[2022] KEHC 14725 (KLR)

Republic v Chief Executive Officer, Independent Electoral and Boundaries Commission; Office Technologies Limited (Exparte Applicant) (Judicial Review 302 of 2015) [2022] KEHC 14725 (KLR) (Judicial Review) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14725 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review 302 of 2015

AK Ndung'u, J

November 3, 2022

Between

Republic

Applicant

and

Chief Executive Officer, Independent Electoral and Boundaries Commission

Respondent

and

Office Technologies Limited

Exparte Applicant

Ruling

1. This ruling disposes the application dated September 29, 2021 in which Office Technologies Limited (the applicant) seeks the following orders:1. That the honourable court be pleased to make an order punishing Mr Marjan Hussein Marjan, the Chief Executive Officer of the Independent Electoral and Boundaries Commission the respondent herein by way of committal to civil jail for a period of six (6) months or fine or both for having deliberately disobeyed the court orders and judgment made by Hon GV Odunga on the November 28, 2016. 2.That the respondent be condemned to pay costs.

2. The gist of the application is that on the 28th day of November, 2016, GV Odunga J (as he then was), in his judgment in High Court Judicial Review No 302 of 2015 directed that an order be issued compelling the Chief Executive Officer of the Independent Electoral and Boundaries Commission to forthwith and without delay, pay to the applicant the full decretal sum due including interest and costs.

3. It is urged that despite the aforesaid orders, the respondent has failed and/or refused to pay the applicant and this amounts to a flagrant breach and disobedience of this court. The applicant has exhibited the judgment, decree, penal notice and an order by the Deputy Registrar showing an outstanding amount of Kshs 7, 243,568 all duly served on the respondent and their counsel on record.

4. A certificate of order given under the seal of the court on 17th day of September 2018 and issued on March 15, 2021 is annexed to a further affidavit sworn by Daniel Wandera.

5. The respondent’s case is that the application is frivolous, vexatious, totally devoid of merit and tainted with malafides for reasons that the applicant did not, before bringing these proceedings comply with section 21(1) and (2) of the Government Proceedings Act which provides that payment must be based on a certificate of costs and a certificate of order against the government obtained by the successful litigant from the court issuing the decree.

6. The respondent maintains that by the failure of the applicant to obtain and serve upon the respondent and the Attorney General with a;i.Certificate of order against Government for the sum claimed (Ksh 7,243,568)ii.Certificate of costs against the government for the sum claimed (Ksh 7,243,568)iii.The ruling by Deputy Registrar Elizabeth Tanui dated September 17, 2018 in HCCC No 60 of 2014iv.An order and/or Decree duly extracted from the ruling by Deputy Registrar Elizabeth Tanui dated September 17, 2018 in HCCC No 60 of 2014 for the sum claimed (Ksh 7,243,568)It was not possible to ascertain the amount that the respondent was expected to pay. There is no proof therefore that the respondent has disobeyed the orders of the court.

7. The application was disposed off by way of written submissions. I have had the occasion to consider the respective submissions in detail including on aspects I may not necessarily reproduce here.

8. From the pleadings, the affidavit evidenced and submissions on record, the issues for determination are:1. Whether the respondent is guilty of disobeying the orders of court emanating from the judgment made by Odunga J (as he then was) on November 28, 2018 thus rendering him in contempt of court.2. What orders should issue.3. Who bears the costs of the application?

9. The obligation of every person to obey court orders was summed up in the case of Hadkinson -vs- Hadkinson (1952) 2 All ER56 as follows;“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt. "

10. The rule of law would be in great danger if the courts failed to ensure compliance with court orders. Without enforcement through punishing for contempt of court, the orders of court would remain mere rhetoric not worth the paper they are written on. My considered view is that a judge who fails to enforce his orders through punitive measures to those who disobey them has no business conducting the next trial, for, of what use would be court proceedings whose outcome is of no consequence?

11. I resonate with the finding of the court inRepublic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex parte Stanley Muturi where it was held as follows;“Court orders are not meant for cosmetic purposes. They are serious decisions that are meant to be and ought to be complied with strictly. As was held in Teacher's Service Commission vs Kenya National Union of Teachers & 2 others Petition No 23 of 2013:"The reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it about placating the applicant who moves the court by taking out contempt of court proceedings. It is about preserving and safeguarding the rule of law. A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed. A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law.Defiance is not an option."

