[2015] KEHC 371 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

JUDICIAL REVIEW NO. 1 OF 2015

REPUBLIC …………………………………………… APPLICANT

VERSUS

MINISTRY OF EDUCATION

SCIENCE & TECHNOLOGY…………………. 1ST RESPONDENT

THE ATTORNEY GENERAL …………...…… 2ND RESPONDENT

THE SEVENTH DAY ADVENTIST …....……. 3RD RESPONDENT

WESTERN KENYA CONFERENCE

SCHOOL COMMITTEE KAKIPTUI

PRIMARY SCHOOL …………………… EX-PARTE APPLICANT

RULING

1. The application for determination by this court is the Notice of Motion dated 30th April, 2015 expressed to be made under Order 51 Rule 1 of the Civil Procedure Rules 2010, Sections 3, 3A and 63(c ) of the Civil Procedure Act and any other enabling provisions of the law. The substantive prayer in the application is that the headmaster of Kapkiptui Primary school Mr. Cleophas Aruseibe committed to civil jail and his property be attached and sold for disobedience of a court order issued on 3rd March, 2015.

2. The application is supported by an affidavit sworn by Mr. Stanley Kemboi the Chairman of the Exparte applicant which is the school committee of Kakiptui primary school. It is premised on the following three grounds;-

1. The Hon. Judge Githua C.W in ELDORET JR. MISC.CIVIL CAUSE NO. 1 OF 2015 made an order on the 12th day of March, 2015 compelling the 1st Respondent herein to maintain the status quo that is the name used for registration of the students in the year 2014 Kenya National Examination which is centre number 29540235 Kapkiptui be maintained pending the hearing and determination of the main motion.

2. Despite being duly served with the said order and notice of penal consequences, the Respondent have failed, and/or refused to comply and persist in such refusal.

3. The blatant refusal to obey a valid court order is in contempt of court.

3. The background against which the application was filed is relevant. The exparte Applicant instituted Judicial review proceedings against the three respondents seeking the following reliefs;

(a)That an order of Certiorari be issued removing into this Honorable Court for purposes of being quashed the decision to change the sponsorship of Kakiptui Primary school from District Education Board to Seventh Day Adventist and the re-registration of Kakiptui primary school to Kakiptui Seventh Day Adventist Primary school.

(b)That an order of Mandamus be issued compelling the Ministry of Education to cause cancellation of Certificate of Registration of school for Kakipui SDA Primary School issued on 7th August, 2014.

(c)That an order of prohibition be issued against the SDA church from interfering with the management and sponsorship of Kakiptui primary school.

4. In the statutory statement and the verifying affidavit filed in support of the application for leave to commence the instant proceedings, the Exparte applicant contended that Kakiptui primary school had been operating as a public school under the sponsorship of the community and the District Education Board; that in the month of September, 2014, the school received a letter from the Seventh Day Adventist church Western Kenya Conference forwarding a provincial Registration certificate dated 28th December, 2005 and a full registration certificate issued by the Ministry of Education, Science and Technology dated 7th August, 2014 showing that the name of the school had been changed from Kakiptui primary school to Kakiptui SDA Primary school.

The Exparte Applicant complained that the said change had been procured without following requisite procedures and the due process of the law.

5. On 3rd March, 2015, all the parties in the matter entered into a consent which resulted in the issuance of a court order in the following terms;

“That the status quo prior to institution of these proceedings be maintained that is the name used for registration of the students in the year 2014 Kenya National Examination which is Centre number 29540235 Kapkiptui be maintained pending the hearing and determination of the main motion”.

6. In the affidavit sworn on behalf of the Exparte Applicant by Stanley Kemboi, it is deposed that despite being notified of the court order, the school’s Headmaster Mr. Cleophas Arusei (Mr. Arusei) in blatant disobedience of the court order registered pupils of the school for the 2015 Kenya Certificate of Primary Education with the name of Kapkiptui SDA Primary School and that he therefore ought to be punished for contempt of court.

7. The application is opposed through a replying affidavit sworn by the alleged contemnor Mr. Arusei on 24th July, 2015. He denied that he disobeyed the court order as alleged and averred that the application was

frivolous, mischievous and unmeritorious and ought to be dismissed. He maintained that he could not have breached the court order of 3rd March, 2015 since at the time the order was issued, the school’s change of name to Kakiptui SDA Primary school had already been effected vide certificate of Registration dated 7th August, 2014 and that all he did was to submit the names of the pupils online for registration of the 2015 Kenya Certificate of Primary Education through Code No. 29540235.

8. The application was prosecuted by way of oral submissions. Learned counsel Mr. Maritim appeared for the Exparte Applicant. In his submissions, he re-iterated the depositions in the supporting affidavit and in addition asserted that in order to preserve the integrity of the court and the validity of court orders, the court should cite Mr. Arusei for contempt of court and proceed to punish him accordingly.

