[2024] KEHC 10634 (KLR)

Law Society of Kenya & 3 others v Inspector General of Police & 4 others (Petition E436 of 2024) [2024] KEHC 10634 (KLR) (Constitutional and Human Rights) (13 September 2024) (Sentence)

Neutral citation: [2024] KEHC 10634 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E436 of 2024

LN Mugambi, J

September 13, 2024

Between

Law Society of Kenya

1st Petitioner

Bob Micheni Njagi

2nd Petitioner

Jamil Longton

3rd Petitioner

Salam Longton

4th Petitioner

and

Inspector General of Police

1st Respondent

Director of Public Prosecutions

2nd Respondent

Attorney General

3rd Respondent

Directorate of Criminal Investigations

4th Respondent

National Intelligence Service

5th Respondent

Sentence

A brief background of the present contempt of Court proceedings 1. On 23rd August, 2024, the 1st Petitioner approached this Court via a Notice of Motion application under Certificate of Urgency alleging the abduction/arrest of the 2nd – 4th Petitioners on 19th August, 2024 by persons who had introduced themselves as police officers. They were then kept incommunicado in undisclosed locations after the incident. This Court issued exparte orders in the first instance as follows: -1. That pending the hearing and determination of this application interpartes an order is hereby issued directing the Respondents to immediately disclose the whereabouts of the 2nd to 4th Petitioners to the 1st Petitioner.2. That pending the hearing and determination of this Application Inter partes an order is hereby issued directing the Respondents to immediately release or produce the 2nd to 4th Petitioners before any Court of competent jurisdiction to make such orders as may be appropriate to uphold the rights and fundamental freedoms of the 2nd to 4th Petitioners.4. The matter was then fixed for mention on Monday, 26th August, 2024 at 10. 00 a.m. to confirm compliance.

2. During the virtual session held on 26th August, 2024 only the Advocate for the Petitioners M/s Omwenga appeared. She informed the Court that the orders made on 23/8/2024 were duly served the as was evidenced by the affidavit of service. However, there neither appearance by any Respondents nor responses to the habeas corpus application. There had been no compliance with the orders either. That necessitated Court to vary its orders in which it directed that:i.Pending the institution of charges, (if any), the Court now directs unconditional release of 2nd – 4th Petitioners by the 1st Respondent.ii.That physical service of the order be effected by close of business that day.iii.That a summons to issue to the 1st Respondent to appear in court on the next mention to explain why the habeas corpus orders issued by the court were not complied with. The matter was fixed for Mention on 3rd September, 2024.

3. On the morning of 3rd of September, 2024, the Attorney General, the DPP and the Director of National Intelligence Service, the Inspector General of Police and Directorate of Criminal Investigations appeared through counsel. None of them had filed response to the application and the orders of 23rd August had not been complied with. The Inspector General of Police who Court had summoned did not turn up either. The court postponed the matter to 3. 00 p.m. for physical attendance of the Inspector General to explain why the habeas corpus orders had not been adhered to. The afternoon came and passed; the Inspector General of Police did not attend. The Court was informed that he was out of Office on official business with the nature of business being revealed to be a workshop he was attending Mombasa on budgeting that particular morning. In the afternoon, the Court was told that he was engaged in security operational duties in the Coastal region.

4. The matter was rescheduled to 5th September, 2024 at 10. 00 a.m. as the Court was keen to establish why the habeas corpus orders could not be executed in respect to the production before court or release of the 2nd to 4th Petitioners.

5. M/s Mwangi who appeared for the Inspector General explained as follows when pressed to explain the apparent persistent disregard of the Court summons by the Inspector General of Police:“The Inspector General has not said he is not coming, he is requesting for another date because it is our position that the 2nd-4th petitioners are not with the police. The Inspector General is requesting another date to appear because we had thought his officers would explain.The Inspector General is requesting another date to appear in court (after holding brief consultation), the Inspector General will come on Monday 9th September, 2024. The officers of Inspector General are here and have confirmed his availability of Monday considering his work and duties.”

