[2017] KEHC 10009 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND TAX DIVISION

PETITION NO. 40 OF 2014 – MOMBASA

(FORMERLY NAIROBI HIGH COURT PETITION NO. 277 OF 2014)

KENYA AIRPORTS PARKING SERVICES LIMITED …..............1ST PETITIONER

KAPS MUNICIPAL PARKING SERVICES LIMITED…………...2ND PETITIONER

JAMES KIMANI ………………………………………………....3RD PETITIONER

ROSINA MBOGO…………………………………………….......4TH PETITIONER

JANET POKUKU……………………………………………..…..5TH PETITIONER

FRANCIS AKWA………………………………………….......…..6TH PETITIONER

ANN NJOROGE…………………………………………….....….7TH PETITIONER

STEVEN CHIRASI……………………………………………...…8TH PETITIONER

RAMA JUMA………………………………………………….......9TH PETITIONER

ABDALLA KARISA………………………………………...........10TH PETITIONER

IDDI KENGO……………………………………………………...11TH PETITIONER

ZOPRAH KIAMA…………………………………………….......12TH PETITIONER

ABRAHAM GIKUNJU....................................................................13TH PETITIONER

VINCENT ODIDO…………………………………………….......14TH PETITIONER

ESTHER MWANGI…………………………………………...…....5TH PETITIONER

MARK AWIDA………………………………………………........16TH PETITIONER

ALI ATHMAN ALI…………………………………………...........17TH PETITIONER

-VERSUS –

THE GOVERNOR, MOMBASA COUNTY GOVERNMENT........1ST RESPONDENT

MOMBASA RESIDENT MAGISTRATES COUNTY COURT.....2ND RESPONDENT

INCORPORATING

1. PETITION NO. 434 OF 2014 - NAIROBI

KENYA AIRPORTS PARKING SERVICES LIMITED……….............1ST PLAINTIFF

KAPS MUNICIPAL PARKING SERVICES LIMITED…………….....2ND PLAINTIFF

-VERSUS -

MUNICIPAL COUNCIL OF MOMBASA

(NOW THE COUNTY GOVERNMENT OF MOMBASA)…………...…DEFENDANT

2. PETITION NO. 252 OF 2015 – NAIROBI

KENYA AIRPORTS PARKING SERVICES LIMITED………...…..1ST PETITIONER

KAPS MUNICIPAL PARKING SERVICES LIMITED………….....2ND PETITIONER

JAMES KIMANI…………………………………………...............3RD PETITIONER

ROSINA MBOGO……………………………………….................4TH PETITIONER

JANET POKUKU…………………………………………..............5TH PETITIONER

FRANCIS AKWA………………………………………...............…6TH PETITIONER

ANN NJOROGE…………………………………………….......….7TH PETITIONER

STEVEN CHIRASI………………………………………................8TH PETITIONER

RAMA JUMA…………………………………………………........9TH PETITIONER

ABDALLA KARISA………………………………………............10TH PETITIONER

IDDI KENGO……………………………………………….......….11TH PETITIONER

ZOPRAH KIAMA…………………………………………............12TH PETITIONER

ABRAHAM GIKUNJU………………………….......................….13TH PETITIONER

VINCENT ODIDO…………………………………………......….14TH PETITIONER

ESTHER MWANGI…………………………………………….....15TH PETITIONER

MARK AWIDA…………………………………………….....…...16TH PETITIONER

ALI ATHMAN ALI……………………………………………..….17TH PETITIONER

-VERSUS –

THE GOVERNOR, MOMBASA COUNTY GOVERNMENT…...1ST RESPONDENT

MOMBASA RESIDENT MAGISTRATES COUNTY COURT....2ND RESPONDENT

THE MOMBASA COUNTY GOVERNMENT………………......3RD RESPONDENT

RULING

1. By an application dated 20th March 2014, the plaintiffs seek an order to commit to prison, HAMISI MWAGUYA, who is the County Secretary of the COUNTY GOVERNMENT of MOMBASA.

2. The basis of that application is that Hamisi Mwaguya had deliberately disobeyed the order made on 17th June 2009.

3. Pursuant to the order made on 17th June 2009, the MUNICIPAL COUNCIL of MOMBASA was restrained by an injunction from collecting PARKING FEES, and also from otherwise undertaking any dealings in relation to the Provision and the Regulation of PARKING SERVICES within Mombasa Municipality.

4. The said order was extended severally, resting with the order dated 30th June 2010, which granted its extension until the hearing and determination of the ARBITRATION between the plaintiffs and the Municipal Council of Mombasa.

5. It is the plaintiffs’ case that notwithstanding the order dated 17th June 2009, Hamisi Mwaguya did, on 14th March 2014, issue a directive to the officers of the County Government to;

a. confiscate the receipt books held by the Petitioner’s employees, for issuing to motorists who pay for parking services; and

b. arrest the employees of the plaintiffs who were found collecting fees for parking services.