9. The 1st and 2nd respondents did not participate in the application as their counsel, learned state counsel Mr. Wambwire chose not to participate citing conflict of interest considering the relationship between the Exparte Applicant and the 1st respondent.

On behalf of the 3rd respondent, learned counsel Mr. Miyienda submitted that the application was incompetent as it had been filed under the wrong provisions of the law; that an application for contempt of court can only be

made under Section 5of theJudicature Act and not under the provisions of the Civil Procedure Act. Counsel further submitted that no act of contempt had been committed by Mr. Arusei since in his view, the order required the name of the school existing prior to the filing of the Judicial Review proceedings to be maintained pending the hearing and determination of the substantive motion and this is the name Mr. Arusei used to register the school’s pupils for the examinations in the year 2015.

10. I have considered the notice of motion, the affidavits filed by the parties and the oral submissions made by Mr. Maritim and Mr. Miyienda.

Whereas I wholly concur with Mr. Miyienda that applications for contempt of court ought to be filed under Section 5 of the Judicature Act which donates to the court the jurisdiction to punish for contempt of court, it is my view that the wrong citation of the provisions of the Civil Procedure Act in this matter did not render the application fatally defective as the applicant also sought to rely on other enabling provisions of the law which in my view would include the relevant sections of the Judicature Act. Besides, the said citation only went to the form of the application as opposed to its substance and as the prayers therein were clear and concise, it is my opinion that the said anomaly did not occasion the Respondents any prejudice and ought to be disregarded under Article 159 (2) (d)of theConstitutionwhich I hereby do.

11. That said, I now wish to turn to the merits of the application. I find that the only issue that arises for my determination is whether the Exparte Applicant has proved or demonstrated to the required legal standard that Mr. Arusei while aware of the existence of the order issued on 3rd March, 2015 proceeded to breach its terms in the manner in which he registered pupils in the 2015 Kenya Certificate of Primary Education. Put another way, should Mr. Arusei be cited for contempt of court?

12. The term ‘contempt of court’ is defined in Blacks Law Dictionary 8th Edition at Page 336 as follows:-

“Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment.’’

In the celebrated case of Hadkinson V Hadkinson (1952) 2 ALL ER 567 the court held that“a party who knows of an order, whether null and void, regular or irregularly, 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 and void, 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 and 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 exited, it must not be disobeyed…

13. In this case, it is not disputed that Mr. Arusei was aware of the consent order issued on 3rd March, 2015. It is also common ground that the order is still in force as it has not been varied, set aside or discharged. The only issue that is contested is whether he breached the said order. It is important to dissect the said order to determine what it entailed in order to find out whether or not it was disobeyed in the manner alleged.

A reading of the said order shows clearly that the status quo existing prior to institution of the judicial review proceedings with regard to the name of the school was to be maintained pending the hearing and determination of the substantive motion. Parties went further to clarify what they meant by status quo with respect to the school’s name and this was included as a term of the consent order. They specified that the name to be maintained was the name used for the registration of students in the year 2014 Kenya National Examinations being centre number 29540235.

14. What then does the phrase “ status quo” mean? The term is defined in Black’s Law Dictionary 8th Edition at page 1448 as “ the situation that currently exists”. In this case, it is not disputed by the Exparte

Applicant that the school’s change of name was complete by 7th August, 2014 when a final certificate of Registration was issued by the 1st respondent on 7th August, 2014 vide registration No. G/PE/14216/14 – See annexture marked ‘C’ to the 3rd respondent’s replying affidavit. It therefore logically follows that at the time the consent order was issued on 3rd March, 2015, the status quo then prevailing was that the school’s name was Kakiptui SDA Primary school. The document annexed to the Exparte Applicant’s supporting affidavit marked as exhibit “SK 2” depicting the online registration of the school’s pupils for the 2015 examinations shows clearly that the number used for the said registration was the Centre number which had been used in the year 2014 Kenya National Examinations which according to the consent order was meant to further define the name of the school pending determination of the substantive motion.

15. In view of the foregoing, I am unable to see how Mr. Aruseibreached the court order when he registered the pupils for the 2015 Kenya National Examinations on line. Contrary to the Exparte applicant’s assertions, it is my considered view that the said registration was actually done in compliance with the court order since the judicial review proceedings are still pending determination.

In the circumstances, i am satisfied that the Notice of Motion dated 3rd March, 2015 is devoid of any merit. The motion is consequently dismissed with costs to the 3rd respondent as the 1st and 2nd respondents neither opposed nor participated in the application.

It is so ordered.

C.W. GITHUA

JUDGE

DATED, SIGNEDandDELIVEREDatELDORET this 24th day of November 2015

In the presence of:

Ms Mululu for the Exparte Applicant

Ms Naomi Chonde Ct Clerk

No appearance for the Respondents .