[2019] KEHC 5818 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW MISC. APPLICATION NO. 274 OF 2016

REPUBLIC.......................................................................................APPLICANT

VERSUS

THE BETTING CONTROL & LICENSING BOARD.....1ST RESPONDENT

THE CABINET SECRETARY OF THE MINISTRY

OF INTERIOR & CO-ORDINATION...............................2ND RESPONDENT

THE CITY COUNCIL OF NAIROBI...............................3RD RESPONDENT

THE ATTORNEY GENERAL...........................................4TH RESPONDENT

EX PARTE:

DIANA MUTHONI T/A DND GAMING MACHINES

RULING

The Applications

1. This ruling is on two applications for contempt of court, namely a Notice of Motion dated 8th November 2016 (“the First Application”), and a Notice of Motion dated 19th December 2016 (“the Second Application”). The two Notices of Motion were both filed by Diana Muthoni T/A DND Gaming Machines, the ex parte Applicant herein (hereinafter “the Applicant”). The Applicant applied to withdraw two similar applications she had filed, namely a Notice of Motion dated 17th January 2017, and a Notice of Motion dated 18th January 2018, which applications were accordingly marked as withdrawn by this Court.

2. In the First Application, the Applicant is seeking orders that this Court finds the Officer Commanding Police Station (OCS), Kiamumbi Police Station in contempt of the orders of this Court that were granted herein by J. Odunga J. on 24th June 2016 and issued on 29th June 2016. Further, that the said OCS be arrested and committed to prison for a term not exceeding six (6) months. Similar orders are sought in the Second Application in relation to the OCS for Bondeni Police Station, and in addition, the Applicant seeks an order of payment of a fine and sequestration of assets of the said OCS for disobedience of the subject orders.

3. The two applications were respectively supported by affidavits sworn on 8th November 2016 by George Otieno Ogala, the Applicant’s supervisor, and by the Applicant on 19th December 2019. The grounds for the two applications are similar. The Applicant avers that she was granted leave to commence the instant judicial review proceedings on 24th June 2016, and that the Court ordered that the said leave was to operate as a stay limited to restraining the Respondents from destroying the Applicant’s machines. Further that the effect of the said order was to stop destruction of the Applicant’s gaming machines installed at licenced premises and to maintain the status quo pending the hearing an determination of the application.

4. However, that despite the said orders having been served on the Respondents and their agents, on 2nd November 2016, the OCS of Kiamumbi Police, acting on the instructions of the 1st and 2nd Respondents, and in disobedience of the said orders, instructed his officers to raid the business premises of the Applicant, being Skyline Bar in Githurai where the Applicant has installed gaming machines, and destroyed the said machines be breaking them and carting them away. Similarly, with respect to the Second Application, that between 20th October 2016 and 25th November 2016, the OCS of Bondeni Station confiscated the Applicant’s gaming machines situated in Nakuru with the intention of destroying them, and has failed and or declined to return the said machines or explain their whereabouts leading to the conclusion that the same have been destroyed. According to the Applicant, the aforesaid conduct amounts to contempt of court, and she continues to suffer pecuniary loss as a result of the confiscation and /or destruction of the machines.

5. The Applicant annexed copies of the court order issued on 29th June 2016, and of affidavits of service as exhibits.

The Responses

6. The alleged contemnors responded to the said applications. Chief Inspector Samuel Mwangi, the OCS of Kiamumbi Police Station, filed a replying affidavit sworn on 6th March 2019 in response to the First Application, while Chief Inspector Solomon Ndugi Kiritu, the OCS of Bondeni Police Station, filed a Replying affidavit sworn on 20th January 2017 in response to the Second Application.

7. As regards the response to the First Application, the deponent averred that he was posted to Kiamumbi Police Station on 11th March 2018, and at the time the matter was instituted he was not the OCS of the station. Further, that he has never been served with any court order issued on 29th June 2016. The deponent confirmed that a total of 8 gaming machines belonging to the Applicant were impounded by his predecessor, and that no machine has been destroyed and the same are in safe custody at the police station. In addition, that the reason why the said machines were impounded was due to lack of licences required pursuant to the Betting, Lotteries and Gambling Act, a fact which was within the knowledge of the Applicant. Further, that the orders issued herein only restrained the Respondents from destroying the Applicant’s machines, and not from carrying out their duties of ensuring the law is followed. The deponent asserted that he was a law abiding citizen who respect the law and court orders, and cannot disobey any court order.

