[2023] KEHC 23191 (KLR)

Republic v County Secretary, Nairobi City County & another; Litswa & another (Exparte) (Application 292 of 2019) [2023] KEHC 23191 (KLR) (Judicial Review) (6 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23191 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 292 of 2019

J Ngaah, J

October 6, 2023

Between

Republic

Applicant

and

County Secretary, Nairobi City County

1st Respondent

County Chief Revenue & Administration Nairobi City County

2nd Respondent

and

Dorcas Kaseyi Litswa

Exparte

Eric Lugeyi Litswa

Exparte

Ruling

1. The application before court is a motion dated 13 April 2022 expressed to be filed under section 5 of the Judicature Act, cap. 8, sections 3,4,5,24, 28(1) and 30 of the Contempt of Court Act, 2016; sections 1A, 1B and 3A of the Civil Procedure Act and Order 53 of the Civil Procedure Rules. The prayers in the motion have been expressed as follows:1. That this Honourable Court be pleased to order the County Secretary and the County Chief Officer, Revenue Administration, Nairobi City County to appear and show cause why they should not be cited for contempt of court for failing to pay the Applicant the sum of Kshs. 1,721,917. 80 together with interest thereon at the rate of 12% p.a. until payment in full as ordered by this court on the 6th October, 2021. 2.That the Respondents be committed to civil jail for disobeying the Order of the Honourable Court issued on 6th October, 2021 in HCJR Misc. Application No. 292 of 2019 and the Order dated 2nd December, 2020 in NBI CMCC NO. 7927 OF 2008 and Decree and Certificate of Costs issued on 22nd June, 2017. 3.That Jairus Musumba, the County Secretary; and Wilson Njoroge Gakuya, the Chief Officer, Revenue Administration, Nairobi City County be committed to civil jail for contempt of court.4. That the costs of this Application be borne by the Respondents.

2. The application is supported by the applicant’s own affidavit sworn on 13 March 2023.

3. The applicants’ case is that this Honourable Court issued an Order of Mandamus on 6 October, 2021 directing the Respondents to honour the decree and a Certificate of Costs issued on 22 June, 2017 in Milimani Chief Magistrates Court Civil Case No. 7927 of 2008. The decretal sum which the respondents were ordered to pay is indicated to be a sum of Kshs. 1,721,917. 80 together with costs and interest at the rate of 12% until payment in full.

4. The respondents, according to the applicant, were served with the Order of Mandamus on 7 December, 2021. However, that to date, they have neglected, ignored or refused to comply with the order and settle the money decree.

5. Apart from the decree, the applicants claim that there are also outstanding costs in High Court Civil Appeal No. 304 OF 2018 owed to them by the respondents.

6. The applicant urges that the respondents are in contempt of court for failure to obey court orders. Therefore, that it is in the interest of justice that the orders sought here in this application be issued to protect the integrity and dignity of this Honourable Court.

7. The respondents did not respond to the application.

8. In an application such as the instant one, the applicant must demonstrate, among other things, that the order which the alleged contemnors are in breach of was served upon them or that it has been brought to their attention and that, if it was served, it was not endorsed with a penal notice warning the contemnorthat disobedience of the order would be contempt of court punishable by imprisonment or a fine or sequestration of property. As will become clearer in due course, an omission in respect of any of these two requirements is fatal to the application for contempt.

9. The law on this subject of contempt has been discussed by this Honourable Court and the Court of Appeal in several decisions. Every time this subject has arisen, my first port of call has been section 5 of the Judicature Act, cap. 8 which, I note the applicant has invoked as one of the provisions under which its application has been made.

10. Section 5 of the Judicature Act, cap. 8 remains the statutory basis upon which proceedings for contempt are taken. But this provision of the law says nothing more than remind the courts that the law to be applied is that applied in England and that a committal order can only be appealed against as if it was a criminal conviction. 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.

11. 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 this provision of the law. It was optimistic, however, that the Kenya Contempt of Court Bill, 2013 which was then pending for tabling before parliament would be passed into law that would finally extricate us from the English law and practice in contempt of court applications. The Bill was indeed debated and as a result the Contempt of Court Act No. 46 of 2016 was enacted. This piece of legislation was, however, short-lived because it was declared unconstitutional in November 2018 in Kenya Human Rights Commission versus Attorney General & Another (2018) Eklr. Apparently, it had been passed without public participation and was also held to be an affront to the independence of the judiciary. The result was that we reverted to Section 5 of the Judicature Act on matters contempt.

