Mamo & 4 others v Cabinet Secretary, Ministry for the National Treasury and Economic Planning & 10 others

Mamo & 4 others v Cabinet Secretary, Ministry for the National Treasury and Economic Planning & 10 others (Constitutional Petition 2 of 2023) [2026] KEHC 13404 (KLR) (Constitutional and Human Rights) (3 September 2026) (Ruling) Neutral citation: [2026] KEHC 13404 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition 2 of 2023 LN Mugambi, J September 3, 2026 Between Molu Jillo Mamo 1st Petitioner Haro Guto Okola 2nd Petitioner Kirigha Mwanyasi 3rd Petitioner Elyass Sheikh Abdinoor 4th Petitioner Patrick Muiruri 5th Petitioner and Cabinet Secretary, Ministry for the National Treasury and Economic Planning 1st Respondent Hon Attorney General 2nd Respondent and Patrick Muchoki 1st Interested Party Ruth Charity Wanyonyi 2nd Interested Party Barbara Kawira Japan 3rd Interested Party Robley Otieno Ngoje 4th Interested Party Samuel Kariuki Maina 5th Interested Party Christine Kibet 6th Interested Party Beatrice Kones 7th Interested Party Rights & Equality Commission 8th Interested Party Law Society of Kenya 9th Interested Party Ruling Introduction 1.In the Notice of Motion Application dated 5th June 2024, the Applicants/Petitioners seek to cite the Applicants Bernard Mbogo (Ag. CEO Lapfund) and Johnson P. Osoi (Chairman Lapfund) for contempt of the orders and judgment of this court dated 19th January 2024 and order that the said contemnors be committed to jail for six months. The Petitioners’/Applicants’ Case 2.The Petitioner deposed that by judgement of this Court delivered on 19th January 2024, the petitioners were reinstated as members of the board of the Local Authority Provident Fund. However, the contemnors by their actions or inactions have been in contempt of the judgment and orders of the instant court and have mischievously frustrated them from resuming their duties as board members. 3.The petitioners reveal that the 2nd contemnor is on record telling them that he will see to it that their term lapse without them participating in board activities. Further, the contemnors have intentionally refused to call a full board meeting. They have conspicuously been running the affairs of the Lapfund without their participation as directed by the court. The petitioners disclose that the contemnors only engaged them when they attempted to set aside stay orders for recruitment of Chief Officer of the Lapfund issued by Honourable Lady Justice M. Onyango at the Employment and Labour Relations Court at Eldoret in Judicial Review Application Number E002 of 2024 through a consent exercise which they were not aware of and protested to the same. 4.The contemnors nevertheless proceeded with the recruitment exercise of the Lapfund CEO without the board’s approval despite protests from the board members. They have further performed a reorganization; staff restructuring and increase of salary without involving the board which has the effect of increasing expenses in terms of emoluments on behalf of the Lapfund Board without the board’s approval which is unprocedural. 5.The petitioners further aver that the budgeting of the board for the year 2024-2025 has equally not been done yet the financial year for the year 2023-2024 will come to an end on 30th June 2024 putting in jeopardy the activities of the Lapfund and the management of the billions of shillings of the pensioners funds. Furthermore, the acts and omission of the contemnors in the running of the affairs of the Lapfund is contemptuous and they require the intervention of the instant court. 6.The applicants filed a Further affidavit dated 15th July 2024 and state that the contemnors admitted contempt of the orders of this honourable court. Further, the contemnors being appointees of the 1st respondent were bound by the orders of the instant court. 7.The applicants aver that the 2nd contemnor has deliberately disobeyed the orders of the court in an attempt to convene a board meeting. Additionally, the Mwongozo code alluded by the contemnors provides a framework embodying board charter, code of conduct, professional ethics and performance management. The mwongozo code takes consideration of chapter six of the Constitution on leadership and integrity as well as the Public Officers and Ethics Act 2003 which clearly by the conduct of the contemnors they have fallen short of the same. The Contemnors’ Case 8.The contemnors have submitted that they filed a Replying Affidavit dated 14th June 2024. However, there is no copy of such affidavit in the court file or the CTS. 9.The only affidavit in both the court file and the CTS is the Further Affidavit dated 17th November 2024 sworn by the 2nd contemnor. He avers that the 1st – 4th applicants have resigned. The 1st petitioner resigned on 18th July 2024 vide letter addressed to the Cabinet secretary National treasury and Economic Planning whereby he indicated he was incredibly grateful for the opportunity to serve as a director in Lapfund from 4th June 2022 to date. Pursuant to the wording of the letter dated 18th July 2024, by the 1st applicant who swore the affidavit in support of the instant application, there is no way there could have been contempt of court orders by the contemnors. Further he confirmed to the court that he was at all material times serving as a director who is sufficiently grateful and content with the working environment as board member and hence there is no way contempt of court would have occurred. 10.The contemnors aver that the 2nd and 3rd applicants’ contract term lapsed on 24th October 2024. Further the 4th applicant resigned on 18th July 2024 with effect from 1st august 2024 where he indicated that he was grateful to serve in the capacity of a board member and to contribute to the strategic direction and governance of the organization. The wording of the said letter demonstrates cordial, effective and positive results-oriented working environment which demonstrates that there was no contempt of court. Further, the 3rd applicant defines working with the organization led by them as being significant and fulfilling experience that contributed to his growth and success while working alongside a dedicated and talented group of professionals including the CEO and the chairman. Thus, based on the contents of the 3rd applicant’s letter it demonstrates how they professionally performed their functions to facilitate the applicants work as board members of Lapfund. 