[2022] KEHC 1573 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

CIVIL SUIT NO. 24 OF 2015

NGINA GITIBA..............................................................PLAINTIFF/RESPONDENT

-VERSUS-

SOUTH NYANZA SUGAR COMPANY LIMITED....DEFENDANT/APPLICANT

RULING

The plaintiff/applicant filed a Notice of Motion application dated 9/12/2020 seeking the following orders:-

i. Spent.

ii. Spent

iii. This court be pleased to suspend the writing and/or the delivery of the ruling scheduled for ruling on 4/3/2021 pending the hearing and determination of the application dated 21/10/2020;

iv. This court be pleased to order the re-opening of the hearing of the defendant’s application to enable her to put her written submissions.

v. Costs be provided for.

The application is anchored on the grounds set out on its face and the supporting affidavit sworn by Ngina Gitiba the applicant herein.

The applicant deponed that judgement was issued in her favour in this suit; that the respondent then filed an application dated 11/3/2019 seeking stay of the decree pending filing of the intended appeal at the Court of Appeal which has not been filed to date; that vide a ruling dated 8/8/2020, this court allowed the application on condition that the respondent deposits a sum of Kshs. 5,000,000/= pending appeal; that it has been two years yet the respondent has not filed any appeal, deposited the security sum nor paid the decretal amount; that the applicant commenced execution proceedings but the respondent sought to challenge the execution process through an application dated 13/7/2020; that the applicant filed an application for contempt citing the Managing Director and the Company Secretary of the respondent dated 21/10/2020 and that both applications were scheduled for hearing on 1/12/2020.

The applicant further deponed that on 28/11/2020, the respondent’s Counsel via an email, informed the respondent’s Counsel that he would be seeking an adjournment on the applicant’s application dated 21/10/2020; that the matter instead proceeded ex-parte in the absence of the applicant; that on the said date, the applicant’s Counsel could not access the virtual link and respondent’s Counsel failed to inform the court about the communication to the respondent’s Counsel; that the applicant’s application on contempt should proceed on a first priority basis since it touches on the authority and respect of Court decisions; that the applicant has been deprived the right to be heard as provided for under Article 50 (1) and 50 (2) (k) o the Constitution.

The applicant praysthat this Court re-opens the case and testimonies to assist the Court to adjudicate and conclusively decide on all issues in contention.

The application was opposed. The respondent filed a lengthy 40 paragraphed replying affidavit dated 15/12/2020. The affidavit was deponed by Maurice Omondi Ng’ayo its Legal Service Manager/Acting Company Secretaryof the respondent. The respondent conceded that judgement was passed on 14/2/2019 and a conditional stay was granted on 8/8/2019; that in default of depositing the security, the applicant commenced execution proceedings; that the execution proceedings were illegal and wholly premature; that the party - and party costs of this suit have not been ascertained; that the applicant commenced execution to recover costs of Kshs. 30,000,000/= which amount is not due to the applicant; that the respondent filed an application dated 13/7/2020 and upon being served, the applicant filed a notice of Preliminary Objection dated 23/7/2020 to which a ruling was delivered on 6/8/2020 and the court issued a further stay of warrants of execution for the recovery of Kshs. 69,566,427/=; that on 21/10/2020 when the respondent’s application dated 13/7/2020 came up for highlighting of the respondent’s submissions, the same was adjourned by consent of both Counsel to 1/12/2020 to allow the applicant to file submissions; that the applicant filed an application dated 21/10/2020 to which to date, directions have not been taken.

It was further deponed that the applicant’s Counsel served the defendant’s Counsel with a hearing notice dated 29/10/2020 indicating that their application dated 21/10/2021 was scheduled for hearing on 1/12/2020; that the respondent’s Counsel notified the applicant’s Counsel that they would not be able to proceed with the hearing because they wanted to put in a response; that upon perusal of the court file on 30/11/2020, the respondent’s Counsel confirmed that the applicant’s application dated 21/10/2020, was not coming up for hearing as communicated; that the applicant’s Counsel did not attend court on 1/12/2021 and neither did they request for virtual proceedings; that the applicant has not to date filed submissions to the respondent’s application dated 13/7/2020; that the purpose of the respondent’s application dated 13/7/2020 was to stop the purported illegal, irregular and unlawful execution proceedings commenced against it.

Further, the respondent deponed that it has no problem with any lawful execution against it save that in this instance, the execution was illegal; that there was nothing unprofessional in the respondent’s Counsel’s handling the court proceedings of 1/12/2020; that this Court should determine the application dated 13/7/2020 first before proceeding with the applicant’s application dated 21/10/2020; that it would be unjust to grant the reliefs in this motion as it is an abuse of the court process.

On 27/10/2021, Mr. Maurice Ng’ayo was cross-examined on the contents of his affidavit dated 15/10/2020. The cross - examination mainly centred on the legality of the warrants of attachment dated 11/6/2020.

