[2022] KEHC 2679 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

JUDICIAL REVIEW NO. E002 OF 2020

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

VERSUS

THE COUNTY EXECUTIVE COMMITTEE

MEMBER (FINANCE) EMBU COUNTY……….….......1ST RESPONDENT

CHIEF OFFICER (FINANCE) EMBU COUNTY…......2ND RESPONDENT

EMBU COUNTY GOVERNMENT……….……....….…3RD RESPONDENT

PAUL MAINA T/A PAM ELECTRICAL REFRIDGERATION

& GENERAL SERVICE………………………….....EXPARTE APPLICANT

RULING

1. The Applicant brought an application by way of Chamber Summons, seeking an order of mandamus to compel the Respondents to pay him an amount of Kshs. 529,110/= which was awarded to him in Embu Chief Magistrate’s Court Civil Case No. 316 of 2013 in a judgment delivered on 12. 04. 2018.

2. By a notice of motion dated 01. 09. 2021 and filed under Section 5(1) of the Judicature Act, Cap 8 of Laws of Kenya, Rule 81. 4 of the Civil Procedure (Amendment No.2) Rules of England,2012, Rule 8 of the Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules 2013, the inherent powers of the court and all other enabling provisions of the law, the applicant has sought for the following orders that:

i.The Honourable court do find that the 1st, 2nd respondents in person and the 3rd respondent through its County Secretary are in contempt of court for disobedience of the orders of this court issued on 10. 02. 2021.

ii.The Honourable court do summon the 1st, 2nd respondents in person and the 3rd respondent through its County Secretary Embu County to personally attend court to show cause why they should not be punished for contempt of court.

iii.Upon grant of prayers (2) and (3) above, this Honourable Court do issue an order that the above-mentioned 1st, 2nd respondents in person and the 3rd respondent through its County Secretary Embu County committed to civil jail for a period of 6 months for contempt of court or that they be penalized in such other way as the court may deem fit.

iv.The Honourable Court directs that the respondents immediately comply with the court order of 10. 02. 2021.

v.Costs of and incidental to this application be borne by the respondents.

3. The application is premised on the grounds on the face of the application and the annexed affidavit of Paul Maina. The core grounds are that the High Court issued an order of mandamus compelling the first Respondent either by itself or through the 2nd and 3rd Respondent to pay the applicants Ksh. 529,110. 00. As per the orders granted in Embu Chief Magistrate’s Court Civil Case Number 316 of 2013 in a judgment delivered on 12. 04. 2018.

4. For whatever reason, the respondents failed to settle the decretal sum as ordered by the court and it’s this failure that prompted the applicant herein to initiate judicial review proceedings for an order of mandamus which order was granted on the 10th February 2021.

5. The Applicant avers that the respondents were aware of the decree from the judgement in Embu Chief Magistrate’s Court Civil Case Number 316 of 2013 and further that, despite being aware of the court orders, the respondents willfully declined and/or refused to comply. He contended that despite the demand and service of the decree and certificate of order against the Government, the Respondents have refused to settle the amounts claimed.

6. It is his case that the Respondents were served with a copy of this Court’s order, but they have declined to pay. He averred that the Respondents have deliberately disobeyed this Court’s orders and committed contempt of court, thereby undermining the authority of this Court.

7. I have considered the application by the applicant and noted that the respondents did not rebut the allegations by the applicant and further, an affidavit of service by the applicant was filed before this court.

8. Non-compliance with court orders or judgments and the appropriate sanctions to be applied in cases of such disobedience is a question that has been litigated upon in our courts. As far as such circumstances are concerned, whenever the question of contempt of court has arisen, the first port of call has been section 5 of the Judicature Act, Cap. 8 which provides nothing more than to remind the courts that the law to be applied is that applied in England. It 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.

9. But even as courts punish for contempt to safeguard the peaceful and development of society and the rule of law, it must be borne in mind that the power to punish for contempt is a discretionary one and should be used sparingly. That is why the court observed inCarey v Laiken(supra), that if courts were to find contempt too easily,

“a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect the court’s contempt power should be used cautiously and with great restraint. It is an enforcement power of last resort rather than first resort.”