11.The contemnors aver that the 5th applicant’s impugned allegations cannot stand unsupported by a proper affidavit and in any event, his term has since lapsed. Furthermore, the Cabinet Secretary National treasury and Economic Planning has already appointed new board members. Thus, the instant application has been overtaken by events as the applicants are no longer board members of Lapfund. 12.The applicants filed a Supplementary Affidavit dated 13th May 2025 and state that their resignation does not absolve the contemnors from being contemptuous. The judgment was delivered on 19th January 2024 which the respondents failed to comply with. The applicants further aver that the contemnors have been aware of the said judgment however despite being aware of the said judgment, they did not reinstate them but have frustrated their resumption to office. Further, they aver that their resignation was not voluntary but was occasioned by the sustained frustration and hostility on the contemnors who deliberately refused to reinstate them to their positions as members of the board. Additionally, they were constructively forced out of office despite clear and unequivocal orders issued by the court vide the judgment dated 19th January 2024. 13.The applicants argue that court orders are meant to be obeyed promptly and faithfully and despite judgment been delivered on 19th January 2024, the contemnors failed, ignored and refused to reinstate them until 18th July 2024 when they resigned due to the prolonged failure by the contemnors to comply with the orders of the court. Further, the period between the date of judgment on 19th January 2024 and their resignation on 18th July 2024 is a duration of seven months and that the extended period of inaction and deliberate disobedience by the contemnors clearly establishes contempt of court. The applicants add that the contemnors conduct amounts to blatant and sustained disregard of the authority of this Honourable Court and should be held in contempt accordingly. 14.The applicants aver that their expression of gratitude is indicative for the time they served as members of the board. Further, expression of gratitude is professional decorum and does not endorse the respondents’ actions. They further reiterate that the 2nd contemnor is on record telling them that he will see to it that their term lapses without them participating in the activities of the board. That was said despite the existence of court orders which at the time was within the contemnor’s knowledge. 15.Parties put in written submissions. The Petitioners’ Submissions 16.The petitioners submitted that the contemnors alleged that since they were not parties to the proceedings culminating to the judgment delivered on 19/1/2024 and the consequential orders issued cannot bind them and hence the contempt of court proceedings cannot stand against them. However, the contemnors in their own admission averred that they are agents or servants of the 1st and 2nd respondents and that they take directions from them. Thus, the contemnors were bound by the orders of this court and they have deliberately disobeyed the orders of this court and in particular they have interfered with their working for the remainder of their term contrary to the orders of the court. The same is shown by the 2nd contemnor’s letter dated 24th January addressed to the 1st respondent which confirms that the contemnors have never come to terms with the decision of the court hence their defiance to date. 17.The petitioners cited the case of Christine Wangari Gahege vs Elizabeth Wanjiru Evans & 11 Others [2014] eKLR in which the Court of Appeal held as follows:-a.Part 81 (Applications and Proceedings in Relation to Contempt of Court) provides different procedures for four different forms of violations.b.Rules 81.4 relates to committed for breach of a judgment, order or undertaking to do or abstain from doing an act.c.Rules 81.11 committal for interference with the due administration of justice (applicable only in criminal proceedings).d.Rules 81.6 committal for contempt in the face of the court ande.Rules 81.17 committal for making false statement of truth or disclosure statement. 18.The applicants submitted that an application under Rule 81.4 now referred to as application notice is the relevant one for the current application. It is made in the proceedings in which the judgment or order was made or the undertaking given. The applicants further submitted that the court is clothed with the mandate to uphold the rule of law and inherent power to safeguard itself against contemptuous or disruptive intrusion by punishing contempt. Reliance was placed in the case of Akber Abdullah Kassam Esmail vs equip agencies Ltd & 4 Others [2014] eKLR in which the Court of Appeal cited with authority the Supreme Court Case of The Board of Governors Moi High School, Kabarak vs Malcolm Bell & Another SC Petition No. 6 & 7 of 2013 which described the power to punish for contempt as:-A power of the court to safeguard itself against contemptuous or disruptive intrusion from elsewhere and identified it as one of the indisputable attributes of the court’s inherent power. Without that power, protection of citizens’ rights and freedoms would be virtually impossible. Courts of law would be reduced to futile institutions spewing forth orders in vain. 19.Further reliance was placed in Samuel M. N. Mweru & Others vs National Land Commission & 2 others [2020] eKLR where the court held:-A court without contempt power is not a court. The contempt power (both in its civil and criminal form) is so innate in the concept of jurisdictional authority that a court that could not secure compliance with its own judgments and orders is a contradiction of terms, an oxymoron. Contempt power is something regarded as intrinsic to the notion of the court; even obvious, I would say. In the common lawyer’s eye, the power of contempt is inherent in courts and automatically exists by its very nature. 