[2022] KEHC 383 (KLR)

Miguna v The Lufthansa Group operating as Lufthansa German Airlines & 6 others; Kenya National Commission on Human Rights & another (Interested Party) (Petition 47 of 2020) [2022] KEHC 383 (KLR) (Constitutional and Human Rights) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 383 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 47 of 2020

HI Ong'udi, J

May 5, 2022

Between

Miguna Miguna

Applicant

and

The Lufthansa Group operating as Lufthansa German Airlines

1st Respondent

Air France

2nd Respondent

Attorney General

3rd Respondent

Raychelle Omamo, the Cabinet Secretary, Ministry of Foreign Affairs

4th Respondent

Captain Gilbert M.Kibe, Director General, Kenya Civil Aviation Authority (KCAA)

5th Respondent

Alex Gitari, Acting Managing Director, Kenya Airports Authority

6th Respondent

Fred Matiang’i, Cabinet Secretatry, Ministry of Interior and Coordination of National Government

7th Respondent

and

Kenya National Commission on Human Rights

Interested Party

The Law Society of Kenya

Interested Party

Ruling

1. This court in its Ruling dated 22nd November, 2021 issued Orders which are said to have been disobeyed hence the notice of motion dated 1st February, 2022.

2. The petitioner/applicant filed the notice of motion on 1st February, 2022 seeking the following orders:i.That this application be certified urgent and service be dispensed with in the first Instance.ii.That a finding be and is hereby made that Amb. Raychelle Omamo, the Cabinet Secretary, Ministry of Foreign Affairs, the 4th Respondent herein, is in breach of the Ruling and Order of this Honorable Court rendered on 22nd November 2021. iii.That pending the hearing and determination of this application an Order be and is hereby issued directing Amb. Raychelle Omamo, the Cabinet Secretary, Ministry of Foreign Affairs, the 4th Respondent herein to immediately purge the contempt and enable the petitioner/applicant to obtain his Emergency Travel Document from the Kenya High Commission Ottawa (Canada) or the Kenya High Commission Berlin (Germany) or from wherever he is immediately as ordered by the Honorable Court on 22nd November 2021. iv.That an order be and is hereby issued committing Amb. Raychelle Omamo, the Cabinet Secretary, Ministry of Foreign Affairs, the 4th Respondent herein, to jail for six (6) months for blatant breach of orders of the Honorable Court and tenacious violation of the Constitution.v.That in the event of further failure to comply with orders of the Honorable Court an order of citizen arrest be and is hereby issued to the citizens of the Republic of Kenya, jointly or severally, to arrest on sight, and deliver Amb. Raychelle Omamo, the Cabinet Secretary, Ministry of Foreign Affairs, the 4th Respondent herein to Kamiti Maximum Prison, pending further orders of the Honorable Court.vi.That upon grant of prayer (5) above, an order be and is hereby issued restraining any officer or person whatsoever from obstructing, hindering, interfering or in any manner impeding the citizen arrest of Amb. Raychelle Omamo, the Cabinet Secretary, Ministry of Foreign Affairs, the 4th Respondent herein and delivery thereof to Kamiti Maximum Prison.vii.That costs of and incidental to this application be provided for.viii.That such further and other reliefs do issue, as the Honourable Court may deem Just and expedient to grant.

3. The application is filed under Articles 1-3, 10, 12, 13, 14, 16-28, 27 & 28, 47& 48, 50(1), 73-75, 152(4)(a), 159 & 160, 165, 258 & 259of the Constitution and Rules 3, 4, 13, 19 and 21 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, Section 5 of the Judicature Act Cap 8 Laws of Kenya; Parte 81 of the England Civil Procedure (Amendment No.3) Rules 2020; the inherent jurisdiction of the court and all enabling provisions of the laws).

