[2022] KEHC 15447 (KLR)

Kasimba & 219 others v Kwetu Savings & Credit Co-operative Society Limited (Formerly Masaku Teachers Savings Co-operative Society Ltd) & 10 others (Civil Suit 29 of 2018) [2022] KEHC 15447 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15447 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Suit 29 of 2018

GV Odunga, J

October 18, 2022

Between

Peter Kasimba & 219 others

Plaintiff

and

Kwetu Savings & Credit Co-operative Society Limited (Formerly Masaku Teachers Savings Co-operative Society Ltd)

1st Defendant

Masaku Teachers Investment Limited

2nd Defendant

Registrar of Companies

3rd Defendant

Registrar of Land, Machakos County

4th Defendant

National Land Commission

5th Defendant

Attorney General

6th Defendant

Julius Nzioka

7th Defendant

James Nduta

8th Defendant

Francis Kioko

9th Defendant

David Kikumu

10th Defendant

Machakos County

11th Defendant

Ruling

1. By a notice of motion dated February 23, 2022, the plaintiffs seek orders that:1)That Kwetu Savings & Credit Co-operative Society, Masaku Teachers Investment Limited and Registrar of Companies the 1st, 2nd and 3rd defendants/respondents together with their current directors and principal officers Moses Toroitich Chebet, Stanley Musa Kyelenzi, lawyer Celestine Anyango Opiyo, Boniface Odhiambo, Senior Records Officer Registrar of Company office be jointly and severally committed to prison for 6 months for contempt of the court orders made on January 22, 2019, July 23, 2019 and April 29, 2020. 2)That the 3rd respondent to convert back Masaku Teachers Investment Limited the 2nd defendant company to public company under certificate of incorporation No C 14/95 and restore the validly elected directors of the public company and direct that the private company file no C66367 to remain closed and to direct that all documents filed in respect thereof and decisions carried by persons purporting to be acting in respect to documents filed there to are void and invalid.3)Costs of the application be provided for.

2. It was deposed that despite repeated service and follow up the respondents have blatantly and flagrantly refused and failed to comply with the aforesaid orders. The applicants then proceeded to set out in the supporting affidavit what, in their views were the facts constituting the said contempt of court.

3. In opposing the application, the 1st, 2nd, 7th, 8th, 9th and 10th defendant relied on the following grounds of opposition:1. No leave of court having been sought to cite the persons named for contempt of court the notice of motion is incompetent and incurably defective.2. The order of the honourable court of January 22, 2019 which has been thrust forward as the subject of alleged act(s) of contempt of court was interim/interlocutory and was to remain in force up to and until February 22, 2019 and therefore lapsed on the later date and was not in force at the date of the alleged act(s) of contempt of court.3. As concerns the order of the honourable court of April 20, 2020 there has been no service or lawful service of the said order or formal order upon the 1st and 2nd respondents and the alleged contemnors have never been aware of its existence.4. Prayer 2 of the notice of motion is in essence a baseless endeavor to revisit the ruling of the honourable court (Mr Justice GV Odunga) made on the February 7, 2022 and a collateral attempt to re-open issues already determined.5. The notice of motion is a cynical and desperate endeavor to prevent the 1st and 2nd respondents to lawfully act within the contemplation of the final order of the honorable court (Mr Justice Kemei) in MachakosMisc Civil App No 35 of 2015 Kwetu Savings and Credit Co-operative Society Limited & others against James Muiya and others.6. As concerns the order of the honourable court of July 23, 2019 the 1st and 2nd respondents have never in possession of or the custody of the original certificate of incorporation No C 36367 dated August 11, 1998 and in any event:-i)the court order of July 23, 2019 is defective and was given on a date the cause was listed for a mention, andii)the order of July 23, 2019 dealt with issues which were already res judicata having been decided upon by the Honourable Mr Justice Kemei on the September 25, 2019 in determining the notice of motion dated July 4, 2019. 7.The change in the share register of Masaku Teachers Investment Limited;-a)is not fraudulent nor unlawful as alleged but simply the implementation by the 1st and 2nd defendants of the orders of the Honourable Court (Mr Justice Kemei) in its decision of February 26, 2018 in Machakos High Court Misc Civil App No 35 of 2015 (Formerly Nairobi High Court Misc Civil Appl No 78 of 2015)Kwetu Savings and Credit Co-operative Society Ltd v James Muiya & others, andb)a rectification of the share register of Masaku Teachers Investment Limited by removal of names of persons who unlawfully caused themselves to be registered as promoters and directors.

