[2020] KEHC 1148 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 91 OF 2017

DR. PKW & 10 OTHERS.................................................................................PLAINTIFF

VERSUS

JUJA PREPARATORY SCHOOL COMPANY LIMITED......................DEFENDANT

RULING

The Notice of Motion dated 24th July, 2020 by the defendant seeks the following orders:-

1. THAT this honourable court compel the plaintiffs/respondents to honour their undertaking filed in court on 1st September 2015 pledging to pay the outstanding school fees plus costs of this suit if the suit was determined in favour of the Defendant/Applicant.

2. THAT in the alternative, this honourable court be pleased to cite the following plaintiffs/Respondents for contempt of this court’s order issued by Mbogholi J. on 31st August 2017 and commit them to civil jail for a period this honourable court shall deem appropriate;

a. Dr. PKW suing as father and next friend of AW.

b. NG suing as mother and next friend of JSM.

c. CK suing as father and next friend of MN

d. CKW suing as father and next friend of JG.

e. CGW suing as father and next friend of KWG.

f. MK suing as father and next friend of RKG.

g. IM suing as father and next friend of TI.

h. AMA suing as mother and next friend of MSM.

3. A warrant of arrest and detention to civil jail be issued against the above listed Plaintiffs/Respondents.

4. The plaintiffs/respondents pay for the costs of this application.

The application is supported by the affidavit of Margaret Muigai sworn on 23rd July, 2020. The respondents filed a notice of Preliminary Objection dated 28th September, 2020 and a replying affidavit sworn by Cyrus Kamunya Wanjohi on the same date.

Mr. Kilonzo appeared for the applicant. Counsel submitted that the respondents are in contempt of court orders issued on 31st August 2017 by Justice Mbogholi Msagha. The Plaintiffs were ordered to pay school fees should the suit be held in favour of the defendant. The plaintiff’s suit was dismissed but they have not settled the school fees for their children. The application is based on section 5 of the Judicature Act which provides for punishment for contempt of court. The Civil Procedure Act does not apply in relation to the prayers for contempt of court.

Mr. Kingara appeared for the respondents. Counsel maintain that the judgment delivered by Justice Njuguna is superior to the earlier ruling of Justice Mbogholi. The specific prayer (e) in the statement of defence was not granted. The judgment supersede the ruling. There is a procedure under Section 38 of the Civil Procedure Act to commit someone to civil jail.

The background to the dispute is well captured in the ruling delivered on 31st August, 2017 by Justice Mbogholi and the judgment delivered on 12th March 2020 by Justice L. Njuguna. The respondents’ children were allowed to sit for their final exams and the results released on condition that they sign an undertaking to pay all the fees and costs of the suit should the court hold in favour of the defendant. In her judgment, Justice Njuguna dismissed the plaintiffs’ suit with costs to the defendant.

The application is brought under Section 5(1) of the Judicature Act, Cap 8 Laws of Kenya which states:-

“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.”

The application is also brought under order 40 rule (3) of the Civil Procedure Rules and Section 39 of the High Court (Organisation and Administration) Act. Order 40 deals with Temporary Injunctions and interlocutory orders. Order 40 rule (3) provides for consequences of breach of an injunction.

The Preliminary Objection is that the application offends Order 21 rules 7 and 8, Order 22 rules 32 and 34 and Section 38 of the Civil Procedure Act. Section 38 of the Civil Procedure Act gives powers to the court to enforce execution. The application among other prayers seek to have the respondents arrested and detained to civil jail. In essence therefore, the application is to some extent seeking some form of execution against the respondents since it seeks their arrest and detention to civil jail.

Order 21 rules 7 and 8 deals with decrees and orders. Order 22 rule 31 provides for notice to show cause why a judgment debtor should not be committed to civil jail and rule 34 provides for the procedure when a judgment debtor appears in court in compliance with a notice to show cause.

The application is grounded on the contention that the respondents have disobeyed the court order in terms of the ruling by Justice Mbogholi. The defendants, subsequent to that ruling, signed a collective undertaking in the following terms:

“We, the legal representatives of the minors in the matter herein, do hereby undertake to pay the fees and costs of the suit should the court hold in favour of the Defendant herein.”

The applicant filed its defence after the ruling by Justice Mbogholi. The defence prayed for judgment against the plaintiffs for:

a. A declaration that the Plaintiffs are in breach of contract.

b. General damages for breach of contract.

c. A declaration that the Plaintiffs are obligated to pay Kshs.250,500/- being school fees for term 3 of the Defendant’s 2016-2017 academic year.

d. An order compelling the Plaintiffs to fulfil their undertaking to pay all outstanding school fees arrears within 7 days of judgments.

e. An order compelling the Plaintiffs to fulfil their undertaking to pay costs of the suit.

f. Interest on the outstanding school fees at court rates from 1st May 2017 when fees was due until payment in full.

g. Such other relief as the court may deem fit to grant.

In her judgment, Justice Njuguna observed as follows:-

On the second issue for determination, suffice it to state that having found that there was a breach of contract by the plaintiffs, it therefore follows that, the demand of Kshs.250,000/- fee by the defendant was called for and justified.

At this juncture, I wish to comment on the defendant’s prayers sought in the defence. Order 7 Rule (7) of the Civil Procedure Rules is on pleading of a counter-claim and it provides;

“Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall, in his statement of defence, state specifically that he does so by way of counterclaim.”

