[2021] KEHC 9526 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

Coram: D. K. Kemei - J

CIVIL SUIT NO. 13 OF 2020

REV. NAHASHON WAMBUA MWANGANGI..................................................................1ST PLAINTIFF

REV TOM NTHENGE MWANGANGI...........................................................................2ND PLAINTIFF

REV LUCAS MUTISYA MAWEU...................................................................................3RD PLAINTIFF

REV CHRISTOPHER MATHEKA NDAMBUKI..........................................................4TH PLAINTIFF

REV TITUS MWENDWA KATINGU..............................................................................5TH PLAINTIFF

(Suing on their own behalf and on behalf of other pastors and/or Members of Eaglerise Christian Church)

VERSUS

REV LEONARD MUNYAO WAMBUA...............................................................................DEFENDANT

RULING

1. The ruling relates to the application dated 30. 9.2020 that was filed in court vide certificate of urgency as well as a notice of motion that was brought pursuant to Order 40 Rule 3 of the Civil Procedure Rules and section 3A of the Civil Procedure Act.

2. The applicant sought the following orders:-

a)THATthe defendant/ respondent herein be cited for and/or punished for contempt of court by imprisonment for a term not exceeding 6 months or in any other way the court deems fit for breaching of this court’s order dated 8. 7.2020.

b)THATfurther or in the alternative, pending the hearing and determination of …the main suit the defendant be ordered to return the music instruments belonging to Eagle Rise Church, Masimba which he unlawfully took away from the said church in breach of the said court orders.

c)Spent.

d)THAT the costs of this application be awarded to the plaintiff/applicant in any event.

e)THATthe court be pleased to make any such further orders as it deems fit to safeguard the dignity and the rule of law by ensuring that its orders are complied with by the defendant.

3. The grounds of the application were set forth in the face of the notice of motion as well as the affidavit in support that was deponed by Lucas Mutisya Maweu and Felix Nyamai.

4. It was averred by Lucas Mutisya Maweu that this court made an order on 8. 7.2020 that restrained the defendant from interfering with the operations of the Church but however on 11. 7.2020 a Mr Mwenda locked the church premises with a padlock and gave the keys to the defendant. It was averred that on 26. 7.2020 the church premises were locked again and Mr Mwenda carried the keys. It was averred that the actions were being carried out by the defendant in full knowledge of the court orders. It was averred by Felix Nyamai, Peter Nzioka Kithongo that they witnessed the church being locked. Annexed to the affidavit were photographs of the suit premises indicating the same being locked with padlocks.

5. In reply to the application was an affidavit deponed by the defendant who averred that he did not attend court on 8. 7.2020. It was pointed out that Lucas Mutisya Maweu was a pastor at Mbukani ECC and had no business in Masimba ECC. It was averred that the alleged acts complained off occurred on 11. 7.2020 that was well before the court order was issued on 15. 7.2020. It was pointed out that Lucas Mutisya was posted to ECC Mbukani with effect from 4. 6.2020 as evidenced by the transfer letter dated 4. 7.2020 and marked LMW1.

6. Vide further affidavit deponed on 17. 9.2020 by Lucas Munyao Wambua, it was averred that the 3rd and 4th plaintiffs had been transferred vide transfer letter dated 31. 3.2020 and marked LMW1. It was averred that the 4th plaintiff was sued by the overseer of the suit church in Makindu SPMCC 200 of 2020 (LMW2). It was pointed out that the plaintiffs held illegal meetings under the guise of court orders and yet there were election by laws that govern the church. A copy of a transfer letter was annexed and marked LMW3. It was pointed out that the plaintiffs did not want to be supervised and hence decided to cause chaos.

7. In rejoinder, Lucas Maweu deponed an affidavit on 2. 10. 2020 where he averred that the transfer of pastors is one of the issues in this suit and therefore he was still a pastor of the church. It was averred that there were in existence Makindu Court Civil Suits 174, 199 and 207 of 2020that were instituted by what were said to be the agents of the defendant. Copies of the same were annexed and marked LMM1.