20.Similarly in Republic vs County Chief Officer, Finance & Economic Planning, Nairobi city County ex parte Stanley Muturi [2018] eKLR:-Court orders are not meant for cosmetic purpose. They are serious decisions that are meant to be and ought to be complied with strictly. As was held in Teachers Service Commission vs Kenya National Union of Teachers & 2 Others Petition No. 23 of 2013:-The reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is about placating the applicant who moves the court by taking out contempt of court proceedings. It is about preserving and safeguarding the rule of law. A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed. A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues challenging it are also set out in the law. Defiance is not an option. 21.Additional reliance was placed on Republic vs County Government of Kitui ex parte Fairplain Systems Limited (2022) eKLR where it was held:-It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment and in application to the court by him not being entertained until he had purged his contempt. 22.The applicants submitted that the acts of deliberately running the affairs of the board without them as admitted by the contemnors in the letter dated 30th January 2024 is confirmation that the contemnors have little regard to the authority of this honourable court. The 1st and 2nd Contemnors Submissions 23.The contemnors submitted that the court orders issued via judgment dated 19th January 2024 are not binding to them as they were not parties to the suit neither were the court orders directly issued to them in their personal capacity or their capacities as Acting CEO and Chair of Lapfund therefore the applicants have failed to prove that they are guilty of contempt of court. Reliance was placed in the case of Samuel M. N. Waweru & Others vs National land Commission & 2 Others [2020] eKLR where the court held as follows:-There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-a.The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;b.The defendant had knowledge of or proper notice of the terms of thereunder;c.The defendant has acted in breach of the terms of the order; andd.The defendant’s conduct was deliberate. 24.The court further held that a court order is binding on the party against whom it is addressed and until set aside remains valid and is to be complied with. 25.Further reliance was placed in Republic vs County Government of Kitui ex parte Fair Plain Systems Limited (2022) eKLR where the court cited the case of Hadkinson vs Hadkinson (1952) 2 ALL ER 56 and held that:-It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment and in application to the court by him not being entertained until he had purged his contempt. 26.The contemnors argued that the court orders issued on 19th January 2024 were expressly addressed to the 1st and 2nd respondents. Furthermore, the contemnors submitted that they have not in any way interfered with or replaced the petitioners as board members of Lapfund and neither have the applicants shown how they have done so. They additionally submitted that the 2nd contemnor is not an employee/servant/agent/appointee of either the 1st or 2nd respondents as he is directly an appointee of the president of the Republic of Kenya but only liaises with the 1st respondent for the purposes of running the State Corporation pursuant to the State Corporations Act. Under Section 5(8) of the Local Authorities Provident Fund, the board that the petitioners belonged to is a body corporate having perpetual succession and may in its corporate name sue and be sued hence the board is distinct and separate from the respondents. Further, the 2nd contemnor and the chairperson do not amount to the board and therefore cannot be purported to make any decisions including any contemptuous act on behalf of the board. Additionally, the 1st contemnor is neither a board member nor can he make any decision, an act or omission about board decisions in the absence of a properly constituted board and is merely empowered by mwongozo and Lapfund Act with the mandate of implementing board decisions. Further, the 1st contemnor is merely an appointee/employee/servant/agent of the board and not the respondents. 27.The contemnors asserted that they have not deliberately disobeyed any court orders issued by the current court. Reliance was placed in the case of Sheila Cassatt Issenberg & Another vs Antony Machatha Kinyanjui [2021] eKLR where the court held that:-For a party to be cited for contempt, he must have violated and or disobeyed an order that was directed at him….The Cromwell J, writing for the Supreme of Canada in Carey vs Laiken 2015 SCC 17 (16th April 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus:-The order alleged to have been breached must state clearly and unequivocally what should and should not be done. This ensures that a party will not be found in contempt where an order in unclear. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning… 28.From the reading of the law especially Mwongozo and the Lapfund Act, the contemnors argued that they do not have a role in either selection, replacing or assigning duties to the board and thus they cannot be said that they have hindered the resumption of office by the applicants. They have been carrying out their legal duties as CEO and Chairperson of Lapfund without any hindrance of the applicants to access their offices. Further Schedule 1.4 of the Code of Governance for State Officials (Mwongozo) as read with the Local authorities Provident Fund Act stipulates that the 2nd contemnor is only required to set an agenda for the meeting and call for such a meeting where there is a substantive agenda. Further, the court did not expressly order the 2nd contemnor to hold meetings as such he cannot be held in contempt for not holding a full board meeting. Additionally, Schedule 1.19 does not mandate the 1st contemnor to call for full board meetings and as such he should not be held in contempt for an act or omission that is not expressly his role and orders issued by the court did not direct anything to the contrary. 29.The contemnors submitted that they did not have power to reinstate the applicants to the board and they sought for direction from the 1st respondent and have so far not received any. Further, the 2nd contemnor wrote a letter dated 29th January 2024 to the 1st respondent on the revised annual budget for 2023/2024 advising him that the court had revoked the appointment of the new board members and as such Lapfund could not hold a board meeting to discuss and approve the revised budget until a new board is constituted. Additionally, the 1st contemnor prepared the 2024/2025 budget and in the absence of a proper board it was forwarded to the appointing authority, the 1st respondent who disburses funds in the entire country for approval and to which does not in any way demonstrate disobedience of court orders issued on 19th January 2024. 