Both parties filed submissions. The applicant submitted on three issues for determination.

a. Whether the court has power to suspend the writing and/or delivery of a ruling pending the hearing and determination of another application;

b. Whether an application for contempt takes precedence over other application;

c. Whether the plaintiff’s advocates served the defendant’s advocates with a hearing notice dated 29/10/2020 notifying the defendant’s advocates, that the plaintiff’s application was to be heard on 1/12/2020.

On the first issue, the applicant submitted that Order 51 Rule 15 of the Civil Procedure Rules provides that the court may set aside an order made ex-parte. The applicant relied on the findings made in Shah v Mbogo (1967) EA 166 where the court held that an ex-parte judgement may be set aside at the court’s discretion to avoid injustice and hardship resulting from inadvertence or excusable mistake or error. The applicant further relied on the case of Mohan Galot v Walter Omosa Nyakundi & 21 Others (2020) eKLR where the court set aside orders issued ex-parte owing to the difficulty of Counsel to access the zoom link.

On the second issue, the applicant referred to the case of Econet Wireless Kenya Limited vs Minister for Information & Communication of Kenya & Another (2005) eKLR to support the position that a contempt application should be given priority. The applicant submitted that the actions of the Managing Director and the Legal Services Manager/Ag. Company Secretary constitutes an offence that interferes with the administration of justice and therefore the contempt application of 21/10/2020 should be heard first.

On the third issue, the applicant submitted that dates are fixed at the registry and the litigant only leaves with the date. The documentation of dates is left with the registry staff. Therefore, there was no falsehood on their part on the date given.

The respondent filed brief submissions and did not outline any issues for determination. The respondent relied wholly on the contents of the replying affidavit sworn on 15/12/2020 by the respondent’s Legal Services Manager/Ag Company Secretary. The respondent submitted that the applicant came to court alleging contempt on its part while at the same time, they were conducting unlawful, irregular execution proceedings; that it was a case of the pot calling the kettle black and the applicant should not be allowed to receive preferential treatment.

I have considered the Notice of Motion application dated 9/12/2020, the cross-examination of the respondent’s Legal Service Manager/Ag. Company Secretary on 27/10/2021 and the rival submissions. The contentious issues for determination are:-

i. Whether the Court should set aside the ex-parte orders issued on 1/12/2020 (if any).

ii. Whether the contempt application should take precedence and be heard first.

The applicant alleges that the respondent’s Counsel, Mr. Odero misled the court on 1/12/2020 by proceeding with their application dated 21/10/2020 ex - parte contrary to their email of 28/11/2020 in which Respondent’s indicated that they would be seeking an adjournment in order for them to put in a response. I have considered the annexure marked “NG-3” on the applicant’s supporting affidavit. It is an email from the respondent’s Counsel to the email rightly informed the applicant’s Counsel that they would be seeking an adjournment on the applicant’s application of 21/10/2020 and that they would be asking for more time to file a replying affidavit.

The applicant filed her application dated 21/10/2020 on 23/10/2020. On 21/10/2020, when the matter came before Chitembwe J, the court record shows that Mr. Odero, Counsel for the defendant/applicant, in the application dated 13/7/2020, indicated to court that they had filed their submissions. The respondent through Learned Counsel who was holding brief for Mr. Mugoye, was given 14 days to file their submissions. The next time this matter was in court was on the disputed date of 1/12/2020 before me. The court record reads that Mr. Odero counsel for the applicant (in application dated 13/7/2020) was present while there was no appearance for the Respondent

Mr. Odero told the court that he has not been served with submissions on their application dated 13/7/2020 and requested that the court reserve a ruling date of their application. The court considered the previous orders made, directed the applicant to file submissions and since there were none on record, the court reserved the ruling date for 4/3/2021 and extended the interim orders.

From where I sit, I do not see anywhere on the court record when directions and/or orders were made in regard to the applicant’s application dated 21/10/2020. The said application has never been dealt with substantively by this court. It is thus correct to conclude that there were no orders made which this court can set aside. The issue of whether or not there was even a hearing notice served in whichever form, becomes a non - issue. Therefore, the court cannot set - aside non-existent orders.

As regards prayer no. 4 of the instant application, the applicant prays that the court do reopen the hearing of the defendant’s application to enable her to put in her written submissions. As I have highlighted above, the last time this matter was in court was on 21/10/2020 before Chitembwe J. Counsel for the applicant who was in attendance, was given 14 days to file submissions. The applicant was aware that the next time the matter was to be mentioned was 1/12/2020. It was to confirm filing of their submissions. The respondent’s application was slated for a mention to confirm filing of submissions but not a hearing.

In this case, the applicant was an indolent party. Whether or not their application of 21/10/2020 was coming up for hearing, Counsel cannot feign ignorance that they never knew they were supposed to file their written submissions. There was nothing stopping the applicant from filing submissions to the respondent’s application dated 13/7/2020.

