[2022] KEHC 14726 (KLR)

Matan v Principal Secretary, Ministry of Interior & Co-ordination of National Government & 5 others (Miscellaneous Application E006 of 2022) [2022] KEHC 14726 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14726 (KLR)

Republic of Kenya

In the High Court at Meru

Miscellaneous Application E006 of 2022

EM Muriithi, J

November 3, 2022

Between

Abdi Gedi Matan

Applicant

and

Principal Secretary, Ministry of Interior & Co-ordination of National Government

1st Respondent

Regional Commissioner, North Eastern Region

2nd Respondent

County Commissioner, Wajir County

3rd Respondent

The Deputy County Commissioner, Habswein Sub-County

4th Respondent

Mr. Kassim Khalif Aden

5th Respondent

The Attorney General

6th Respondent

Ruling

1. By its ruling delivered on 28/9/2022, the court found the applicants to be in contempt of its orders of 4/7/2022. Instead of showing cause on October 13, 2022 why they should not committed to civil jail for disobeying the said court orders, the applicants filed an application dated October 11, 2022 under certificate of urgency premised on section 1A, 1B and 3A of the Civil Procedure Act, order 5 rule 19, order 19 rule 9, order 45 of the Civil Procedure Rules and all other enabling provisions of the law, seeking:1. Spent2. That pending hearing and determination of this application a stay of the hearing of notice to show cause issued on September 28, 2022. 3.That the ruling dated September 28, 2022 and all consequential orders be reviewed and set aside in view of the new evidence availed.4. That the applicants herein be allowed to defend the motion dated August 22, 2022 be dismissed.5. That the costs of the application be awarded to the defendant.

2. The grounds upon which the application is premised are set out in the body of the application and supporting affidavit of Muinde S Mutisya, the Deputy County Commissioner Habswein Sub-County, the 4th respondent/applicant sworn on even date.

3. He avers that new evidence, namely a petition by the community dated 10/2/2022, was not available when their counsel was defending the motion dated 22/8/2022. On the basis of allegations contained in the said petition, the position was re-advertised and interviews conducted on 28/6/2022 before the impugned orders were issued. He avers that the impugned orders staying the interview and recruitment of Chief Shidley location, although issued on 4/7/2022, were served on the Attorney General office Meru on 7/7/2022 and on the Regional Commissioner on 8/7/2022. Therefore, when their counsel was defending the contempt application on 19/9/2022, they had not sighted the impugned court order. He avers that the applicants’ actions were done in good faith as the court orders were issued after the interview and the alleged contemnors had no knowledge thereof. According to him, it is only just and fair that this application is allowed to serve the interests of justice.

4. The counsel for the parties then made submissions orally in court on October 13, 2022 with the respondents’ counsel urging the application and the ex parte applicant’s counsel opposing the application and urging that the same did not show cause why the applicant contemnors should not be punished for contempt.

Analysis and Determination 5. In order for the applicants to have the impugned court orders of 4/7/2022 reviewed, they must prove to the satisfaction of the court in accordance with order 45 of the Civil Procedure Rules-i.That there is discovery of new and important evidence which was not available to the applicant when the judgment or order was passed despite having exercised due diligence; orii.That there was a mistake or error apparent on the face of the record; oriii.That sufficient reasons exist to warrant the review sought. In addition to proving the existence of the above grounds, the applicant must also demonstrate that the application was filed without unreasonable delay.”