12. But as has been noted, a critical look of this provision of the law shows that there is nothing much in it in terms of substance and procedure other than the obligation placed upon these courts 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.”

13. The question that then follows is what was the position in England on this subject of contempt at time material to the applicant’s application.

14. In England, the procedure for contempt of court proceedings, including commencement, prosecution and punishment for contempt of court was, until 2012, encapsulated in Order 52 Rules 1 to 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. The Judicature Act, 1873 abolished a cluster of courts in England and Wales dating back to medieval periods, some with overlapping judicial powers, and in their place established the Court of Appeal, the High Court and the Crown Court all together to be known as the Supreme Court of Judicature. The Supreme Court of Judicature shouldn’t be confused with the Supreme Court of the United Kingdom which was established only on 1st October, 2009 to assume the judicial functions of the House of Lords.

15. On 1 October 2012, the Civil Procedure (Amendment No. 2) Rules, 2012 came 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. For instance:Rules 81. 4committal for “breach of a judgment, order or undertaking to do or abstain from doing an act.”Rule 81. 11Committal for “interference with the due administration of justice” (applicable only in criminal proceedings).Rule 81. 16Committal for contempt “in the face of the court”, andRule 81. 17Committal for “making false statement of truth or disclosure statement.”Rule 81. 4(breach of judgment, order or undertaking) would be a relevant rule in the present application. The Court of Appeal explained that the application must be made in the proceedings in which the judgment or order was made or the undertaking given. As far as its form is concerned, the court said“the application notice must set out fully the grounds on which the committal application is made and must identify separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon”.Further“the application notice and the affidavit or affidavits must be served personally on the respondent unless the court dispenses with service if it considers it just to do so, or the court authorizes an alternative method or place of service”.

16. In a more recent decision in Woburn Estate Limited v Margaret Bashforth [2016] eKLR, the same Court of Appeal suggested that courts in Kenya do not always have to keeps tabs on the applicable law in England in order to punish for contempt. While discussing its decision in Christine Wangari Gachege versus Elizabeth Wanjiru Evans & 11 Others (supra), the Court held we need not keep our ears to the ground on the trends of the law of contempt as applied and practised in English courts. Instead, we have sufficient legislation of our own on this subject and the only missing link are the rules of procedure.

17. My humble view is that until such a time that we have our own locally made rules on procedure and prosecution of applications for contempt of court, we still have to rely on the latest rules applicable in England, of course with such modifications as are necessary and, at any rate, to the extent that they are applicable to our circumstances. It is 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, as earlier noted, that Act was declared unconstitutional and therefore section 5 of the Judicature Act remains intact. With its existence, this provision of the law remains a legitimate basis upon which courts 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 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.

18. On the particular question of enforcement of judgments and orders, besides Rule 81. 4 of the Civil Procedure (Amendment No. 2) Rules, 2012 which the Court of Appeal made reference to in Christine Wangari Gachege versus Elizabeth Wanjiru Evans & 11 Others (supra), other Rules (in the same Procedure Rules) which I find relevant where judgments or orders have been violated are Rules 8. 5, 8. 6, 8. 8, 8. 9 and 8. 10. It is necessary that I reproduce this whole set of Rules verbatim for better understanding.

