[2023] KEHC 26153 (KLR)

Republic v Muthoka & 2 others; Omanga (Exparte) (Application E005 of 2023) [2023] KEHC 26153 (KLR) (Judicial Review) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26153 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E005 of 2023

J Ngaah, J

December 1, 2023

Between

Republic

Applicant

and

Batram Muthoka

1st Respondent

Anabella Kirinya

2nd Respondent

Registered Trustees of Agricultural Society of Kenya

3rd Respondent

and

Dr. John Kennedy Omanga

Exparte

Ruling

1. In a motion dated 24 January 2023 the applicant successfully obtained judicial review orders against the respondents in a judgment rendered by this Honourable Court on 27 June 2023. In the substantive motion, the applicant had sought for the following orders:“i.An order of certiorari to remove into this court and quash the respondent’s decision as communicated vide the letter dated 16th December 2022. ii.An order of prohibition directed toward the respondents prohibiting the respondents from calling for re-applications for the position of national chairperson and deputy national chairperson of the Agricultural Society of Kenya.”

2. The respondents are alleged to have flouted the orders granted in terms of these prayers and for this reason, the applicant has filed an application according to which he wants the respondents cited for contempt. The application is dated 31 July 2023 and the prayers in it have been framed thus:a.That the application herein be certified urgent and service therein be dispensed with.b.That pending the hearing and determination of this application, the respondents jointly and severally be barred from prequalifying, for the elections scheduled on the 17th August, 2023, any new candidates including those who had withdrawn their candidature, for the position of the National Chairperson and Deputy National Chairperson of the Agricultural Society of Kenya, in contravention of the judgment delivered on the 27th of June 2023. c.That the respondents jointly and severally be cited for contempt of the judgment delivered by this court on 27th June 2023 and be ordered to purge the contempt.d.That the costs to the application be provided for.”

3. Prayer (a) has been spent and, at the hearing of the instant application, Mr. Ochieng, the learned counsel for the applicant, informed the court that the applicant had abandoned prayer (b) since it had already been overtaken by events. Prayer (c) is the only remaining substantive prayer.

4. The application is supported by the applicant’s own affidavit sworn on 31 July 2023 in which he has reiterated that in the judgment of this court delivered on 27 June 2023, an order of prohibition was issued in terms of prayer (c) to which reference has already been made.

5. At the time of issue of the order, the respondents had, in their pleadings, confirmed that Edith Onzere, John Muchiri Kibira and Margaret Anami had withdrawn from contesting for the respective positions of the National Chairperson, the Deputy National Chairperson and the Deputy Chairperson of Agricultural Society of Kenya.

6. The applicant has sworn that according to rule 1(G) (4) of the Rules of the Agricultural Society of Kenya otherwise referred to as “the Green Book”, contestants who have withdrawn from contesting cannot have their names placed on the ballot.

7. That notwithstanding, the respondents jointly and severally included the contestants who had withdrawn from contesting as prequalified candidates ostensibly on the ground that they had rescinded their withdrawal and reapplied for the same positions from which they had withdrawn. According to the applicant, this is in breach of the judgment of the court rendered on 27 June 2023.

8. The applicant has sworn that the respondents’ conduct brings disrepute to this Honourable Court and that they should be stopped in their tracks by this court citing them for contempt.

9. The respondents opposed the motion and Batram Muthoka has sworn a replying affidavit on his own behalf and on behalf of the 2nd and 3rd respondents opposing the application.

10Like the applicant, Muthoka has made reference to the judgment of the court and sworn that the court had barred the respondents from calling for fresh applications but that the candidates in the elections would be in accordance with the list of candidates who were prequalified to contest in the elections that were due to be held in 2020 but suspended by the orders of this Honourable Court. These candidates were captured in the Agricultural Society of Kenya’s circular of 29 January 2020 and to which this Honourable Court made reference in its judgment. They were named as: i) Ms. Edith Onzere, ii) Dr. Ken Omanga and, iii) Mr. Jackso Tuwei who were to contest for the position of National Chairman. Those who were slated for the position of Deputy National Deputy Chairman were named as i) John Kibira ii) Margaret Anami; iii) Joseph Njeru and iv) Jane Chepkwony.

11. According to Muthoka, the court did not, in its judgment, bar these persons from contesting for the respective positions.

12. It has also been sworn on behalf of the respondents that Edith Onzere, John Kibira and Margaret Anami were prequalified and did not wish to be taken through a fresh vetting process. In any case, Muthoka has been advised by his advocates which advice he believes to be true, that once the court quashed the letter of 16 December 2022, the withdrawal by various candidates were of no consequence and, therefore, they were eligible to contest in the subsequent elections. That notwithstanding, the candidates rescinded their letters of withdrawal.

13. The applicant’s complaint, it is sworn, is a basis of a new cause of action and ought to be treated as such and that this Honourable Court is now functus officio, having rendered its decision on the applicant’s suit.

14. Parties’ representatives made oral submissions in support of the positions they have adopted in this application. I have considered those submissions.

15. As noted at the beginning of this ruling, of the two orders granted by this Honourable Court in its judgment of 27 June 2023, the prohibitory order was directed at the respondents prohibiting them from calling for reapplications to contest for the positions of National Chairperson and Deputy National Chairperson of the Agricultural Society of Kenya. The question that is now of concern to court is whether, by allowing candidates who had hitherto withdrawn their candidature to contest in the elections of 17 August 2023, the respondents thereby “called for re-applications for the position of national chairperson and deputy national chairperson of the Agricultural Society of Kenya.”

