[2022] KEHC 12178 (KLR)

Republic v County Secretary, County Government of Trans Nzoia; Veteran Pharmaceuticals Ltd (Exparte) (Judicial Review 376 of 2018) [2022] KEHC 12178 (KLR) (Judicial Review) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12178 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review 376 of 2018

AK Ndung'u, J

June 9, 2022

Between

Republic

Applicant

and

County Secretary, County Government of Trans Nzoia

Respondent

and

Veteran Pharmaceuticals Ltd

Exparte

Ruling

1. The notice of motion before court is dated February 3, 2020. The orders sought are:i)That the honourable court be pleased to punish the 1st and 2nd respondents herein by imposing a fine to be determined by the honourable court upon the 1st and 2nd respondents for wilful disobedience of the orders of this honourable court issued on January 22, 2019 in this cause.ii)That an order for the arrest and committal to prison of Mr Pius Munialo and Boniface Wanyonyi the 1st and 2nd respondents respectively be issued for their wilful disobedience of the judgment and decree of this honourable court issued on January 22, 2019. iii)That the costs of these contempt proceedings be borne by the respondents.

2. The application is premised on grounds:a)This matter was instituted by the ex-parte applicant seeking for the judicial review orders of mandamus directed against the County Secretary and County Treasurer respectively to compel them to release and or pay the applicant’s decretal amount of Kshs 2,394,100 plus costs of Kshs 234,532 obtained in the applicant’s favour in Nairobi High Court Commercial and Admiralty Division Civil Case No 567 of 2015 – Veteran Pharmaceuticals v Kitale District Hospital and the County Government of Trans Nzoia together with the accrued interest on the amount at the curt rate of 12% per annum from April 7, 2015 until payment in full.b)That the substantive notice of motion dated November 5, 2018 was served upon the respondents on November 16, 2018 filed to neither enter appearance nor file a response and thus the matter proceeded undefendedc)That vide the judgement of Lady Justice Nyamweya delivered on January 22, 2019, the court issued an order of mandamus directed against the respondents to comply and pay the applicant a sum of Kshs 2,394,100 plus costs of Kshs 234, 542 as well as interest at the court rate of 12% per annum from April 7, 2015 until payment in full.d)That the respondents were duly served with the decree issuing mandamus on May 22, 2019and due demand for payment of the amount made but they have failed refused and neglected to obey the order of this honourable court.e)That there is no reason advanced as to why the respondents have not paid the amounts despite being served with the court order and being aware of the existence of these proceedings.f)The applicant has no other means of enjoying the fruits of its judgment other than the present proceedings as the respondents seems to be taking this honourable court for a ride.g)That court orders are not made in vain and are meant to be complied and hence the respondents should be committed to jail for wilful disobedience of the said orders.h)That this honourable court is clothed with the requisite authority to punish for contempt of its orders and we therefore pray that it does punish the respondents as sought.i)That this application is brought in the interest of justice and fairness and we pray that it be allowed.

3. It is further supported by the affidavit of Robert Kamau Willie Ngigi sworn on the February 3, 2020.

4. Despite evidence of proper service on the respondents, the application elicited no response.

5. The gist of the application is that vide a judgment delivered on January 22, 2019, the court issued an order of mandamus directed against the respondents to comply and pay the respondent a sum of Kshs 2,394,100 plus costs of Kshs 234,532 as well as interest at court rates of 12% per annum from the April 7, 2015 until payment in full.

6. The respondents were duly served with the decree issuing mandamus on May 22, 2019 and due demand for payment of the amount but they have failed, refused and neglected to obey the order of court.

7. It is urged that there is no reason advanced as to why the respondents have not paid the amounts despite being served with the court order and being aware of the existence of these proceedings. The applicant has no other means of enjoying the fruits of his judgment other than through these proceedings.

8. I have had due regard to the application, the grounds relied upon and the supporting affidavit. The question for determination is whether the applicant has established that the respondents have wilfully disobeyed the orders of court issued on January 22, 2019 and if in the affirmative what orders should issue.

9. InSamuel MN Mweru & others v National Land Commission and others [2020] eKLR, Mativo, J, quoting from Lawrence N Gray; Criminal and Civil Contempt;Some Senseof Hodgepodge, 72ST Johan’s L REV, 337, 342 1998 and Ronal Goldfarb, The Historyof theContempt Power, I Wash ULQ 1,2 (1961) stated:“A court without contempt power is not a court. The contempt power (both in its civil and criminal form) is so innate in the concept of jurisdictional authority that a court that should not secure compliance with its own judgments and orders is a contradiction in terms, an “oxymoron”. Contempt power is something regarded as intrinsic to the notion of court; even obvious, I would say. In the common lawyer’s eye, the power of contempt is inherent in courts and automatically exists by its very nature.”

10. It is an established principle of law that in order 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.Upon proof of these requirements the presence of wilfulness and bad faith on the part of the respondent would normally be inferred, but the respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated: -“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 criminal 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.”

11. In our present case, the terms of the order are clear and unambiguous and are binding on the respondents. There has been proper service of the order on the respondent, thus they have knowledge of the order. The respondents have disobeyed the order and given no explanation for such disobedience. When served with the current application they have not found it necessary to respond. Their act is thus deliberate.

12. In the obtaining circumstances the applicant has proven that the respondents are in contempt of the court order to pay Kshs 2,394,100 plus costs of Kshs 234,532 as well as interest at the court rate of 12% per annum until payment in full. I find the 1st and 2nd respondents guilty of contempt. I make the following orders:1)A summons is to issue against the 1st and 2nd respondents to appear in court for sentencing on a date to be set by the court.2)The 1st and 2nd respondents to appear in court pursuant to summons in (1) above for sentencing on July 6, 2022. 3)The respondents shall bear the costs of this application.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JUNE 2022. AK NDUNGUJUDGE