6. Following that directive, the officers of the County Government are said to have confiscated receipt books from the petitioners’ staff, and also to have arrested the staff of the petitioners.

7. Later, the staff were charged in court, with offences pertaining to alleged acts of obstructing the officers of the County Government from carrying out their duties of collecting parking fees.

8. The petitioners see the confiscation of the receipt books and the arrest of its staff, as constituting intimidation, which was calculated to force the petitioners to drop their civil claims against the respondents.

9. As regards the directive, the confiscation of receipt books and the arrest of the petitioners’ staff, the respondents confirm that those actions were taken.

10. However, the respondents contend that their said actions were lawful and therefore justified.

11. The respondents position is that the contract which was allegedly executed between the petitioners and the Municipal Council of Mombasa was illegal, unlawful and un-enforceable.

12. The contract is said to have been executed by an unauthorized person. Secondly, there was no Council Resolution prior to the execution of the said contract. Thirdly, there was no serialized seal affixed to the contract.

13. Assuming for a moment that the respondents’ reasoning was sound, that should form the foundation upon which the respondents could seek to set aside the orders which had been made against them.

14. Indeed, the respondents appear to appreciate the fact that the court orders were in place, as can be discerned by their application to set aside the said orders.

15. But regardless of their appreciation or lack thereof, about the validity and efficacy of the court orders, the respondents do not have any mandate to choose whether or not to obey the court orders.

16. In the case of HADKINSON Vs HADKINSON [1952] CH D 285, at page 288, Romer L J expressed himself thus;

“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 the order believes is to be irregular or even void?.

17. In this case, the position taken by the respondents is that the court ought not to have granted the injunction in the first instance.

18. Nonetheless, there was an unqualified obligation on the part of the respondents to obey the order, until and unless the said order was discharged.

19. The respondents have already sought, through a Preliminary Objection, which it raised before an arbitrator, to have the contract declared illegal. The sole arbitrator, Mr. Odera Chacha Advocate, declined to uphold the said Preliminary Objection.

20. That is therefore still a live issue for determination. Therefore, until and unless the issue was determined, the respondents cannot grant to themselves the mandate to resolve that the contract was a nullity.

21. I am alive to the fact that in the case of KENYA AIRPORTS PARKING SERVICES LIMITED & ANOTHER Vs AHMED ABUBAKAR, MSA Hccc No. 116 of 2008; Azangalala J. (as he then was), noted as follows;

“The Defendant has challenged the said agreement on the ground that it is illegal and unenforceable. The plaintiffs have themselves acknowledged that there is Mombasa Hccc No. 91 of 2008 between an entity called Coast Residents Platform and the Council and Others, in which the validity of the said agreement is in issue. So, besides the Council, another body has called the same contract into question…?

22. That was an expression that might be seen as giving support to the respondents view, concerning the validity of the contract.

23. However, the learned Judge did not make a determination on the issue regarding the alleged illegality of the contract.

24. It is also on record that the respondents lodged a Counterclaim against the petitioners.

25. The petitioners say that the Counterclaim was founded upon alleged breaches, by the petitioners, of the Agreement.

26. Of course, if the respondents were asserting that the Agreement was being breached by the petitioners, that would imply that the respondents had acknowledged the efficacy of the Agreement.

27. However, this court notes that the Counterclaim begins by, first, a restatement of the respondents’ contention, that the Agreement was illegal and unenforceable.

28. But the respondents also appreciate that the court could come to the conclusion that the Agreement was valid. In the event that the court were to hold that the Agreement was valid, the respondents would contend that the petitioners were in breach of the terms of the said Agreement.

29. In my considered opinion, the position taken by the respondents was legitimate as they asserted in the Counterclaim;

“In the alternative and without prejudice to....? their fundamental case.

30. And therein lies the sting in the respondents’ tail. They believe that the Agreement was a nullity, but they also acknowledge the possibility that the court may find the Agreement to be valid.

31. Considering that possibility implied that the respondents fully appreciated that neither they nor their adversaries could pre-determine the question about the alleged illegality or otherwise of the agreement. It therefore follows that whilst the protagonists were awaiting the determination of that issue, neither of them was entitled to make any assumptions.

32. I further find that because the parties appear to have agreed to have the dispute resolved through arbitration, it is not open to this court to make a determination on that issue.

33. Of course, the respondents have now indicated that they have not submitted themselves to the jurisdiction of the arbitrator, and that they will be raising issues in that respect, when the matter is next before the arbitrator.

34. It is perfectly in order for the respondents to take up, before the arbitrator, any matters deemed to be appropriate for his determination.

35. Neither this court nor the parties can foretell what decision the arbitrator will make on the matters to be raised. All we can do, for now, is to await the arbitrator’s determination.

36. In the meantime, it is noted that on 24th March 2010, Kimaru J. declined to order that the officers of the Council be committed to jail, for their alleged contempt of court.

37. However, the learned Judge reiterated that the orders issued on 17th June 2009 would continue to apply. He also ordered that the respondents be restrained from interfering with the status quo until the application for interim reliefs was heard and determined.