30.Whilst relying on the case of Oilfields Movers Ltd vs Zahara Oil & Gas Limited [2020] eKLR, the contemnors argued that the standard of proof in contempt proceedings is quite high and requires the applicants to prove beyond any shadow of a doubt. The court held that:-It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or motive of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty. 31.The mere allegations that court orders were issued against them and that they are in contempt of those orders is an afterthought that amounts to an abuse of the court process. 32.Further reliance was placed in the case of MNN vs JMM [2022] eKLR which held as follows on the burden of proof for contempt of court:-A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily….it must be higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi criminal in nature. 33.Further reliance was placed on Samuel M. N. Mweru & Others vs National Land Board Commission & 2 Others (supra) where the court held as follows:-The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed deliberately and mala fide. A deliberate disregard is not enough since the non complier may genuinely, albeit mistakenly believe that he or she is entitled to act in a way claimed to constitute the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bone fide (though unreasonableness could evidence lack of good faith). These requirements that is the refusal to obey should be both wilful and mala fides and that unreasonable non compliance provided it is bona fide does not constitute contempt- accord with the broader definition of the crime, of which non compliance with civil orders is a manifestation. They show that the offence is committed not by the mere disregard of a court order but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces. The honest belief that non compliance is justified or proper is incompatible with that intent. 34.The contemnors argued that citing a party for contempt of court has grave repercussions which include imprisonment and seizure of their personal property, thus the court should first satisfy itself that indeed issued orders to a party and that party has deliberately violated such orders. Reliance was placed in the case of Katsuri Ltd vs Kapurchand Depar Shali [2016] eKLR where the court held:-The courts take the view that where the liberty of the subject is or might be involved, the breach for which he alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved…..it must be higher than proof on a balance of probability, almost but not exactly, beyond reasonable doubt. 35.Further reliance was placed in Sheila Cassatt Issenberg & Another vs Antony Machatha Kinyanjui (supra) where the court held as follows:-But even as courts punish for contempt to safeguard the peace and development of society and the rule of law, it must be borne in mind that the power to punish for contempt is a discretionary one and should be used sparingly. That is why the court observed in Carey vs Laiken that if courts were to find contempt too easily a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and the authority of the very judicial power it seeks to protect. The court’s contempt power should be used cautiously and with great restraint. It is an enforcement power of last resort rather than first resort. 36.Corresponding reliance was placed on the case of Gatharia K. Mutikika vs Baharini Farm Ltd [1985] KLR 227 where the court held:-A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily….it must be higher thanproof on a balance of probabilities, almost but not exactly beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi criminal in nature.However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge…Recourse ought not to be heard to process contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject….applying the test that the standard of proof should be consistent with the gravity of the alleged contempt…..it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration whether the offender is a party to the proceedings or not.In light of the gravity of the personal consequences that would ordinarily flow from a finding of contempt, the law requires proof that the order in question was brought to the attention of the alleged contemnor as proof that he/she had personal knowledge of the said order. 37.In light of that, the contemnors argued that the applicants having failed to prove all the elements required to make a case for contempt against them, they should not be punished for contempt of court. 38.The petitioners filed submissions dated 15th February 2026 in light of the appeal in the Court of Appeal being Civil Appeal No. E143 of 2024 and the judgment delivered on 9th May 2025. The Court of Appeal outlines the issues for determination as follows:- whether the trial court had jurisdiction to hear and determine the amended petition; whether the trial court erred in finding that the petitioners established violation of their rights under Article 47 of the Constitution and of their legitimate expectation to serve on the board for the full term of three years, and whether the trial court erred in finding that the 1st appellant acted in violation of the Constitution in revoking the appointment of the 1st to 5th respondents and appointing the 6th to 12th respondents to the Board. 39.The appellate court was satisfied that the trial court properly found that the 1st respondent exercised power arbitrarily in revoking the appointment of the 1st to 5th petitioners from the Board and that the manner of their removal was not in accord with the provisions of Articles 47 and 236 of the Constitution. On the third issue, the appellate court found that the only legitimate expectation that the petitioners could have had which was grounded on law and the Constitution is that their removal from the board should it occur before the expiry of their terms, would be done in accordance with the provisions of Article 47 and 236 of the Constitution as well as Fair Administrative Action. 