[2022] KEHC 9950 (KLR)

Mwaura v Neo Silver Arrow Automobiles Ltd (Civil Appeal 388 of 2018) [2022] KEHC 9950 (KLR) (Civ) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9950 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 388 of 2018

CW Meoli, J

July 14, 2022

Between

John Mbuki Mwaura

Applicant

and

Neo Silver Arrow Automobiles Ltd

Respondent

Ruling

1. The motion dated 12th November 2021 by John Mbuki Mwaura (hereafter the Applicant) is seeking that the court find Neo Silver Arrow Automobiles Ltd (hereafter the Respondent) to be in contempt of the court order issued on the 7th May 2020 requiring that the Applicant‘s motor vehicle registration number KBM 249S then held by the Respondent be released and kept in a safe and neutral place to be agreed upon by the parties within 45 days from the date of the judgment. Secondly, that Eston Kairu the Managing Director and proprietor of the Respondent company be committed to civil jail for a term not exceeding six months or that the property of the Respondent be attached until the Respondent purges the contempt. The motion is expressed to be brought under Section 5 of the Judicature Act, Section 3A of the Civil Procedure Act, Order 40 Rule 1, 2 & 3 and Order 51 of the Civil Procedure Rules.

2. The grounds on the face of the motion are amplified in the supporting affidavit sworn by Applicant who deposes that judgment was delivered by this court on 7th May 2020 directing that the Applicant’s motor vehicle held by the Respondent be released and kept in a safe and neutral place to be agreed upon within 45 days of the date of the judgment. That the Respondent was aware of the order and despite several requests to them and counsel to comply, the Respondent has refused to do so and is therefore in contempt of the court order and willfully continues the disobedience. He asserts that there is real and imminent danger that the Respondent will proceed to irregularly auction the Applicant’s motor vehicle exposing him to loss of a vital asset. That it is necessary that the present motion be granted.

3. The Respondent filed a notice of preliminary objection and a replying affidavit sworn by Eston Kairu both dated 7th December 2020 in opposition to the motion. The objection is based on grounds that the court is functus officio judgment having been delivered in 7th May 2020; that there is no order subsisting in the matter competent to support the application; that there is no order competent and capable of disobedience; that the order referred to in the application lapsed on or about 19th June 2020 hence the Respondent is incapable of being in contempt of the same; and that the current application was filed on 12th November 2020 about five months after the expiry of the said order as such the motion is misconceived, incompetent, bad in law, lacking in merit and an abuse of the court process.

4. The deponent to the replying affidavit repeats the objections above. The gist of the replying affidavit is that the order made by the court upon delivery of judgment lapsed on or about 19th June 2020; that the court is therefore functus officio ; that the order has not been served upon the Respondent since delivery of the judgment; and that the Applicant has never been stopped from towing the motor vehicle in question to his proposed garage and from effecting the judgment of the court . That in October 2020 the Applicant visited the Respondent’s premises to inspect the said motor vehicle after the orders granted by the court had already lapsed.

5. The preliminary objection and motion were canvassed by way of written submissions. Counsel for the Applicant while placing reliance on Section 4, 6 & 28 of the Contempt of Court Act, Black’s Law Dictionary, Halsbury’s Laws of England & The Law of Contempt by Nigel Lowe & Brenda Sufrin argued that the Respondent has mischievously and deliberately refused to comply with the orders to release the subject motor vehicle and must be cited for contempt. Citing authorities including Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] eKLR and Gatharia K. Mutitika v Baharini Farm Ltd [1985] eKLR counsel asserted that the Respondent is obligated to obey the court’s orders even if aggrieved thereby. Rejecting the plea by the Respondent that the court is functus officio , it was submitted that given its disobedience, the Respondent is estopped from arguing that the orders have lapsed. The court was urged to allow the motion.

6. The Respondent on its part submitted that the conduct of the Applicant in presenting the motion demonstrates abuse of the court process as the orders alleged to be the basis of the motion are unenforceable having lapsed on or about the 19th June 2020. While calling to aid the decision in Telkom Kenya Ltd v John Ochanda[2014] eKLR the Respondent argued that final judgment having been delivered this court is functus officio. It was further contended that Section 5 of Contempt of Court Act was declared unconstitutional. Counsel asserted that the Applicant’s material does not justify the exercise of the court’s powers regarding contempt , more so as the Applicant waited five months to file the motion. The decision in Sheila Cassatt Issenberg & Anor v Antony Machatha Kinyanjui [2021] eKLR was called to aid with respect to the foregoing. In conclusion it was submitted that motion is an afterthought and an attempt to reinstate stale judicial proceedings as such preliminary objection ought to be upheld and the motion dismissed with costs.

