[2022] KEHC 973 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

MISC. APPLICATION NO. E024 OF 2021

IN THE MATTER OF MM (MINOR)

MNN..............APPLICANT

VERSUS

JMM...........RESPONDENT

RULING

1. Before this Court for determination is the Notice of Motion dated 24th April 2021by which the Applicant MNN sought the following orders:-

“1. Spent.

2. That this Honourable court be pleased to grant leave to the applicant to institute contempt of court proceedings against JMM.

3. That this Honourable court be pleased to find that JMM is in contempt of the order of 5th March 2021.

4. That this Honourable court be pleased to issue an order of sequestration for real and personal property of JM to the full satisfaction of the sum of Kshs 349,097 being his half of the minors January term and April term fees to the minors school, The [Particulars withheld] Academy for contempt of this Honourable court in failing to pay the same.

5. That in the alternative to prayer 4 above the court imposes a fine on JMM and or any other punishment permitted under the law.

6. The cost of the application be provided for”.

2. The Application was premised upon Section 5 of the Judicature Act, Cap 8 Laws of Kenya, sections 3, 3A, 63 of the Civil Procedure Act Cap 21, Laws of Kenya, Article 159 (2)(d) of the Constitution of Kenya and all other enabling provisions of the law and was supported by the Affidavit of even date sworn by the Applicant.

3. The Respondent JMM did with the leave of court file a Replying Affidavit dated 30th November 2021. The Applicant was canvassed by way of written submissions.

Background

4. The application emanates from an order made by the court on 5th March 2021. The said orders read inter alia as follows:-

“1. That the child to remain at [Particulars withheld] Academy.

2. That each parent to cater for half of the fees until such time as this application is determined or any further orders of the court.

3 …”

5. The Respondent averred that in an effort to comply with said court orders he made a visit to the minor’s school [Particulars withheld] Academy to enquire about the fees payable. That he discovered that the fees due is about 300,000/- per term which he insists he is not in a position to afford. The Respondent therefore only made a deposit of Kshs 15,000/- towards the minor’s school fees.

6. On her part, the Applicant avers that she has paid Kshs 184,000/- being her portion of the minor’s school fees as per court orders. She states that the minor risks being ejected from the school unless the Respondent pays his half of the fees.

7. It is worth noting that this application did previously come up for consideration before the court. In a Ruling delivered on 2nd September 2021, the court states as follows:-

“(27) Given that the matter involve the welfare of a minor and in an attempt to encourage dialogue and consensus between the parties I will not at this stage render any decision on the Notice of Motion dated 24th April 2021. Parties are advised to embrace dialogue in the matter and reach consensus putting the best interest of the child before their own egos. The same will be held in abeyance for now to allow the Respondent time to comply.

(28) However if the Respondent fails to comply with the Orders of 5th March 2021 then the Applicant may approach the court for a ruling on the application dated 24th April 2021”.

8. Despite this advice and despite being given an opportunity to negotiate and settle the matter, the parties told the court that they were unable to settle. It is indeed very unfortunate that parents of a minor are unable to rise above their own ill feelings towards each other and put the welfare of their child first.

9. It is not in any doubt that the Childrens court directed the Respondent who is the minors father (paternity is not disputed) to cater for half of the Childs school fees at [Particulars withheld] Academy. An attempt by the Respondent to review and/or set aside the above orders vide his application dated 18th March 2021 was dismissed by this court. As such, the said orders remain valid and enforceable.

10. In his Replying Affidavit dated 30th November 2021 the Respondent averred that on 5th July 2021 he was involved in a serious accident which resulted in his breaking his right leg as well as the ankle joints. That he was hospitalized and had to undergo several surgeries and as a result has depleted his finances to the extent that he is unable to comply with the courts orders that he meet one-half of the minors school fees at [Particulars withheld] Academy.

11. Section 5of theAct No. 460 provides as follows:-

“5. Every superior court shall have power to –

a. Punish for contempt of court on the face of the court.

b. Punish for contempt of court; and

c. Uphold the dignity and authority of subordinate courts”.

