[2021] KECPT 560 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 720 OF 2016

PIUS MUSIMBA MUASYA ..................................................1ST CLAIMANT

NORMAN MUTUA KIMATU..............................................2ND CLAIMANT

JOHN NZOMO KIOKO......................................................3RD CLAIMANT

VERSUS

PETER WANJOHI

(OFFICIAL LIQUIDATOR)...........................................1ST RESPONDENT

THE COMMISSIONER OF COOPERATIVES...........2ND RESPONDENT

RULING

What is before us for consideration and determination is the Claimant’s Application dated 17. 11. 2019. It seeks, in the main, the following orders;

a. That the 1st Respondent be cited for contempt of court and committed to Civil Jail for a term of six (6) months and/or be ordered to purge the contempt on terms the Tribunal will deem just;

b. That summons be issued against the 1st Respondent to appear before the Tribunal and show cause why he should not be committed to civil jail;

c. Costs.

The Application is supported by the grounds on its face and the Affidavit of the 1st Claimant sworn on 17. 9.2019.

The 1st Respondent has opposed the Application by filing Grounds, of objection dated 8. 11. 2019 and a Replying Affidavit sworn by himself on even date.

Claimant’s Contention

Vide the Instant Application, the Claimants contend that on 24. 11. 2016, this Tribunal issued orders thus:

a. That pending the hearing and determination of the suit, the Respondents be and are hereby restrained by way of an injunction by themselves, their agents or servants from transferring, selling, leasing or in any manner whatsoever alienating any property belonging to Drumvale Farmers’ Co-operative Society Limited;

b. That a disclosure of all the Assets sold since liquidation an Application of the funds generated be made to the Claimants forthwith;

c. That a disclosure of assets, liabilities and financial status of Drumvale Farmers’ Co-operative Society as at the date of liquidation be made to the Claimants forthwith;

d. That a disclosure of the Assets, liabilities and Financial status after liquidation of Drumvale Co-operative Society Limited be made to the Claimants.

That on 28. 11. 2016, the 1st Respondent filed an Application seeking to set aside the said orders. That the Tribunal dismissed the said Application on 17. 3.2017.

That dissatisfied with the Ruling of the Tribunal, the 1st Respondent lodged an Appeal at the High Court. That vide the Judgment delivered on 19. 9.2018, the Appeal was dismissed. That being dissatisfied with the Judgment of the High Court, the 1st Respondent filed an Appeal at the Court of Appeal.

That as it stands, the said orders of 24. 11. 2016 subsist as they have not been set aside, stayed or varied.

That vide a Ruling delivered on 22. 8.2019, this Tribunal confirmed that indeed, there was no orders staying enforcement of the said orders.

That inspite of the foregoing, the 1st Respondent has blatantly, and/or witfully disobeyed the said orders. That he has continued to sub- divide and sell the property of Drumvale Farmers’ Co-operative Society.

That further, the 1st Respondent is yet to furnish the Claimants with records disclosing how he has dealt with the property.

That as a result, the Claimants have been deprived of their right to information in line with Article 35 of the Constitution as they remain in the dark as to the status of the Society, it’s assets, and liabilities.

That it is on the basis of the foregoing that they pray the orders sought in the Instant Application to be allowed.

1st Respondent’s Case

Vide his grounds of objection and a Replying Affidavit both dated 8. 11. 2019, the 1st Respondent contend that the instant Application is res judicata as the orders being sought in the instant Application have been determined by this Tribunal in the Applicant’s Grounds of Opposition to the Application dated 9. 4.2019.

That the orders being sought are unenforceable as the liquidation process is almost concluded and that the properties of the Sacco have been transferred to third parties who are not participants in this Claim.

That in any event, the Claimants lack locus in the matter as have since relinquished their interests in the matter and are no longer members of Drumvale Co-operative Society (in liquidation).

That the matters being raised in the Instant Application are alive and pending determination in a superior court in line with Section 81 of the Co-operative Societies Act.

Disposal of the Application

Vide the directions given on 11. 12. 19, the Application was canvassed by way of written submissions. The Claimant’s filed their written submissions on 16. 1.2020. As at the date of writing this Ruling, the 1st Respondent has not filed his written submissions. We will consider the submissions on record when determining the issues arising in the Application.

Issues for determination

We have framed the following issues for determination:

a. Whether the Tribunal has jurisdiction to make orders regarding contempt of Court Orders.

b. What orders are available in the circumstances.

Contempt of Court

Prayer 2 of the Application invites this Tribunal to make orders regarding contempt of Court Orders. This raises the question whether we have jurisdiction to make and/or issue such orders.

The Jurisdiction of the Court to make orders regarding contempt of court is contained in Section 5(1) of the Judicature Act (Cap 8) Laws of Kenya, Section 63 (1) of the Civil Procedure Act (Cap 21) Laws of Kenya and Order 40 Rules 3(1-3) of the Civil Procedure Rules . This was the holding in the case of Kyoga Hauliers Limited versus Long Distance Track Drivers & Allied Workers Union [2015]. In the pertinent part, the court held thus:

“ The power to deal with Contempt of Court is provided for under Section 5 (1) of the Judicature Act, Section 63 (1) of the Civil Procedure Act and Order 4 of Rule 31 of the Civil Procedure Rules.”

