[2022] KEHC 10856 (KLR)

Mutie v Principal Secretary, Ministry of Interior & Co-ordination of National Government & another (Application 320(B) of 2014) [2022] KEHC 10856 (KLR) (Judicial Review) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10856 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 320(B) of 2014

J Ngaah, J

June 10, 2022

Between

Timothy Kyule Mutie

Applicant

and

Principal Secretary, Ministry of Interior & Co-ordination of National Government

1st Respondent

Attorney General

2nd Respondent

Ruling

1. The application before court is the applicant’s motion dated 15 October 2018 and is said to be brought under order 53 rule 3(1) and (4) of the Civil Procedure Rules; the prayers in the motion have been fashioned as follows:1. That this application be certified as urgent and be heard ex parte in the first instance and leave be granted to the applicant to cite the respondents for contempt of court.2. That the principal secretary, Ministry of interior and coordination of National government in Kenya and the honourable Attorney General be found to be in contempt of the orders issued on 9 November 2017 aforesaid be committed to Civil Jail for a period not exceeding 6 months pending payment of the taxed costs.3. That this honourable court be pleased to deny the respondent the audience in this matter until and unless they purge the contempt of court committed herein.4. That the respondents be ordered to pay the costs of this application immediately and upon determination of the application herein.”

2. The application is supported by an affidavit sworn by the applicant on 16 October 2018. It is the applicant’s case that on 9 March 2015, this honourable court issued an order of mandamus in favour of the applicant directing the respondents to comply and satisfy a degree in Chief Magistrate’s Court Civil Case number 9950 of 2007; the decree was for the sum of Kshs 1,000,175 889 with costs.

3. Costs were eventually taxed in the sum of Kshs 181, 530 and the certificate of taxation was issued by the taxing master on 14 February 2017. Although the applicant has implored the respondents to pay, they have failed to do so and, in the process, they have disobeyed the order of mandamus ordering them to make the payments. It is as a result of this disobedience that the applicant has moved the court for the orders spelt out on the face of the motion.

4. The respondent did not file any response to the application and the record shows that the outstanding amount is not disputed. All the respondents wanted, every time this matter has come up in court, was for time to comply and pay the taxed costs.On 26 June 2021, the applicant’s motion came up for hearing and for the fifth time, counsel for the respondents asked for more time to pay. This time round, I rejected the application for adjournment considering the number of times the application has been adjourned for the same reason.

5. In prosecuting the application, the learned counsel for the applicant simply reiterated that despite the 1st respondent having been found to be in contempt of court on 9 November 2017 by disobeying the orders of this Honourable Court, they are yet to settle the outstanding amount.

6. The learned counsel for the respondent, on the other hand, contended that since the principal amount had been paid, the 2nd respondent could not be punished for not paying the costs. He also urged that the 1st respondent had not been served personally with the order to pay. In any event, since the Contempt of Court Act was declared unconstitutional, courts have no jurisdiction to punish for contempt.

7. The record shows that on 2 March 2015 this honourable court (Odunga, J.) granted the order of mandamus against the 1st respondent and was expressed in the following terms:That an order of mandamus be and is hereby granted directed at the respondents the Principal Secretary Ministry of Interior and Coordination of National Government the Hon. Attorney General to comply and satisfy the decree in CMCC No 9950 of 2007 in the sum of Kshs. 1,175,889/= with costs and interest.”

8. This order was issued on 9 March 2015. The applicant was also granted the costs of the application and that the matter was to be mentioned again on 29th of July 2015 for further orders.Nothing happened on 29 July 2015 but after the respondents failed to comply with the order, the applicant was given leave to file the application for contempt. The application was subsequently filed and when it came up for hearing on 27 July 2016, the court directed the 1st respondent to attend court on 12 September 2016 in the event the order of mandamus would not have been complied with.On 7 December 2016 the court noted as follows:In the absence of any response to the application dated 15th February 2016 I find merit in the same and I find that the Permanent Secretary of Ministry of Interior and Coordination of National Government is in contempt of this Court orders.“Accordingly let the notice to show cause issue against the said PS to personally attend this court and show cause why appropriate action cannot be taken against him.”

9. The 1st respondent did not appear in court as directed and so on 20 February 2017 the court directed the Inspector General of police to arrest the 1st respondent and present him in court for purposes of sentencing.