8. The deponent in the response to the Second Application on his part denied acting in contempt of court, and averred that on 1st November 2016, he received directives from the Nakuru County Commander to impound gaming machines, and also a letter from the 1st Respondent dated 28th September 2016 requesting for support to eradicate illegal gaming machines. Further, that on 8th November 2016, he received a signal from the Police headquarters directing him to impound illegal gaming machines. The deponent annexed copies of the said letters and signal.

9. The deponent confirmed that he impounded a total of 25 gaming machines, of which 15 belonged to the Applicant, and two machines were also destroyed by members of the public who were looting the shops, which was confirmed in an entry in OB 17/10/11/2016. In addition, that the reason why the said machines were impounded was due to lack of licences required pursuant to the Betting, Lotteries and Gambling Act, a fact which was within the knowledge of the Applicant. The deponent also reiterated that the orders issued herein only restrained the Respondents from destroying the Applicant’s machines, and not from carrying out their duties of ensuring the law is followed. Likewise, the deponent asserted that he was a law abiding citizen who respect the law and court orders and cannot disobey any court order.

The Determination

10. This Court directed that the said application be canvassed by way of submissions which were highlighted during a hearing held on 2nd April 2019 . Kabathi & Company Advocates for the Applicant filed two sets of submissions, both dated 23rd April 2018, while Mr. Munene, a State Counsel at the Attorney General’s Chambers filed submissions dated 28th May 2019 on behalf of the Respondents and alleged contemnors, which he relied upon for the two applications.

11. The Applicant submitted that duties and powers of the alleged contemnors must be within the tenets and parameters of the provisions of the Constitution as well as any other written law, including the orders and/or directions of this court. That this is because the alleged contemnors are obliged in mandatory terms to uphold and respect the Constitution as the supreme law of the Republic, and in so doing abide by the national values and principles of governance including the rule of law, human rights, good governance, integrity, transparency and accountability. Similarly, that the alleged contemnors are mandated to observed, respect, protect, promote and fulfil the rights and fundamental freedoms of all persons provided in the Bill of Rights in the Constitution and comply with the provisions of the National Police Service Act and the Public Officer Ethics Act.

12. Further, that the alleged contemnors are obliged in law to accord the Applicant administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair; and to give her written reasons for conducting raids, closing, vandalizing, confiscating, impounding, seizing and/or destroying the Applicant’s Limited Payout Gaming Machines or authorizing the same to be conducted by his officers. Therefore, that the alleged contemnors owe the Applicant a duty to act in a lawful manner and respect and uphold her right to property enshrined under Article 40 of the Constitution.

13. According to the Applicant, the acts of conducting raids, closing, vandalizing, confiscating, impounding, seizing and/or destroying the Applicant’s Limited Payout Gaming Machines gravely offends these rights, as well as the orders of this court dated 24th June 2016. That where such rights of the Applicant have been violated or infringed upon, or orders of the court have been disobeyed, the court has power, authority and discretion to exercise its legal and administrative tools to prevent and/or punish such disobedience of its orders or directions called contempt.

14. The Applicant opined that having sought to know on many occasions the whereabouts of her said Limited Payout Gaming from the alleged contemnors, and the requests having always been met with hostility, she reasonably believes that the said Gaming Machines have been destroyed. In addition, that the alleged contemnors and officers serving under their command, directions or supervision have repeatedly told her that they had been issued with a circular from “above” ordering them to confiscate and destroy the said gaming machines belonging to her.

15. The Applicant submitted that this court has inherent jurisdiction to ensure justice and fairness is applied in all matters brought before it. That the court should, therefore, not allow the Respondents or the alleged contemnors to limit the Applicant’s right to property as enshrined under Article 40 of the Constitution or within the scope and spirit of the orders of this Court dated 24th June 2016. The Applicant implored this court to find that the alleged contemnors have violated the orders dated 24th June 2016.