19. Rule 81. states as follows:Enforcement of judgment, order or undertaking to do or abstain from doing an act81. 4. (1)If a person—(a)required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or(b)disobeys a judgment or order not to do an act, then, subject to the Debtors Acts 1869(5) and 1878(6) and to the provisions of these Rules, the judgment or order may be enforced by an order for committal.(2)If the time fixed by the judgment or order for doing an act has been varied by a subsequent order or agreement of the parties under rule 2. 11, then references in paragraph (1)(a) to the time fixed are references to the time fixed by that subsequent order or agreement.(3)If the person referred to in paragraph (1) is a company or other corporation, the committal order may be made against any director or other officer of that company or corporation.(4)So far as applicable, and with the necessary modifications, this Section applies to undertakings given by a party as it applies to judgments or orders.(Rules 81. 17(3) and (4) make provision for cases in which both this Section and Section 6 (Committal for making a false statement of truth or disclosure statement) may be relevant.)(5)If a judgment or order requires a person to deliver goods or pay their value—(a)the judgment or order may not be enforced by a committal order under paragraph (1);(b)the person entitled to enforce the judgment or order may apply to the court for an order requiring that the goods be delivered within a specified time; and(c)where the court grants such an order, that order may be enforced under paragraph (1).Requirement for service of a copy of the judgment or order and time for service81. 5.(1)Unless the court dispenses with service under rule 81. 8, a judgment or order may not be enforced under rule 81. 4 unless a copy of it has been served on the person required to do or not do the act in question, and in the case of a judgment or order requiring a person to do an act–(a)the copy has been served before the end of the time fixed for doing the act, together with a copy of any order fixing that time;(b)where the time for doing the act has been varied by a subsequent order or agreement under rule 2. 11, a copy of that subsequent order or agreement has also been served; and(c)where the judgment or order was made under rule 81. 4(5), or was made pursuant to an earlier judgment or order requiring the act to be done, a copy of the earlier judgment or order has also been served.(2)Where the person referred to in paragraph (1) is a company or other corporation, a copy of the judgment or order must also be served on the respondent before the end of the time fixed for doing the act.(3)Copies of the judgment or order and any orders or agreements fixing or varying the time for doing an act must be served in accordance with rule 81. 6 or 81. 7, or in accordance with an order for alternative service made under rule 81. 8(2)(b).Method of service – copies of judgments or orders81. 6. Subject to rules 81. 7 and 81. 8, copies of judgments or orders and any orders or agreements fixing or varying the time for doing an act must be served personally.Dispensation with personal service81. 8.(1)In the case of a judgment or order requiring a person not to do an act, the court may dispense with service of a copy of the judgment or order in accordance with rules 81. 5 to 81. 7 if it is satisfied that the person has had notice of it—(a)by being present when the judgment or order was given or made; or(b)by being notified of its terms by telephone, email or otherwise.(2)In the case of any judgment or order the court may—(a)dispense with service under rules 81. 5 to 81. 7 if the court thinks it just to do so; or(b)make an order in respect of service by an alternative method or at an alternative place.Requirement for a penal notice on judgments and orders81. 9.(1)Subject to paragraph (2), a judgment or order to do or not do an act may not be enforced under rule 81. 4 unless there is prominently displayed, on the front of the copy of the judgment or order served in accordance with this Section, a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.(2)An undertaking to do or not do an act which is contained in a judgment or order may be enforced under rule 81. 4 notwithstanding that the judgment or order does not contain the warning described in paragraph (1).How to make the committal application81. 10. (1)A committal application is made by an application notice under Part 23 in the proceedings in which the judgment or order was made or the undertaking was given.(2)Where the committal application is made against a person who is not an existing party to the proceedings, it is made against that person by an application notice under Part 23. (3)The application notice must—(a)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(b)be supported by one or more affidavits containing all the evidence relied upon.(4)Subject to paragraph (5), the application notice and the evidence in support must be served personally on the respondent.(5)The court may—(a)dispense with service under paragraph (4) if it considers it just to do so; or(b)make an order in respect of service by an alternative method or at an alternative place.

20. Two of the salient features of these Rules are captured in Rules 81. 6 and 81. 9 which respectively require that judgment or order be served and that there be permanently displayed on the front copy of the judgment or order 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.

21. Many of the rest of the requirements are nothing new. They are, by and large, a carryover of the Order 52 of the Rules of the Supreme Court and thus they have not only been in existence prior to the commencement of the Civil Procedure (Amendment No. 2) Rules, 2012 but they have also been litigated upon from time to time. In the case of Nyamodi Ochieng Nyamogo & Another versus 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 with what is popularly referred to as ‘the penal notice’ were discussed. As far as service is concerned the Court of Appeal noted as follows:The law on the question of service of order stresses the necessity of personal service. In Halsbury’s Laws of England (4th Ed) Vol 9 on p 37 para 61 it is stated:“61. Necessity of personal service.As a general rule, no order of court requiring a person to do or abstain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question …”Where the order is made against a company, the order may only be enforced against an officer of the company if this particular officer has been served personally with a copy of the order …”The court further noted:“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.”