Be that at is may, I am inclined to give the applicant a final opportunity to put in her written submissions to the respondent’s application dated 13/7/2020.

On whether the applicant’s contempt application dated 21/10/2020 should take precedence, the applicant submitted that since the application touched on the conduct of the respondent disobeying court orders, it should take precedence. On the other hand, the respondent’s argument is that, it is necessary for their application dated 13/7/2020 to be heard first as it is intended to arrest an illegal and unlawful execution from taking place.

On 14/2/2019, Mrima J, delivered a judgement in favour of the applicant among other orders, a decretal sum of Kshs. 39, 599, 225/=. The respondent filed an application dated 11/3/2019 seeking stay of execution of the entire decree pending appeal to the Court of Appeal. By a ruling dated and delivered on 8/8/2019, Mrima J granted stay on condition that the respondent deposits a sum of Kshs. 5,000,000/= in an interest earning joint account in the names of the parties’ advocates within 45 days.

It is alleged that the respondent failed to comply with the said orders and that is why the applicant commenced execution process and took out warrants of attachment in the sum of Kshs. 69,568,075. 01 were issued to Sparknet Auctioneers Services. The respondent filed the instant application which is still pending, dated 13/7/2020 to stop the execution proceedings. Interim orders were issued on 6/8/2020 which are still persisting to date. The applicant also filed an application dated 21/10/2020 to initiate contempt proceedings against the respondent.

In his replying affidavit of 15/12/2020, Mr. Maurice Omondi, the Legal Service Manager/Ag. Company Secretary of the respondent admitted that indeed there was a conditional stay of execution pending appeal granted on 8/8/2019 and the respondent has defaulted to date, to deposit the security. Further, they have no objection to execution proceedings being commenced, as long as they are not illegal and/or unlawful.

The ordinary meaning of the word contempt is the feeling that a person or thing is worthless or beneath consideration. Contempt of court is defined as the offence of being disobedient or disrespectful of a court of law and its officers. Mohammed Ibrahim J (as he was then) pronounced himself in the case of Econet Wireless Kenya Limited (supra)as follows:-

“It is my view that due to the gravity with which the law and the court is deem any contempt of court or allegations thereof, the court usually under an obligation to deal with such contempt of court or investigate allegations that it has taken place. This is in particular where the alleged contemnor is a party in proceedings and is affected by the orders granted by the court. Where an application for committal for contempt of court orders are made the court will treat the same with a lot of seriousness and urgency and more often will suspend any other proceedings until the matter is dealt with and if the contempt is proven to punish the contemnor or demand that it is purged or both. For instance, an alleged contemnor will not be allowed to prosecute any application to set aside orders or take any other step until the application for contempt is heard. The reasons for this approach are obvious – a contemnor would have no right of audience in any court of law unless he is punished or he purges the contempt. So, the court is obliged to hear the application for committal first before any other matter. This is a general rule which must be applied strictly.” (emphasis mine)

Similarly, in the case of Kenya Revenue Authority v Chief Magistrate’s Court at Migori; Maurice Juma Achar (Interested party) (2021) eKLR this court held as follows:-

“No doubt there had been disobedience of the court’s order. The law is clear, that the orders of the court must be obeyed and a party seeking audience of the court must purge that contempt before being heard. The court has actually to protect its dignity and authority…even if a party believes that the court’s order is irregular or void, the party must first of all comply before seeking the intervention of the court. The court could not entertain the preliminary objection dated 21/10/2020 and the application dated 7/10/2020 when there was still disobedience of the court’s order.”

Further, I am of the view that once allegations of the breach of the rule of law and attack on administration of justice are raised, it is prudent, and with great speed that the courts should move expeditiously to deal with the issue at hand to the exclusion of others. This is so because, courts exist for the purpose, to enforcing the rule of law and uphold the administration of justice of avoid a disintegrated and chaotic society. The dignity of the court must be upheld. therefore the application for contempt must be heard before any other.

In the end the applicant’s application dated 9/12/2020 partially succeeds. I hereby make the following orders:-

i. The ruling in the respondent’s application dated 13/7/2020 is hereby suspended pending the hearing and determination of the applicant’s application dated 21/10/2020.

ii. The applicant is directed to file submissions on the application dated 21/10/2020 within 14 days of this ruling.

iii. The respondent do file and serve submissions within 14 days after service.

iv. The applicant is hereby given the final leave to file and serve submissions on the respondent’s application dated 13/7/2020 within 14 days from today’s date failure of which the leave automatically lapses.

v. Interim orders issued on 6/8/2020 are hereby extended till next mention.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 17TH DAY OF MARCH, 2022.

R. WENDOH

JUDGE

Ruling delivered in the presence of:-

Mr. Obebo for the Applicant / Plaintiff

Mr. Odero for the Defendant / Respondent

Evelyne Nyauke Court Assistant