8. The application was canvassed vide written submissions. Counsel for the applicant vide submissions filed on 6. 10. 2020 submitted that the defendant was aware of the orders that were issued on 8. 7.2020 and that he went ahead to interfere with the office and mandate of the plaintiffs. The court was urged to mete the harshest sentence on the defendant.

9. According to counsel for the respondent, the court issued an order on 15. 7.2020 and which was not served on the defendant hence the defendant ought not to be found in contempt of the order of court.

10. Contempt of court consists of conduct which interferes with the administration of justice or impedes or perverts the course of justice…… Civil contempt consists of a failure to comply with a judgment or order of a court or breach of an undertaking of court. –SeeOsborne’s Concise Law Dictionary, P. 102.

11. In the case ofSam Nyamweya & Others v Kenya Premier League Ltd and Others [2015] eKLR Justice Aburili stated that: -

“contempt of court is constituted by conduct that denotes wilful defiance of or disrespect towards the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law, whether in civil or criminal proceedings.”

12. Halsbury’s Law of England,Vol.9(1) 4th Edition states as follows;

‘Contempt of Court can be classified as either criminal contempt, consisting of words or acts which impede or interfere with the administration of justice or which creates substantial risk that the course of justice will be seriously impeded or prejudiced, or contempt in procedure, otherwise known as civil contempt consisting of disobedience to Judgment, Orders or other process of Court and involving in private injury’

13. From the above definition of contempt of court, the issues for determination are;

a) Who are the contemnors?

b) Were the orders served upon contemnors and were they aware of the said orders?

c) Is the defendant guilty of contempt of the above stated orders?

d) What orders may the court grant?

14. This application is based on allegations of disobedience of court orders and that the defendant denied receipt of the said orders and stated that the acts complained of occurred before the order was issued.

15. In the instant application, the court ought to satisfy itself of the elements of civil contempt as were laid out in Contempt in Modern New Zealand that was cited inNorth Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi [2016] eKLR as follows:-

"There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-

(a) 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 order;

(c) the defendant has acted in breach of the terms of the order; and

(d) the defendant's conduct was deliberate.

16. It is undisputed that the court granted orders on 8. 7.2020 as witnessed by the court record. There is an affidavit of service indicating service of the application that was the subject of the said orders. However, there was no indication that the order was served on the defendant.

17. With regard to the 1st issue, the contemnors are on the face of the application stated to be the defendant. The affidavit on record speaks to the fact that the suit church was locked and that the keys handed over to the defendant. The defendant defended his actions by saying that the plaintiffs had been transferred and therefore they had no business being on the suit premises.

18. It was the argument of counsel for the defendant that the police officers were not parties to the suit hence could not be cited for contempt. Whereas there is no application to cite the police officers for contempt, case law speaks to the fact that this argument has no merit. In the Canadian case of Bartle & Gibson Co. v. Retail, Wholesale and Department Store Union, Local 580, [1971] 2 W.W.R. 449 (B.C.C.A.), Tysoe J.A., considering a submission that non-parties should not be described in an order, stated (at p. 455):

“I find it a little difficult to understand why, if it is true -- and it is, of course, quite true that persons who, with knowledge of an order, take any steps to assist in contravening it, may be proceeded against for contempt of court -- why the order should not provide that it covers somebody who, having knowledge of the order, disobeys it.”

19. In Attorney General v Newspaper Publishing plc, [1987] 3 All E.R. 276 (C.A.), at pp. 314-15, Balcombe L.J. commented that in an appropriate case it may be "preferable" for the court to make its initial protective order in terms which make it clear to members of the public who may be affected by the order that they also are required to obey it.

20. With regard to the 2nd issue, there is no affidavit on record that is indicative that the order was served on the defendant or his advocates on record. I am not convinced that the impugned order was served on the defendant.

