsibility to deal firmly with proved contemnors. In fact, it is the absolute compulsion of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The inflexible 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 void.

19. Courts cannot condone deliberate disobedience of its orders. Courts cannot waiver from their responsibility to deal decisively and firmly with contemnors. Courts does not, and ought not be seen to make orders in vain; otherwise, the court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.

20. Article 159(1) of the Constitution provides that judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution. Under article 10(1) of the Constitution the national values and principles of governance in the article bind all state organs, state officers, public officers and all persons whenever any of them (a) applies or interprets the Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. Under clause (2) (a) of the same article the national values and principles of governance include the rule of law.

21. I have in my several previous court decisions stated that it is a crime to unlawfully and intentionally to disobey a court order. This type of contempt of court is part of a broader offence, which can take many forms, but the essence of which lies in violating the dignity, repute or authority of the court.The offence has in general terms received a constitutional ‘stamp of approval,’ since the rule of law – a founding value of the Constitution – ‘requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained.’

22. 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).

23. These requirements – that is the refusal to obey should be both wilful and mala fides, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt – accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces. Honest belief that non-compliance is justified or proper is incompatible with that intent. The Constitutional Court of South Africa, underlined the importance to the rule of law, of compliance with court orders in the following terms: -“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.”

24. In order to succeed in civil contempt proceedings, the applicant must 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. A more comprehensive statement of the elements of civil contempt is stated contempt in Modern New Zealand as follows: -“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 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; and(d)the defendant's conduct was deliberate.

25. It is the last test in paragraph (d) above that warrants detailed consideration. In several of my previous decisions in applications of this nature, I have posed the following question. On the face of our transformative constitution with an expanded bill of rights, do constitutional values permit a person to be put in prison to enforce compliance with a civil order when the requisites are established only preponderantly, and not conclusively? Obviously, a high standard of proof applies whenever committal to prison for contempt is sought because contempt of court is quasi-criminal in nature. Three principles emerge from the foregoing statement. The first is liberty: - it is basic to our Constitution that a person should not be deprived of liberty, albeit only to constrain compliance with a court order, if reasonable doubt exists about the essentials.

26. The second reason is coherence. It is practically difficult, and may be impossible, to disentangle the reasons why orders for committal for contempt are sought and why they are granted. In the end, whatever the applicant’s motive, the court commits a contempt respondent to jail for rule of law reasons; and this high public purpose should be pursued only in the absence of reasonable doubt. Accordingly, it is impermissible to find an alleged contemnor guilty of contempt in the absence of conclusive proof of the essential elements. The requisite elements must be established beyond reasonable doubt. In such a prosecution the alleged contemnor is plainly an ‘accused person.

27. Third, accidental or unintentional disobedience is not sufficient to justify one for holding guilty of contempt. It is relevant to bear in mind the settled law on the law of contempt that casual or accidental or unintentional acts of disobedience under the circumstances which negate any suggestion of contumacy, would amount to a contempt in theory only and does not render the contemnor liable to punishment.

28. In the absence of evidence raising a reasonable doubt as to whether the accused acted willfully and mala fide, all the requisites of the offence will have been established. As O’Regan J pointed out, the power to imprison for coercive and non-punitive purposes is ‘an extraordinary one’:-‘The power to order summary imprisonment of a person in order to coerce that person to comply with a legal obligation is far-reaching. There can be no doubt that indefinite detention for coercive purposes may involve a significant inroad upon personal liberty. Clearly it will constitute a breach of s 12 of the Constitution unless both the coercive purposes are valid and the procedures followed are fair. In this case there seems no doubt that the purpose is a legitimate one. It also seems necessary and proper, however, for the exercise of the power to be accompanied by a high standard of procedural fairness.’

29. Contempt of court is not merely a mechanism for the enforcement of court orders. The jurisdiction of the superior courts to commit recalcitrant litigants for contempt of court when they fail or refuse to obey court orders has at its heart the very effectiveness and legitimacy of the judicial system. That, in turn, means that the court called upon to commit such a litigant for his or her contempt is not only dealing with the individual interest of the frustrated successful litigant but also, as importantly, acting as guardian of the public interest.

30. I now apply the principles discussed above to the facts before me. The applicants’ counsel maintained that the orders were made in court in the presence of the respondents, so they are aware. She also argued that the orders were served. The foregoing argument is attractive. The said orders were issued not in this file buy in constitutional petition No 16 of 2019, so, from the instant file, it is not possible to confirm that the orders were indeed issued in their presence. Service is disputed. For the applicants to surmount the hurdle created by the requirement of prove of service, it was incumbent upon them to file an affidavit showing the person serve. This was not filed. Again, to demonstrate that the orders were made in the presence of the respondents, it would have been prudent to avail a certified copy of the court record. This could have settled the issue conclusively. The respondent as named is not person. It’s the County Secretary, County Government of Mombasa. It was absolutely necessary to establish who was in court as alleged. In my view, prove of service or knowledge of the order has not been proved to the required standard. Contempt is quasi-criminal in nature and to establish it requires a higher standard of prove as opposed to the balance of probabilities applied in civil cases.

31. My above finding makes it unnecessary for me to discuss the other tests, namely (a) the terms of the order; (b) knowledge of or proper notice of the terms of the order;(c) breach of the terms of the order; and (d) deliberate conduct. It will suffice to say that none of the above tests was proved. In view of my above analysis and findings, the conclusion becomes irresistible that the applicant's notice of motion dated November 22, 2021 does not satisfy the prerequisites for the court to grant the orders sought. Accordingly, I dismiss the applicant's application dated November 22, 2021 with no orders as to costs.

Orders accordingly.

SIGNED AND DATED AT MOMBASA THIS 3RD DAY OF OCTOBER 2022. JOHN M. MATIVOJUDGESIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 6TH DAY OF OCTOBER 2022. OLGA SEWEJUDGE