12. The ingredients to be proved in a contempt application are well settled. The court in Felicity Mutete Mutula v Nairobi County Government [2021] eKLR laid down the requirements thus;“From the foregoing rules, I would say that some of the salient features in an application for contempt of court are as follows:1. Disobedience of a court order or judgment is a foundation for contempt of court proceedings against the contemnor.2. Where the contemnor is a company or other corporation, the committal order may be made against any director or other officer of that company.3. The judgment or order in question must be served on the person required to do or not to do the act in question unless the court expressly dispense with personal service.4. Where the person required to do or not to do an act is a company or other corporation, a copy of the judgment or order must also be served on the alleged contemnor.5. Judgments and orders must be served personally.6. The court may, however, dispense with personal service if it is satisfied that the contemnor had notice of the judgment or order;a.By being present when the judgment or order was given or made; orb.By being notified of its terms by telephone, email or otherwise.7. The court may also dispense with personal service if it thinks it is just to do so or may make an order in respect of service by an alternative method or an alternative place.8. There shall be permanently displayed on the front copy of the judgment or order served a warning to the person required to do or not to do the act in question that disobedience to the order would be contempt of court punishable by imprisonment, a fine or sequestration of assets. Without this display the judgment or order may not be enforced unless it is an undertaking contained in a judgment or order.9. The contempt of court application shall be made by an application notice in the same proceedings in which the judgment or order was made.10. The application notice must set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and must also be supported by one or more affidavits containing all the evidence relied upon.11. The application notice and the evidence in support must be served personally on the respondent although the court may dispense with service under paragraph (10) if it considers it just to do so: or may make an order in respect of service by an alternative method or at an alternative place. "

13. These ingredients are summed up in the book Contempt in Modern New Zealand as follows;“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -a.The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant.b.The defendant had knowledge of or proper notice of the terms of the order.c.The defendant has acted in breach of the terms of the order; andd.The defendant’s conduct was deliberate."

14. In our instant suit the applicant has demonstrated the existence of a judgement by Odunga J (as he then was) and indeed in compliance with that judgement, a substantial part of the decretal sum was paid. There appears to have arisen a dispute as to the total sum payable, a matter that found its way to the Deputy Registrar's desk who, vide her ruling dated February 17, 2018, established the outstanding amount payable as being Kshs 7,243,568. This ruling is exhibited as well as a certificate of order against the Government annexed to a further affidavit of Daniel Wandera. It is the applicant's case that the necessary service was effected and the respondent should be found in contempt.

15. The respondent contends that the applicant failed to serve. Certificate of order against Government for the sum claimed (Kshs 7,243,568), certificate of costs against the government for the sum claimed (Kshs 7,243,568), The ruling by Deputy Registrar Elizabeth Tanui dated September 17, 2018 in HCCC No 60 of 2014 and an order and/or decree duly extracted from the ruling by Deputy Registrar. Elizabeth Tanui dated September 17, 2018 in HCCC No 60 of 2014 for the sum claimed (Kshs 7,243,568).

16. Suffice to note that the application before court is not the first one of like nature against the respondent. In an earlier application by way of an amended notice of motion dated April 17, 2019 before Nyamweya J (as she then was), the applicant sought similar orders and in her finding the learned judge expressed herself as follows;“25. Secondly, it is also not disputed that the genesis of the instant proceedings between the applicant and the respondent is a judgment which entered summary judgment in favour of the applicant for Kshs 200,440,000. 00 plus interests as from March 2013, in Nairobi HCCC No 60 of 2014 – Office Technologies Limited versus Independent Electoral & Boundaries Commission. The applicant has in this respect relied on the ruling by Hon Elizabeth Tanui dated September 17, 2018 therein, which established the outstanding amount payable as being Kshs 7, 243,568/=. However, the applicant did not bring any evidence of service of this ruling or any orders or decree extracted therefrom on the alleged contemnor and respondent, and in fact brings it on record for the first time after the filing of the contempt of court application in a supplementary affidavit sworn on and filed in court on September 18, 2019. The respondent state that they only became aware of the said ruling on February 4, 2020 when served with the said supplementary affidavit.26. Therefore, as at the date of the orders granted herein on November 28, 2016 and of the filing the instant contempt of court application on April 17, 2019, the outstanding sum was not ascertained. In addition, after being ascertained, there is no evidence that it was brought to the attention of the alleged contemnor or respondent for purposes of effecting payment.”

17. I have deliberately reproduced the above excerpts from Nyamweya J's ruling for their factual effect that the sum payable was after the above ruling ascertained and was now in the knowledge of the respondent. The record shows that a certificate of order against the Government was served after the application had been filed. There was no leave sought to counter the same in a further replying affidavit.