38. That was a re-affirmation that the original orders were still in force. In the circumstances, I am unable to comprehend why the petitioners would now require further conservatory orders. It would appear from the petitioners’ conduct that they do need an order, so as to safeguard their rights.

39. A person does not require a second order to reinforce an earlier order which was still in force. It is not the plurality of orders which gives power or authority. Every single order has sufficient power and authority to compel obedience and compliance.

40. In this case, the court had already given orders of an interlocutory nature. Those orders must be obeyed.

41. Indeed, when the respondents made a choice, to disregard the orders, they were saying to the court that they had no regard to the court. In my considered opinion, any person who chooses to disregard the order of the court should not be accorded a hearing by the court until and unless he first shows respect to the court, by doing what was commanded of him.

42. All too often, parties bemoan the failure of their opponents, to comply with court orders. It is time that people stopped simply complaining, and decide to take action. If someone is disobeying an order made by the court, it is important and necessary that the person who had obtained that order, should move swiftly back to court, to ask that the contemnor be cited for contempt, and be punished appropriately.

43. It must be borne in mind that the courts cannot take any steps unless someone files and prosecutes an application.

44. The petitioners have asked the court to cite Mr. HAMISI MWAGUYA for contempt. As I have already said, that gentleman gave directives to officers of the Council, who then stopped the staff of the petitioners from collecting parking fees.

45. What Mr. Mwaguya did was a direct affront to the orders of this court. It cannot be condoned.

46. I understand that Mr. Mwaguya is no longer the Secretary to the County Government. Nonetheless, just because he is no longer the Secretary cannot excuse him. If persons were allowed to avoid or escape punishment by simply leaving the office or position which they occupied at the time an order was made, the orders of the court would be readily disobeyed. I cannot allow that to happen.

47. Accordingly, I find that Mr. Hamisi Mwaguya is in contempt of court. I direct that he personally appears before this court, so that he can be accorded an opportunity for mitigation, before the court determines the punishment to be meted out against him.

48. Meanwhile, the court notes that there are no allegations made against the Governor, Mombasa County Government. Secondly, there are no reliefs sought against the said party.

49. In the circumstances, the petitioners have failed to demonstrate to the court, why they should be permitted to continue these proceedings against the Governor.

50. I therefore order that the petition be struck out forthwith, against the Governor, Mombasa County Government.

51. The petitioners will pay to the Governor, the costs of the petition.

52. As regards the criminal case instituted against some of the members of staff of the petitioners, it is noted that the charges relate to allegations of obstruction.

53. The respondents say that the materials which were confiscated are being held because they constitute evidence in the criminal case.

54. I find that the actions in respect to which the accused persons were arrested are so inter-twined with the civil case that it is possible that the criminal proceedings were being used for purposes other than for the enforcement of the law.

55. In the event, I order that there shall be a stay of prosecution of the criminal case until the legality of the Agreement is determined.

56. If the arbitrator should hold that the Agreement was illegal and un-enforceable, it would follow that the actions of the accused persons, lacked a sound legal foundation. In those circumstances, it would then be in order to proceed with the prosecution.

57. But if the arbitrator were to find that the Agreement was valid, it would follow that the accused persons were carrying out lawful activities when they were collecting parking fees.

58. Of course, there might still be the residual issues such as whether or not the accused persons were entitled to use the tickets bearing the name of the Council, and also if the accused persons were working in areas not covered by the Agreement. But those are matters which can only be addressed after the arbitrator gives his determination.

59. As regards the items which were confiscated by the Council, I find that receipt books may be readily replaced with new ones, especially considering the dispute about the usage of the Council’s name on the said tickets. Therefore, provided that the County Government gives to the petitioners, an itemized list of the receipt books, the same may remain in the hands of the County Government.

60. However, the Communication Devices; Hand-held Devices for collection of Parking Fees; the “Tuk Tuks?; and the Yellow Jackets should be released to the petitioners forthwith.

61. Even assuming that the petitioners were to be later stopped from collecting parking fees, they should be permitted to have possession of their property. Of course, if the County Government wished to keep “evidence?, it is open to them to take appropriate photographs.

62. Hamisi Mwaguya will pay to the petitioners, the costs of the application dated 7th July 2009, in so far as it relates to his actions which have been held to be in contempt of court.

DATED, SIGNED and DELIVERED at NAIROBI this2nd dayof October2017.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Rapando for Kimani for the Plaintiff in Hccc No. 434/200.

Kimani for Khagram for 1st Defendant in Hccc No. 434/2009

Otieno for Buti for 2nd & 5th Defendants in Hccc No. 331/2014

Kimani for Khagram for 1st Respondent in Hccc No. 331/2014

Anthony Olouch for Amuga for Plaintiff in Hccc 331/2014

Rapando for Kimani for Petitioner in Hccc No. 252/2015

Collins Odhiambo – Court clerk.