40.The court further held that given the manner they were appointed, they did not have a legitimate expectation to remain on the board for the term indicated on their letters of appointment. 41.Thus, the petitioners argued that the appellate court did not quash or set aside the orders issued on 19th January 2024 restraining the respondents from interfering or replacing them as board members of the Lapfund for the remainder of their term. 42.Thus, the orders issued by the present court remain valid and binding. Further, there was no stay of execution on the said orders and thus the said orders were fully operational and valid and the respondents were under a legal obligation to comply with the court orders. The respondents cannot retroactively rely on a later appellate judgment to justify prior disobedience of valid court orders. 43.The contemnors equally filed further submissions dated 27th July 2025 in light of the judgment of the appellate court delivered on 9th May 2025. The contemnors reiterated that they are not employees or agents of the 1st respondent but they are appointees of the Lapfund which is a separate legal entity under the Lapfund Act. They further argued that the petitioners failed to provide any proof that they acted under the specific command of the National Treasury and their letter dated 29th January 2024 shows consultation with and not subordination to the National Treasury. Further they stressed that the Court of Appeal’s judgment did not alert the fundamental fact that they were not parties to the original suit and were not personally bound by the High Court’s orders. 44.The contemnors submitted that the Court of Appeal rejected the argument that the petitioners had a legitimate expectation to serve their full term meaning their claim of frustration lacks legal basis. Thus, it fundamentally undermines their frustration claim since the expectation they claim was frustrated never legally existed which invalidates the petitioners claim that they owed them a duty to facilitate their full term. They further asserted that the petitioners did not provide evidence of personal service of the court orders on them and reference to their letter dated 29th January 2024 discussing the judgment does not equate to personal service of the orders. The Respondents’ Submissions 45.The respondents did not file a replying affidavit but filed their submissions on 19th February 2026, after the parties had filed their respective two sets of submissions. The respondents cited the case of Mutitika vs Baharini Farm Ltd [1985] KECA on the standard of proof in contempt proceedings and sttaed that the court held:-In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly beyond reasonable doubt. We envisage no difficulty in court determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi criminal in nature Winn LJ on page 1064 was in our view right in saying that the guilt has to be proved. With such strictness of proof…as is consistent with the gravity of the charge. 46.The respondents further submitted that the principles governing contempt are well settled as provided in Samuel M.N. Mweru & Others vs National Land Commission & 2 others [2020] KEHC 9233 (KLR) where the court discussed contempt in the following manner:-It is an established principle of law that in order to succeed civil contempt proceedings, the Applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii) Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated:-“There are essentially four elements that must be proved to make the case for civil contempt. The Applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-a.the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;b.the defendant had knowledge of or proper notice of the terms of the order;c.the defendant has acted in breach of the terms of the order; andd.the defendant's conduct was deliberate.” 47.The court further stated:-Contempt of court is not merely a mechanism for the enforcement of court orders. the jurisdiction of the superior courts to committed recalcitrant litigants for contempt of court when they fail or refuse to obey court orders has its heart the very effectiveness and legitimacy of the judicial system. That in turn means that the court called upon to commit such a litigant for his or her contempt is not only dealing with the individual interest of the frustrated successful litigant but also, as importantly acting as guardian of the public interest. 48.On the first limb which requires proof that the terms of the order were clear, unambiguous and binding on the person against whom contempt is alleged, the respondents submitted that the terms of the order issued on 19th January 2024 were clear and prohibitory in nature. It restrained interference or replacement of the petitioners except in accordance with the law. On the second limb that the contemnors had knowledge of the order, the respondents cited the case of Abdalla Ali Taib & 3 Others vs Rabinder Kaur Ahluwalia [2015] KEHC 5162 (KLR) where the court emphasised the importance of knowledge and service in the following manner:-What is required therefore, as I understand it, is that the court should satisfy itself or “beyond any shadow of doubt” as the Court of Appeal put it, that the person alleged to be in contempt committed the act complained of with full knowledge or notice of the existence of the judgment or order of court forbidding him from doing the act. This is a course that is likely to involve deprivation of a citizen’s liberty or basic rights and accordingly the court dispensing with personal service must be satisfied beyond the shadow of doubt that the person had notice of the Order forbidding him from doing the act but nevertheless went ahead and disobeyed it.Each case will, therefore, be considered upon its circumstances and the burden for proof that the Respondent had notice within the above principle, should be on the applicant asserting such notice and he should prove the knowledge of notice beyond any show of doubt. In the case of an advocate, there is an irrefutable assumption to the effect that the advocate who appeared in court on a party’s instructions is under a legal imperative obligation to report back to his client of what trAnspired In Court. To This End A Canadian Court In Bhatnager Vs Canada (minister Of Employment And Immigration [1990] 2 S.C.R. 217 at 226 stated thus: -On the cases, there can be no doubt that the common law has always required personal service or actual personal knowledge of a court order as a pre condition to liability in contempt…Knowledge is in most cases (including criminal cases) proved circumstantially and in contempt cases inference of knowledge will always be available where facts capable of supporting the inference are proved.The jurisprudence that has developed around this principle makes it clear that “actual knowledge” is not satisfied by general awareness that a judgment exists nor by the mere fact that a party is represented by counsel, nor by the existence of ongoing litigation. The evidence must show that the specific individual sought to be punished was aware of the precise terms of the order and its binding effect at the material time prior to the alleged breach. 