[2017] KEHC 2966 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. 12 OF 2017

IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF RIGHTS OF FUNDAMENTAL FREEDOMS UNDER ARTICLE 47 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF: THE COUNTY GOVERNMENT ACT 2012

AND

IN THE MATTER OF: PHYSICAL PLANNING ACT, CHAPTER OF THE LAWS OF KENYA

AND

IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT, 2015

KOOBA KENYA LIMITED…………….…............…………......PETITIONER

VERSUS

COUNTY GOVERNMENT OF MOMBASA….............…....RESPONDENT

RULING

The Application

1. The Notice of Motion application before the court is dated 3rd July, 2017 seeking prayers set out therein the fourth (4th) one being that this court finds Mr. Anthony Njaramba in contempt of the Judgment and the court orders of 13th April, 2017 and that he be committed to civil jail for a period of six (6) months and/or fine accordingly.

2. The application is premised on grounds set out therein, that is, that

(a) The Respondent has failed to honour the orders of this court issued on 13th April, 2013.

The said orders are itemized in the body of this application.

3. The application is also supported by affidavit of Richard Bell sworn on 3rd July, 2017 which expounds the said grounds.

The Response

4. The Respondent has opposed the application vide a Replying Affidavit sworn by Jimmy Waliaula on 13th July, 2017. The deponent first gave the background of the orders leading to this application and blamed the Applicant for failure to comply with certain aspects of the orders which according to the Respondent were condition precedent.

Submissions

5. Parties made oral submissions in court. Mr. Amoko for the Applicant submitted that the orders of 13th April, 2017 were self-executing and were not conditional upon any of them being executed. Mr. Amokio specifically referred to Order roman (ii) and (iii) which he said has not been complied with. That order read thus:

“(ii) An order is hereby issued compelling the Respondent to stamp and return the Petitioner’s building plans.

(iii) An order is hereby issued compelling the Respondent to issue a Certificate of Approval.”

6. Mr. Amoko submitted that the said order was not conditional upon the Applicant performing some of the orders which were given against the Applicant.

7. On his part Mr. Obinju for the Respondent submitted that the application for contempt is premature. Counsel submitted that parties had exchanged several letters which show that the Applicant complied with the Judgment herein nineteen (19) days after it was given yet they were to do so within seven (7) days. Mr. Obinju submitted that the Applicants are equally guilty of contempt of the court orders.

8. Secondly, Mr. Obinju submitted that Mr. Anthony Njaramba who is cited herein for contempt is an Executive Member of Lands and Housing Department and is not mandated to stamp building plans and issue certificate of approvals. This mandate is that of the Chief Officer, Lands and Housing. Mr. Obinju submitted that the Applicant had cited the wrong official for alleged contempt of court orders and that on this ground alone the application before the court ought to be dismissed with costs.

The Determination

9. I have considered the application and submissions of counsel. I raise the following issues for determination:

(a) Whether the application for contempt is premature;

(b) Whether Mr. Anthony Njaramba is a wrong party to be cited for contempt.

10. In regard to the first issue, I have looked at the orders which I issued on 13th April, 2017. It is clear to me that those orders were not conditional upon the performance of any of them. In fact to avoid any doubt orders (ii) and (iii) were couched in compelling terms. The Respondent was already compelled to do what the orders required. However, I have also looked at the correspondences attached to the Replying Affidavit of Mr. Waliaula. They show that the parties suffered a proper construction of those orders. If this suffering was not intended, then this court is obligated to interpret what court meant, which I have done above. In fact on 13th July, 2017 when parties appeared before me for oral submissions in this matter, by a Ruling of the said date, I clarified the said orders as follows:

“…the orders which I issued under the Judgment of 13th April, 2017 are clear. They were not conditional. Prayers (ii) and (iii) were compelling orders and they cannot be varied or set aside unless through a successful appeal process.

I now direct the full compliance thereof immediately, and in any event, not later than 18th July, 2017. ”

11. That clarification and direction of full compliance was to offer the Respondent a softer landing in the event that it had genuinely misunderstood the orders. It is never the intention of the court to punish parties for contempt unless it is shown that the contempt is intended and is continuous. If an alleged contemnor is given a further opportunity to honour a court order and he does that, there would be little desire to punish him even if he were found guilty of contempt. Having clarified the said orders it is expected that the Respondent herein, through its relevant officers, would then comply with the orders, more so since they have not appealed against the same or obtained a stay thereof.

12. The second issue is whether Mr. Anthony Njaramba, the alleged contemnor cited herein is the right person to be committed to jail if the application herein succeeds. It is my position that where we are dealing with a corporation the law is now certain of who to serve with legal orders. However, when we are dealing with a County Government, the relevant department to be served with legal notices must be the legal department, in the same way we serve the Attorney-General in National Government. However, where it is not clear whether there exists an operational legal department like in this matter, the department to be served is that department, if it exists, which has the closes nexus to the matter before court. In this case, it is the Officer in Charge of Lands and Housing. However, it is not open to any holder of an order to know the internal relations among officers in any department. Therefore a service upon any officer in that department who appears to the process server to have the relevant knowledge and responsibility to answer to the process may be served. In this case, Mr. Njaramba is said to be an Executive Member of Lands and Housing Department. He is a responsible member of that department and can answer to any service. By answering to any service, I mean that Mr. Njaramba can say that while he is not the person entitled to be served, he can point out at that officer, and even tag along that officer to court to answer to the service. It must be noted that courts do not issue orders in vain. A party would not be allowed to take the court process in vain by raising any and all road blocks to service of court orders. More so, in this matter, the Respondent’s advocates were in court when the orders were issued and they were professionally and legally bound to inform the Respondent to comply with the court orders. In this mater I find that Mr. Anthony Njaramba is properly cited for contempt in these proceedings and I accordingly find him guilty of contempt of this court orders of 13th April, 2017.

13. In the upshot the Notice of Motion application dated 3rd July, 2017 is allowed in the following terms. This court finds that:

(a) Mr. Anthony Njaramba is in contempt of the Judgment and the court orders of 13th April, 2017.

(b) The said Mr. Anthony Njaramba shall appear in this court on 5th October, 2017 to show cause why he should not be jailed for a period of six (6) months for contempt of court.

(c) Costs herein shall be for the Applicant.

Orders accordingly.

Dated, Signed and Delivered in Mombasa this 2nd day of October, 2017.

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Obinju for Respondent

Mr. Amoko for Petitioner

Mr. Kaunda Court Assistant