[2017] KEHC 2971 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO. 368 OF 2016

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

VERSUS

CITY COUNTY OF NAIROBI

NOW COUNTY GOVERNMENT OF NAIROBI..........1ST RESPONDENT

COUNTY SECRETARY,

COUNTY GOVERNMENT OF NAIROBI......................2ND REPONDENT

EX PARTE: KEPHA O. MAOBE & 365 OTHERS ON THEIR

BEHALF AND OF ALL RESIDENTS OF KIMATHI ESTATE

RULING

1. On 31st January, 2017, I delivered a judgement in this matter in which I issued an order of an order of mandamus against the respondents compelling them to immediately pay the sum of Kshs 10,247,610. 00 to the applicants. I also awarded the applicant costs of the application.

2. The applicant has now moved this Court vide a Notice of Motion dated 10th June, 2017 seeking the following orders:

1. That the Accounting Officer/ County Executive Finance, the Governor and the County Secretary of the County Government of Nairobi be and are hereby cited and convicted and sentenced for contempt for failing to comply with the orders of mandamusmade on the 31st January 2017, to pay the Ex-parte applicant Kshs. 10, 247, 610/= pursuant to a certificate of order against the Government issued on the 13th June 2016 in NBI HCCC NO. 516 OF 1997.

2. That costs be for the ex parteapplicant.

Applicants’ Case

3. According to the applicants, they filed NBI HCCC NO. 516 of 1997which proceeded to trial but was dismissed on the 20th June 2003. Being aggrieved, they lodged an appeal to the Court of Appeal, Civil Appeal No. 8 of 2004,which also proceeded to trial and was determined on the 6th November 2015 in their favour so that the decree dated 20th June 2003 in the trial case was set aside and substituted with orders in the appellant’s favour, with costs of the appeal.

4. The applicants then fled a party to party bill of costs dated 10th February 2016 against the 1st respondent in the trial case, NBI HCCC NO. 516 OF 1997,which was taxed at Kshs. 10, 247, 610/=. They also applied for a certificate of order against the Government, which was made against the 1st respondent herein dated 14th June 2016. Thereafter the applicants made a demand for payment through the 1st respondent’s advocates with no success.

5. As a result the applicant instituted Judicial Review proceedings against the respondents, from which orders of mandamus were issued compelling the respondents to pay the said sum Kshs. 10, 247, 610/=, which were served upon the 1st respondent’s legal officer and a demand made but without success.

6. It was disclosed that this Court, on the 14th March 2017, directed that Notice to Show Cause why contempt proceedings could not be issued against the contemnors to issue hereafter such Notice to Show Cause was served upon the contemnors, the respondents and their advocates. Again, they failed to show cause as a result of which on the 24th May 2017, this Court directed that these contempt proceedings be commenced. It was the applicants’ case that the 1st and 2nd respondents, by themselves and through their officers and sub ordinates, have failed to carry out their lawful duty to satisfy a lawful court order hence the justification for holding them in contempt.

7. Apart from retracing the history of the dispute the applicant contended that the respondents are continuing with constructions on premises which they forcibly took from the applicant without paying compensation as ordered by the court.

8. To the applicant, evidently the respondents have funds but they are refusing to pay its claim herein hence there is urgent need for them to pay up before continuing the constructions further.

9. Though the Court was informed that the Respondent had filed a replying affidavit and submissions, there were none in the Court file. Despite the Court having gone out of its way to notify the Respondent to supply the same, that notification was ignored by the Respondent’s advocates. Accordingly, I have to determine this application based on the evidence on record.

Determination

10. Parliament vide Act No. 46 of 2016 enacted the Contempt of Court Act, 2016 which was assented to on 23rd December, 2016 and commenced on 13th January, 2017.

11. According to the said Act contempt includes civil contempt which means wilful disobedience of any judgment, decree, direction, order, or other process of a court or wilful breach of an undertaking given to a court. It is therefore clear that the wilful disobedience of a judgement, decree or order properly constitutes contempt of Court. Section 30 of the said Act provides that:

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 not be 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 the court 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.

12. According to the foregoing provisions, before any civil contempt of court proceedings are instituted in disobedience of a judgement, decree or order, the applicant must first move the Court to issue a notice to show cause against the accounting officer of the State organ, government department, ministry or corporation concerned. Such notice is to be served on both the accounting officer and the Attorney General. If no response to the notice is received, the Court may then at the expiry of the said thirty days’ notice period proceed to commence contempt of court proceedings against the concerned accounting officer. In my view the thirty days’ period is meant to enable the Attorney General to give legal advice to the entity concerned and thus avoid the necessity of contempt proceedings. Where however the entity believes that contempt of court proceedings ought not to be commenced, the entity is required to within the said period show cause, in my view preferably by way of an affidavit why the said proceedings ought not to be commenced. The Court will then determine whether cause has been shown or not based on the material before it. Without the rules of procedure having been promulgated it is therefore my view that an application for notice ought to be accompanied by an affidavit and that application may be heard ex parte since the merits thereon may be dealt with when the cause is shown by the entity or public officer concerned.

13. Where no cause is shown and the contempt of court proceedings are commenced, the Court can however only find that officer guilty of contempt upon satisfactory proof that the said contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of the accounting officer. Such officer will then be liable to a fine not exceeding two hundred thousand shillings.

14. With respect to the contempt of court proceedings subsequent to the issuance of the notice to show cause, section 7(3) of the said Act provides that:

“…any proceedings to try an offence of contempt of court provided for under any other written law shall not take away the right of any person to a fair trial and fair administrative action in accordance with Articles 47 and 50 of the Constitution.”

15. In this case it is my view that no sufficient reason has been advanced why contempt of Court proceedings cannot be commenced as provide under section 30 of the Contempt of Court Act.

16. Accordingly leave is hereby granted to commence the said proceedings.

17. Costs of the application are awarded to the applicant.

18. It is so ordered.

Dated at Nairobi this 6th day of October, 2017

G V ODUNGA

JUDGE

Delivered in the absence of the parties.

CA Ooko