[2022] KEHC 13640 (KLR)

Republic v Mehta International Ltd & another; Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives (Exparte Applicant) (Judicial Review Miscellaneous Application E079 of 2022) [2022] KEHC 13640 (KLR) (Judicial Review) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13640 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E079 of 2022

AK Ndung'u, J

October 13, 2022

Between

Republic

Applicant

and

Mehta International Ltd & another

Respondent

and

Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives

Exparte Applicant

Ruling

1. Vide an application dated May 25, 2022 the Mehta International Ltd (hereinafter the applicant) sought orders that:1)the honourable court be and is hereby pleased to issue an order certifying the application herewith as urgent and service thereof be dispensed with.2)The honourable court be and is hereby pleased to grant leave to the applicants to apply for a judicial review order of certiorari, to remove to this honorable court for purposes of quashing the decision of the respondent herein reposed in the letters dated November 8, 2021 and referenced Moa/Adm/1/24/Vol V and all consequential actions.3)The honourable court be and is hereby pleased to grant leave to the applicants to apply for a judicial review order of prohibition, to prohibit the respondent either by himself, his agents, appointees, employees, officers or anyone howsoever acting under or through his authority from in anyway howsoever implementing and/or giving effect to the impugned decision reposed in the letters dated 8th November, 2021 and referenced Moa/Adm/1/24/Vol V, and all consequential actions: or in any way howsoever, manner or form interfering with the management and operations at the Agro Chemical and Food company Limited, in violation of the company's articles of the association, the operating agreement and the Companies Act.4)The honourable court be and is hereby pleased to grant leave to the applicants to apply for a judicial review order of mandamus, to require the immediate reinstatement of the 2nd applicant and Mr Ashok Agarwal; as the manager, and chief executive officer of Agro Chemical and Food company Limited, respectively, in accordance with the articles of association and that they be accorded all necessary facilities to resume their positions, and perform their roles, as was the case immediately before the impugned administrative action.5)The honourable court be and is hereby pleased to grant leave to the applicant to apply for an order of judicial review declaring that the appointment of Mr Timothy Ogwang', as purported acting chief executive officer of Agro Chemical and Food company Limited and the purported termination of the management contract between Agro Chemical and Food company Limited and 2nd applicant, is an unlawful usurpation of manager power reserved for the 1st applicant by the articles of association and the operating or JV agreement, and an unlawful termination of these agreements and a violation of their fundamental rights and freedoms under articles 27, 29(D)&(F), 40(1)& (3), 47, 50(1) of the Constitution.6)The honourable court be and is hereby pleased to grant leave to the applicants to apply for an order of judicial review declaring that the stoppage of remittance of management fees due to the 1st applicant arising from the impugned administrative decision is an unlawful appropriation of property and a clear violation of article 40 of the Constitution.7)The honourable court be and is hereby pleased to grant leave to the applicants to apply for an order of judicial review declaring that the respondent either by himself, his agents, appointees, employees, officers or anyone howsoever acting under or through his authority have no role in the management or operation of Agro Chemical and Food Company Limited, and cannot act against the company’s articles or the subsisting operating agreement in respect of Agro Chemical and Food Company Limited, as the company is not a parastatal.8)The honourable court be and is hereby pleased to grant leave to the applicants to apply for an order of judicial review declaring that appointments and composition of the board of directors of Agro Chemical and Food company Limited, can only lawfully be undertaken in accordance with its articles and memorandum of association.9)The honourable court be and is hereby pleased to grant an order directing that the leave granted herein do operate as a stay of the implementation and/or giving effect to the impugned decision reposed in the letters dated November 8, 2021 and referenced Moa/Adm/1/24/Vol V and all consequential actions: including suspending the appointment of Mr Timothy Ogwang', as purported acting chief executive officer of Agro Chemical and Food company Limited, and contemporaneously suspending the purported termination of the 2nd applicant, and Mr Ashok Agarwal; as the manager, and chief executive officer of Agro Chemical and Food company Limited, respectively, and according them all necessary facilities to resume and perform their positions; and perform their roles, as was the case immediately before the impugned administrative action pending the hearing and determination of this main motion for judicial review, or further orders of the hon court.10)The honourable court be and is hereby pleased to grant any further and or consequential orders necessary to give effect to the justice of the matters herein.11)That the costs of this application be borne by the respondent on a full indemnity basis.

2. Upon considering the application at the ex parte stage, the following orders/directions were given.1)That leave is granted in terms of prayers 2, 3, 4, 5, 6, 7 and 82)That the substantive motion be taken out within the next 21 days.3)That responses be filed within 14 days of service.4)That the question whether leave granted is to operate as stay shall be determined inter partes and to be canvassed through skeletal written submissions.5)That the applicant to file skeletal submissions and the question of stay within the next 4 days.6)That the respondents to file skeletal submissions on the question of stay within 4 days of service of rival submissions.7)That mention be on June 16, 2022 for further directions.