49.It follows that knowledge cannot be inferred merely from circumstance or institutional association. Reliance was placed in the case of Basil Criticos vs Attorney General & 8 Others [2012] KEHC 1480 (KLR) the court provided:-It is, however equally correct that the courts have recognised that strict proof of personal service may be dispensed with where it is clearly demonstrated that the alleged contemnor had actual knowledge of the court order. The issue of knowledge of orders as being sufficient was until recently alien in our jurisprudence. In Kariuki & Others vs Minister for Gender, Sports Culture and Social Services & Others (2004) 1 KLR 588, it was held:-But in our law, service is higher than knowledge and since the service herein was frustrated….I shall hold in accord with the existing law that there was no service. This was made following the decision in Wangondu (supra).However, the law has changed and as it stands today knowledge supersedes personal service and for good reason. This has recently been held in Kenya Tea growers Association vs Francis Atwoli & 5 Others petition No. 64 of 2010 where I opined as follows;In the case before me, I am more than satisfied that even at the higher level of beyond reasonable doubt, when an individual has been served with and/or has knowledge of a court order but only ignores it but in fact incites others to do the same, the threshold for contempt has been met. Francis Atwoli in fact went further to arrogate himself the decision to determine when the strike should end despite the fact that the court order had stopped it. He went further to interpret it as made without jurisdiction and that only the workers court (the Industrial Court) had jurisdiction to determine the matter. He did not do so once but on a number of occasions as he flew by helicopter from place to place on 18th October 2012. His contempt was obvious and his conduct and words can attract no other finding.The point above is that where a party clearly acts and shows that he had knowledge of a court order, the strict requirement that personal service must be proved is rendered unnecessary. That should be the correct legal position and I subscribe to it. 50.The respondents argued that no clear and unequivocal evidence has been placed before the court demonstrating that they had actual knowledge of the specific terms of the order at the material time prior to the alleged acts complained of. There is no evidence demonstrating that the order was personally brought to their attention in a manner that satisfies the heightened evidentiary threshold required in the contempt proceedings. Further awareness inferred from subsequent pleadings or general participation in proceedings does not amount to strict proof of actual knowledge. 51.On the third limb of proof that the person against whom contempt is alleged acted in breach of the order, the respondents placed reliance in the case of Odando & Another vs National Environmental Management Authority & 3 Others (Environment & Land Petition 43 of 2019) [2023] KEELC 21431 (KLR) (9 November 2023) (Ruling) and submitted that the applicant must identify the precise act complained of, demonstrate how that act contravenes the express terms of the order and prove that it was undertaken by the person sought to be punished. The court stated:-Without belaboring the point, what I am endeavoring to highlight is to the effect that any Applicant, the Applicants herein not excepted, who seeks to procure an order for contempt of court, must implead the particulars and/or issues, which underpin the plea of contempt of Court.Additionally, it behooves the Applicant to ensure that the claims of contempt and/or disobedience of Lawful Court Orders are impleaded with the requisite precision, specificity and particularity, so as to enable the court to appreciate in what manner the contemnor is said to have disobeyed and/or disregarded lawful orders of the court.To my mind, where an Applicant does not implead with particularity and precision the claims underpinning contempt, it would be difficult for both the court and the contemnor to suitably interrogate and adjudicate upon the complaints made as pertains to (sic) contempt of Court.In the absence of such clarity and precision, the court may be tempted to grope in darkness, which does not bode well with contempt proceedings, given the gravity of punishment and consequences that may arise from a conviction and/or citation for contempt.To buttress the exposition of the law that pleas pertaining to and underpinning contempt of Court need to be impleaded with specificity, clarity and particularity, it suffices to adopt and endorse the holding of the Court of Appeal in the case of Mutitika v Baharini Farm Ltd (1985) KLR 227, where the court held thus;In England matters relating to contempt are now governed by the Contempt of Court Act, 1981. The courts, nevertheless take the view that where the liberty of the subject is, or might be, involved, the breach for which the alleged contemnor is cited must be precisely defined – see for instance Chiltern Districts Council v Keane, [1985] Law Society’s Gazette, 29th May page 1567. 