16. During the hearing, Ms. Namasaki submitted that the affidavits of service annexed a s exhibits showed service of the orders on Kiamumbi and Bondeni Police stations, and that the Respondents had attached the same photos to their affidavits, which could not have been possible as the two deponents were from different police stations

17. The Respondents and alleged contemnors on the other hand submitted that the Applicant has not met the requisite standard for contempt under the Contempt of Court Act, and that the application is based on mere speculation and /hearsay and is therefore frivolous, vexatious and an abuse of the court process. The Applicant relied on the definition of contempt of court set out in section 4 of the Contempt of Court Act, to submit that there is no proof of disobedience of the order of the court, and that contrary to the Applicant’s assertions, the actions of the alleged contemnors were carried out lawfully. They submitted that the order issued on 26th June 2016 restrained the Respondents from destroying the Applicant’s gaming machines pending the hearing and determination of the Applicant’s application and addressed the restriction of lawful operation of gaming machines under the Betting Lotteries and Gaming Act, only. However, that the seizures of the Applicant’s machines were effected on machines not licenced under the Betting Lotteries and Gaming Act. The Respondents relied on the holding in Makula International Ltd vs His Eminence Cardinal Nsubuga and Another[1982] HCB II, where the Uganda Court of Appeal held that a court of law cannot sanction what is illegal.Therefore, that the alleged seizures were in enforcement of statute and were therefore lawful, and not in contravention of a court order.

18. On the application being based on speculation and frivolous, vexatious and an abuse of the court process, the Respondents and alleged contemnors submitted that the Applicant has not provided evidence as to the allegation of destruction of gaming machines. The Respondent contended that as a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue under section 107(1) of the Evidence Act. In addition, that as restated in Peter Nganga Muiruri Vs F. M. Gikana (t/a Expeditious General Merchants) & Another,Civil Appeal No. 27 of 2012contempt of court is a criminal offence and the standard of proof is quite high.

19. It is the Respondents’ and alleged contemnors submissions that they have not violated the orders of 29th June 2016, and that the gaming machines were impounded for failure of the Applicant to have a license. Further, that the machines have not been destroyed as alleged, as they have been kept safely at Deputy County Commissioner’s stores, as evidenced by the photographs annexed to their replying affidavit.

20. Lastly, the Respondent submitted that the application offended the provisions of Section 30 of the Contempt of Court Act, which provide that a state officer has to be issued with 30 days notice to show cause why contempt of court proceedings should not be cited for contempt. That this also made the application premature.

21. I have considered the pleadings and submissions made by the Applicant, Respondents and alleged contemnors, and note that at the time of the filing of the Applicant’s application, the applicable law on the procedure in contempt of Court proceedings against a government officer such as the alleged contemnors was provided in section 30 of the Contempt of Court Act of 2015, which stated as follows:

“(1) Where a State organ, government department, ministry or corporation is guilty of contempt of court in respect of any undertaking given to a court by the State organ, government department, ministry or corporation, the court shall serve a notice of not less than thirty days on the accounting officer, requiring the accounting officer to show cause why contempt of court proceedings should notbe commenced against the accounting officer.

(2) No contempt of court proceedings shall be commenced against the accounting officer of a State organ, government department, ministry or corporation, unless the court has issued a notice of not less than thirty days to the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer.

(3) A notice issued under subsection (1) shall be served on the accounting officer and the Attorney-General.

(4) If the accounting officer does not respond to the notice to show cause issued under subsection (1) within thirty days of the receipt of the notice, the court shall proceed and commence contempt of court proceedings against the accounting officer.

(5) Where the contempt of court is committed by a State organ, government department, ministry or corporation, and it is proved to the satisfaction of the court that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of any accounting officer, such accounting officer shall be deemed to be guilty of the contempt and may with the leave of thecourt be liable to a fine not exceeding two hundred thousand shillings.

(6) No State officer or public officer shall be convicted of contempt of court for the execution of his duties in good faith.”

22. However, on 9th November 2018, the High Court (J. Chacha Mwita) in a judgment delivered in Kenya Human Rights Commission v Attorney General & Another, [2018] eKLR, declared sections 30 and 35 of the Contempt of Court Act to be inconsistent with the Constitution and null and void, and also declared the entire Contempt of Court Act No 46 of 2016 invalid for lack of public participation as required by Articles 10 and 118(b) of the Constitution, and for encroaching on the independence of the Judiciary. To this extent, the Applicant’s application is properly before this Court, as section 3o of the Contempt Act is no longer applicable.

