[2023] KEHC 25226 (KLR)

Katiku v Wambua (Civil Appeal 6 of 2016) [2023] KEHC 25226 (KLR) (Civ) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25226 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 6 of 2016

JN Mulwa, J

November 9, 2023

Between

John Katiku

Plaintiff

and

Paul Musili Wambua

Respondent

Ruling

1. This ruling is in respect of the Application dated 28th June, 2022 brought by John Katiku, the Plaintiff/Applicant. It is premised upon provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Section 5 (1) of the Judicature Act Cap 8 and Order 51 Rule 1 of the Civil Procedure Rules, and other enabling provisions.

2. The Applicants seek the following orders:i.Spent.ii.That this Honourable Court be pleased to order the Defendant/Respondent to be committed to Civil Jail for 6 months or such period as deemed just and sufficiently by this court and such further orders be made as the court may deem for this court may deem for his disobedience and contempt of the court order made/issued by the Hon.Mr.Justice Ombija on 16th February 2016,in this case.iii.That this Honourable Court be pleased to fine the Defendant/Respondent for being in contempt of court.iv.That the Defendant/Respondent be summoned to attend court for cross-examination regarding the information contained in the article of 31st May 2022. v.That witness summons be issued to Kamau Muthoni of Standard Newspaper to attend court for cross-examaination, regarding the source of the information he published in the article of 31st May 2022vi.That the Defendant/Respondent do costs of this Application

3. The grounds for the application are stated that on 20th May 2015 the Defendant/Respondent maliciously wrote and published defamatory statements against the Applicant, who being aggrieved filed this suit and obtained interim injunction against the Respondent from making defamatory statements and that the said order was duly served on 17th February 2016, that the Respondent despite knowledge of the said order went ahead to cause a publication of defamatory article in the Standard Newspaper of Tuesday 31st May 2022 entitled “Forgiveness for what? Lawyers fight in partnership gone sour” authored by Kamau Muthoni, defaming the Applicant.

4. The Applicant further deponed that the author of the article one Kamau Muthoni admitted to have received the defamatory information from the Respondent and that it is vital that the said author be summoned to attend court to shed light regarding the source of the information.

5. The application is opposed by a Replying Affidavit sworn by the Respondent, who stated that he was not served, nor was any order issued in his presence, and was not aware that there was an order against him, therefore he could not be held in contempt for purportedly breaking its conditions. Both parties filed their submissions dated 13/10/2023 and 11/10/2023 respectively which the court has duly considered.

6. The statutory basis of contempt of court in so far as the court is concerned is Section 5 (1) of the Judicature Act. It provides 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.”

7. It has been said time without number that whenever a court order is made such an order is binding and whoever has difficulty has the opportunity to come to court to seek an explanation rather than defy it. See Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] KLR 828 where Ibrahim J as he then was stated as follows: -“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proven contemnors. It is the plain and unqualified obligation 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 uncompromising 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”.

8. The Defendant/Respondent contends that the court order was not served upon him personally. On the issue of service, I am guided by the Court of Appeal finding in Shimmers Plaza Limited v. National Bank of Kenya Limited (2015) eKLR where the court stated as follows:(1)is subject to whether the person can be said to have had notice of the terms of the judgment or order. The notice of the order is satisfied if the person or his agent can be said to either have been present when the judgment or order was given or made; or was notified of its terms by telephone, email or otherwise. In our view, 'otherwise' would mean any other action that can be proved to have facilitated the person having come into knowledge of the terms of the judgment and/or order. This would definitely include a situation where a person is represented in court by counsel. Once the applicant has proved notice, the respondent bears an evidential burden in relation to willfulness and mala fides disobedience.

9. In this case, the interim orders were made in the presence of the Defendant’s advocates. Although the Defendant contends that he did not in any way instruct the said Kamau Muthoni, the author of the defamatory publication dated 31st May 2022, it is evident that the Applicant has not given this court evidence to show that indeed the said author Kamau Muthoni got instructions from the Respondent. The Respondent further stated that he did not publish or cause to publish the said defamatory publication and that the said Kamau Muthoni is not known to him.

10. It is therefore the court’s finding that the Respondent cannot be called upon to prove that which he has denied at this interlocutory stage of these proceedings, having denied the claim entirely.

11. For the foregoing, the court finds no merits in the application. It is dismissed with costs to the Respondent.Notice of motion dated 28/06/2022 is hereby dismissed with costs.Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 9TH DAY OF NOVEMBER, 2023JANET MULWAJUDGE