6. The Court after this brief session fixed the matter for 3. 00 P.M on the same day. Despite the Court convening, the Inspector General did not show up. The Court finally and reluctantly agreed to give the final opportunity to the Inspector General to attend Court coinciding with the date that Counsel for Inspector General indicated he would be available (this was after she made some consultations). The date was Monday 9th September, 2024. On that day, the distressingly wrote:“The stream of reasons and excuses by the Inspector General of Police are definitely bound to run out. To proceed at this juncture and hastily make a finding of contempt of court may be seen as premature in a grave matter of contempt of court which is a form of a criminal sanction being an offence against the administration of Justice. Our Constitution requires a high threshold for criminal matters. Reluctantly, the reasons for non-attendance today must thus be considered…It is thus necessary that I postpone these proceedings to Monday 9th September, 2024. The Inspector General having earlier indicated his availability on this particular day should have no further excuse but to comply and attend court physically at 10. 00 a.m. so that this court can put this matter to an end…”

7. Due to the persistent non-compliance with both the Court summons as well as failure to comply with the order of 23rd August, 2024 the Court opined that it was a case of contemptuous conduct that the Inspector General needed to purge even as it set the date of 9/9/2024. That date came and passed too. The Inspector General did not turn up but he made last-minute attempt and sent his Deputy Inspector General In charge of Kenya Police appear on his behalf. The Court rejected the noting that the open defiance of the court summons had metamorphosed to contemptuous conduct and was now a personal matter that had to be directly and specifically addressed by the person summoned. Following the 7th failure to attend Court or comply with the Court order of 23rd August, 2023 the Court entered a finding of guilty for contempt of Court against the Acting Inspector General of Police on 9/9/2024 and deferred the sentence to today, Friday 13/9/2024.

Sentence 8. As part of the considering the appropriate sentence, I had to contextualize the matter from a Constitutional view point.

9. The preamble to the Constitution reflects the commitment of the people of Kenya to attain a number of aspirations. One of them is statement number 6 of the preamble which is states as follows: ‘RECOGNISING the aspirations of all Kenyans for a government based on essential values of human rights, equality, freedom, democracy and social justice and the rule of law.’

10. The Constitution under that Article 2 (1) proclaims itself as the Supreme law of the land that binds all persons and all state organs. Article 3 obligates every person to respect, uphold and defend the Constitution. It matters not whether they are mighty or low.

11. The Constitution further proceeds to specify the national values and principles of governance that bind all State organs and all persons whenever they make and implement public policy decisions, enact laws and interpret. Among those values and principles that are contained is Article 10 (2) b which has human rights, the rule of law among others whereas Article 10 (2) (c) has the principle of accountability.

12. In matters of national security, Article 238 provides that the principles which shall apply and include the following, that - a) national security is subject to the authority of the Constitution and; (b) national security shall be pursued in compliance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms.

13. The rule of law principle is thus a common thread that the Constitution heavily demands in almost every function to ensure that every person is held accountable to the law. It ensures equality of all before the law and prevents arbitrariness. The task of the Court is to ensures there is a fair balance by applying the law when disputes arise either between state and its citizens or between citizens themselves or between state organs or agencies. Neither a state organ or its officers or individual is above the reach of the law as the Constitution in Article 2 (1) declares. The power of the Court to adjudicate disputes according to the law is a delegation by the people pursuant to Article 159 which states that ‘Judicial authority is derived from the people and vests in, and shall be exercised by, courts and tribunals established by or under the Constitution.’ The power is exercised subject only to the Constitution and the law and is not subject to the control or direction of any person or authority (Article 160 (1).

14. The following excerpt from the South African Constitutional Court case of Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC) (29 June 2021) Sums up the position of court orders in a Constitutional democracy. The Court held:“…orders and decisions issued by a court bind all persons to whom and organs of State to which they apply, and no person or organ of State may interfere, in any manner, with the functioning of the courts. It follows from this that disobedience towards court orders or decisions risks rendering our courts impotent and judicial authority a mere mockery. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced by all and sundry, including organs of State. In doing so, courts are not only giving effect to the rights of the successful litigant but also and more importantly, by acting as guardians of the Constitution, asserting their authority in the public interest…”

15. In Civil Application No. Nai 1 of 2017; Dr. Fred Matiang’i-The Cabinet Secretary, Ministry of Interior and Coordination of National Government vs Miguna Miguna and 4 others the Court of Appeal affirming the power punish for contempt held thus:“… When Courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities…”

16. This Court entered a finding of guilty on 9/9/2024 after all efforts afforded to the contemnor to purge the contempt were ignored. This was to ensure its authority and dignity which it exercises on behalf public does not get annihilated leading to situation of impunity and anarchy. The Supreme Court inGithiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2023] KESC 41 (KLR) (16 June 2023) (Judgment) Neutral citation: [2023] KESC 41 (KLR) acknowledged that Courts have inherent power to punish for contempt to vindicate their authority besides pin-pointing the source of this authority for Kenyan courts to punish for contempt after the declaration of unconstitutionality of Contempt of Court Act 2016. The Court stated:“… Courts possess the inherent power to enforce compliance with their lawful orders through sanctions imposed through contempt of court. We note that the Contempt of Court Act having been declared unconstitutional in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR on November 9, 2018 the instructive provision remains section 5(1) of the Judicature Act which grants the High Court and the Court of Appeal the power to punish for contempt. It 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...”