23. As regards the substance of the application, I am obliged to revert to the provisions of the law that operated before the enactment of the Contempt of Court of Act, to avoid a lacuna in the enforcement of Court’s orders.It was in this respect observed in Republic vs. Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya, HCMCA No. 13 of 2008, that the High Court has the responsibility for the maintenance of the rule of law, hence there cannot be a gap in the application of the rule of law.

24. In addition, where there is a lacuna with respect to enforcement of remedies provided under the Constitution or an Act of Parliament, or if, through the procedure provided under an Act of Parliament, an aggrieved party is left with no alternative but to invoke the jurisdiction of the Court, the Court is perfectly within its rights to adopt such a procedure as would effectually give meaningful relief to the party aggrieved, in exercise of the inherent jurisdiction granted to the Court by section 3A of the Civil Procedure Act to grant such orders that meet the ends of justice and avoid abuse of the process of Court.

25. On the issues that arise for determination, I observed that the Applicant seems to have conflated her application for committal for contempt of court, with pleas for vindication of her rights to property among other rights. It is in this regard necessary at the outset to restate that the nature, purpose and effect of contempt of court proceedings is to penalize for disobedience of court orders, and the proceedings are therefore quasi criminal in nature. Proceedings for vindication of rights are on the other hand purely civil and are remedial in nature. The applicable rules as regards committal for contempt of court are also different from those that apply to vindication of rights, and the two causes of actions cannot co-exist in the same application. I will therefore restrain and limit myself to those aspects of the Applicant’s arguments that address the issue at hand, which is whether the alleged contemnors should be cited for contempt of court.

26. As explained in the foregoing, the applicable law as regards contempt of court is the law and procedure existing before the enactment of the Contempt of Court Act, which was restated by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others,[2014] eKLR. In that case the Court found that the English law on committal for contempt of court under Rule 81. 4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertaking, was applied by virtue of section 5(1) of the Judicature Act, which provided as follows:

“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.”

27. This section was however repealed by section 38 of the Contempt of Act, and it is my view that section 5(1) of the Judicature Act cannot be operative irrespective of the invalidation of the Contempt of Court of Act by virtue of section 20 of the General Provisions and Interpretation Act, which provides as follows as regards the revival of a repealed written law:

“Where a written law repealing in whole or in part a former written law is itself repealed, that last repeal shall not revive the written law or provisions before repealed unless words are added reviving the written law or provisions”.

28. There is however no lacuna, as the substance of the common law is still applicable under section 3 of the Judicature Act. This Court is in this regard therefore guided by the applicable English Law, which is Part 81 of the English Civil Procedure Rules of 1998 as variously amended and applied, and which contains the requirement for personal service of court orders in contempt of Court proceedings in Rule 81. 8. The said rule provides that unless the court dispenses with service, a judgment or order may not be enforced by way of an order for committal unless a copy of it has been served on the person required to do or not do the act in question. Rule 81. 6 of the English Civil Procedure Rules specifically provides that the method of service shall be personal service, which is effected by leaving the order with the person to be served.

29. This Court notes that Kenyan courts have also held that personal service of orders and a penal notice is a requirement in contempt of court proceedings, and reference is made to the Court of Appeal decisions in Nyamogo & Another v Kenya Posts and Telecommunications Corporation, (1994) KLR 1,and Ochino & Another v Okombo & 4 others (1989) KLR 165 in this respect. It is also the position and it has been held in several judicial decisions that if personal awareness of the court orders by the alleged contemnors is demonstrated, they will be found culpable of contempt even though they had not been personally served with the orders and penal notice. See in this regard the decisions inKenya Tea Growers Association vs Francis Atwoli & Others, Nairobi High Court Constitutional Petition No 64 of 2010,Husson v Husson, (1962) 3 All E.R. 1056, Ronson Products Ltd v Ronson Furniture Ltd(1966) RPC 497,and Davy International Ltd vs Tazzyman(1997) 1 WLR 1256.