21. The 3rd issue is disobedience of the court orders a priori is the defendantguilty of contempt of the above stated orders? In the case of A-G v The Times Newspapers (1974)AC 273, Lord Diplock said, at pages 311H-312A-B that:-

“---The remedy for contempt of court after it has been committed is punitive; it may involve imprisonment, yet it is summary; it is generally obtained on affidavit evidence and is not accompanied by the special safeguards in favour of the accused that are a feature of the trial of an ordinary criminal offence. Furthermore, it is a procedure which if instituted by one of the parties to litigation is open to abuse, .. the courts have therefore been vigilant to see that the procedure for committal is not lightly invoked in cases where, although a contempt has been committed, there is no serious likelihood that it has caused any harm to the interests of any of the parties to the litigation or to the public interest-

22. The burden of proof is that the Contempt of Court is proved beyond reasonable doubt that the defendant wilfully disobeyed court order cited above and instead proceeded with interfering with the office and or work of the plaintiffs pending the hearing and determination of the application.

23. I have seen that there are photographs of a padlocked gate and the affidavits in support of 3rd plaintiff and 2 other persons that they saw the gate being padlocked by a police officer and that the key was handed over to the defendant. Whilst the production of mechanically produced evidence, such as photographs, tapes and the like do not constitute an infringement of the hearsay evidence rule it is still trite law that a party relying on the said evidence must satisfy the court that it is authentic and before this piece of evidence is allowed into evidence there must be testimony defining and describing the provenance and history of the recording up to the moment of its production in court as an item of real evidence See R v Robson and Harris (1972)2 All E.R. 699; (1972)1 WLR 651.

24. In the affidavit evidence before this court, sworn by the 3rd plaintiff, there is no attempt to describe the origin and history of the recording photographs that are said to form part of the evidence in support of the application for contempt. The deponent does not identify the source of this photographs neither has he identified the person who took them. There is no information in the affidavit as regards when (date and time) or where the photographs were taken. Indeed, there is no information in the affidavit as to whether the photograph is original or a copy. In as much as the contents of the photograph were mentioned by the contents of the affidavit of the 3rd plaintiff, this court can only allow the same in evidence if the history and origin of same is defined, described and explained. In view of the above observations it will not be in the interest of justice that the photographs annexed to the affidavit of the 3rd plaintiff be accepted in evidence or that this court should accept as the truth what the 3rd plaintiff and the co deponents have deponed regarding the contents of the photographs.

25. What constitutes Contempt of Court in the instant case according to the plaintiffs is as follows;

Contrary to existing valid Court orders that prevented the interfering with the office and or work of the plaintiffs pending the hearing and determination of the application the defendant went ahead and interfered with the office and or work of the plaintiffs pending the hearing and determination of the application.

26. This court is unable to establish what conduct is complained of on the part of the defendant that amounted to contempt of the Court’s orders cited above. I find that the applicants have not discharged their legal duty to prove beyond reasonable doubt the contempt by the defendant. It is instructive that some of the plaintiffs who are pastors of the church had been transferred and that they appeared to have resisted the same and hence the stalemate. It is only during the hearing of the main suit that these issues will be thrashed and only then will the court establish whether the claims pleaded in the plaint will have been proved to the required standard. Most of the averments in the plaintiffs’ affidavit alludes to the locking of a church in Masimba area which was said to have been supervised by police officers and provincial administration officials and that it has not come out expressly that it was none other than the defendant who was behind it. Again, the defendant’s claim that the activity complained of took place prior to the alleged service of the court order raises some doubt as to his involvement. There is evidence of several cases allegedly filed in Makindu law courts involving the parties herein and hence it is not possible to pinpoint who and what point have any one of them fallen afoul of the law. Under those circumstances, I am prepared to find that the plaintiffs have not proved the allegations of contempt of court against the defendant. It transpired from the rival affidavits that the plaintiffs had been transferred to other church branches to which there was express resistance from them and coupled with the various cases at Makindu law courts, led to the present circumstances. The burden of proof in such cases is higher as there is a possibility of somebody being put behind bars if the allegations are proved. I am not convinced that the plaintiffs have managed to discharge this burden of proof. It is instructive that none of the church faithful at Masimba church swore affidavits in support of the plaintiff’s claims and hence I am inclined to give the defendant the benefit of doubt.

27. The upshot of the foregoing is that the plaintiffs’ application dated 30. 9.2020 lacks merit. The same is dismissed. As parties are members of one church I order each party to bear their own costs.

It is so ordered.

Dated and delivered at Machakos this 27th day of January, 2021.

D. K. Kemei

Judge