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

23. And on the need for endorsement of the order with the requisite warning of penal consequences, the court stated as follows:“Mr Lakha pointed out other flaws to which we will now turn our attention. He referred to the order and also to the application itself and pointed out the absence of a notice in the form of an endorsement thereon of penal consequences. It is not disputed that the copies of the order alleged to have been served on the three alleged contemnors and handed in by Mr Nowrojee during the hearing (instead of having been annexed to the application) do not bear any such endorsement of penal consequence. Section 5(1) of the Judicature Act has given this Court the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England. In England rule 5 of order 45 R S C 1982 Ed, governs the method of the enforcement by the Court of its judgments or orders in circumstances amounting to contempt of court (p766). Order 45/7 deals with matters relating to “Service of copy of judgment, etc, pre-requisite to enforcement under rule 5”. (The underlining is ours). The relevant procedural obligation is succinctly stated in order 45 rule 7/5 of the RSC 1982 Ed as follows:“It is a necessary condition for the enforcement of a judgment or order under rule 5 by way of sequestration or committal, that the copy of the judgment or order served under this rule should have the requisite penal notice indorsed thereon.”And a couple of paragraphs later is given the form that an endorsement is required to take, in the following words in the case of a judgment or order requiring a person to abstain from doing an act:“If you, the within named A B disobey this judgment (or order) you will be liable to process of execution for the purpose of compelling you to obey the same.”A similar form with suitable alterations is given in the case of an order against a corporation.This Court in Court of Appeal Civil Appeal No 95/1988 Mwangi H C Wang’ondu v Nairobi City Commission (UR) confirmed the mandatory nature of the requirement of endorsement of notice of penal consequence on the order in the following words:“In the present case, according to the affidavit of the appellant sworn on 26th January, 1988, in support of his application, the order alleged to have been disobeyed by the respondent was served on the respondent on 31st August, 1987, and a copy of that order which was annexed to the affidavit did not carry a notice of the penal consequences of disobedience as required by the Rules. It is clear from this that the appellant did not comply with the mandatory provisions of section 5(1) of the Judicature Act with the result that his application was incompetent. It must follow that there was no valid application for contempt of court before the judge.”

24. The court concluded its discussion on this point by stating as follows:As the copies of the orders produced before us are not so endorsed as required under the mandatory provisions of section 5(1) of the Judicature Act (cap 8) this application is incompetent and deserves to be dismissed on this account also.

25. As far as the applicant’s application is concerned, there is no evidence that the respondents were served with the order. All the applicant has said with respect to service of the order is this:7. That the respondents were served with the order of mandamus on 7th December 2021 but have still failed, refused and/or neglected to settle the sum due despite several reminders.”

26. Apart from this deposition, there is no other evidence that the respondents or any of them was served with the order. No affidavit by a process server, for instance, has been filed to demonstrate where the respondents were served and, in particular, the circumstances under which they were served.

27. I am not satisfied this is sufficient service.

28. Secondly, it is also apparent on the face of the decree served upon the respondents, that there is no permanent display on the front copy of the order served a warning to the alleged contemnor that disobedience to the order would be contempt of court as prescribed by the rules.

29. Another deficiency I have noticed in the applicant’s application is that besides the Judicature Act, the applicant has also invoked a law that has been declared unconstitutional. The Contempt of Court Act No. 46 of 2016 was declared unconstitutional in November 2018 in Kenya Human Rights Commission versus Attorney General & Another (supra). I am not aware of any decision in the Court of Appeal that overturned the judgment in this case and if there is any, it was not brought to my attention by any of the parties.

30. In the final analysis, when considered from the perspective of the law and the decisions I have cited, the inevitable conclusion that I have to come to is to dismiss the applicant’s application. It is hereby dismissed.

31. I make no orders as to costs since the decree is yet to be fully satisfied. It is so ordered.

SIGNED, DATED AND DELIVERED AT NAIROBI ON 6 OCTOBER 2023NGAAH JAIRUSJUDGE