[2022] KEHC 9848 (KLR)

Mosepe v Gaitho (Civil Case E196 of 2021) [2022] KEHC 9848 (KLR) (Civ) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9848 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E196 of 2021

JK Sergon, J

July 8, 2022

Between

Patrice Thlopane Mosepe

Plaintiff

and

Francis Gaitho

Defendant

Ruling

1. The defendant/applicant in this instance has brought the Notice of Motion dated 12th November 2021 which is supported by the grounds set out in its body. The applicant sought for an order to the effect that the court vacate or set aside both the ex parte injunction of 9th September 2021 and the contempt proceedings and does fix the injunction application for hearing interparties or alternatively the court allows the defendant to mitigate before imposing a lenient sentence with fine option.

2. The appellant/respondent opposed the Motion by filing the Grounds of Opposition dated 23rd May 2022 and stated that the defendant does not have audience before this Court to urge his application based on the fact that he is yet to purge the contempt of publishing defamatory material regarding the plaintiff on his twitter account despite the prevailing court orders of 23rd August 2021 restraining him.

3. The plaintiff further stated that defendant has aggravated the finding of contempt against him by publishing further defamatory material on his twitter account even after the court orders issued on 23rd August 2021 having been served upon him and that he has not offered an undertaking to abide by any other orders that may be made including to publish further defamatory articles regarding the plaintiff.

4. The plaintiff/respondent further opposed the Motion by filing the replying affidavit sworn by Patrice Tlhopane Motsepe on 29th November 2021.

5. When the Motion came up for interparties hearing before the court on 6th December, 2021 the parties were directed to file and exchange written submissions. I have considered the grounds set out on the face of the motion dated 12th November 2021 and the facts deponed in the supporting affidavit.

6. The sole issue for determination before this court is whether the court should vacate or set aside the injunction and contempt orders.

7. The defendant/applicant in his application stated that he seeks to set aside the warrant of arrest and the conviction for contempt because both were taken out ex parte and arise from an unserved court order and has been sentenced to a fairly long custodial sentence without the option of a fine.

8. The applicant further stated that the proceedings were taken ex parte without notice, yet they affect his fundamental right to liberty since he has been sentenced to six months imprisonment without the option of a fine and that orders given ex parte should be set aside as a matter of justice on the application of a person affected by the order.

9. The applicant contends that unless the order is urgently stayed or lifted, the police could execute the arrest warrant at any time rendering this application nugatory and that his right to liberty will be severely compromised in the interim if he serves even one day in prison yet his application succeeds.

10. In response, Patrice Thlopane Motsepe stated inter alia, that all pleadings and subsequent court orders issued by this court were successfully and effectively served upon the defendant as required and each delivery receipt as required by law was attached to each of the various affidavits of service that were filed in this cause.

11. He further stated that despite being served by the court orders restraining him, the applicant continued to publish defamatory remarks about the respondent on his twitter account, he therefore does not have audience before this court to urge his application.

12. The above averments were echoed in the submissions of the respondent, save to add that the consequences of a failure to purge contempt is that the applicant will not be heard by the court or be allowed to participate in the proceedings. On this, the respondent relied on the case ofOilfield Movers Ltd v Zahara Oil and Gas Limited (2020) eKLR at paragraph 35. We urge that the court construes the defendant’s further publication of defamatory comments regarding the plaintiff against it in the determination of the application.

13. In his submissions, the respondent argues that he has demonstrated that for every email his process server sent to the applicant a delivery receipt which was received and he has met the threshold for service by way of email as required under Order 5 Rule 22B of the Civil Procedure Rules, 2020.

14. The respondent has relied on several authorities including High Court Civil Case No. 36 of 2020 Tanga Investments (K) Limited v N.F Metals Corporation (2021) eKLR at paragraph 45 the Court recognized that service shall be deemed to have been effected when the sender receives a delivery receipt to be attached to the affidavit of service to be filed.

15. The applicant seeks for an order to set aside or vacate the ex parte injunction and contempt proceedings. The background to the dispute is that the respondent instituted this suit by a plaint dated 4th August 2021, Witness statement, list and bundle of documents accompanied the injunction application, where the respondent sought for temporary orders to restrain the applicant from making any statements regarding the plaintiff/ respondent.

16. On 23rd August 2021 the court issued the temporary orders of injunction but on 29th August 2021, the applicant still published further defamatory statements and following this, the respondent filed a contempt application.

17. On 4th October 2021, the court found the applicant to be in contempt of court prompting the applicant to file this application which seeks to set aside or vacate the ex-parte contempt proceedings and to have the injunction application fixed for interparties hearing.

18. Reliance is placed on the case of Fred Matiangi, The Cabinet Secretary, Ministry of Interim and Co-ordination of National Government –v- Miguna Miguna & 4 otherswhere the Court of Appeal held: -“In deserving cases, this Court has itself set its face firmly against granting contemnors audience until and unless they first purge their contempt and it shall continue to do so in such cases as evince a headstrong contumaciousness proceeding from a bold impunity, open defiance or cynical disregard for the authority of the Court and the integrity of the judicial system. Such pernicious conduct cannot be countenanced and those hell-bent on it will find neither help, nor refuge under a convenient and self-serving appeal to natural justice when their impudent conduct threatens the very foundation of the rule of law. While the right to fair hearing is sacrosanct and is one of the non-derogable rights in Article 25 of the Constitution, we affirm with this Court in A. B. & another vs. R.B. 2016 eKLR that there may be instances where due to the risk of the rule of law being deliberately undermined, such right may be denied and the hearing of an application for stay denied until there is full compliance with the orders of the High Court.”

19. The applicant contends that orders were given ex parte without notice yet they affect his fundamental right to liberty since he may be sentenced to six months imprisonment without the option of a fine.

20. Having found the applicant guilty of contempt of court, the proceedings specifically relating to the issue of contempt of court are quasi criminal in nature. The applicant’s apprehension that there is a likelihood of the him being denied his personal liberty through a custodial sentence is true.

21. I do find that the applicant has established that there is likelihood the police could execute the arrest warrant at any time should the orders being sought be denied. The applicant has specifically stated that he was not served. The question of service has to be determined first. For the above reason I think it is not wise to deny the applicant audience.

22. In the case of Hadkinson –v- Hadkinson 91952) 2 ALL E.R. 567, at page 575 Lord Denning made the following observation: -“I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues it impedes the cause of justice by making it more difficult for the court to ascertain the truth or to enforce orders which it may make, then, the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed”.

23. Contempt of court proceedings have the underlying concept of upholding the rule of law and maintaining the dignity of the court. In my view, a person found to be in contempt of court orders ought to be granted audience before the court unless it can be established that such a party is in all manner out to demean the dignity of the court and undermine the rule of law.

24. Further, before such a party suffers the wrath of the court through the imposition of a penalty, she/he ought to be allowed to contest the orders which found him/her guilty of contempt upto the last appealable superior court. There is no hurry on the part of the court to impose a sentence before the contemnor can exhaust his right of appeal.

25. The exparte order of injunction dated 9th September 2021 and the contempt proceedings are hereby set aside. The application for injunction dated 3rd August 2021 is fixed for interpartes hearing on 21/7/2022.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF JULY, 2022. .......................J. K. SERGONJUDGEIn the presence of:................ for the Plaintiff................ for the 1st Defendant................ for the 2nd Defendant