[2023] KEHC 25050 (KLR)

Moindi v ODPP Nyamira County & 3 others (Miscellaneous Criminal Application E009 of 2022) [2023] KEHC 25050 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25050 (KLR)

Republic of Kenya

In the High Court at Nyamira

Miscellaneous Criminal Application E009 of 2022

WA Okwany, J

November 9, 2023

IN THE MATTER OF AN APPLICATION BY LYDIA KWAMBOKA MOINDI FOR LEAVE TO COMMENCE CONTEMPT PROCEEDINGS AND IN THE MATTER OF SECTION 5 OF THE JUDICATURE ACT CAP 8 LAWS OF KENYA AND IN THE MATTER OF NYAMIRA HIGH COURT CRIMINAL PETITION NO. E001 OF 2021 AND IN THE MATTER OF THE HIGH COURT JUDGMENT DATED AND DELIVERED ON 4 TH APRIL 2022 IN NYAMIRA HIGH COURT CRIMINAL PETITION NO. E001 OF 2021 AND IN THE MATTER OF NYAMIRA CHIEF MAGISTRATE CRIMINAL NO. 494 OF 2020 - REPUBLIC VERSUS THOMAS OGETII ANUNDA AND LYDIA KWAMBOKA MOINDI

Between

Lydia Kwamboka Moindi

Applicant

and

ODPP Nyamira County

1st Respondent

SCCIO Nyamira North Sub-County

2nd Respondent

The Principal Nyamiranga SDA Secondary School

3rd Respondent

The Chairman, Board of Management Nyamiranga Sda Secondary School

4th Respondent

Ruling

1. The Applicant seeks the following orders through the application dated 18th July 2022: -1. That this honourable Court be pleased to cite the Respondents for contempt of court for disobedience of an express court judgment and/or decree/order.2. That this honourable Court be pleased to commit to civil jail for a term of six (6) months and/or mete out any other punishment against the Respondents as the Court may deem fit for the disobedience of an express court judgment and/or decree/order until they purge their contempt and comply with the express court judgment and/or decree/order of this honourable Court given/issued on 4th April 2022. 3.That this honourable Court be pleased to order and/or direct that the Respondents do purge their contempt by strictly complying with this honourable Court’s said judgment/decree/order within a specified period of time.4. That this honourable Court do make any such other order for purposes of enforcing this Court’s judgment dated 4th April 2022. 5.That the Respondents be condemned to pay the costs of this Application.

2. The Application is supported by the Applicant’s Affidavit and is premised on the main ground that the Respondents have not complied with the orders issued in the Judgment dated 4th April 2022 directing them to supply the Applicant with documents listed in the Criminal Petition No. E001 of 2021 under numbers 1 (i)- (iv) – 14 thereof.

3. The Respondents opposed the application through Replying Affidavits filed on diverse dates. The 1st and 2nd Respondents averred that they had already furnished the Applicant with all the documents that were in their possession and that they intended to rely on in the criminal case. The 3rd Respondent averred that the documents that the Applicant required were either not in his possession or could not be availed by him.

4. The 4th Respondent denied the claim that he was the Chairman of the school’s board at the time that the Application was filed and the criminal proceedings instituted. He stated that he cannot therefore be held responsible for non-compliance with the court orders.

5. The Application was canvassed by way of written submissions which I have considered.

Analysis and Determination 6. I have considered the pleadings filed herein and the parties’ respective submissions. The main issue for determination is whether the Applicant has made out a case for the granting of orders for contempt of court.

7. It was not disputed that this Court (differently constituted) rendered a judgment on 4th April 2022 in which it directed the Respondents to supply the Applicant with the 17 documents listed at paragraph 13 of the Petition dated 16th August 2021. It was also not disputed that the Respondents supplied the Applicant with the said document except documents listed as No. 6, 7, 12 and 13 of the said list. The documents that were not supplied were receipts from a bank agent (Metamaywa –Keroka), M-Pesa transaction paybill phone of the school (School Lipa Karo na M-Pesa statements for 2015), board minutes advertising the post of a bursar in 2015 and board minutes approving the Applicant’s employment.

8. Black’s Law Dictionary 9th Edition defines contempt of court as follows:-The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.

9. Section 5 of the Judicature Act provides as follows: -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.

10. In Republic v Kajiado County & 2 Others ex parte Kilimanjaro Safari Club Limited [2019] eKLR Nyamweya J (as she then was) discussed the applicability of Section 5 of the Judicature Act and held that: –“This section was repealed by Section 38 of the Contempt of Act of 2016, and as the said Act has since been declared invalid, the consequential effect in law is that it had no legal effect on, and therefore did not repeal Section 5 of the Judicature Act, which therefore continues to apply. In addition, the substance of the common law is still applicable under Section 3 of the Judicature Act. This Court is in this regard guided by the applicable English Law which is Part 81 of the English Civil Procedure Rules of 1998 as variously amended, and the requirement for personal service of court orders in contempt of Court proceedings is found in Rule 81. 8 of the English Civil Procedure Rules.”(See also the Court of Appeal’s decision in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others [2014] eKLR).