10. When the matter came up in court on 23 July 2017, the applicant’s counsel informed the court that the decretal sum had been paid and only costs were outstanding. The costs were never paid and it is as a result of non-payment of the costs that the instant application was filed.On 11 September 2018 the learned counsel for the applicant addressed the court and submitted as follows:We are seeking an enforcement of the order of the court and of the warrant of arrest issued on 20th February 2017 with respects to costs of Kshs 187,000”.

11. But the respondents’ learned counsel opposed the enforcement of the warrants of arrest and stated that the by the time the order for mandamus was issued, the costs had not been taxed and the contempt for which warrants had been issued had been purged; accordingly, the warrants had been overtaken by events. The court appears to have been persuaded by this argument because it then directed as follows:1. The warrants of arrest of 20th February 2017 were purged by the respondent paying the decretal sum as ruled by J, Odunga in his judgment which payment is not disputed by the parties.2. The applicant shall accordingly institute fresh proceedings for contempt of court on the payment of the outstanding costs of this application herein as directed by J, Odunga on 10th September 2018, and shall comply with the provision of section 30 of the Contempt of Court Act in this respect.3. The applicant is granted leave to file and serve their application within three 3days. The applicant is also granted leave to file and serve their response within 14 days of service.”

12. Regardless of when the costs were taxed, can the 1st respondent be said to have complied with order of 2 March 2015 yet he did not pay costs? I reckon not.Without appearing to contradict this order, I am of the humble view that as long as the 1st respondent had not fully complied with the order to pay “the sum of Kshs. 1,175,889/with costs and interest” (emphasis added) as prescribed in order for mandamus, the 1st respondent cannot be said to have fully complied with the order.

13. Of course, it would be a different question altogether if costs were never taxed at all. In that event, the 1st respondent cannot be blamed and, certainly there would be no basis for setting contempt of court proceedings against him for nonpayment of costs that are yet to be taxed. This is because under section 21(1) of the Government Proceedings Act, cap. 40 costs can only be paid by the Government or a Government department after they have been taxed.

14. But here costs were taxed except that the bill of costs was filed a month after the application for the order of mandamus was filed. The certificate of taxation was issued in 2017 two years after the order of mandamus had been made in 2015. Since the order for payment of the principal amount was not severable from the order for payment of costs, the 1st respondent cannot escape liability for disobedience of the order for mandamus if it was demonstrated, as it has been demonstrated in the present application, that he has ignored that limb of the order requiring him to pay costs. The only burden on the applicant was to demonstrate that he had his bill of costs duly taxed and a certificate of taxation issued and served. He has discharged this burden to my satisfaction.

15. Be that as it may, the applicant, at the instance of this honourable court, filed a fresh application for contempt of court proceedings. The only point of contention is whether the application was served. The only other argument by the learned counsel for the respondents that courts have no jurisdiction to punish for contempt in the wake of the nullification of the Contempt of Court Act is hollow and without any legal justification.Going by the record and conduct of the 1st respondent, the question whether the 1st respondent was served or not shouldn’t be an issue. I say so because, first, by making the payment of the principal sum, the 1st respondent must have thereby been acknowledging that he had been served with the order of mandamus which order provided for payment of not only the principal amount but also the costs.

16. The 1st respondent cannot therefore be heard to argue that he only knows of the order for payment of the principal sum and not that for payment for costs. And what is more, the 1st respondent has not filed any affidavit disputing service of the order or knowledge that he ought to settle the costs.

17. Secondly, and if anything, I have noted earlier in this ruling that all along the issue has not been whether the respondents or any of them had been served with the order. The fact that the applicant has only been paid the principle sum and not the costs, has never been contested and all the respondents have sought every time this matter has come up is for time to pay. No objection has been raised against the applicant’s application on account of want of service or on any other ground for that matter. It therefore smacks of bad faith to question whether the respondents or any of them was served only after the respondents have run out of excuses to delay the applicant’s application any further.

18. I am thereof inclined to find that the 1st respondent to be in contempt of the orders for payment of the applicant’s costs. The applicant’s application is allowed in those terms and he will also have the costs of the application. Orders accordingly.

SIGNED, DATED AND DELIVERED ON 10 JUNE 2022NGAAH JAIRUSJUDGE