4. There was also a replying affidavit sworn by James Mweu Muiya, a shareholder of the plaintiff company herein in which the deponent supported the application.

5. Since the respondents have raised the issue of the competency of the application, it is important to deal with that issue first.

6. This court is aware that in Kenya Human Rights Commission v Attorney General &another [2018] eKLR, Mwita, J declared that the entire Contempt of Court Act No 46 of 2016 is invalid for lack of public participation as required by articles 10 and 118(b) of the Constitution and encroaches upon the independence of the judiciary. I respectfully agree with that decision. I gather support for this position from the Supreme Court of India’s holding in Bar Association vs Union of India &another [1998] 4 SCC 409 where the court dealt with constitutional powers vested in it under article 129 read with article 142(2) of the Constitutionof India and those of the High Court under article 215 of the Constitutionto punish for contempt and remarked that no Act of Parliament can take away the inherent jurisdiction of the court of record to punish for contempt. The court expressed itself as follows:“Parliament’s power of legislation on the subject cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts, though such a legislation may serve as a guide for the determination of the nature of punishment which this court may impose in the case of established contempt.”

7. The same court once again observed in Sudhakar Prasad v Government of Andhara Pradesh &others [2001] SCC 516, that the powers of contempt are inherent in nature and the provisions of the Constitution only recognize the said pre-existing situation and that the provisions of the Contempt of Courts Act, 1971, are in addition to and not in derogation of articles 129 and 215 of the Constitution and that the provisions of Contempt of Courts Act cannot be used for limiting or regulating the exercise of jurisdiction contemplated by the two articles. In my view the objective of the Contempt of Court Act was to sanitise contemptuous actions of state officers by making it frustrating and difficult to find them guilty of contempt and even then giving them a slap in the wrist literally where they are found in contempt.

8. Accordingly, this application must be determined without reference to the provisions of that Act.

9. In the absence of the said legislation, we must revert to the position that prevailed pre-its enactment. Before the enactment of the Contempt of Court Act which deleted section 5 of the Judicature Act cap 8 laws of Kenya, the first port of call with respect to the procedure for institution contempt of court proceedings in this country was and therefore is section 5 of the Judicature Act cap 8 laws of Kenya. That section 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 that 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.

10. Therefore, the law that governs contempt of court proceedings is the English law applicable in England at the time the contempt was committed. The procedure in the High Court of Justice in England was considered in detail by the Court of Appeal in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others[2014] eKLR. In that case the court recognised that the only statutory basis for contempt of court law in so far as the Court of Appeal and the High Court are concerned is section 5 of the Judicature Act.

11. The High Court of Justice in England comprises three (3) divisions – the Chancery, the Queens Bench and the Family Divisions. It is true that following the implementation of Lord Woolf’s “Access to Justice Report, 1996”, the Rules of the Supreme Court of England are being replaced with theCivil Procedure Rules, 1999 and pursuant thereto the Court of Appeal in the above decision recognised that on October 1, 2012 the Civil Procedure (Amendment No 2) Rules, 2012, came into force and part 81 thereof effectively replaced order 52 of the Rules of the Supreme Courtwhich was the order dealing with the procedure for seeking contempt of court orders in the High Court of Justice in England, in its entirety. Under rule 81. 4 which deals with breach of judgement, order or undertaking, referred to as “application notice”, the application is made in the proceedings in which the judgement or order was made or undertaking given and the application is required to set out fully the grounds on which the committal application is made, identify separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon. The said application and affidavit(s) must be served personally on the respondent unless the court dispenses with the same if it considers it just to do so or authorises an alternative mode of service. The Court of Appeal held that leave or permission is nolonger required in such proceedings (relating to a breach of a judgement, order or undertaking) as opposed to committal for interference with the due administration of justice or in committal for making a false statement of truth or disclosure statement.

12. It is therefore my view that the procedure described by the Court of Appeal ought to be adopted with necessary modifications. The applicant ought to have sought order that the respondent be found to be in contempt and upon such finding to be called upon to show cause why he cannot be punished accordingly.

13. However, what is sought is an order that the respondent committed to prison for 6 months for contempt of court orders. That order can only be issued upon a finding that the respondents are actually in contempt. To that extent, the application as drafted is premature.

14. In the premises, the notice of motion dated February 23, 2022 is struck out but with costs.

15. It is so ordered.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 18TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: