[2023] KEHC 24869 (KLR)

Omweri & 5 others v Korir, Principal Secretary State Department of Lands & Physical Planning & another (Judicial Review Miscellaneous Application 22 of 2010) [2023] KEHC 24869 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24869 (KLR)

Republic of Kenya

In the High Court at Nakuru

Judicial Review Miscellaneous Application 22 of 2010

HM Nyaga, J

November 6, 2023

Between

Henry Omweri

1st Applicant

Robert Muriithi

2nd Applicant

Solomon Mwangi

3rd Applicant

James Wanderi

4th Applicant

Samuel Towett

5th Applicant

Pastor Francis W Mugo

6th Applicant

and

Hon Nixon Korir, Principal Secretary State Department Of Lands & Physical Planning

1st Respondent

Hon Attorney General

2nd Respondent

Ruling

1. The application before this Court is dated 19th May, 2023 brought pursuant to Section 5(1) of the Judicature Act wherein the Applicants seek orders that Hon. Nixon Korir, the 1st Respondent herein, be cited for contempt of court and committed to civil jail for a period of six months or as the court deems fit for disobedience of orders issued by this Honourable Court on 20th May, 2011 and for costs of this Application.

2. The Application is premised on grounds on its face and supported by an Affidavit of the Applicant sworn on the even date.

3. In a nutshell, the Applicants averred that on 23rd October,1995 they obtained Orders of Certiorari and prohibition against the Commissioner of Lands, Town Clerk and Municipal council of Nakuru together with interest in Nakuru High Court Misc. Civil Application No.102 of 1995.

4. That the costs were subsequently assessed and a certificate of costs dated 14th February,2005 for a sum of Ksh. 486,515/= issued.

5. It was their case that the Respondents did not comply with the orders issued which prompted them to institute the current judicial review proceedings and that as at 18th May, 2010 when the judicial review leave application was being filed, the above mentioned sum had attracted interest totalling to Kshs. 1,307,460/=.

6. It was their deposition that upon the judicial review proceedings being fully conducted, this Honourable Court issued an order dated 20th May,2010 wherein an order of mandamus was issued compelling the permanent secretary ministry of lands and settlement to pay them costs awarded in Nakuru High Court Misc. Civil Application No. 102 of 1995 assessed at Ksh. 486,515/= together with interest now standing at Ksh. 1,307,760/=.

7. They averred that despite this Honourable court issuing the order, the 1st respondent herein is still in contempt.

8. They stated that the interest accrued from 3rd August,1995 till date now stands at Ksh. 1,731,182. 14/= and the total sum the 1st Respondent now owes them is Ksh. 2,217,697. 14/=

9. That the 1st respondent has been served with the order and is aware of the existence of the order and its flagrant disobedience of the same offends the court integrity.

10. They further stated that the 1st respondent has been served with several notices to comply with the orders of this Honourable Court but he has adamantly ignored the notices and/or neglected to comply.

11. The Application is unopposed and the same was canvassed though written submissions.

12. Only the Applicants’ submissions are on record

Applicants’ Submissions 13. The Applicants submitted that the Respondents are in flagrant disobedience of the court orders directing them to pay the decretal sum, costs and interest of the suit to them. The Applicants thus prayed that this Honourable court holds them in contempt of the said orders.

14. In support of their submissions, the Applicants referred this court to the following cases:i.Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government vs Miguna Miguna & 4 others [2018] eKLRii.Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & another [2005] eKLRiii.Mutitika vs Baharini Farm Limited [1985] KLR229 cited in the case of Sheila Cassatt Issenberg & another vs Antony Machatha Kinyanjui [2021] eKLRiv.Re: Vinay Chandra Mishra [(1995) 2 SCC584]

15. On the issue of costs, the Applicants made reference to Judicial Hints on Civil Procedure,2nd Edition (Nairobi) Law Africa 2011 at page 101 where Justice Kuloba authoritatively stated inter alia that;“The law of costs as it is understood by courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the court to deprive him of his costs-the court has no discretion and cannot take away the plaintiffs right to costs. If the defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course”

16. In light of the above, the Applicants prayed to be awarded costs.

Analysis & Determination 17. The only issue for determination is whether the 1st respondent should be cited for contempt of court.

18. Black’s Law Dictionary 9th Edition, 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.”

19. Contempt of Court is in the nature of criminal proceedings and, therefore, proof of a case against a contemnor is higher than that of balance of probability. This is because liberty of the subject is usually at stake and the applicant must prove willful and deliberate disobedience of the court order, if he were to succeed. This was aptly stated in Gatharia K. Mutikika vs Baharini Farm Limited [1985] KLR 227, that:“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…. It must be higher than proof on a 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 criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the party of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.”