7. The court has considered the material canvassed in respect of the motion and preliminary objection. Before dealing with the substantive motion filed by the Applicant it is imperative to first dispose of the preliminary objection raised by the Respondent. In the of-cited case of Mukisa Biscuits Manufacturing Company Ltd v. West End Distributors(1969) EA 696, Law J. A. stated that:“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit. Examples are objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration…...A preliminary objection is in the nature of what used to be a demurrer: It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, or occasion, confuse the issues, and this improper practice should stop.”

8. In the case of Oraro v Mbaja (2005) KLR 141, Ojwang J (as he then was) reiterated the foregoing by stating that;“A preliminary objection correctly understood is now well defined as and declared to be a point of law which must not be blurred by factual details liable to be contested, and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed.Where a court needs to investigate facts; a matter cannot be raised as a preliminary point…. Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”

9. The Respondent’s preliminary objection is primarily based on the question whether this court is functus officio on the matter. The background to the Applicant’s motion is not in dispute. The present appeal was finally determined through the judgment of Njuguna J delivered on 7th May 2020. The final part of the said judgment read in part that:“The upshot is that the appeal succeeds. Consequently, the ruling and order of the learned trial magistrate delivered on 30th July 2018 is hereby set aside and substituted with an order allowing prayer (iv) of the motion that motor vehicle registration number KBM 249S be kept at a safe and neutral place to be agreed upon by the parties within 45 days from the date of this judgment.”

10. The Supreme Court of Kenya expounding on the doctrine of functus officio in Election Petitions Nos. 3, 4 & 5 Raila Odinga & Others vs. IEBC & Others [2013] eKLR cited with approval an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the functus officio doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832:“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”

11. The court also relied on the holding in the case ofJersey Evening Post Limited vs Al Thani [2002] JLR 542 at 550 to the effect that;“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”

12. As stated in Jersey Evening Post Limited (supra) “proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected”. The court issued an order to the effect that motor vehicle registration number KBN 249S be kept at a safe and neutral place to be agreed upon by the parties within 45 days from the date of the judgment. The Applicant has moved the court to punish the Respondent for contempt for non-compliance, and his answer to the Respondent’s plea of functus officio is that the Respondent is estopped from arguing that the orders had lapsed.

13. While it is true that the compliance period stipulated by the court lapsed after 45 days, reading the order as a whole, such lapse cannot serve to void the order especially where it is undisputed that there was non-compliance, for whatever reason. Because the stipulated period for the performance of the Court order was intended to limit the period of compliance. So that, if after the expiry of the period a party willfully failed to comply, the aggrieved party could approach the court for appropriate orders.

14. The construction of the purport of the order proposed by the Respondent if accepted would lead to an absurdity allowing parties to avoid compliance within the stipulated period and thereafter claim that the orders had lapsed. Consequently, it is the court’s view that the issue relating to the contempt by the Respondent is not a new issue or re-litigation with respect to the concluded appeal but rather a means to effect the judgment of the court. The preliminary objection therefore is not well taken and must fail. The court will now deal with the merits of the motion.

15. The Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others [2014] eKLR held that the procedure applicable in England under Part 81 of the English Civil Procedure (Amendment No.2) Rules of 2012 regarding contempt of court applied in Kenya, pursuant to section 5(1) of the Judicature Act which provides that:“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. Subsequently, Kenya enacted the Contempt of Court Act of 2016, but the Act was subsequently declared unconstitutional and hence the procedure obtaining before remains in place. Under that procedure, leave is not required to bring contempt proceedings in respect of disobedience of a court order. In Christine Wangari Gachege’s case, the court held that in punishing contempt the court exercises ordinary criminal jurisdiction. InStewart Robertson v Her Majesty’s Advocate, 2007 HCAC 63 it was held that:“Contempt of court is constituted by conduct that denotes willful defiance of or disrespect towards the court or that willfully challenges or affronts the authority of the court or the supremacy of the law, whether in civil or criminal proceedings.”

