[2023] KEHC 25039 (KLR)

Munywa v Sila (Miscellaneous Civil Application E022 of 2021) [2023] KEHC 25039 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25039 (KLR)

Republic of Kenya

In the High Court at Makueni

Miscellaneous Civil Application E022 of 2021

TM Matheka, J

November 10, 2023

Between

Julius Muthoka Munywa

Applicant

and

Samuel Nthenge Sila

Respondent

Ruling

1. Samuel Nthengela Sila was the plaintiff in Tawa MCCC no 13 of 2014 where he sued Julius Muthoka Munywa and Kuneene Munywa as the defendant for the sum of Ksh 64, 098/30. The matter ended in his favour vide the learned Magistrate’s judgement dated 18th November 2020.

2. On 17th May 2021 Julius filed a Notice of Motion seeking stay of execution of the judgment and decree pending the hearing and determination of the application inter- partes. He also sought leave to file an appeal out of time.

3. On the 19th March 2021 the Hon Justice Dulu granted stay of execution ‘to the mention date to be fixed by the Deputy Registrar He also directed that the DR to fix a mention date for directions.

4. On 23rd March 2021 the matter was mentioned before the DR who fixed it for mention on the 27th May 2021. That meant that the interim orders were to be in force until the 27th of May 2021. During the mention none of the parties was present.

5. The record shows that the next mention was on 31st May 2021 when the matter was placed before the Judge on 2nd June 2021. On this date what was before the Judge was the application that is before me dated 25th May 2021 filed under certificate of urgency. It is brought under Sections 1A, 1B, 3A & 63(c) of the Civil Procedure Act, Section 5 of the Judicature Act Cap 8 Laws of Kenya, Order 40 Rule 3 of the Civil Procedure Rules, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. It seeks the following orders;a.Spent.b.That this honorable Court be pleased to find the Respondent in contempt of the orders of this honorable court issued on 22nd March 2021. c.That this honorable court do order that the respondent be arrested by the OCS Wote Police Station or his subordinates and be presented to court for committal to civil jail for a term of 6 months.d.That the costs of and incidental to this application be provided for.

6. For a long time, the applicant was unable to serve the application and sought several adjournments. The record shows that on the 14th March 2022, there was the appearance of Mr. Kiluva holding brief for DM Mutinda for the applicant and Mr. Kithuka holding brief for Mr. Munyasya for the respondent. Parties took directions to canvass the application by way of written submissions. I took over the matter on 11th May 2023 and the respondent was acting in person.

7. The application is supported by the grounds on its face and the Affidavit sworn by the applicant on the same day. He depones that the orders of this court issued on 22nd March 2021 and the application dated 17th March 2021 were personally served on the applicant but he has blatantly refused, ignored and/or neglected to obey them. That the effect of the orders was to temporarily stay the execution of the judgment and decree of the subordinate court. The order and affidavit of service are exhibited as JMM1 and 2 respectively.

8. That while aware of the Court orders, the respondent obtained warrants of arrest against the applicant whereupon he was arrested and detained at Mumbuni Police Station the whole day. A release order is exhibited as JMM3. He depones that the respondent’s action has violated the court order and is therefore in contempt of court. Further, he depones that court orders should be obeyed in order to preserve the sanctity of the court process.

9. The application is opposed through the respondent’s replying affidavit sworn on 02nd November 2021. He depones that the application is frivolous, misconstrued, abuse of court process and fatally defective. The gist of the opposition is that that he was neither aware of the court order issued on 22nd March 2021 nor the application dated 17th March 2021. That he would have responded to the application if the same had been served on him. That the affidavit of service is false and an afterthought as it alleges that he was served in his residence at Kalawa Location yet he is a resident of Ikalaasa Location within Machakos County. He has urged this court to summon the process server for cross examination

10. The application was canvassed through written submissions and only the applicant’s submissions are on record.

The Applicant’s Submissions 11. He has relied on Katsuri Ltd –vs- Kapurchand Depar Shar [2016] eKLR where the court reiterated that the essential elements of civil contempt are;a.That 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 orders.c.The defendant has acted in breach of the orders.d.The defendant’s conduct was deliberate

12. He submits that the respondent was served with the court order and an affidavit of service filed by a licensed process server. That despite the respondent’s awareness of the court order, he (applicant) was arrested and put in custody by the Mumbuni Police Station Officers. He relies inter alia on Teachers Service Commission –vs- Kenya National Union of Teachers & 2 Others (2013) eKLR where the court observed that;“The reason why the courts will punish for contempt of court then is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it about placating the applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law.”