6. The applicants are basing their prayer for review on alleged new evidence which was not within their knowledge when the impugned orders of the court were issued on 4/7/2022. In his supporting affidavit, the 4th respondent avers that, “the petition by the community dated 10th Feb, 2022 was not available to the current applicant’s counsel when defending the motion dated 22nd August, 2022 against alleged contemnors. That on the basis of the said allegations, my office was advised to re-advertise for the post, which was done on April 22, 2022 and interviews were conducted on June 28, 2022 before the orders of this honorable court were granted.….that the order of this court staying the recruitment of Chief Shidley location was issued on July 4, 2022. The order staying the interview was served on the Attorney General Office Meru on the July 7, 2022 and on the Regional Commissioner on July 8, 2022. The applicants counsel had not sighted the above information when they were defending the contempt application on September 19, 2022. ”

7. What the applicants term as new evidence which was not within their knowledge before the impugned orders were issued, is a petition containing some serious allegations against the ex parte applicant/ respondent in the present application, Abdi Gedi Matan. They seem to believe that the community’s concerns, as contained in the petition dated 10/2/2022 about the credibility and suitability of the respondent to be appointed as chief, sanitized their illegal actions of blatantly disobeying the court orders of 4/7/2022, by proceeding to appoint and inaugurate one Omar Mohammed Ismail. The applicants contend that the impugned court order only stayed the interviews for the position of Chief Shidley Location, and since the interviews had been concluded on 28/6/2022 way before the said order was issued on 4/7/2022 and served upon them on 7th and 8th July 2022, they did not deliberately disobey it.

8. The impugned court order of 4/7/2022 was in specific terms that-“Upon hearing of the ex-parte applicant, the court grants leave to file judicial review proceedings on the ground of failure of fair process in administrative action. The grant of leave shall operate as stay of further progress in the process of recruitment of a Chief for the Shidley Location of Habswein sub-county, Wajir County. The notice of motion to be filed within 21 days. Mention for direction on hearing on 25/7/2022. ”

9. The court, in that order, indefinitely stayed further progress in the process of recruitment of a Chief for Shidley Location. Whereas the applicants admit to having been served with the said order on 7th and July 8, 2022, they still went on to conclude the process of recruitment of Chief, Shidley Location and subsequently appointed and inaugurated Omar Mohammed Ismail, as chief. This court rejects the applicants’ contention that they could not comply with the court order of 4/7/2022 as they were unaware of it. The record is clear that when the matter came up for directions on 26/7/2022, Ms Kendi for the respondents (now the applicants) told the court that, “we shall maintain the status quo” but the court was wrong to take her word for it. It is sad when a counsel and an officer of the court, who is expected to aid the court in expeditious disposal of justice, intentionally misleads the court. It appears Omar Mohammed Ismail was appointed and inaugurated into the office as Chief of Shidley location, on 26/7/2022 after the court had issued directions on how the matter was to proceed.

10. Whereas it may be true that the interviews had long been concluded before the court orders of 4/7/2022 were issued, and while it may equally be true that the alleged new evidence was only available to the applicants after the said interviews had been concluded, the applicants have not shown what steps, if any, they took, after learning of the existence of the court order, to comply with it.

11. In PS Minisitry of Foreign Affairs and international Relations v Maope (C of A) 52/18 [2019] LCSA 12 (31 May 2019, the South African Court of Appeal, in dealing with the issue of contempt, had this to say:“(12)In the circumstances, bearing in mind that the application in the court a quo was a contempt application, it is difficult to see how it could be said that the appellant discharged the onus placed on his shoulders, of showing that indeed the 1st respondent was guilty of contempt beyond a reasonable doubt. [13] The contemporary approach to applications for contempt of court was stated in the oft-quoted decision ofFakie No v CCII Systems (Pty0 Ltd (653/04) {2006} ZASCA 52; 2006 (4) SA 326 (SCA) at para .42 wherein Cameron JA said: 1. The civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements. 4. But once the applicant has proved the order, service or notice, and non-compliance the respondent bears an evidential burden in relation to willfulness and mala fides: should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was willful and mala fide, contempt will have been established beyond reasonable doubt.”

12. This court finds that no sufficient reason exists, from the facts deposed in the affidavit, to warrant review of the said orders. In other words, there is no material whatsoever which has been placed before this court upon which it can exercise the discretion to review its orders. The legal principle is that court orders must be obeyed by all and sundry and any person who is found to obstruct the implementation of a court order shall be held to be in contempt of court.

