[2017] KEHC 8992 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

MISC. CIVIL APPLICATION NO. 309 OF 2015

IN THE MATTER OF THE CONSTITUTION OF KENYA SECTION

23(3) (F)

AND

IN THE MATTER OF THE LAW REFORM ACT CHAPTER 26 LAWS

OF KENYA SECTIONS 8, 9 AND 10

AND

IN THE MATTER OF COUNTY GOVERNMENT ACT 2012

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

AND

THE GOVERNOR NAIROBI COUNTY GOVERNMENT......…….....................................…………1ST RESPONDENT

THE MINISTER FINANCE AND ECONOMIC PLANNING-NAIROBI COUNTY GOVERNMENT…2ND RESPONDENT

THE CHIEF ACCOUNTING OFFICER NAIROBI COUNTY GOVERNMENT..…........................….3RD RESPONDENT

EX PARTE: SALIMA ENTERPRISES LIMITED

RULING

1. On 7th June, 2016, 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 325,000,000. 00 mesne profits of Kshs 200,000 per month with effect from 1st June 2013 till payment in full, costs of Kshs 6,744,612. 00 plus accrued interests at 12% p. a. with effect from 4th July 2014 till payment in full as decreed in Nairobi HC ELC 1144 of 2013 Salima Enterprises Limited -versus- Nairobi City County. I also awarded the applicant costs of the application.

2. The applicant has now moved this Court seeking the following orders:

1. That this matter be certified urgent and be heard ex parte in the first instance

2. That pending the hearing and determination of this application interpartes the honourable court be pleased to declare the actions of the respondents of continued defiance of the court orders issued herein on as contempt of court.

3. That this honourable court be pleased to order that the respondents are in contempt of its mandamus orders issued on 7th June 2016 and thus order for the immediate arrest and committal to civil jail of the respondents herein for failing to pay the ex parte applicant the sum of Kshs 325,000,000, mesne profits of Kshs 200,000 per month with effect from 1st June 2013 till payment in full, costs of the Kshs 6,700,612. 00 plus accrued interests at 12% p.a. with effect from 4th July 2014 till payment in full as decreed in Nairobi HCC ELC 1144 of 2013 Salima Enterprises Limited versus Nairobi City County as well as costs of this suit taxed at Kshs 578,198. 00 on 6th December 2016.

4. That the inspector general of police and or any person deputizing him be ordered to assist in the enforcement of any orders issued herein.

5. The costs of this application be provided for.

3. 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.

4. 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.

Respondents’ Case

5. In response to the application, the Respondents averred that the application is defective as it has been directed to the Governor Nairobi City County and the Minister Finance and Economic Planning whereas the two are not the accounting officers of the county government of Nairobi so as to warrant the issuance of notices to show cause as contemplated under section 30(2) of the Contempt of Court Act, 2016. In the Respondents’ view, the said statutory provision is clear that the notice ought to be issued to the accounting officer before the commencement of the contempt proceedings against the said accounting officer which is not the case herein.

6. It was further averred that the same notice is defective having been procured and served after the application seeking to cite the respondents for contempt of court had already been filed on 20th February, 2017 and served and such, in clear contravention of section 30(2) of the said Contempt of Court Act, 2016. In the Respondent’s view, the notice having been issued after the contempt proceedings have been instituted, the same cannot stand in law and ought to be rejected by this Court, as the provisions of section 30(2) are couched in mandatory terms and cannot be subverted.

7. It was the Respondents’ position that the notice to show case as issued pursuant to the provision of the said section 30 (2) of the Contempt of Court Act cannot stand due to the fact that the decree pursuant to which the said notice flows from cannot be satisfied due to a failure by the ex parte Applicant to obtain and serve a certificate of order against the Government on the Respondents herein which is a mandatory document required and upon which any liability against the government can be satisfied as contemplated under Order 29 of the Civil Procedure Rules 2010 and section 21 of the Government Proceedings Act and as such there being no certificate of order against the Government, then the ordinary decree being relied on by the ex parte applicant is incapable of being satisfied as contemplated in law.