52.The respondents submitted that no evidence has been tendered demonstrating that they issued any directive, instruction, circular or communication interfering with or replacing the petitioners as board members. Further there is no evidence that they barred the petitioners from office, sanctioned their exclusion or authorised any act contrary to the order.Additionally, where clarification was sought from the 1st respondent by the contemnors, no directive was issued that would amount to interference or replacement of the petitioners. They further submitted that the order did not freeze all internal operations of Lapfund or convert the court into a supervisory authority over every administrative action of the board. Additionally, Lapfund is established as a body corporate with independent legal personality and its board and officers exercise statutory functions independent of day to day ministerial control. The 1st respondent exercises policy oversight but does not manage internal administrative processes or issue operational directives to board members in respect of their participation. 53.As regards the fourth limb on that the breach must be deliberate, the respondents cited the case of Mutitika vs Baharini Farm Ltd [1985] KECA 60(KLR) and submitted that contempt must be proved with strictness consistent with the gravity of the charge. It follows that wilfulness cannot be presumed and must be demonstrated through clear and compelling evidence of intentional defiance. They further submitted that contempt jurisdiction punishes contumacious conduct and does not extend to misunderstandings, administrative lapses, institutional complexities or conduct undertaken in good faith. Reliance was placed in Samuel M. N. Mweru & Others vs National Land Commission & 2 Others (supra) where the court emphasised that accidental or unintentional acts of disobedience or circumstances negating contumacy, do not justify punishment for contempt. The presence of wilfulness is the distinguishing feature between mere non compliance and punishable contempt. The court provided:-Third, accidental or unintentional disobedience is not sufficient to justify one for holding guilty of contempt. It is further relevant to bear in mind the settled law on the law of contempt that casual or accidental or unintentional acts of disobedience under the circumstances which negate any suggestion of contumacy, would amount to a contempt in theory only and does not render the contemnor liable to punishment. 54.The respondents asserted that wilfulness requires proof that the alleged contemnor having knowledge of the order, deliberately acted in a manner calculated to defeat its purpose and the petitioners have failed to demonstrate such conduct on them. Thus, in the absence of clear proof of intentional, conscious and contumacious disobedience attributable to them, the fourth limb has not been satisfied. Analysis and Determination 55.The main issue for determination is whether the respondents by themselves, their servants or agents deliberately and wilfully disobeyed the judgment of this court delivered on 19th January 2024 thereby committing contempt of court. Whether the Respondents Deliberately and Wilfully Disobeyed the Judgment of the court delivered on 19th January 2024 thereby Constituting Contempt of Court 56.It is trite law that contempt of Court connotes any act that defies or is disrespectful to the Court and may be manifested in different ways. This included deliberate refusal to obey a court order, showing disrespect towards the Court during judicial proceedings (Contempt in the face of the Court) or scandalizing the Court with misinformation. 57.The law governing contempt of Court proceedings in Kenya was explained in the case of Alfred Mutua v Boniface Mwangi (2022) eKLR as follows:“13.Before the enactment of the nullified 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: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.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.14.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 vs. 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.15.Under Rule 81.4 of the English Civil Procedure Rules (Amendment No. 3) Rules, 2020 provides for the requirements of a contempt application and provides that:1.Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.2.A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—a.the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);b.the date and terms of any order allegedly breached or disobeyed;c.confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;d.if the court dispensed with personal service, the terms and date of the court's order dispensing with personal service.e.confirmation that any order allegedly breached or disobeyed included a penal notice;f.the date and terms of any undertaking allegedly breached;g.confirmation of the claimant's belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;h.a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;i.that the defendant has the right to be legally represented in the contempt proceedings;j.that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;k.that the defendant may be entitled to the services of an interpreter;l.that the defendant is entitled to a reasonable time to prepare for the hearing;m.that the defendant is entitled but not obliged to give written and oral evidence in their defence;n.that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;o.that the court may proceed in the defendant's absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;p.that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;q.that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;r.that the court's findings will be provided in writing as soon as practicable after the hearing; ands.that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public.” 58.The Court in Republic v Kenya School of Law & 2 others Ex parte Juliet Wanjiru Njoroge & 5 others (2015) eKLR underscored the significance of the contempt proceedings as tool for the observance of the rule of law as follows:“23.In my considered view, Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders the honourable thing to do is to come back to court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal. In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim, J (as he then was) stated:“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 proved 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”. 