13. He submits that the respondent’s conduct was deliberate as he has neither disputed the existence of the order nor being served with it. He submits that courts of law do not issue orders in vain and they are supposed to be obeyed by the parties they are directed to. That the respondent has displayed utter contempt to this court and punitive measures ought to be taken against him in order to restore this court’s dignity.

14. The only issue for determination is whether the application is merited.

Whether the Respondent is in contempt of Court 15. Section 5 of the Judicature Act provides that;(1)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.

16. As discussed in the South African case Kristen Carla Burchell –vs- Barry Grant Burchell, Eastern Cape Division Case No. 364 of 2005, it is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove; (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii), Failure by the Respondent to comply with the terms of the order.

17. The record shows that the order was issued by the Deputy Registrant on the 22nd March 2021 to the effect that there was stay of execution until 27th May 2021. The respondent denied knowledge of the said orders and called for cross examination of the process server. He specifically denied that he is a resident of Kalawa Location as indicated in the affidavit but that he resides at Ikalaasa. It is noteworthy that while in in some of the documents filed by the applicant the address for the respondent is given as P.O Box 1, Kalawa, in others it is P.O Box 1 Ikalaasa.

18. The applicant annexed to the application an unsigned, undated Affidavit of service. In addition, it is devoid of details of how he knew the respondent actually lived in Kalawa. He names a person without any contacts who he claims knew the home of the respondent. The affidavit of service does not draw any confidence that the named process server carried out the process and if he did so, he does a very poor job of showing that he did so in the affidavit of service.

19. Hence there is insufficient evidence to support the averment that the respondent was served with the court order and being aware of the same proceeded to have the applicant arrested and detained.

20. I have also looked at the release order dated 4th May 2021. Police Officers do not arrest and detain persons who have been arrested on the execution of decrees. Theirs is to arrest and present to court. The release order does not make sense as there no need to issue one. It does not even make reference under which law it is issued. It is doubtful that the OCS Mbumbuni Police Station would hold such a person as his role would be to avail him to court. No warrant of arrest is annexed. No order of the court is annexed. That part of the claim is unsupported by sufficient evidence. If indeed the respondent had obtained warrants, there would have been file copies from where the applicant would obtain to annex together with the said release order as evidence.

21. I cannot draw the conclusion with any certainty that the applicant was arrested and held at Mbumbuni Police Station as there is insufficient documentary evidence to support that claim

22. The whole application for contempt is signed “For DM Mutinda, Advocates, for the Applicant “, including the certificate of urgency. That looks strange, and begs the question as to who signed the pleadings for the advocate.

23. I also did not find anything in the file to show that the firm of Munyasya was on record for the respondent as the respondent was said to appear in person. If indeed counsel was on record, then the thing would have been to serve the counsel with everything and have them respond.

24. All that said I have carefully considered all the evidence available, the affidavits and submissions, and more importantly addressed the question whether the respondent was served with the application, and order, considering that there are penal sanctions for being in contempt of court, the standard of proof is higher and it is my considered view that it has not been met in this case. I find that there is insufficient evidence to support that and the application does not meet the requisite threshold to warrant the orders sought.

25. The application is without merit; it is dismissed with costs to the respondent.

DATED SIGNED AND DELIVERED THIS 10TH NOVEMBER 2023. ..................................MUMBUA T MATHEKAJUDGECA MwiwaApplicants’ AdvocatesJoseph Mwongela & Co. AdvocatesRespondent