8. According to them, the said notice to show cause is premature as the ex parte applicant has not made any demand to the respondents for the payment or settlement of a decree failure of which the contempt proceedings can be undertaken.

9. In the circumstance, it was the respondents position that the notice to show cause dated 30th March as addressed to the Governor Nairobi County and the Minister Finance and Economic Planning is defective due to the reason herein above given and pray that the same be struck out.

Determination

10. I have considered the issues raised herein.

11. Before dealing with the issues raised in this applicant, it is important to revisit the current position with respect to contempt of Court. 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.

12. 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.

13. 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.

14. 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.

15. 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:

16. “…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.”

17. In this case the Respondents’ case is that the procedure adopted by the applicant is not the one contemplated under section 30 of the Contempt of Court Act. It however ought to be noted that the rules necessary for the implementation of the said Act are yet to be implemented.

18. As was rightly stated in Republic vs. Returning Officer of Kamukunji Constituency & The Electoral Commission of Kenya HCMCA No. 13 of 2008, while it is the responsibility of the Court not to unduly interfere with the Executive when it lawfully exercises its powers and performs its functions, the High Court has the responsibility for the maintenance of the rule of law. Therefore, there can be no gap in the application of the rule of law and that the Court must at all times embrace a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. The Court went on to state that as nature abhors a vacuum, even the enforcement of the rule of law abhors a vacuum or a gap in its enforcement. Therefore where there is a lacuna with respect to enforcement of remedies provided under the Constitution or an Act of Parliament, or if, through the procedure provided under an Act of Parliament, an aggrieved party is left with no alternative but to invoke the jurisdiction of the Court, the Court is perfectly within its rights to investigate the allegations. To fail to do so would be to engender and abet an injustice and as has been held before, a court of justice has no jurisdiction to do injustice. See M Mwenesi vs. Shirley Luckhurst & Another Civil Application No. Nai. 170.

19. The courts have recognised that unlawful interference with a citizen’s rights give rise to a right to claim redress and if the Applicant has a right he must of necessity have the means to vindicate it and a remedy if they are injured in the enjoyment or exercise of it: and indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal. See Rookes vs. Barnard [1964] AC 1129.

20. I therefore affirm the holding in Nation Media Group Limited vs. Attorney General [2007] 1 EA 261 that:

“The Judges are the mediators between the high generalities of the Constitutional text and the messy details of their application to concrete problems. And Judges, in giving body and substance to fundamental rights, will naturally be guided by what are thought to be the requirements of a just society in their own time. In so doing, they are not performing a legislative function. They are not doing work of repair by bringing an obsolete text up to date. On the contrary they are applying the language of these provisions of the Constitution according to their true meaning. The text is “living instrument” when the terms in which it is expressed, in their Constitutional context invite and require periodic re-examination of its application to contemporary life.”

21. In The Centre for Human Rights and Democracy & Others vs. The Judges and Magistrates Vetting Board & Others Eldoret Petition No. 11 of 2012, it was held by a majority as follows:

“In our view where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any Constitutional or legal right or any burden is imposed in the contravention of any Constitutional or legal provision or without the authority of the law or any such legal wrong or injury is threatened, the High Court has powers to grant appropriate reliefs so that the aggrieved party is not rendered, helpless or hapless in the eyes of the wrong visited or about to be visited upon him or her.”

22. It is therefore our view and we hold that the absence of a facilitative rules, guidelines or framework on contempt of court does not bar the Court from enforcing its orders by way of contempt proceedings pursuant to section 30 of the Contempt of Court Act.

23. In those circumstances 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.

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

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

26. It is so ordered.

Dated at Nairobi this 12th day of July, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Oduor for Mr Kithii for the Respondent

CA Mwangi