[2023] KEHC 23142 (KLR)

Nabori & 9 others v Attorney General & 3 others (Constitutional Petition 466 of 2006) [2023] KEHC 23142 (KLR) (Constitutional and Human Rights) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23142 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition 466 of 2006

LN Mugambi, J

October 5, 2023

In The Matter Of Protection Of Fundamental Rights And Freedoms Of The Individual Under Sections 60, 70,71 And 75

And

In The Matter If The Environment Management And Coordination Act No. 8 Of 1999

And

In The Matter Of Suppresion Of Noxius Weed Act Chapter 325 Of Kenya

Between

Charles Lekuyen Nabori

1st Petitioner

Joel Ole Saaya

2nd Petitioner

Clement Nashuru

3rd Petitioner

Wesley Kakimon

4th Petitioner

Edward Tamar

5th Petitioner

Ngamia Rangal Lemeiguran

6th Petitioner

Shaolin Leriche Meiguran

7th Petitioner

Samson Lereya Kakimon

8th Petitioner

Samantitita Samaria Lengiyaa

9th Petitioner

Stanley Leterewua

10th Petitioner

and

The Attorney General

1st Respondent

The Cabinet Secretary, Water And Natural Resources

2nd Respondent

National Environment Management Authority

3rd Respondent

The County Council Of Baringo

4th Respondent

Ruling

1. The subject matter of this ruling arises from the judgement delivered on the 11th day of December, 2007 and decree the thereof issued on the 27th of February, 2008. The application is dated 19th November, 2021 and sought the following Orders:a.That the Honourable Attorney General and the Cabinet Secretary for Environment and Forestry be and are hereby cited for contempt of the orders of this Honourable Court issued on the 15th day or July, 2016 by Honourable Justice Lenaola;b.That upon citation for contempt, the aforesaid Honourable Attorney General and the Cabinet Secretary for Environment and Forestry are hereby sanctioned by committal to civil jail, sequestration of property, payment of a fine and/or any other further orders;c.That this Honourable Court makes any further orders to restore its reputation and dignity, including inter alia by giving peremptory directions regarding the continued disobedience of the orders of this Honourable Court;d.That the costs of this Application be provided for.

2. The Application is cited several grounds in the notice of motion and was supported by the affidavit sworn by the 7th Applicant. He deposed that this Court issued orders on the 15th of July, 2016 directed that Attorney General and the Cabinet Secretary appear in person or by a representative to explain non-compliance of the court orders issued on the 27th day of February, 2008 following a judgement entered for the applicants on the 11th day of December, 2007. That despite the Respondents promising to report back to Court, no effort was made to comply with the orders of this Court despite the many years that have passed.

The Respondents’ Response 3. The Respondents did not file any response to the application. They also did not appear in Court for the hearing of the present application.

Submissions 4. The Respondents did not file any submissions to the Application. Only the Applicants’ submissions are on record. They are dated 8th May, 2023. The only issue that the Applicants submitted on was whether the 1st and 2nd Respondents are in contempt of Court. They submitted that the Respondents have not obeyed the Court orders or appeared in Court to explain their non-compliance. The Applicants stated that this Court is well equipped to deal with issues of non-compliance of its orders despite repeal of Section 5 of the Judicature Act and Section 38 of the Law of Contempt Act being declared unconstitutional.

5. They relied on the case of Samuel M. N Mweru & Others v National Land Commission & 2 Others (2020) eKLR where the Court stated that:“A court without contempt power is not a court. The contempt power (both in civil and criminal form) is so innate in the concept of jurisdictional authority that a court that could not secure compliance with its own judgements and orders is a contradiction in terms, an ‘oxymoron’. Contempt power is something regarded as intrinsic to the notion of the court, even obvious I would say. In the common lawyer’s eye, the power of contempt ‘is inherent in courts and automatically exists by its very nature.’”

6. They also relied on the case of Miguna Miguna v Fred Matiang’i, Cabinet Secretary Ministry Of Interior And Co-ordination Of National Government & 8 Others (2018) eKLR where the Court stated that:“Contempt of court is in no doubt an affront of judicial authority and therefore is not a remedy chosen by a party but is invoked to uphold the dignity of the Court. The Court found that the Respondents herein have no doubt conducted themselves in a most despicable manner not expected in this constitutional era. I reiterate what I said in the earlier ruling that those who disobey Court orders risk being declared by the Court to have breached Article 10 of the Constitution which prescribes national values and principles of governance with the attendant consequences among other appropriate sanctions.”

7. The Applicants concluded by submitting that it has been 15 years after the orders were issued by the Court yet the Respondents have continued to treat the Court spitefully. They have even failed to respond to the instant application despite the Court’s directions to do so. They urged this Court to allow their application dated 19th November, 2022 together with the incidental costs.