13. In Fred Matiangi, the Cabinet Secretary Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 Others [2018] eKLR, the Court of Appeal emphatically stated:“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 a party, be he high or low, weak or mighty, and quite regardless of 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.”

14. This court finds that no cause has been shown why the applicants should not committed to civil jail, for disobedience of its orders of 4/7/2022.

15. Having found the applicants to have willfully disobeyed the court orders of 4/7/2022, this court agonizes over what sanction it should impose. Would an imprisonment for instance, achieve a desirable outcome?

16. In an article "Civil Contempt and the Rational Contemnor," by Beres, Linda S. Associate Professor of Law, Loyola Law School of Los Angeles. (1994) Indiana Law Journal: Vol. 69: Iss. 3, Article 3, available at: https://www.repository.law.indiana.edu/ilj/vol69/iss3/3 the learned author observes that-“A judge may impose two types of sanctions for refusing to obey a court order. First, the judge may impose civil contempt sanctions to coerce the contemnor into obeying her order. Second, the judge may impose criminal contempt sanctions to punish the contemnor for disobeying her order. If the judge's goal is to induce compliance, she must give the contemnor an incentive to obey the court order. Civil contempt, therefore, requires imposing an indeterminate or conditional sanction-one that ends if the contemnor complies. Criminal contempt, on the other hand, requires a determinate or unconditional sanction-one that is unaffected by any future actions of the contemnor…. The law regarding sanctions for civil contempt is based on the assumption that the experience of being in jail is likely to coerce an incarcerated civil contemnor; that each day the pressure grows on the jailed contemnor to comply.”

17. This court had on a previous occasion, in Kivuwatt Limited & another v Commissioner Kra & another [2015] eKLR, an opportunity to consider the various redress that a court may impose upon a finding of contempt as follows:“Remedies for contempt of court1. As noted in Halsburys Laws of England, 4th Ed Vol 9 pp 62-63, para 104, when considering an application under the special contempt of court jurisdiction for punishment, the court has in discretion powers to make an order for the punishment of the contempt and suitable alternative or further or complementary orders, as follows:a.Committal of the contemnor or sequestration of his property or imposition of a fine;b.The court may, in its own discretion, grant an injunction, in lieu of committal or sequestration, to restrain the commission or repetition of a civil contempt.c.The court may in lieu of any other penalty require the contemnor to pay the costs of the motion on a common fund basis.d.In a doubtful case, the court may, instead of proceeding for contempt, grant an order requiring the defendant to state whether he has complied with an undertaking.e.If an order of mandamus, a mandatory order, injunction or judgment or order for the specific performance of a contract is not complied with, the court maya.proceed with contempt application, orb.besides or instead of proceeding for contempt, direct the act to be done by some person appointed for that purpose.”1. Bearing in mind the applicants’ significant role in the maintenance of law and order, this court considers it fit to give them an incentive to obey its orders, by according them an opportunity to purge their contempt by complying with the order of the court and removing the repetition of the civil contempt, and only punish them in the event of continued default.

Orders 19. Accordingly, for the reasons set out above, the court makes the following orders1. The application dated October 11, 2022 is unmerited and the same is dismissed.2. The applicants are hereby granted an opportunity to, within the next seven (7) days, purge their contempt by directing and restraining, in writing with a copy to this court, Omar Mohammed Ismail from further carrying out duties as and in the Office of the Chief, Shidley Location of Habswein Sub-County, Wajir county, until this case is heard and determined.3. In default of the compliance with order no (2) above, the 1st, 2nd, 3rd and 4th respondents will pay a fine of Ksh 200,000/- each for the civil contempt of court, and in default serve civil jail for a period of thirty (30) days.4. The matter will be mentioned to confirm compliance on November 14, 2022.

Order accordingly.

DATED AND DELIVERED THIS 3RD DAY OF NOVEMBER, 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Mung’ala instructed by M/S Adhiambo Omondi & Co. Advocates for the Applicant.Mrs. Njoroge for the 1st Respondent.Ms. Kendi for the 2nd, 3rd, 4th, 5th and 6th Respondent.