4. It is supported by the grounds on its face and the applicant’s supporting affidavit which in summary provide the following:i.The 4th respondent was served with the court orders of 22nd November, 2021 but there is no compliance.ii.The petitioner/applicant visited the Kenya High Commission Berlin, Germany in the afternoon of 22nd November, 2021 and morning of 23rd November, 2021 but the staff he found there declined to issue him with the necessary documents. He presented them with the court order but they refused to receive it and even locked him outside the building. They queried his Kenyan citizenship.

5. He has deponed that at no time did the Kenya embassy officials in Berlin Germany ask him to complete or fill any forms nor provide him with any forms to complete. He was not asked to re-attend on any other date for purposes of issuance of the travel documents.

6. He returned to Toronto on 25th November, 2021 since he was not able physically, emotionally and financially to continue staying in Berlin. He claims to have spent more than £10,000 on the trip. He urges the court to severely punish the 4th respondent for the disobedience of court orders and compensate him for the violation of his constitutional rights and subversion of the law.

7. The 4th respondent filed a replying affidavit sworn on 10th February, 2022. She denies having been served with the court orders of 22nd November, 2021. She however confirms having received communication from the Attorney General dated 24th November, 2021 in respect of the mater in issue. The letter is marked (R.O.I) and was addressed to her plus the Cabinet Secretary. They were advised by the Attorney General accordingly.

8. She avers that upon receipt of the letter she immediately unstructured the Principal Secretary Ministry of Foreign Affairs to convey to the Kenya Missions in Berlin and Ottawa the advice of the Attorney General. This was also complied with as per the letters dated 25th November, 2021 (RO2). Vide the Kenya Ambassador in Berlin and the High Commissioner in Ottawa were instructed to ask the Immigration officers at their respective Embassies to act on the same in accordance with the known practices.

9. She explains further that at the time the applicant visited the Kenya Mission in Berlin on 2nd and 23rd November, the Emergency Travel Documents could not be issued for the following reasons:i.The Attorney General had not been served with the court order;ii.The Ministry had not been served and or notified of the Court Order and therefore could not give instructions to the Mission in Berlin and Ottawa; andiii.The Applicant had not filled any application forms as required.

10. She further avers that since 24th November, 2021 the Kenya Missions in Berlin and Ottawa have remained at the applicant’s disposal but he has not returned to seek for the Emergency Travel Documents. She depones to having endeavoured to comply with the orders of the court and that her actions should not be seen as constituting contempt.

11. The petitioner/applicant filed a further affidavit without leave of the court. Even when the applicant came for mention to confirm compliance on 28th February, 2022 and on 1st March, 2022 Mr. Kamotho for the petitioner never sought leave to have the further affidavit admitted into the record. That being the position, I decline to admit the further affidavit sworn on 21st February, 2022 and expunge it from the record.

12. Mr. Kamotho for the petitioner/applicant filed written submissions dated 24th February, 2022. He identified two issues for determination namely:i.Has the 4th respondent complied with the orders issued by the Honourable Court on 22nd November, 2021?ii.What are the appropriate remedies/reliefs in light of the 4th respondent’s defiance and contemptuous breach of lawful orders?

13. On the first issue counsel has submitted that the 4th respondent has all along been aware of the court orders dated 22nd November, 2021 but has blatantly chosen to disobey them. Further that even being aware of the contempt proceedings she has not changed her position. Counsel stresses that all this the petitioner has continued to suffer, violation of his rights. He has suffered psychologically, fiscal loss, irredeemable opportunities, foregone and deferred justice, occasioned by the respondents actions.

14. Coming to the second issue, counsel refers to the South African case of Minister of Health and Others Vs. Treatment Action campaign and others [2002] ZACC 15, 2002(5) SA 721 BLCR(cc) where the Constitutional Court cited with approval the decision in Fose Vs. Minister of Safety and Security [1977] ZACC 6 where the court held thus:“Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to so do, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights.”(Emphasis added)