Analysis and Determination 8. What comes up for determination in this application is whether the Respondents should be held in contempt of the Court orders of 27th February, 2008 and those issued by Hon. Lenaola J (as he then was) on the 15th of July, 2016.

9. The contempt against the Respondent for the orders issued by the Court vide the decree dated 27th February, 2008 was lodged in the application dated 4th February, 2014 which application was heard and determined by Hon. Lenaola J (as he then was) on the 15th day of July, 2016. In his ruling, the learned Judge issued the following orders:a.For the above stated reasons, I am not satisfied that the Applicants have made out a case of contempt against the Respondent and that the Chamber Summons application dated 30th September, 2014 to that extent only is dismissed;b.I however direct the Deputy Registrar of this Court to issue a Notice to Show Cause to the Attorney General (or his representative) and the Cabinet Secretary, Ministry of Environment and Natural Resources (or his representative) to appear before this Court on a date to be indicated on the said Notice to explain non-compliance with orders issued on the 28th of February, 2008 pursuant to the judgement delivered on 11th December, 2007;c.Let each party bear their own costs of this application.

10. Does the issue of res judicata arise in this case particularly with the contempt application for the orders issued on the 28th of February, 2008 pursuant to the judgement delivered on the 11th of December, 2007? Section 7 of the Civil Procedure Act provides for res judicata as follows:‘No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit of the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.’

11. The Supreme Court deliberated on the issue in the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, and held that all the elements outlined under section 7 of the Civil Procedure Act must be satisfied conjunctively for the doctrine to be invoked. That is:a.The suit or issue was directly and substantially in issue in the former suit.b.That former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

12. The Applicants filed an application of contempt against the Respondents dated 4th of March, 2014 seeking the following orders:-a.That service of this Application be dispensed with in the first instance on account of its urgency;b.That a Notice to Show Cause be issued to the Principal Secretary Ministry of Natural Resources, Mr Richard Leresian Lesiyampe and the Director of National Environmental and Management Authority Prof. George Wahungu to appear personally in Court and show cause why the orders issued on 27th February, 2008 have not been acted upon since or be committed to civil jail;c.That an order do and is hereby issued to compel the Attorney General, the Cabinet Secretary for Environment, Water and Natural Resources and the Director of the National Environmental Management Authority to comply and enforce orders issued on the 27th of February, 2008 and more specifically Order F.

13. The Application dated 27th February, 2008 and the instant application are identical particularly on the issue of contempt of Court. The Learned Judge discussed the issue of contempt elaborately before finding that a case of contempt of court had not been made against the Respondents before proceeding to dismiss the chamber summons.

14. That limb of the Application is my view res judicata and cannot be re-introduced.

15. The only issue that remains to be determined in the application is whether the Respondents are in contempt of the orders issued by the Court on the 15th of July, 2016. The Court directed the Respondents to appear in Court in person or through their representatives to explain why the orders have not been acted upon. The Notice to Show Cause issued by the Deputy Registrar is dated 10th August, 2016 inviting the Respondents to attend Court on the 19th of August, 2016.

16. On the said date, the Respondents filed a replying affidavit deponed by Ephraim Muchiri Mwai, who was the Deputy Director of Forest Conservation State Department of Natural Resources. To the Affidavit, he annexed a report titled: Status of Management and Control Interventions on the Invasive Prosopis Tree Species in Kenya, which was compiled by the Kenya Forestry Research Institute (KEFRI). He deposed that the Chapter 5 of the Report illustrates the Governments efforts in managing the proposis juliflora species in Kenya and how the people of Baringo County have been guided in the use of the species as a bio fuel, production of wood and timber products.

17. The Respondents contend that the order requiring that a commission of technical and local experts be appointed is not within the Respondent’s mandate by virtue of the Commission of Inquiry Act which exclusively empowers the president to appoint commissions. That the issue of a policy paper by the Ministry has also been addressed in the report which details the management of the species.

18. The Contempt Act No. 46 of 2016 was declared unconstitutional hence Kenya lacks a standard law to govern contempt of court. Section 5 of the Judicature Act had been repealed by the Act but when the Act declared unconstitutional, it was revived. The Court in the case of Alfred Mutua v Boniface Mwangi [2022] eKLR while referring to the case of the Christine Gachege (supra) held thus:“Before the enactment of the nullified Contempt of Court Act which deleted section 5 of the Judicature Act Cap 8 Laws of Kenya, the first port of call with respect to the procedure for institution contempt of Court proceedings in this country was and therefore is Section 5 of the Judicature Act Cap 8 Laws of Kenya. That Section provides: 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.

2. An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.

14. Therefore, the law that governs contempt of court proceedings is the English law applicable in England at the time the contempt was committed. The procedure in the High Court of Justice in England was considered in detail by the Court of Appeal in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others [2014] eKLR. In that case the Court recognised that the only statutory basis for contempt of court law in so far as the Court of Appeal and the High Court are concerned is section 5 of the Judicature Act.”

