[2023] KECPT 730 (KLR)

Mwae v Omondi; Law Society of Kenya (Interested Party) (Tribunal Case E012 of 2022) [2023] KECPT 730 (KLR) (28 September 2023) (Ruling)

Neutral citation: [2023] KECPT 730 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E012 of 2022

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

September 28, 2023

Between

Dorcas Wanjiru Mwae

Plaintiff

and

Ochola Viona Omondi

Defendant

and

Law Society Of Kenya

Interested Party

(Coram: Hon.B. Kimemia- Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Ruling

1. This Ruling dispenses with the Respondent’s Notice of Motion Application dated 24th February 2023 and filed on 1st March 2023. The Application is supported by an Affidavit sworn by the Applicant, Dorcas Wanjiru Mwae and brought under Article 40 of the Constitution of Kenya , Sections 1A, 1B, 3A of the Civil Procedure Act, and Order 51 Rule 1 of the Civil Procedure Rules and any other enabling provisions of the law. The Application seeks the following orders:a.That this Application be certified as urgent and heard in the first instance.b.That this Honourable Tribunal be pleased to make a factual finding that the Respondent herein is in contempt of the Order of this Honourable Tribunal issued on 14th October 2022. c.That this Honourable Tribunal be pleased to cite the Respondent as being in continuous contempt of this Honourable Tribunal’s orders issued on the 14th October 2022 and commit the Respondent, Ochola Viona Amondi to a jail term being not less than 6 months for her willful and continuous disobedience of the orders issued by this Honourable Tribunal.d.The Respondent do pay costs and interest on the costs of this Application.e.That this Honourable Tribunal do make such orders of further orders as it may deem fair and just in the interest of justice.

2. Grounds on the face of the Application are that the Applicant guaranteed the Respondent a loan advanced by the interested party. The Respondent did not repay the loans as required and it led to the offsetting of the Applicant’s shares worth Kshs. 1,981,851/- to repay the loans. The Applicant was aggrieved and filed the suit herein. The Respondent claimed that he is planning to sell two parcel of lands to repay the loans, and on a ruling delivered on 14th October 2022, this Tribunal ordered the Respondent to deposit the titles of the two properties, Mavoko Town Block 70/19 and Mavoko Town Block 3/20554, with the Tribunal within 14 days of the Ruling. The Applicant claims that the Respondent has only deposited one title and failed to deposit the title for Mavoko Town Block 70/90. The Applicant is afraid that the Respondent may dispose of the parcel of land, and prays this Tribunal to find the Respondent in contempt for failing to honor its Ruling.

3. In his Replying Affidavit dated 13th March 2023, the Respondent admitted knowledge of the Ruling of the Tribunal dated 14th October 2022. He also admitted to receiving an order on the same. He also depones indeed he deposited the title for Mavoko Town Block 3/20554 on 21st November 2022. However, he avers that he is facing a challenge depositing the title for Mavoko Town Block 70/19 since the same is in the custody of a third party, Akide & Company Advocates. He further avers that Mr. Akide has vowed not to release the title until all claims are settled. He further claims that he cannot dispose of the property since there is already a caution against the property by Mr. Akide and also that this Tribunal restrained him from disposing the land. Finally that even if the applicants are allowed the prayers they are seeking, it will be in futility as it will not lead to the desired results.

4. In their submissions, the applicants reiterated their prayers and facts in the Application. On the question of whether the Respondent should be held in contempt, the Applicants quoted the case of Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning & 3 others (2017) eKLR where the court held that “it is essential for the maintenance of the rule of law and the order that the authority of the courts be upheld at all times”. The Claimants also submit that the Respondents should have applied for review of the court order when they realized that they could not get hold of the title as this is a new matter which warrants a review.

5. In their submissions, the Respondent sought to answer whether the Defendant is in contempt of the order dated and issued 14th October 2022. The Respondents relied on the case of Samuel M.N Mweru & Others v National Land Commission & 2 Others (2020) eKLR, where the court laid down 4 principles to be considered for contempt. The Respondent further relied on various cases on the standard of proof required in contempt of court proceedings and particularly DKG v EG (2021)eKLR where it was held that the standard of proof in Contempt proceedings is higher than that of balance of probabilities but lower than that of beyond reasonable doubt. It was the Respondent's position that his conduct was not deliberate and that the Respondent produced sufficient evidence to prove his inability to deliver the title.

AnalysisThis Tribunal has considered the grounds of the application, the affidavits sworn by the parties, and the submissions filed. The question before this Tribunal is whether This Tribunal can make a factual finding that the Respondent is in contempt, and whether the Respondent can be committed to civil jail. 6. It is not in dispute that this Tribunal delivered a ruling that ordered the Respondent herein, to deposit two titles for Mavoko Town Block 70/90 and Mavoko Town Block 3/20554. It is also not in dispute that the Respondent was informed of the ruling and was well aware of the orders therein, and that he only deposited one title, Mavoko Town Block 3/20554 with the Tribunal and did not deposit Mavoko Town Block 3/20554. The Applicants do not also dispute that the Respondent informed them through a letter the challenges he was facing with the deposit of Mavoko Town Block 70/90. The question that arises then is whether the failure to deposit Mavoko Town Block 70/90 with the Tribunal when there was an order to that effect amounts to contempt.This Tribunal draws its jurisdiction to entertain contempt of court proceedings from Section 83 the Cooperative Societies Act which provides that;It shall be an offence for any person to engage in acts or make omissions amounting to contempt of the Tribunal and the Tribunal may punish any such person for contempt in accordance with the provisions of this Act.Contempt of court is that conduct or action that defies or disrespects authority of court. Black’s Law Dictionary 9thEdition, defines contempt as:“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”.In the case of Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KLR 828, Ibrahim, J. (as he then was), underscored the importance of obeying court orders, stating:“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”.Further Mahinderjit Singh Bitta v Union of India & Others , the court held that“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”

7. Since it is not in dispute that the Respondent received the order, or that he did not comply with the order, the question thus is whether the failure to comply with the order was intentional or willful. Due to the gravity of consequences that ordinarily flow from contempt proceedings, the standard of proof of a case against a Respondent is higher than that of balance of probability. It should not be probable that the Contemptor but the Tribunal should be convinced that the failure was willful. It should be shown that the Respondent was in a position to comply with the order, but chose not to. In this case, the Respondent informed the court that he was willing to deposit the Title for Mavoko Town Block 70/19 with the Tribunal, and indeed wrote a letter to Mr. Akide the current custodian of the title informing him of the order of this Tribunal, and that is when he got the response that the Title cannot be released without settling other matters with him. The Respondent indeed filed a response from Mr. Akide to that effect. We find that the failure to deposit the title by the Respondent to this Tribunal cannot be said to willful and deliberate. The Respondent is not in possession of the title and one cannot submit what they do not have.

8. Flowing from above, the final orders are that:a)The Application dated 24th February 2023 is declined and dismissed.b)Each party to bear their own costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 28. 9.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 28. 9.2023HON. BEATRICE SAWE MEMBER SIGNED 28. 9.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 28. 9.2023HON. PHILIP GICHUKI MEMBER SIGNED 28. 9.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 28. 9.2023HON. PAUL AOL MEMBER SIGNED 28. 9.2023TRIBUNAL CLERK JEMIMAHJudgment delivered in the absence of the parties.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 28. 9.2023