30. I have in this regard perused the affidavits of service annexed by the Applicant as exhibits to the two applications, and which was relied upon in by the Applicant as evidence of service of the orders of this Court that were issued on 29th June 2019. I note that the same affidavit of service was relied upon in the two applications, and it was sworn on 12th July 2016 by Charles Maihanyu Thuku, an advocate of the High Court of Kenya. The deponent stated in paragraph 5 that he served “an old gentlemen” in the 1st Respondent’s office. As regards service on the other Respondents, the deponent states in paragraph 6 that service was effected on a legal officer in the Office of the 2nd Respondent, a gentlemen in the 3rd Respondent’s office, and a clerk in the 4th Respondent’s office. No attestation was made on service on the alleged contemnors. It is also pertinent to note that the deponent states that he received the said orders on 4th June 2016, which was before they were issued, and which was when he served most of the Respondents, save for the 2nd Respondent who was served on 6th July 2016.

31. In addition, no evidence was brought by the Applicant to show the requests she alleged to have made to the alleged contemnors or their officers, or any other communication with the alleged contemnors on the orders issued by this Court on 29th June 2016. This Court cannot in the circumstances make a finding that the alleged contemnors were served with, or were aware of the orders issued by this Court on 29th June 2016 to be capable of disobedience of the same. The only evidence of service on the alleged contemnors was of the applications seeking to cite them for contempt of court upon directions by this Court. However, what is required to be proved is service or notice of the orders alleged to have been disobeyed, and in any event, before the application for contempt of Court is made to court, as the contempt is predicated on such service having been effected.

32. I will nevertheless proceed to consider the principles as regards culpability for contempt of court, which are that no person will be held guilty of contempt for breaking an order unless the terms of the order are themselves clear and unambiguous as held in Iberian Trust Ltd vs Founders Trust and Investment Co. Ltd (1932) 2 KB 913. Furthermore, if the court is to punish anyone for not carrying out its order, the order must in unambiguous terms direct what is to be done. It was held in Radkin-Jones vs Trustee of the Property of the Bankrupt, (1965) 109 Sol. Jo. 334 that an order should be clear it its terms, and should not require the person to whom it is addressed to cross-refer to other material in order to ascertain its precise obligation.

33. The act or omission constituting disobedience of an order may be intentional, reckless, careless or quite accidental and totally unavoidable. An intentional act may be done with or without an intention to disobey the order, and with or without an intention to defy the court. The element of contumacy, which requires flagrant defiance of, the authority of the court, is no longer necessary to establish breach of a court order. What is required to be established with respect to the mental element for liability for contempt of court, is simply that the disobeying party either intended to disobey, or made no reasonable attempt to comply with the order. See in this respect the English House of Lords decision in Heatons Transport ( St Helens) Ltd v Transport and General Workers Union (1973) AC 15.

34. Lastly, on the applicable standard of proof, it was held in Mwangi H.C. Wangondu vs Nairobi City Commission, Nairobi Civil Appeal No. 95 of 1998 that the threshold of proof required in contempt of Court is higher than that in normal civil cases, and one can only be committed to civil jail or otherwise penalized on the basis of evidence that leaves no doubt as to the contemnor’s culpability.

35. Applying these principles to the present application, this Court has already found that the alleged contemnors were not aware of the Court orders issued on 29th June 2016, and cannot therefore be found to be culpable of disobeying court orders whose terms they were not aware of. In addition, the alleged contemnors brought evidence of authority given to them to seize gaming machines that were not licenced. The Applicant did not bring any evidence to controvert the allegations made by the Respondents that her impounded machines were not licenced, and were therefore seized lawfully. Lastly, the alleged contemnor in the Second Application did provide evidence of photographs of the impounded machines in police custody.

36. I accordingly find that the Applicant did not prove to the required standard that the alleged contemnors were served with the orders issued herein on 29th June 2019, or were aware of the same. The Applicant in addition did not prove any culpability on the part of the alleged contemnors or breach of the said orders. In the premises the prayers in the Applicant’s Notice of Motion dated 8th November 2016 and in the Notice of Motion dated 19th December 2016 are denied, and the said Notices of Motion are dismissed.

37. There shall be no order as to costs.

38. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 26TH DAY OF JUNE 2019

P. NYAMWEYA

JUDGE