11. The purpose of contempt of court proceedings is to uphold the dignity of the court and to ensure strict adherence to court orders/decrees in the furtherance of the rule of law. The Supreme Court of India aptly stated this in Re: Vinay Chandra Mishra [(1995) 2 SCC584], thus: -“The judiciary has a special and additional duty to perform, viz, to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the society. Dignity and authority of the court has to be respected and protected at all costs.”

12. The power of the courts to punish contempt of court is discretionary but must be exercised sparingly and carefully upon consideration of all relevant facts of the case. In Carey v Laiken, 2015 SCC 17 (16th April 2015) the Supreme Court of Canada outlined the three elements to be considered in determining whether or not a party is guilty of contempt of court as follows: -“i)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 is 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.ii)The party alleged to have breached the order must have had actual knowledge of it. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine.iii)The party alleged to be in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.”

13. In the present case, the Applicant contended that the Respondents were aware of the court order in question which Order was clear and unambiguous but wilfully and blatantly ignored to comply with the said order.

14. I have perused the Judgment of 4th April 2022 and I note that the court directed the Respondents to supply the Applicant with the documents listed under paragraph 13 of the Petition. The Respondents have, in their respective Replying affidavits conceded that they were aware of the said order and the documents that they were required to supply to the Applicant. I therefore find that the first two elements of contempt have been established.

15. Regarding the third element of wilful failure to comply with the said orders, I have considered the Respondent’s Replying affidavits and submissions. The 3rd Respondent stated that items No. 6 and 7 were generalized and were not clear while item No. 7 was not in his custody because the end user was Kenya Commercial Bank. He added that the said bank had already provided statements that were issued to the Applicant. Regarding items 12 and 13, the 3rd Respondent explained that the same were not available because the Board was not fully constituted at the time the school advertised and offered the Applicant employment as a school bursar on a temporary basis. It was the 3rd Respondent’s case that the Applicant could not demand to be supplied with a copy of an acceptance letter which she did not have and which was not written for reasons that were made known to her.

16. On her part, the Applicant averred that the 3rd Respondent informed her that some of the documents she had asked for were still in the possession of the auditors.

17. I have considered the parties’ rival arguments and the fact that the Respondents had supplied the Applicant with all the documents that she had requested for except 4 whose non-availability they explained in their respective replying affidavits. I find that Applicant has not demonstrated that there was bad faith, on the part of the Respondents, in failing to avail the said documents. I find the Respondents’ explanation over their inability to supply the said documents reasonable and persuasive.

18. I am guided by the decision by Mativo J. (as he then was) in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR where he explained the element of bad faith in considering the third ingredient in contempt and held thus: -“38. ……. 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 (see Consolidated Fish (Pty) Ltd v Zive 1968 (2) SA 517 (C) 524D, applied in Noel Lancaster Sands (Edms) Bpk v Theron 1974 (3) SA 688 (T) 691C.) Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).39. 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 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…..”(Emphasis added)

19. I have also considered the rights of an accused person as provided for under Article 50 (2) of the Constitution which stipulates as follows: -(2)Every accused person has the right to a fair trial, which includes the right—(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;

20. The Respondents argued that some of the documents that the Appellant requested form did not form part of the documentary evidence that the Prosecution will be relying on during the trial. My finding is that in line with the provisions of Article 50 (2) of the Constitution, the prosecution is only under an obligation to supply an accused person with the evidence that it will rely on during the trial and not documents that may not be in their custody as was stated in this case. I find that the Applicant’s insistence on being supplied with documents that may not be in the Respondents’ possession could be a gimmick aimed at stalling the progress of the criminal trial before the Chief Magistrate’s Court. My finding is bolstered by the fact that the Applicant declined to receive all the other documents that had been availed to her, which is a clear demonstration that she is not keen on proceeding with the criminal trial.

21. I find that the Respondents provided a reasonable explanation for their inability to supply the Applicant with the four documents that are the subject of these contempt proceedings. I also find that even though some of the ingredients of contempt were proved, there was no evidence of bad faith on the part of the Respondents.

22. In sum, I find that this Application lacks merit and I therefore dismiss it. The Applicant is directed to collect all the other documents that the Prosecution intends to rely on at the trial.

23. Orders accordingly.

JUDGMENT DATED SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 9TH DAY OF NOVEMBER 2023. W. A. OKWANYJUDGE