19. In the case of Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others [2014] eKLR, the court clarified on the relevant law to apply in matters pertaining contempt. It said that:“Following the implementation of the famous Lord Woolf’s “Access to Justice Report, 1996”, The Rules of the Supreme Court of England are gradually being replaced with the Civil Procedure Rule, 1999. Recently, on 1st October, 2012 the Civil Procedure (Amendment No. 2) Rules, 2012 came into force and PART 81 thereof effectively replaced Order 52 RSC in its entirety. PART 81 (Applications and Proceedings in Relation to Contempt of Court) provides different procedures for four different forms of violations.Rules 81. 4 relates to committal for “breach of a judgment, order or undertaking to do or abstain from doing an act.”Rule 81. 11- Committal for “interference with the due administration of justice” (applicable only in criminal proceedings).Rule 81. 16 – Committal for contempt “in the face of the court”, andRule 81. 17 - Committal for “making false statement of truth or disclosure statement.”An application under Rule 81. 4 (breach of judgment, order or undertaking) now referred to as “application notice” (as opposed to a notice of motion) is the relevant one for the application before us. It is made in the proceedings in which the judgment or order was made or the undertaking given. The application notice must set out fully the grounds on which the committal application is made and must identify separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon.The application notice and the affidavit or affidavits must be served personally on the respondent unless the court dispenses with service if it considers it just to do so, or the court authorizes an alternative method or place of service.It is clear from this summary that leave, now called “permission” is not required where committal proceedings relate to a breach of a judgment, order or undertaking. That position must be contrasted with the requirement in Rules 81. 12 – committal “for interference with the due administration of justice” and 81. 17 – Committal “for making a false statement of Truth or disclosure statement” where, in the former it is expressly provided that:-The application for permission to make a committal application must be made by a part 8 claim form………..”And in the case of the latter,“A committal application in relation to a false statement of truth or disclosure statement in connection with proceedings in the High Court, a Divisional Court or the Court of Appeal, may be made only;a.with the permission of the Court dealing with the proceedings in which the false statement or disclosure statement was made………”

20. This Court therefore has no choice but is bound by doctrine of precedent to place reliance on the English Civil Procedure (2020)

21. Rule 81. 4 of the English Civil Procedure Rules (Amendment No. 3) Rules, 2020 provides for the requirements of a contempt application by stating thus:1. Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.

2. A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable-a.the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);b.the date and terms of any order allegedly breached or disobeyed;c.confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;d.if the court dispensed with personal service, the terms and date of the court's order dispensing with personal service;e.confirmation that any order allegedly breached or disobeyed included a penal notice;f.the date and terms of any undertaking allegedly breached;g.confirmation of the claimant's belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;h.a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;i.that the defendant has the right to be legally represented in the contempt proceedings;j.that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;k.that the defendant may be entitled to the services of an interpreter;l.that the defendant is entitled to a reasonable time to prepare for the hearing;m.that the defendant is entitled but not obliged to give written and oral evidence in their defence;n.that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;o.that the court may proceed in the defendant's absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;p.that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;q.that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;r.that the court's findings will be provided in writing as soon as practicable after the hearing; ands.that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public.

22. The Applicants contend that the Respondents did not appear in Court to explain why the Orders issued on the 28th of February, 2008 have not been complied with. The Respondents Replying Affidavit filed on the 19th of August, 2016 explains why the orders could not be executed as they indicating that forming of a commission of inquiry falls squarely under the ambit of the President of the Republic not the respondent. Whether or not that assertion is an adequate response should be weighed against the provisions of Rule 81. 4 of the English Civil Procedure (Amendment No. 3) Rules 2020, sub-rule 2 (o) which provides that:“o)that the court may proceed in the defendant's absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt”

23. Accordingly, as per the Rules, the Respondents failure to attend to the in strict sensu cannot alone suffice to prejudice them in the matter.

24. In my opinion, the Respondents’ replying affidavit, which constitutes part of this Court’s record has attempted to explain the reasons why implementation of the orders issued by the Court on the 28th of February, 2008 posed a challenge to the respondents. The report alleges the situation faced by the inhabitants of Baringo County has been ameliorated and there is need to confirm whether this is factual or not. The Applicants did not respond to the issues brought forth in said replying affidavit nor in the report.

25. Consequently, given the Respondents’ Replying Affidavit filed on the 19th of August, 2016, the Applicants have failed to controvert the allegations of non-compliance hence contempt application against the 1st and 2nd Respondents cannot be sustained,

26. Each party shall bear their own costs of the application.

DATED, SIGNED AND DELIVERED AT MILIMANI THIS 5THDAY OF OCTOBER, 2023L. N. MUGAMBIJUDGE