10. The Contempt of Court Act is, however, no longer operational as from the date of the judgment declaring it unconstitutional in Kenya Human Rights Commission v Attorney General & Another (supra). I am therefore 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 v 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.

11. The Court of Appeal in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others [2014] eKLRheld that under Rule 81. 4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertaking the English law on committal for contempt of court is applicable by virtue of section 5(1) of the Judicature Act which provided that:

“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.”

12. It is an established principle of law that [ See the High Court of South Africa in the case of Kristen Carla Burchell v Barry Grant Burchell, Eastern Cape Division Case No. 364 of 2005] to succeed in civil contempt proceedings, the applicant has to prove:

(i) the terms of the order,

(ii) Knowledge of these terms by the Respondent,

(iii) Failure by the Respondent to comply with the terms of the order.

13. In this case, it is not in doubt that the court’s order was proper and outrightly the same has been breached and hence this application currently before this court; the main issue that I now must determine is whether the respondents were aware of the court orders and whether the same was deliberately breached.

14. As earlier noted, the Contempt of Court Act, is no longer operational, however, the substance of the common law is still applicable under Section 3 of the Judicature Act. This Court is in this regard guided by the applicable English Law which is Part 81 of the English Civil Procedure Rules of 1998 as variously amended, and the requirement for personal service of court orders in contempt of Court proceedings as found in Rule 81. 8 of the English Civil Procedure Rules.

15. 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.

16. 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 decision in Nyamodi Ochieng Nyamogo & Another v Kenya Posts & Telecommunications Corporation (1994) eKLR,for instance, the twin issues of the necessity for personal service of both the order and the application for contempt and the endorsement on the face of the order of what is popularly referred to as ‘the penal notice’ were discussed. As far as service is concerned the Court of Appeal noted as follows:

Service of the order alleged to have been violated in this case had been served on the alleged contemnors’ advocates; the court said of this service as follows:

“Keeping the importance of personal service of the order in mind we now take a look at the aforesaid two copies of the order both of which bear the stamp of Wetangula & Co Advocates, in acknowledgement of receipt of the said orders. Service on Wetangula & Co does not constitute personal service on any of the three officers. It is a personal service on each one of them that is required to be effected by law. Service of the two orders on Wetangula & Co, Advocates, on 25th October ,1993, and 1st November, 1993, therefore, is a wasted effort.”[Also see Ochino & Another v Okombo & 4 others (1989) KLR 165].

17. The court described personal service as “an elementary but mandatory procedural rule which in contempt proceedings has (been) prescribed as “personal service”.

18. It is the position as 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 Kenya Tea Growers Association v Francis Atwoli & Others, Nairobi High Court Constitutional Petition No 64 of 2010; [also Husson v Husson, (1962) 3 All E.R. 1056].

19. As regards culpability, 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 stubbornness, which requires flagrant defiance of, the authority of the court, is no longer necessary to establish breach of a court order. It is now established that the mental element for liability for contempt arising out of disobedience is simply that the disobeying party either intended to disobey or made no reasonable attempt to comply with the order. [See Heatons Transport (St Helens) Ltd v Transport and General Workers Union (1973) AC 15].

20. Similarly, in Mwangi H.C. Wangondu v Nairobi City Commission, Nairobi Civil Appeal No. 95 of 1998that 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.

21. The Court notes that the respondents did not file any responses to the application. It is also notable from the affidavit of service filed that the county secretary was served on behalf of the respondents, with the orders issued on 08. 03. 2021 and in the same breadth, counsel wrote many emails to one Daisy Karimi who allegedly is the County Legal Attorney - following up on the payment of the decretal sum. I have no doubt that the respondents had personal knowledge of the court order.

22. Considering the circumstances of this case and the material placed before this court, I find and hold that the application has merits and it is hereby allowed in the following terms: -

i.The 1st and 2nd respondents are found to be in contempt of court orders.

ii.The respondents to comply with the court order of 10th February, 2021 within 30 days.

iii.The matter shall be mentioned on a date to be given by the court for further orders.

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

23. It is so ordered.

Delivered, datedand signedatEmbuthis2ndday ofFebruary, 2022.

L. NJUGUNA

JUDGE

…………………………………………….for the Applicant

…………………………………….……....for the Respondents

…………………………………………….for Exparte Applicant