15. Counsel further referred to two other cases namely:i.Justus Kariuki Mate & another v. Martin Nyaga Wambora & another [2014] eKLRii.Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki, Waithaka[2018] eKLR. In the latter case the court held thus:“Therefore where there is a lacuna with respect to enforcement of remedies provided under the constitution or an Act of parliament, or if, through the procedure provided under an Act of Parliament, an aggrieved party is left with no alternative but to invoke the jurisdiction of the court, the court is perfectly within its rights to adopt such a procedure as would effectually give meaningful relief to the party aggrieved. To fail to do so would be to engender and abet an injustice and as has been held before, a court of justice has no jurisdiction to do injustice.” (Emphasis supplied)

16. He further submits that the 4th respondent as a Cabinet Secretary was expected to operate within the Constitutional matrix and guard the Constitution. It is his argument that there is mischief by the 4th respondent and the court should come to the defence of the constitution. That the petitioners rights must be restored. He urges the court to allow the application and render the reliefs necessary to meet the ends of justice. He also prayed for costs.

17. The 4th respondent filed written submissions dated 17th February, 2022 through the deputy chief State Counsel for the Attorney General. Counsel referred to the definition of the word contempt of court as stated in the cases of Steward Robertson v Her Majesty’s Advocate, 2007 HCAC 63; (ii) Sam Nyamweya & 4 others v. Kenya Premier League Ltd & others[2015] eKLR. He added the definition by the Black’s Law Dictionary 9thedition) which is as follows:“Conduct that defies the authority or dignity of a court.”Because such conduct interferes with the administration of Justice, it is punishable by fine or imprisonment.

18. He also referred to the case of Samuel M. N. Mweru and others v. National Land Commission & 2 others [2020] eKLR which set out the four essential elements for proof of a civil contempt which is higher than civil cases. They are as follows: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.

19. Counsel contends that in a case of contempt there must be proof of willful deliberate disobedience on the part of the contemnor. Still referring to the case ofSamuel M. N. Mweru & others (supra) he referred to Justice Mativo’s finding where he states:“38. 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’. [40] A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe he/she is entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. [41] Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of goof faith). [42] These requirements – that is the refusal to obey should be both willful 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 the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces. [43] Honest belief that non-compliance is justified or proper is incompatible with that intent.”

20. Learned counsel has submitted that the 4th respondent was sued in her capacity as Cabinet Secretary Ministry of Foreign Affairs of Kenya and is represented by the Attorney General. He has aptly referred to the 4th respondents replying affidavit explaining what exactly happened. She was never served with the said orders. Finally he submits that the 4th respondent’s averments have not been rebutted. It is his submission that considering the applicable laws, the peculiar facts of the case, he urges the court to find that the 4th respondent is reasonably expected of her office in good faith. With utmost respect to the court to give effect to the orders of the court. He prays for dismissal of the application as it is not merited.

Analysis and Determination 21. Having carefully considered the application, affidavits, both submissions, cited authorities and the law, I find two issues falling for determination:i.Whether the 4th respondent is guilty of contempt of court.ii.If she is guilty, what punishment should be meted out against her.

Issue No.i. Whether the 4th respondent is guilty of contempt of court. 22. I will start by defining what contempt of court is. Blacks dictionary tenth edition page 385 defines it as:“conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice, it is punishable by fine or imprisonment.”

23. The 4th respondent has been accused of defying the orders of this court issued on 22nd November, 2021 in particular the order which states:“The petitioner/applicant to obtain his Emergency Travel Document from the Kenya High Commission Ottawa (Canada) or the Kenya High Commission Berlin (Germany) or from wherever he is within 72 hours. The 4th respondent MUST ensure this order is complied with.”There is not dispute that the petitioner/applicant is not in possession of the said Travel Documents. So what happened? In his supporting affidavit the applicant explains the steps he took between the 22nd November – 25th November 2021 before leaving Berlin for Canada. He also explains how he was handled by the staff at the Kenya High Commission Berlin. Indeed it was frustrating.

24. The 4th respondent Raychelle Omamo is the Cabinet Secretary, Ministry of Foreign Affairs Kenya. According to the court order she was to ensure compliance with the said order. In her replying affidavit she explains the procedure and steps that were undertaken, to ensure compliance. She also points out that she was never personally served with the order. There is indeed no evidence placed on record to show that indeed the 4th respondent was ever served on 22nd November, 2021 with the court order she was to comply with. She was indeed represented in court by the Attorney General on the day the orders were issued.