12. In the case of ECONET WIRELESS KENYA LIMITED VS MINISTER FOR INFORMATION AND COMMUNICATION OF KENYA AUTHORITY [2005]eKLR Hon Justice Ibrahim(as he then was) stated as follows: -

“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 whom an order is made by court of competent jurisdiction, to obey it unless and until the 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 the order believes it to be irregular or void.(emphasis)

13. Likewise in the case of T.N Gadavarman Thiru Mulpad v Ashok Khot and anor [2005] 5 SCC,the Supreme Court of India in emphasizing the dangers of disobeying court orders held as follows: -

“Disobedience of this Court's order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very corner stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. That is why it is imperative and invariable that Court's orders are to be followed and complied with. (own emphasis)

14. The Respondent herein does not dispute the fact that he has not complied with the courts orders. Indeed, from the time the said orders were made on 5th March 2021, the Respondent has paid only Kshs 15,000/- as school fees for the minors. The arrears owing to the school now amount to approximately Kshs 300,000/- and rising.

15. The standard of proof required in cases of contempt is higher than that acquired in an ordinary civil case. Before a finding of contempt can be made, there must a demonstration of willful and deliberate disobedience of a court order.

16. In Gatharia K. Mutikika – vs Baharini Farm Ltd [1985] KLR 227 it was held that-

“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.

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.” (own emphasis)

17. In the 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 said order.

In OILFIELD MOVERS LTD – VS – ZAHARA OIL & GAS LIMITED [2020]eKLR the court stated -

“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…..”

18. There can be no doubt that the Respondent was at all times aware of the orders made on 5th March 2021. Indeed the Respondent filed an application seeking to set aside those very orders.

19. In order to find a person guilty of contempt there must be proof of willful and intentional disobedience of a court order. In MAHINDERJIT SINGH BITTA – VS UNION OF INDIA & OTHERS 1A NO 100 OF 201O the Supreme Court of India stated as follows: -

“In exercise of its contempt jurisdiction the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and willful violation of the order of the court, even to constitute a civil contempt. Every party islis before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution (own emphasis)

20. The Respondent in his Replying Affidavit pleads that due to the accident he was involved in on 5th July 2021 and due to the resultant financial burden in catering for his medical costs he has been unable to comply with the courts orders.

22. Firstly, I find it very odd that no mention had been made in the earlier proceedings about the accident. Secondly, the lower court made its orders on 5th March 2021 yet since that time the Respondent has made a payment of only Kshs 15,000/- towards his child’s school fees. Whilst the court may sympathize with the Respondent regarding his accident he is still under an obligation to obey the orders made regarding the education of his son. Is the Respondent suggesting that because he was involved in an accident his child should stop attending school. Have any of the other eight (8) children the Respondent claims is catering for been pulled out of school on account of this accident?

23. I find that the Respondent is trying to use this accident as a convenient excuse to evade compliance with courts orders. I find that having been fully aware of the courts orders and in failing to comply with the same even before this accident the Respondent is in contempt of court orders.

24. The Respondent as the minor’s father has an equal responsibility with the Childs mother to provide for the child (See Article 53 (e) Constitution of Kenya 2010). The vicissitudes of life visit each and every one of us at some point in time. The minor cannot be denied his right to education because the Respondent was involved in an accident. Sections 4 (2) and 4 (3)of theChildren Act 2001 provide as follows:-

“(2) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.

(3) All judicial administrative institutions, and all persons acting in the name of these institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that his is consistent with adopting a course of action calculated to-

(a) safeguard and promote the rights and welfare of the child;

(b) conserve and promote the welfare of the child;

(c ) secure the child such guidance and correction as is necessary for the welfare of the child and in the public interest”.

25. This court has the legal obligation to place the ‘best interests’ of the child above all other considerations. The best interests of this child dictate that he remain in school and acquire an education, which is his constitutional right.

26. Accordingly, I do allow this present application and impose upon the Respondent fine of Kshs 100,000(One Hundred Thousand Shillings Only) for being in contempt of court orders. The said fine to be paid within thirty (30) days failing which the Respondent shall be committed to civil jail for a period of three (3) months.

27. The Respondent shall pay the costs of this application.

DATED IN NAIROBI THIS 11TH DAY OF MARCH, 2022

…………………………………..

MAUREEN A. ODERO

JUDGE