17. And according to Black’s Law Dictionary (Ninth Edition), contempt of court is “Conduct that defies the authority or dignity of a court.” The Supreme Court of Kenya inRepublic v Ahmad Abolfathi Mohammed & Another(2018) eKLR stated that:“[24] In Econet Wireless Kenya Ltd v. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim J (as he then was) relied on the Court of Appeal decision in Gulabchand Popatlal Shah & Another Civil Application No. 39 of 1990 (unreported), where the Court of Appeal stated as follows:“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... In Hadkinson v. Hadkinson(1952) 2 All E.R. 567, it was held that:It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a Court of competent jurisdiction, to obey it unless and until that 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 an order believes it to be irregular or void.”…[26] The Court of Appeal inA.B. & Another v R.B., Civil Application No. 4 of 2016 [2016] eKLR cited with approval the Constitutional Court of South Africa’s decision in Burchell v. Burchell, Case No.364 of 2005 where it was held:“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the court and requires other organs of the state to assist and protect the court. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively have the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”…[28] It is, therefore, evident that not only do contemnors demean the integrity and authority of Courts, but they also deride the rule of law. This must not be allowed to happen. We are also conscious of the standard of proof in contempt matters. The standard of proof in cases of contempt of Court is well established. In the case of Mutitika v. Baharini Farm Limited [1985] KLR 229, 234 the Court of Appeal held that:“In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.”

18. The Supreme Court proceeded to explain the rationale for the high standard as follows:“[29] The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she willfully acted in a manner that flouted the Court Order. [Emphasis added][30] The question that begs an answer, thus, is: did the applicant willfully disobey this Court’s Orders?”

19. The two related ingredients of willful disobedience and knowledge of the order are critical in a successful contempt proceeding. In the past, it was held by superior courts that for an applicant to succeed in contempt proceedings, he must prove personal service of the subject orders and the attendant penal notice upon the alleged contemnor. See the Court of Appeal dicta in in Nyamogo & Another v Kenya Posts and Telecommunications Corporation (1994) KLR 141. In recent years however, the courts have stated that where the applicant is able to demonstrate awareness by such alleged contemnor of the orders and not necessarily personal service of the order upon the contemnor, such awareness is sufficient. See Kenya Tea Growers Association vs Francis Atwoli & Others (2012) eKLR.

20. The Applicant has claimed that the Respondent was aware of the orders herein and that it ignored several requests for compliance. The Respondent on its part asserted that it was never served with the order and that the Applicant was not at any time prevented from towing the motor vehicle in question to the garage of his choice. The judgment in which orders were made was not delivered in open court but sent to the parties’ advocates via email by the court due to restrictions imposed because of the onset of the Covid-19 pandemic in Kenya. Hence the need for the Applicant to show that indeed the Respondents themselves were aware of the order.

21. Attached to the Applicant’s affidavit as evidence of such awareness by the Respondent of the order is a letter marked NMM2. The said letter contains the terms of the court order and is addressed to counsel for the Respondent. An endorsement on the face of the document reads: “sent by email”. Neither the said email nor evidence of direct service of the letter upon the Respondent was attached. And the Applicant did not indicate that he presented himself at the Respondent’s premises at any time to pursue observance of the order. This is important because the obligation in the order rested with both parties, firstly, to mutually agree on a neutral location for the safe keeping of the vehicle, and secondly for the removal of the vehicle to that location.

22. In my view it behoved the Applicant as the beneficiary of the order to activate that process by serving the order upon or bringing it to the attention of the Respondent, and then agreeing on the removal and relocation of the vehicle to a mutually appointed place. Having failed to do his part, the Applicant cannot be heard to accuse the Respondent of willful disobedience of the order.

23. Consequently, the court is not satisfied that the Applicant has proved to the required standard conduct that demonstrates that the Respondent is guilty of contempt of the court. The application must fail and is hereby dismissed with costs to the Respondent.

DELIVERED AND SIGNED ELECTRONICALLY ON THIS 14TH DAY OF JULY 2022. C.MEOLIJUDGEIn the presence of:For the Applicant: Mr. MwangiFor the Respondent: N/AC/A: Carol