17. Today, this Court is required to pass the sentence for contempt of Court. The principles to be considered in determining an effective sentence in a contempt of court case were considered by the South African Constitutional Court in Jacob Zuma case (supra) where the Court discussed the ‘coercive’ versus ‘punitive order’ and explained the difference between the two approaches as follows:“…There is a distinction between coercive and punitive orders, which differences are “marked and important”. A coercive order gives the respondent the opportunity to avoid imprisonment by complying with the original order and desisting from the offensive conduct. Such an order is made primarily to ensure the effectiveness of the original order by bringing about compliance. A final characteristic is that it only incidentally vindicates the authority of the court that has been disobeyed. Conversely, the following are the characteristics of a punitive order: a sentence of imprisonment cannot be avoided by any action on the part of the respondent to comply with the original order; the sentence is unsuspended; it is related both to the seriousness of the default and the contumacy of the respondent; and the order is influenced by the need to assert the authority and dignity of the court, to set an example for others…”

18. The Court then went ahead and found that the conduct of the contemnor, Mr. Zuma had made it undesirable to benefit from a ‘coercive order’ reasoning thus:“… A coercive order would be both futile and inappropriate in these circumstances. Coercive committal, through a suspended sentence, uses the threat of imprisonment to compel compliance. Yet, it is incontrovertible that Mr Zuma has no intention of attending the Commission, having repeatedly reiterated that he would rather be committed to imprisonment than co-operate with the Commission or comply with the order of this Court. Accordingly, a suspended sentence, being a coercive order, would yield nothing…”

19. The contemnor herein casually treated every possible opportunity accorded to him by this Court to purge the contempt to the extent that attending a workshop in Mombasa which he considered more important than obeying court summons on the whereabouts of the 2nd to 4th Petitioners.

20. Deliberate defiance of court orders breeds impunity particularly when it is done by those entrusted with public power as it is inconsistent with the purposes and objects of the Constitution.

21. In passing this sentence, I am conscious that it is directed to the highest ranked police officer in this Country. He is still in office. That might pose a challenge in the enforcement of the order since in police service, seniority is highly regarded. That cannot deter me from pursuing and standing firm in the defence of the aspirations of Kenyan people who desired at the time of enacting this Constitution to have a country that is governed by adherence to the rule of law. Part of the oath office that I took as a Judge states that:“…I will at all times, and to the best of my knowledge and ability, protect, administer, and defend this Constitution with a view to upholding the dignity and the respect for the Judiciary and judicial system of Kenya…”

22. The Constitution of this Country is supreme and Article 2 (1) reiterates that by stating that it binds all persons and all state organs. No man or State organ or authority is above the Constitution. The Constitution command through this Court is that I uphold the rule of law by protecting the integrity of the Judicial System.

23. The significance of this sentence today is to vindicate the cherished principle of the rule of law in our constitutional democracy by restoring the dignity and authority of this Court in public interest. Borrowing from the South Africa Constitutional Court decision, the contemnor shall thus serve sentence as follows:1. The contemnor, Mr. Gilbert Masengeli is sentenced to six 6 months’ imprisonment.2. Mr. Gilbert Masengeli is ordered to submit himself to the Commissioner General of the Kenya Prisons Service to ensure that he is to be committed to a prison facility to commence serving the sentence of imprisonment imposed.3. In the event that Gilbert Masengeli does not submit himself to the Commissioner General of Kenya Prison Service as ordered, the Cabinet Secretary for Interior and National Security must take all steps that are necessary and permissible in law to ensure that Mr Gilbert Masengeli is committed to Prison to commence serving the sentence imposed on him.4. The Court nevertheless considers it desirable to impose a ‘coercive order’ as opposed to a ‘punitive order’. In this regard, Mr. Gilbert Masengeli can avoid serving the sentence if he complies with the direction to obey the court summons. I thus, suspend this sentence for Seven (7) days only. The Acting Inspector General of Police can redeem himself and comply by availing himself before the Court in person to answer to the issues he has been avoiding within Seven (7 days. In default, the Sentence shall automatically become effective.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 13TH DAY OF SEPTEMBER, 2024…………………………L N MUGAMBIJUDGE