18. Confronted by similar circumstances, this court, in Judicial Review Application No 121 of 2017, Prof Tom Ojienda & Associates v The County Secretary Nairobi County & another stated as follows;"1. Service on the respondents is hotly contested. Before I venture into answering this question which is central to contempt proceedings, I find it necessary to make comments which in my view are necessary in furtherance of substantive justice to the parties herein and also in related matters.2. Without a doubt, there is an order of the court directing the County Secretary and Chief Officer, Finance/County Treasurer Nairobi City County to pay up the sums due to the applicant. In his affidavit Dr Jairus Musumba (save for pointing out that he is not Cyrus as pleaded) confirms that he is the Ag County Secretary of Nairobi City County. Mohamed Abdi Sahal in his affidavit confirms that he is the County Chief Officer Finance of Nairobi City County. He avers that he is not Halkano Wako who previously held the Office of the Chief Officer and he indicates that the said Halkano Wako has been misnamed as Halakhe Wako in these proceedings.3. Throughout the affidavits of these 2 officers of the County, there is a discernible deliberate attempt to evade the real issue in controversy in that, both fail to acknowledge the existence of the indebtness to the applicant by the County, yet, if they were, in my view, acting in good faith, by virtue of the offices they hold, they would be aware of and should disclose the fact to the court even as they argue their case that they were not served with any documents or that they are not the officers liable to pay.4. Instead, the real substratum of the matter is lost as lofty arguments are made about misnaming of parties and or service leaving a successful litigant clutching at straws despite having a valid and an enforceable judgment of court.5. In my view, a purposeful interpretation of article 159 of the Constitution would frown upon a situation like obtains in this case where a court of law having expressed itself on a matter is taken through a re-opening of the case over questions that can be summarily answered without convoluted arguments that only serve to delay the conclusion of the matter and like in this case, deny a successful litigant enjoyment of his fruits of judgment. Of what use, one may pose, is access to justice under article 48 of the Constitution if, in the end a successful litigant ends up with a pyrrhic victory.6. Am persuaded that in the spirit of article 159 of the Constitution, the court ought in appropriate circumstances to side step a purely adversarial system of dispute resolution and adopt an inquisitorial one in matters akin to, and at the stage which this matter is. In our instant suit, there is no dispute about the indebtness. The major question brought up is who should be the officer to pay yet the court in its ruling of October 2, 2017 did direct the orders to 2 specific officers.’’

19. The contestations by the respondent in this matter about service of the ruling of the Deputy Registrar must be measured against the fact that the respondent was represented by counsel throughout the proceedings including during the proceedings in the similar application alluded to above. There is evidence of service and in any event the order to pay was in the knowledge of the respondent. The terms of the order on payment are clear and unambiguous and are binding on the respondent as the Accounting Officer. The respondent has breached the order to pay with no plausible explanation given.

20. Procedure requires that before an order of mandamus is issued, an applicant must abide by the procedure in section 21 of Government Proceedings Act which provides:“(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.”

21. Procedural law is important for predictability and order in proceedings. The same should not in appropriate circumstances be allowed to obfuscate substantive justice. The principles in Microsoft Corporation v Mitsumi Garage Ltd & another Nairobi HCC 810 of (2001) (2001) EA 460 ring a bell in this matter. The court in that case stated;“Rules of procedure are the hand maids and not the mistress of justice and should not be elevated to a fetish since theirs is to facilitate the administration of justice in a fair, orderly and predictable manner, not to fetter or choke it and where it is evident that the plaintiff has attempted to comply with the rules requiring verification of a plaint but has fallen short of the presented standards, it would be to elevate form and precedent to fetish to strike out the suit. Deviations, from, or lapses in form and procedure, which do not go to jurisdiction of the court or prejudicial not to the adverse party in any fundamental respect ought not to be treated as nullifying and the legal instruments, thus effected. In those instances, the court should rise to its calling to do justice by saving the proceedings in issue.”

22. Am of the persuasion that there is no procedural lapse to warrant denial to the applicant its fruits of judgement. Even if there be procedural lapse, the history of this matter militates against allowing the respondent to continue clinging on technical straws to avoid carrying out the duty to pay the sum due to the applicant. The respondent escaped the penal consequences in the earlier application before Nyamweya J (as she then was] on the basis that the sum due was not ascertained. That sum is no longer in doubt following the ruling of Hon Tanui and the certificate of order against the Government.

23. The respondent has knowledge of the order to pay. The order is clear and unambiguous and binding on him as the accounting officer. He has breached the order with no plausible explanation. As held in Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR a government official is only exempt from personal liability for a government debt that is due from the government but he has no immunity from obeying court orders as to the payment of government debt, nor excuse such disobedience.

24. In the premises, the application by way of amended notice of motion dated September 29, 2021 is successful. I allow the same and make the following orders;a.That the respondent herein is found to be in contempt of court for disobedience of the court orders and judgement made on November 28, 2016. b.A summons be issued against the respondent to appear in court on a date to be set for sentencing.c.Each party to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2022. …………………………………….A. K. NDUNGUJUDGE