3. The matter subsequently came up for mention on the June 16, 2022, June 23, 2022 and June 29, 2022. On the June 29, 2022 after noting that there was evidence of service on the respondents, and there being no response or appearance in court, the court proceeded to consider the question of whether the leave granted should operate as a stay and that prayer as set out in the chamber summons was allowed.

4. By the time the matter came up for mention on August 18, 2022, 3 applications had been filed. These are:1)The applicant’s application dated July 27, 2022 for contempt.2)The application by the Attorney General seeking a variation of orders of this court of June 29, 2022. 3)The application dated July 15, 2022 for joinder of parties.

5. A question arose as to whether the respondents should be granted audience before the court without first demonstrating obedience to the subsisting orders of the court. Parties were invited to submit on this respect of the proceedings.

6. On record are valid orders of this court dated June 29, 2022. The question for determination is whether the respondent should be heard before demonstrating obedience to the said orders.

7. The applicant and the proposed 2nd and 3rd respondents have submitted in writing in that regard. The respondent has not submitted on the subject question before the court. Notably, the proposed 2nd and 3rd respondents have not yet been enjoined in the matter.

8. I have considered the submissions on record and the applicable law. Obedience of a court order(s) by any party is a cardinal pillar in upholding the rule of law. The opposite would be a sure invite to anarchy in our societal order. As a society which has chosen to be governed by the rule of law, obedience to court orders is not optional on any party, be it an individual, a corporate body or even government, but is a mandatory requirement.

9. Nowhere is that requirement put better than in the case of Hadkinson v Hadkinson (1952) ALL ER 567where at page 569, Romer LJ stated;'It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made against by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.'

10. Lord Cottenham LC inChuck v Cremer [1846] 1 Coop temp Cott 342 stated;'A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must be obeyed.'

11. A person or body that is in disobedience of court orders in my view ought not to get audience before the court. A party is given audience before court for purposes of ventilating their case. Upon hearing the parties, the court makes a determination decreeing what ought or ought not to be done. Giving a party who has disobeyed a court order audience is a self-defeatist adventure. Whatever order that such a party may obtain would then easily be disobeyed by the opposite party. This would throw the rule of law out of the window and return our civilized society to the rule of the jungle.

12. The Court of Appeal in Civil Application No Nai/38 of 2001 categorically showed the disdain with which a court of law takes disobedience of court orders by denying the applicant audience. In a short ruling, the court stated;'In view of the applicant’s continuous failure to comply with the order of the court to return the nets he cannot be heard.'

13. That position is affirmed by the same court in Dorothy K Kwonyika T/a Luguyan Enterprises v Victoria Commercial Bank Limitedwhere the court stated:'The order of Mulwa, J made on March 9, 2000 has not been obeyed. This is also admitted by Mr Nyawara counsel for the applicant who it appears does not, however, regard it as being a proper interpretation of the original order made by Gacheche, CA. But this notwithstanding, the position in law as set out clearly in The Pharmacy and Poisons Board v. Sipri Pharmaceuticals Limited and the Republic Civil Application No Nai 103 of 1998 (43/98 UR) (unreported), is that no matter whether the order of Mulwa, J be right or wrong, it must, unless properly set aside by way of review or an appeal, be complied with. This the applicant has not done and for that reason, we agree with Mr Wasuna, counsel for the respondent, that the present application cannot be heard until the order of Mulwa, J is complied with or set aside. The present application is hereby taken out of today's list and stood over generally. Today's cost to the respondent.'

14. The respondent and the proposed 2nd and 3rd respondents have every right to come before this court for the discharge, variation, or otherwise setting aside of the orders of the court herein. They are, however, obligated to obey the said orders until such time when the same are varied, vacated or otherwise set aside. If the court orders are not obeyed and this court is unable to enforce them, then it would be an exercise in futility to proceed with the litigation as the orders of court would be rendered of no consequence. What is good for the goose is good for the gander. Let the respondent obey the orders issued by court on June 29, 2022 in the same manner they would expect the applicant to obey whichever order the court will eventually issue in their favour should they be successful in their applications.

15. Guided by the Court of Appeal in the decision in Civil Application No Nai 38 of 2001, I direct that applications dated June 29, 2022 and July 15, 2022 are stayed pending compliance with the orders of court of June 29, 2022 and in default of compliance, the application dated July 27, 2022 be set down for hearing.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF OCTOBER, 2022. ……………………AK NDUNG'UJUDGE