[2022] KEHC 3016 (KLR)

Republic v County Executive Committee Finance & Economic Planning Mr. Allan Mugambi & 2 others; Liteline Enterprises Limited (Exparte) (Miscellaneous Application E041 of 2021) [2022] KEHC 3016 (KLR) (Judicial Review) (3 February 2022) (Ruling)

Neutral citation: [2022] KEHC 3016 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application E041 of 2021

J Ngaah, J

February 3, 2022

Between

Republic

Applicant

and

County Executive Committee Finance & Economic Planning Mr. Allan Mugambi

1st Respondent

County Chief Finance Officer, Mr. Halqano Waqo

2nd Respondent

Chief Accountant, Nairobi Chief Accountant, Nairobi City County Mr. Akongo Abwara

3rd Respondent

and

Liteline Enterprises Limited

Exparte

Ruling

1. The applicant’s application is the motion dated 19 March 2021 according to which the applicant has moved this Honourable Court to find that the respondents are in contempt of court and ought to be convicted on that account and fined accordingly.

2. The basis of the applicant’s application is a mandamus order issued by this court in High Court Judicial Review Application No. 53 of 2018 in which the applicant in the instant application was also the applicant in that suit. Both the County Secretary and the County Treasurer or Finance Officer of the Nairobi County Government were named in that particular suit as respondents.

3. The order granted on 26 February 2019 but issued on 13 March 2019 directed the respondents to pay certain amounts of money to the applicant. According to the applicant, the order was duly served but the respondents have not complied with it and settled the decretal sum as ordered. That is the applicant’s simple case.

4. When this matter was mentioned before court on 8 June 2021, Ms. Matunda, the learned counsel for the respondents, informed the court that a similar application had been made in Judicial Review Application No. 53 of 2018 which, as noted, is the suit from which the order in question was extracted.

5. Indeed, the position of the law is that the application to cite any party for contempt for disobedience of a court order should be made in the suit in which the order was made.

6. In Christine Wangari Gachege versus Elizabeth Wanjiru Evans & 11 Others (2014) eKLR the Court of Appeal reiterated that the only statutory basis for contempt of court as far as the Court of Appeal and the High Court are concerned is section 5 of the Judicature Act, cap. 8. This provision of the law reads as follows:Contempt of court(1)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 such power shall extend to upholding the authority and dignity of subordinate courts.(2)An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.

7. But there is nothing much in this provision of the law in terms of substance and procedure other than the obligation on the Court of Appeal and the High Court to ascertain, at any given time, the law applicable in England for punishment and, certainly, the procedure for committal for contempt. In discussing this point the court of Appeal noted that it is up to the Court of Appeal (and I add, the High Court too) to ascertain the applicable law of contempt in the High Court of Justice in England, at the time an application (for contempt) is brought. To this end the court adopted the words of H.G. Platt, J. and D.C Porter, Ag. J. (as they then were) In the matter of an application by Gurbaresh Singh & Sons Ltd, Miscellaneous Civil Case No. 50 of 1983 where they noted as follows:"The second aspect concerns the words of section 5- “for the time being”, which appear to mean that this court should endeavour to ascertain the law in England at the time of the trial, or application being made. Sometimes it is not known, or may not be known exactly, what powers the court may have. It seems clear that the Contempt of Court Act 1981 of England is the prevailing law and the procedure is still that set out in order 52 of the Supreme Court Rules.”

9. The jurisdiction of the High Court of Justice of England (which, according to the court system in England, is that level of the court that comprises three divisions; the Queen’s Bench, the Chancery and the Family Divisions) to punish for contempt of court is drawn from both the statute, which is the Contempt of Court Act, 1981 and the common law.

10. But the procedure for contempt of court proceedings, including commencement, prosecution and punishment for contempt of court was, until 2012, encapsulated in Order 52 Rules 1to 4 of the Rules of the Supreme Court(RSC); these Rules are made under the Supreme Court of Judicature Act, 1873, otherwise known as the Judicature Act, 1873.

11. On 1 October 2012, the Civil Procedure (Amendment No. 2) Rules, 2012came into force and Part 81 thereof effectively replaced Order 52 of the Rules of the Supreme Court in its entirety. This particular part provides different procedures for different form of violations.

12. In Christine Wangari Gachege versus Elizabeth Wanjiru Evans & 11 Otherscase (supra) the Court of Appeal made reference to and applied some parts of Rule 81 of the Civil Procedure (Amendment No. 2) Rules, 2012on enforcement of judgments and orders.

13. Of particular relevance to the present application is Rule 81. 10 on where the applications for contempt ought to be made; that part reads as follows:How to make the committal application 81. 10. —(1)A committal application is made by an application notice under Part 23in the proceedings in which the judgment or order was made or the undertaking was given. (Emphasis added).

14. Thus, the application for contempt cannot be made in proceedings separate from those in which the judgment or order alleged to have been breached was made.

15. I am minded that in Woburn Estate Limited v Margaret Bashforth [2016] eKLR, the Court of Appeal suggested that courts in Kenya do not always have to follow the law in England in order to punish for contempt since several laws have since been enacted according to which courts at different levels may now punish for contempt. The court did not, however, depart from its position in Christine Wangari Gachege versus Elizabeth Wanjiru Evans & 11 Others case (supra) although it noted that circumstances had since changed with the enactment of laws on the subject of punishment for contempt.

16. Most importantly, even with the change of circumstances, the Court of Appeal noted that:"The only missing link is the absence of the rules to be followed in commencing and prosecuting contempt of court applications. In order to completely emancipate ourselves from English law on contempt of court, the Chief Justice, as required under the aforesaid legislations ought to make rules for commencing and prosecuting applications for contempt of court.”

17. I have been of the humble opinion that our courts would not be out of order to rely on the latest rules applicable in England until such a time that we have our own locally made rules on procedure and prosecution of applications for contempt of court. The rules can be applied with such modifications as are necessary and, at any rate, to the extent that they are applicable to our circumstances.

18. It is also worth bearing in mind that despite the introduction of various statutory provisions upon which contempt of court proceedings may be founded, Section 5 of the Judicature Act has neither been amended nor repealed. Section 38 of the Contempt of Court Act attempted to repeal it but that Act was declared unconstitutional.

19. In my humble view, Section 5 of the Judicature Act, remains a legitimate basis upon which our courts can embrace not only the substantive law applicable in England in contempt of court applications but also the procedures that would be adopted in such applications. This is so particularly in circumstances where our local legislation may be found to be lacking in some respect in which event there would be nothing wrong in resorting to the law and practice in the High Court of Justice in England.

20. Turning back to the applicant’s application, I would say that based on Rule 81. 10 of the Civil Procedure (Amendment No. 2) Rules, 2012 of England, the application is fatally defective for having been filed in proceedings outside those in which the judgment or order was made. I would, for that reason dismiss the applicant’s application with costs. Orders accordingly.

SIGNED, DATED AND DELIVERED ON 3 FEBRUARY 2022NGAAH JAIRUSJUDGE