In the terms of the Power to punish for Contempt of the Court, the Court in the case of Christine Wangari Gachege –versus – Elizabeth Wanjiru Evans & 11 others [2014]eKLR held thus:

“......the only statutory basis of Contempt of Court Law in so far as the High Court and the Court of Appeal are concerned in Section 5 of the Judicature Act. In addition, Section 63 (1) of the Civil Procedure Act provides that a disobedience of an order of temporary Injunction will attract punishment in form of imprisonment or attachment and sale of the Contempt property.”

From the foregoing, it follows that we do not have jurisdiction to punish for Contempt of Court but rather have jurisdiction to punish for disobedience of a temporary Injunction.

Thus taken as it is, the wording of prayer 2 of the instant Application, presupposes that we have jurisdiction to punish for Contempt. We reiterate that we do not have the same.

However, looking at the prayers as framed in light of the grounds in support thereof, it is apparent that the Claimants have invited us to punish the 1st Respondent for allegedly disobeying a temporary Injunction made on 24. 11. 2016. We find that we have Jurisdiction to do so.

Disobedience of a temporary Injunction

Section 63 (1) of the Civil Procedure Act provides thus:

“ In order to prevent the ends of Justice from being defeated, the Court may if it is so prescribed –

i) Grant a temporary Injunction and is case of disobedience, commit a person guilty thereof to prison and order that his property be attached and sold”

From the foregoing provision, it is trite that a party against whom a court issues an order must comply with the said order. This was the holding in the case of Refrigeration and Kitchen Utensils Limited –versus - Gulabchand Popatial Shah & Another, Civil Appeal No. 39/1990. In the pertinent part, the court held thus:

“ A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it.....

It would be most dangerous to hold that the suitors, or their solicitors, could themselves Judge whether an Order was null or valid, whether it was regular or irregular. That they should come to court and not take upon themselves to determine such a question ......As long as it exists, it must not be disobeyed.......”

Applying these legal principles into the facts of this Application, it is trite that injunctive orders were issued against the 1st Respondent on 24. 11. 2016 particularly restraining him as the liquidator from transferring, selling, leasing or in any manner, alienating any property belonging toDrumvale Farmers Cooperative Society Limited. Secondly, he was ordered to disclose assets and liabilities and financial status of the Sacco.

That soon after the issuance of the said orders, the 1st Respondent filed an Application before the Tribunal to discharge the same. The said Application was dismissed on 17. 3.2017.

Being dissatisfied with the Ruling of the Tribunal, the 1st Respondent lodged an Appeal at the High Court. The said Appeal was heard and dismissed on 19. 9.2018. He then preferred an Appeal at the Court of Appeal. At the time of writing this Ruling, we do not have record of the status of the said Appeal.

What is apparent, however, is that there is no stay of the orders made on 24. 11. 2016. The 1st Respondent’s Attempt to Stay enforcement of the said Orders before this Tribunal failed when the Tribunal rendered itself vide the Ruling delivered on 22. 8.2019.

It is thus the Claimants Contention that the 1st Respondent has never obeyed the said orders.

On his part, the 1st Respondent has opposed the instant Application on grounds that there is an active Appeal pending at the Court of Appeal. That the matters raised in this Application are res judicata as they were determined by the Tribunal vide the Applicant’s grounds of Opposition dated 9. 4.19.

That the orders sought an unenforceable as the liquidation process is almost concluded and that the properties of the Sacco have been transferred to third parties who are not participants in the Claim.

Determination

What we gather from the material placed before us by the parties is that the orders made on 24. 11. 2016 have not been obeyed. That in the midst of the said orders, the 1st Respondent has gone ahead with the liquidation process and that according to him, the properties of the Sacco are now in the hands of third parties. From this statement alone, we find that the 1st Respondent has disobeyed and continues to disobey the orders issued on 24. 11. 2016.

As regard his contention that the Instant Application is Res judicata, we have perused the record and note that no such orders have been issued and/or made in respect of an Application of a similar nature.

Conclusion

The upshot of the foregoing is that we find merit in the Claimant’s Application dated 17. 11. 2019 and hereby allow it in terms of prayers 3 and 4.

Enforcement of prayer 3 to take effect once the freeze on execution of court orders and Decrees made before 15. 3.2020 is lifted.

Ruling read, dated and delivered via email in accordance with the guidelines issued by the Hon. Chief Justice on 15. 3.2020, this 21st day of May, 2020.

Prepared by Hon. B.Kimemia Chairman, Hon. F. Terer Deputy Chairman, P. Gichuki Member.

With consent of the parties, the final orders to be delivered by email, as accordance to the prevailing measures during the covid-19.

Hon. B. Kimemia Chairman Signed 21. 5.2020

Hon. F. Terer Deputy Chairman Signed 21. 5.2020

P. Gichuki Member Signed 21. 5.2020