20. Contempt is the wilful disobedience of judgment, decree order or direction of a court. Everyone, without exception, has a duty to obey court orders, unless they are set aside or varied. The court in Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government vs Miguna Miguna & 4 others (supra) stated as follows: -“When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities.”

21. Similarly, in Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & another [2005] (supra) the court underscored the importance of obeying court order when it stated: -“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”. (emphasis)

22. Contempt of court is a very serious indictment and attracts severe consequences, because it tends to interfere with the administration of justice. In the case of Kalyaneshwari vs Union of India & others (No 260 of 2004, Swatanker Kumar J, of the Supreme Court of India stated: -“The rule of law has to be maintained whatever be the consequences. The ‘welfare of people’ is the supreme law and this enunciates adequately the ideal of ‘law’. This could only be achieved when justice is administered lawfully, judiciously, without any fear and without being hampered or throttled by unscrupulous elements. The administration of justice is dependent upon obedience or execution of the orders of the Court. The contemptuous act which interfered with administration of justice on one hand and impinge upon the dignity of institution of justice on the other, bringing down its respect in the eye of the commoner, are acts which may not fall in the category of cases where the Court can accept the apology of the contemnor even if it is tendered at the threshold of the proceedings.”

23. The application before court seeks to have the 1st respondent cited for contempt of this court’s order issued on 6th May, 2011 and to be committed to civil jail for a period of six months.

24. In that order, the court ordered as follows: -“That this Honourable Court be and is hereby pleased to issue an order of mandamus compelling the Permanent Secretary Ministry of Lands and Settlement to pay the Applicants costs awarded to them in Nakuru High Court Misc. Civil Application No.102 of 1995 and assessed at Ksh. 486,515/= together with interests now standing at Ksh. 1,307,760/=”

25. It is clear therefore that the order was specifically directed at the 1st respondent herein. Due to the gravity of consequences that ordinarily flow from contempt proceedings, it is proper that the order be served and the person cited for contempt should have had personal knowledge of that order. Knowledge is a question of fact. There must be a proof therefore that the 1st Respondent knew what the order specifically required him to do but he wilfully and deliberately disobeyed it.

26. The Applicant deponed at paragraph 10 of their affidavit that the said order was served upon the 1st respondent.

27. I have looked at the Affidavit of Service filed in court on 7th June 2011. The process server deponed that he duly served the order of the court on the respondent, through the head of the Legal Unit one Mr. J.M. Kimemia. The order was duly stamped as received.

28. The court record also shows that on various occasions, the Respondent has been summoned to appear in court to show cause why it has not complied with the orders of the court. The Attorney General has appeared in the matter on several occasions so it has to be presumed that they are fully aware of the matter at hand.

29. The Supreme Court of India in Mahinderjit Singh Bitta vs Union of India & Others 1 A NO. 10 of 2010 (13th October, 2011):“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. Every party is lis before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution.”

30. In Katsuri Limited vs Kapurchand Depor Shah [2016] eKLR, citing Kristen Carla Burchell vs Barry Grant Burchell (Eastern Cape Division Case No 364 of 2005), it was stated that;“in order for an applicant to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, knowledge of the terms by the respondent, failure by the respondent to comply with the terms of the order.”

31. The Cromwell J, writing for the Supreme of Canada in Carey vs Laiken, 2015 SCC 17 (16th April 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus:i.The order alleged to have been breached “must state clearly and unequivocally what should and should not be done.” This ensures that a party will not be found in contempt where an order is unclear. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning.ii.The party alleged to have breached the order must have had actual knowledge of it. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the willful blindness doctrine.iii.The party alleged to be in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

32. To me the Applicants herein have therefore sufficiently demonstrated that the 1st Respondent, despite the change in its description has been fully aware of the orders of the court and has wilfully and deliberately disobeyed them, for several years now.

33. The Indian Supreme Court again stated in Re: Vinay Chandra Mishra (Supra), that:“The judiciary has a special and additional duty to perform, viz, to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the society. Dignity and authority of the court has to be respected and protected at all costs.”

34. In light of the foregoing, I am satisfied that the applicants have proved their case to the required standard. Consequently, the application dated 19th May, 2023 is allowed.

35. I therefore direct that a notice shall issue to the respondent to appear in court, on a date that I shall give shortly, to show cause why he should not be punished for contempt of court.

DATED, SIGNED & DELIVERED AT NAKURU THIS 6TH DAY OF NOVEMBER, 2023. H. M. NYAGAJUDGEIn the presence of;C/A JenifferMiss Kinuthia for ApplicantsN/A for Respondents