59.Nevertheless, a party that moves the Court in an application for contempt must satisfy the requisite threshold as laid down in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR where the Court held as follows:“40.It is an established principle of law that in order to succeed in civil contempt proceedings, the Applicant has to provei.the terms of the order,(ii)Knowledge of these terms by the Respondent,(iii)Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities.Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated:-“There are essentially four elements that must be proved to make the case for civil contempt. The Applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-e.the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;f.the defendant had knowledge of or proper notice of the terms of the order;g.the defendant has acted in breach of the terms of the order; andh.the defendant's conduct was deliberate.” 60.There are fundamental facts that came out from the further affidavit of the supposed contemnors. First, the contention that because the alleged contemnors were not named as parties in the petition, then the contempt application cannot be brough against them. This is an outright misconception. 61.To understand why this position is untenable, it is necessary to outline the orders made by this Court on 19/1/2024. The orders were couched as follows:a.A declaration be and is hereby issued that the 1st Respondent action of revocation of the appointment of the petitioners to the Board of Local Government Provident Fund by the 1st Respondent was done in violation of Article 47 of the Constitution of Kenya, Section 4 of the Fair Administrative Action Act (No. 4 of 2015), Articles 10 (2) (c ), 232 (e ) and 236 of the Constitution.b.An order of certiorari be and is hereby issued quashing the 1st Respondent’s Kenya Gazette Notice no. 1407 Vol. CXXV No. 30 dated 6/2/2023 and Gazette Notice No. 2871 No. 57 dated 6/3/2023 purporting to revoke the petitioner’s appointments as Board Members of the Local Authorities Provident Fund.c.A declaration do and is hereby issued that the 1st Respondent’s Kenya Gazette Notice Number 1407 dated 6th February, 2023 volume CXXV No. 30 and Kenya Gazette CXXV No. 57 appointing 1st to 7th Interested Party as new Board Members of the Local Authorities Provident Fund in place of the petitioners is null and void.d.A conservatory order do and is hereby issued by way of permanent injunction restraining the 1st and 2nd Respondents, their representatives, employees, servants and/or agents or anybody working under them from interfering or replacing the petitioners as Board members of the Local Authorities Provident Fund for the remainder of their term except in the manner authorised by law.e.The 1st Respondent to bear the costs of this Petition. 62.The be precise, orders (d) that was decreed by the Court did not only bind the principal respondents but also their employees, officers, servants and agents acting or under their authority or in the course of employment. The Appearance of the Attorney General in defending the Government in Court in itself was the conclusive of the Government’s knowledge of the judgment and the orders and that included all its officers. The constitutional roles of the Attorney General under Article 156 (4) include:The Attorney-General—(a)is the principal legal adviser to the Government;(b)shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and(c)shall perform any other functions conferred on the office by an Act of Parliament or by the President. 63.Consequently, the alleged contemnors being officers or employees of a government body, cannot feign ignorance of the judgment or the orders in question hence if proved that they defiantly disobeyed its orders, they cannot escape punishment for contempt. 64.Tuning now to the substance of the Application itself, these orders were pronounced by this Court on 19/1/2024. Order (d) was very specific, the 1st and 2nd respondents were restrained from interfering with or replacing the petitioners as Board members for the unexpired or remainder of the term except in the manner authorised by the law. As is clear, the instant Application for contempt was filed on 5/6/2024 (almost six months after the order of 19/1/2024). That is not enough, as the Application for contempt was pending, the 1st and 4th Respondents resigned almost a month later-18/7/2024. In so doing, they expressly thanked the 1st Respondent for having given them an opportunity to serve. The question is, could they have been thanking the 1st Respondent if truly they had not been given a chance to serve? 65.As for the remainder of the Petitioners, the terms of 2nd and 3rd lapsed on 24/10/2024 and also that of the 5th petitioner has equally lapsed. The considered view of this Court is that once the terms expired either voluntarily by resignation (which is not contested) or expiry of the term of service, the protective order issued by the Court also became spent and can longer be enforced by contempt proceedings. The application for contempt cannot thus be brought to enforce what is no longer capable of enforcement. 66.As was held by the Supreme Court in Institute for Social Accountability & Another vs Senate & 5 Others (Petition 1 of 2018) [2022] KESC 39 (KLR) (8 August 2022) (Judgment):The… matter is moot when it has no practical significance or when the decision will not have the effect of resolving the controversy affecting the rights of the parties before it. If a decision of a court will have no such practical effect on the rights of the parties, a court will decline to decide on the case. Accordingly, there has to be a live controversy between the parties at all stages of the case when a court is rendering its decision. If after the commencement of the proceedings, events occur changing the facts or the law which deprive the parties of the pursued outcome or relief then, the matter becomes moot. 67.Further, it is also apparent that the Application for contempt is an after-thought. It was brought after six months of unexplained delay yet the petitioners knew the orders that the Court had issued were time-bound. 68.In conclusion, the Court finds the instant application to be misconceived, an afterthought, and moot. It therefore merits no further judicial consideration and is hereby dismissed. 69.There shall be no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD {{^}} DAY OF SEPTEMBER, 2026.____________________L N MUGAMBIJUDGE