25. According to the replying affidavit the Attorney General who is the Government legal adviser notified the 4th respondent and the Cabinet Secretary, Ministry of Interior and Co-ordination of the National Government of the court orders dated 22nd November, 2021 on 24th November, 2021. They were instructed to comply with the court order. A copy of the Attorney General’s letter is annexed as “RO1). The letter indicates that the applicants counsel indeed served the Attorney General with the court orders on 24th November, 2021 around midday. It is not clear at what time the Attorney General’s letter was served on the 4th respondent. It is however noted from the two letters “RO2” that the Attorney General’s instructions were acted on, on 25th November, 2021. The instructions are very clear. All these averments have not been challenged by the applicant, by way of evidence.

26. The applicant travelled back to Ottawa Canada on 25th November, 2021 as it was becoming too expensive for him to stay in Berlin Germany. He has nowhere indicated having gone to Kenya High Commission in Ottawa upon his return to Canada, to seek for the Emergency Travel documents. He has also not indicated if he ever returned to the Kenya High Commission in Berlin Germany, for the same purpose.

27. Apparently, there is no evidence of the steps taken by the applicant to obtain the Travel documents. Indeed there are steps to be followed in obtaining documents such as those that are being sought by the applicant. It is not sufficient to wave court orders at officials at the Embassy. The Hon. Attorney General acted in his position as the Government’s legal adviser and advised the 4th and 7th respondents accordingly. The 4th respondent then acted by advising the Permanent Secretary in her Ministry (Amb. Macharia Kamau) on what to do. Letters (RO2) to the Ambassadors in Berlin and the High Commission in Ottawa were written immediately.

28. There may have been a delay in the action taken by the Hon. Attorney General but in his letter dated 24th November, 2021 he indicated that he had been served at around midday by the applicant’s counsel. The 4th respondent has averred that since the service of the order on the Hon. Attorney General on 24th November, 2021 and her communication with the heads of the Kenyan Missions Ottawa and Berlin the applicant has not been to those missions to seek the Emergency Travel documents. This has not been denied by the applicant, by averment or any other evidence.

29. As per the definition of what contempt is and as was clearly held in the cases of Sam Nyamweya & others(supra), (ii) Gatharia K. Mutikika v Bahirini Farm Ltd. [1985] KLR and Samuel M. N. Mweru & others (supra) there must be wilful defiance of a court order, by the alleged contemnor. From what has been presented to this court, the two named senior officials at the Kenya High Commission in Berlin and Ottawa are in possession of the communication on the instructions of what they need to do in respect to the applicant’s matter. My finding is that the Hon. Attorney General and the 4th respondent took the necessary steps to ensure compliance with the order. The necessary documentation is available. It is for the applicant to avail himself at the Embassy of choice and make the necessary application for the Emergency Travel Documents, just like any other Kenyan.

30. As was pointed out in the Ruling dated 22nd November, 2021 the Kenyan Constitution, Kenya citizenship and Immigration Act, 2012 plus its Regulations apply to all Kenyan citizens and must be adhered to by both the government and its citizens. The applicant must therefore adhere to the relevant Rules and Regulations as he applies for the said documents. In a nutshell I do not find the 4th respondent guilty of contempt of court in the special circumstances of this case.Had I found her guilty of contempt of court, I would have meted the relevant sentence against her.The application stands dismissed with no order as to costs.

31. This petition has been pending since 2020. Parties who are yet to file their responses to the petition are directed to do so within 21 days. Thereafter parties will file and exchange written submissions within 42 days. The petitioner will have the first 21 days. The petitioner is granted leave to file a further affidavit upon service of the responses. The further affidavit to be filed alongside the submissions. Mention on 12. 7.2022 to confirm compliance and further directions.Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 5TH DAY OF MAY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT