[2017] KEHC 3028 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

MISCELLANEOUS APPLICATION NO. 74 OF 2011

REPUBLIC…………………….........EXPARTE APPLICANT

VERSUS

BUSINESS PREMISES TRIBUNAL…….….…RESPONDENT

TIMOTHY OGUCHA OMATO…...…...INTERESTED PARTY

AND

ALFRED OMUNDI MOKOBI…………..…..…...APPLICANT

R U L I N G

Background

1. The ex-parte applicant herein ALFRED OMUNDI MOKOBI was the interested party’s tenant at business premises situate at Keroka Town. A landlord/tenant dispute arose over the said premises that was resolved by the Business Premises Tribunal in Tribunal Case No. 43/2010 wherein the Tribunal Chairman on 24th June 2010 ordered inter alia, that the tenant immediately vacates the said premises and that the landlord do levy distress under Section 12 (h)(i).

2. On 25th July 2011, the applicant herein moved this court and obtained leave to apply for orders of judicial review in the nature of certiorari to quash the respondents said decision dated 24th June 2011. The applicant also obtained orders that the leave granted do operate as stay of proceedings and decision dated 24th June 2011.

3. The applicant now claims that the interested party did not obey this court’s orders of 25th July 2011 thereby precipitating the application that is the subject of this ruling.

Application

4. This ruling relates to the ex-parte applicant’s application dated 9th September 2011 brought under Sections 5 of the Judicature Act Cap 8 of the Laws of Kenya, Article 40 of the Constitution and Order 51 (2) of the Civil Procedure Rules.

5. The applicant seeks orders that:

1. Spent

2. THAT the Honourable court be pleased to cite the interested party TIMOTHY OGUCHA OMATO for contempt of court for disregarding and or disobeying the lawful court order given by this Honoruable court on the 25th day of July 2011 requiring the interested party to stay the proceedings and decision of 24th day of June 2011.

3. THAT consequent to prayer 2 herein above being granted the interested party herein TIMOTHY OGUCHA OMATO be punished and or committed to civil jail for a duration not exceeding (6) six months and or such other shorter duration as the Honourable court may deem fit and expedient.

4. THAT in the alternative the Honoruable court be pleased to grant an order of sequestration to attach the properties of the interested party which properties be sold to defray damages occasioned by disobedience and or disregard of the lawful court orders issued on 26th day of July 2011.

5. Costs of the application be borne by the interested party.

6. The application is supported by the applicant’s affidavit sworn on 9th September 2011 in which he avers that upon obtaining this court’s orders of 25th July 2011, he promptly served the said order together with penal notice on the interested party on 28th July 2011 but that despite due service, the interested party in outright breach of the said orders proceeded to demolish the shop/business premises on 23rd August 2011. He attached copies of the said order, affidavit of service and photograph’s displaying the demolished building to the affidavit as exhibits “AOMI”, “AOM2” and “AOM3” respectively.

7. He further avers that the failure by the interested party to obey the said court order despite proper service amounted to contempt of court which should not go unpunished.

8. The interested party opposed the application through his replying affidavit dated 14th December 2011 wherein he deposes that he was not served with any pleadings or orders in respect to proceedings and that he only came to learn of the case through his advocates on record sometime in late October 2011 as he was sick and had been admitted at Agakhan Hospital.

9. He further avers that upon obtaining orders of eviction against the applicant from the Tribunal on 24th June 2011 he on 25th June 2011 approached the applicant and asked him to vacate the rented premises which request the applicant did not heed thereby leaving him with no option but to forcefully evict him 28th June 2011 with the assistance of the Kisii Officer Commanding Police Division (OCPD).

10. The parties herein opted to canvass the application by way of written submissions which I have perused.

Analysis and determination

11. I have carefully perused the pleadings filed herein together with the parties’ respective submissions in which they also attached the proceedings of other related court cases over the same subject matter.

12. I note that the main issue in contention is whether the interested party disobeyed this court order of 25th July 2011 and is therefore guilty of contempt of court. In a bid to bolster his argument that the interested party was guilty of contempt of court, the applicant submitted that the interested party was charged and convicted of the offences of arson and malicious damage to property in Keroka PMCR. Case no. 1310 of 2012.

13. At the beginning of the judgment in Keroka PMCR Case No. 1310 of 2012, the trial court stated as follows:

“That the accused person is charged with malicious damage to property contrary to Section 339 (1) of the Penal code.

That on 29. 6.2011 jointly with others not before court willfully and unlawfully damaged a shop/hotel building with property inside all valued at Kshs. 900,000/= the property of ALFRED OMUNDI MAKOBI

The accused has a second charge of arson contrary to section 332 (a) of the Penal Code.

That on 23. 8.2011 jointly with others not before court willfully and unlawfully set fire to a shop/hotel building with property inside all valued at Kshs. 1,100,000/= the property of ALFRED OMUNDI MAKOBI.”

14. From the above extract of the trial court’s judgment, it is clear to me that the offences of malicious damage to property and arson took place on two different dates being 29th June 2011 and 23rd August 2011 respectively.

15. The trial court had the following to say on sentencing the interested party for the two counts.

“I do take into account the circumstances under which the offences were committed. I do take into account the fact that complainant has adequate compensation in a civil litigation.

I do take into account the accused’s conduct amounted to economic sabotage against the complainant. I do take into account the sentence by law imposed for the offences including a maximum sentence of life imprisonment on count two relating to arson.

Having taken everything into account, the accused person is fined Kshs. 300,000/= on count one (1) in default 4 years imprisonment.

The accused person is fined Kshs. 500,000/= on count two relating to arson in default 7 years imprisonment

The sentence to run consecutively.”

16. The above sentence of the trial court was delivered on 8th March 2017 long after the filing of this application on 9th September 2011. It would then appear that the applicant was pursuing the twin issues of contempt of court and the attendant criminal activities that took place at the time the court order was breached.

17. I have perused the interested party’s replying affidavit wherein he averred that he was not served with the impugned orders of 25th July 2011 that are the subject of this instant application and that he only came to learn about them through his lawyers in late October 2011. I find it hard to believe that the interested party, who claims that he was ill at the material time that the court order is alleged to have been served on him, is the same person who was well and able to carry out acts of malicious damage to property and arson for which as I have already stated, he was found guilty by a court of law.

18. I do not believe the interested party’s averment that in his replying affidavit that he did not take any adverse action against the applicant other than the demolition carried out on 29th June 2011 because as I have already stated in this judgment, the interested party was found guilty of arson which was a crime committed on 23rd August 2011, long after the order of 25th July 2011 was issued.

19. To that extent I find that the interested party was aware of the court’s order of 25th July 2011 but chose to disregard it and went on with his unlawful activities against the applicant which went way beyond the orders of distress for rent and eviction that he purports to have been executing. Indeed, it was the action by the interested to obtain orders of eviction and distress for rent that precipitated the applicant’s application before this court seeking to stay the orders of the tribunal and to quash them through the orders of judicial review by way of certiorari. In this regard, I find that the interested party had personal knowledge of the court order and that apart from that personal knowledge, I am convinced that he was also served with the order on 27th July 2011 as shown in the process server’s affidavit that was marked as “AMO2” and attached to the applicant’s affidavit in support of the application.

20. I am guided by the words of Lenaola J in the case of Basil Criticos vs Attorney General and 8 others [2012] eKLR when he stated:

“the law has changed and as it stands today, knowledge supersedes personal service…where a party clearly acts and shows that he had knowledge of a Court Order, the strict requirement that personal service must be proved is rendered unnecessary.”

21. In the instant case, I am persuaded that the interested party had personal knowledge of court order and that his criminal acts against the applicant were intended to circumvent/defeat a lawful court order.

22. The standard of proof in matters of contempt of court is well settled. It must be higher than proof on a balance of probabilities and almost, but not exactly beyond reasonable doubt. (See Mutitika vs Baharini Farm Limited [1985] KLR 229. A charge of contempt of court is a kin to a criminal offence.

23. In the instant, having been charged and convicted of criminal offences arising out of the events that gave rise to this application for contempt of court, it goes without saying that the applicant has proved his claim for contempt of court to the required standards.

24. The interested party was under an unqualified obligation to obey the court order issued on 25th July 2011 until that order is discharged. See Hadkinson vs Hadkinson (1952) P 285. Therefore, taking all the circumstances of this case into consideration, and in the interest of justice, I find that the interested willfully disobeyed the orders of 25th July 2011 and I hereby find him to be in contempt of that order.

25. Having found that the interested party is guilty of contempt of court, the question which then arises is what orders this court should make.

26. As I have already stated in this ruling, contempt of court proceedings are a kin to criminal case and a person found guilty of contempt is liable to be punished through the loss of his liberty (imprisonment) or through payment of a fine. Disobedience of a court order is a serious matter that the court needs to deal with firmly in order to uphold he rule of law so as to ensure that we live in a civilized society that observes law and order. The court must send a strong message to all those hell-bent on disobeying court orders that such conduct will not go unpunished.

27. In the instance case, not only did the interested party disobey a lawful court order, but also went ahead to commit criminal acts against the applicant thereby aggravating the case further. The interested party’s conduct best fit the description of acts of impunity which should not be allowed to rear its ugly head in our society.

28. The judicial authority of the courts to grant orders is derived from the Constitution as a fundamental tenet of the rule of law and it is not open to any person or persons to elect whether or not to obey such orders directed to them by the court.

29. In order to maintain the rule of law therefore, I direct that the interested party appears in court on 5/12/2017 to show cause why he should not be punished for his disapproving conduct.

30. On the applicant’s prayer for an order of sequestration to attach the properties of the interested party to defray damages caused by his disobedience, I find that this is an order which cannot be granted in these proceedings but can only arise in separate claim for damages wherein the applicant will be required to specifically prove the said damages.

31. The applicant will have the costs of this application.

Dated, signed and delivered in open court this 10th day of October, 2017

HON. W. OKWANY

JUDGE

In the presence of:

Mr. Momanyi for the Interested party

N/A for the Respondents

Omwoyo: court clerk