As to the title of a counter-claim Order 7 Rule (8) is very clear and it provides as follows:

“Where a defendant by his defence set up any counterclaim which raises questions between himself and the plaintiff, together with any other person or persons, he shall add to the title of his defence a further title similar to the title in a plaint, setting forth the names of all persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver to the court his defence for service on such of them as are parties to the action together with his defence for service on the plaintiff within the period within which he is required to file his defence”

The defendant herein sought some reliefs in the defence but with no counter-claim. The plaintiffs raised this issue in their reply to defence at which time the defendant would have seized the moment to amend the defence and include the counter-claim. This was not done. Instead, it proceeded with the matter as if it had a counter-claim on record which was not the case. In the premises, this court is unable to make any orders in the purported counter-claim.”

In the end, I find that the plaintiffs did not proof their case on a balance of probability and it is hereby dismissed with costs to the defendant.”

It is evident that the respondents signed an undertaking to pay the school fees. This undertaking was subject to the suit being held in favour of the defendant/applicant. The respondents’ suit was dismissed with costs. No decree was extracted. Should there be a decree as per the judgment, it would simply indicate that the plaintiffs’ suit was dismissed with costs to the defendant. There is nothing more that can be included in such a decree in favour of the applicant other than the award of costs. What Justice Njuguna observed is that the applicant was justified to call for the Kshs.250,000 school fees for the third term. Such observation cannot be held to be a final finding in favour of the applicant to be paid the money.

The record shows that Margaret Muigai swore an affidavit on 2nd May, 2017 in response to the plaintiffs’ application dated 21st April, 2017. The said affidavit annexed the school fees statement for each student. The amounts vary for each student and range between Kshs.251,000 for Mark Ernest Njogu to Kshs. 306. 500 for Joy Muthoni Gatonye. The amount for Jeffrey Gichuki Wanjohi is Kshs.292, 500 while Ryan Kimani Githuku’s balance is indicated as Kshs.302,100. It is clear to me that the suit was dismissed and was not held in favour of the defendant. Had the defendant raised a proper counter-claim, Justice Njuguna would have simply held in favour of the applicant as per her sentiments indicated in the judgment.

In case ofKASTURILAL LAROYA –V- MITYANA STAPLE COTTON CO LTD AND ANOTHER; [1958] E.A, 194, Sir Audley Mckisack, C.J.observed as follows:

The principle propounded in Re Maria Annie Davies (1)[1889] 21 QBD 236 at p.239 must be borne in mind-

“Recourse ought not to be had to process of contempt in aid of a civil remedy where there is any other method of doing justice. The observations of the later Master of the Rolls in the case of Re Clementseem much in point: “It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of judges 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. I say that a judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of dealing with persons brought before him on accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that, necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men’s rights, that is, if no other pertinent remedy can be found. Probably that will be discovered after consideration to be the true measure of the exercise of the jurisdiction

In the result, therefore, I find that the conduct of the respondents (on the assumed facts) does not amount to an obstruction of the course of justice or to prejudice to the decree holder’s interests, and the mere fact that there has been disobedience to an order of the court does not, in those circumstances, render the respondents liable to be dealt with as for a contempt.”

The ingredients for a case to commit an alleged contemnor to Civil Jail are quite clear. These include:

i. Knowledge by the alleged contemnor of the court orders, ruling, injunction or decree.

ii. The terms of the orders, ruling, decree or injunction must be clear and binding on the alleged contemnor.

iii. The alleged contemnor must have acted contrary to the court orders.

iv. The acts of the contemnor must be deliberate and made with the intention of undermining the integrity, dignity, authority or honour of the court or must be seen to threaten or undermine the court’s dignity or powers.

The undertaking signed by the defendants is quite ambiguous in the sense that the specific school fees balance for each defendant parent is not stated. The final orders of the court are contained in the judgment and not the earlier ruling. I do agree with the contention by counsel for the respondent that the Judgment is superior to the order issued earlier. Orders granted before Judgment are meant to solve certain issues before the main claim is heard. The judgment gives the final court’s determination of the dispute between the parties. Subsequent orders can be issued after the judgment. These can include orders for stay of execution pending appeal, setting aside of judgment, Review or variation of orders, payment of decretal sum by way of instalments among other orders. The subsequent orders are mainly focused on the Judgment. The applicant herein cannot by-pass the judgment and rely on a ruling that was issued about three (3) years before the determination of the dispute by a final judgment. The applicant’s predicament can be attributed to the manner in which its defence was drawn. No counter claim was raised. The sum of Kshs.250,000 was indicated in the prayers and was not granted by the court.

The court cannot grant the prayer to compel the respondents to pay the fees as there is no court determination as to how much each defendant is liable to pay. Is could be Kshs. 250,000 or more. The court cannot cite the respondents for contempt of court and commit them to civil jail as the final determination of the court did not award the applicant any monetary compensation in form of the outstanding fee balance. The same applies to the prayer for a warrant of arrest. In my opinion, the applicant is of the considered view that the court awarded her the school fees. The undertaking to pay the fees is not a court decree that can be enforced through warrant of arrest and committal to civil jail. The procedure provided for committal to civil jail mainly relates to a situation where a judgment debtor fails to satisfy a decree.

I do find that there is no decree capable of being enforced through committal of the respondents to civil jail. It is not all lost to the applicant. The best way forward is for the applicant to institute civil suit and claim the specific school fee balance from each parent either separately or collectively. On the other hand, the respondents have managed to frustrate the applicant but the end result may lead to payment of the fees as observed by justice L. Njuguna. The best way forward is for the parties to settle the matter amicably. However, the applicant is entitled to pursue the settlement of the fees as herein indicated.

The upshot is that the application dated 24th July, 2020 lacks merit and is hereby dismissed with no orders as to costs.

Delivered and Dated at Nairobi this 9th day of December, 2020

.............................

S. CHITEMBWE

JUDGE