16. My answer to this question is in the negative. It is in the negative because the basis of the prohibitory order was a letter dated 16 December 2022 according to which the chief executive officer of the Agricultural Society of Kenya had specifically asked candidates who had been pre-qualified to express their interest by way of fresh applications for contesting for the positions for which they were prequalified.

17. If the chief executive officer or the respondents or any of them was to make such invitations, in the wake of the judgment of this Honourable Court, they would be in clear violation of the judgment which, as noted, prohibited them from making such invitations. But there is no evidence that they have done so. What the respondents did was to allow candidates who had withdrawn their candidature to contest, ostensibly because they had rescinded their withdrawal letters.

18. The respondent’s conduct may have flouted the Agricultural Society of Kenya Election Rules, for there is no provision in those rules that allow candidates who have otherwise withdrawn their candidature to contest for those positions they have withdrawn from contesting for in the elections in issue. The applicant may have a strong case that in allowing candidates who had withdrawn their candidature for various positions in the August, 2023 elections, the respondents may have allowed unqualified candidates to contest.

19. But it is one thing for the respondents to have breached the election rules and another thing altogether for the respondents to have disobeyed the judgment of this court. Breach of the election rules without flouting the judgment would go into the question of the propriety or the validity of the elections. Those rules provide for means through which disputes that arise out of the elections are to be resolved. (See, for instance, rule 1 M of the election rules). For this reason, the disputes would be outside the scope of the terms of the judgment which was in very specific terms: that the respondents were prohibited from calling for reapplications from prequalified candidates.

20. The burden was always on the applicant to prove that the respondents had disobeyed the terms of the judgment of the court. I am not satisfied that this burden has been discharged.

21. But even if the applicant was to prove that the respondents had disobeyed the judgment of this Honourable Court, there is one more hurdle that he has not been able to surmount. There is no evidence and, indeed the applicant’s counsel did not contest, that the respondents were neither served with the decree nor was the decree endorsed with the penal notice. As a matter of fact, the decree was not even extracted.

22. On the question of service of the order, Mr Ochieng urged that since the respondents were represented, they are presumed to have knowledge of the order and, in fact, they admitted in the correspondence exchanged between counsel for the applicant and the respondents’ counsel that they were aware of the terms of the order.

23. On the question of the penal notice, the learned counsel for the applicant urged that the notice would not be mandatory if service of the order is dispensed with in the first place. Counsel relied on the Court of Appeal decision in Kiru Tea Factory Limited versus Stephen Maina Gathiga & 14 Others (2019) eKLR for the position that to prove contempt, all an applicant in contempt of court application has to demonstrate is that, first, the terms of the order in question, second, knowledge of the terms of the order and, third, failure of the alleged contemnors to adhere to the terms or comply with the terms of the order.

24. Mr. Ongeri, the learned counsel for the applicant, urged that as much as the respondents were aware of the judgment, it was necessary that the penal notice be served because the notice serves a particular purpose which is that the alleged contemnors are put on notice that their liberty may be curtailed in the event of disobedience of the court order.

25. In the Kiru Tea Factory Limited versus Stephen Maina Gathiga & 14 Others case (supra), the Court of Appeal acknowledged, inter alia, that Section 5 of the Judicature Act cap. 8 grants the Court of Appeal (and this Honourable Court) jurisdiction to punish for contempt. The court also noted as follows:“In exercising jurisdiction, both the High Court and this Court are enjoined by Section 5 of the Judicature Act to ascertain the applicable law of contempt in the High Court of Justice in England at the time an application is brought before our courts.”

26. Keeping in line with this provision, the court invoked Rule 81. 8- (1) of the Civil Procedure (Amendment No. 2) Rules 2012 of England which then provided as follows: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:

27. No doubt, it is on these provisions that the learned counsel for the applicant placed reliance in his argument that the court could still find the respondents in contempt although they were not served with the court decree because there are circumstances in which service may be dispensed with.

28. But the law in England has since changed. The Civil Procedure (Amendment No. 2) Rules 2012 have been amended following the amendment of Part 81 by the Civil Procedure (Amendment No. 3) Rules, 2020. The scope of the new rules is defined in rule 81. 1; Rule 81. 2 is the interpretation part and Rule 81. 3 states how an application for contempt should be made. The rest of the rules in that Part 81 provide for the requirements of a contempt application (81. 4); service of a contempt application (81. 5); cases where no application is required (81. 6); directions for hearing of contempt proceedings (81. 7); hearings and judgments in contempt proceedings (81. 8); Powers of the court (81. 9); and, applications to discharge committal orders (81. 10).

29. Rule 81. 4 on the requirements of a contempt application and which is of particular relevance to this application reads as follows:81. 4(1)Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.(2)A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—(a)the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);(b)b) the date and terms of any order allegedly breached or disobeyed;(c)confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;(d)if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;(e)confirmation that any order allegedly breached or disobeyed included a penal notice;(f)the date and terms of any undertaking allegedly breached;(g)confirmation of the claimant’s belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;(h)a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;(i)that the defendant has the right to be legally represented in the contempt proceedings;(j)that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;(k)that the defendant may be entitled to the services of an interpreter;(l)that the defendant is entitled to a reasonable time to prepare for the hearing;(m)that the defendant is entitled but not obliged to give written and oral evidence in their defence;(n)that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;(o)that the court may proceed in the defendant’s absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;(p)that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;(q)that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;(r)that the court’s findings will be provided in writing as soon as practicable after the hearing; and(s)that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public.(Emphasis added)

30. According to rule 81. 4- (2) (c), (d) and (e) proof of service is necessary and where it is dispensed with, the terms and date of the court’s order dispensing with personal service must be proved. What this means is that the order dispensing with service must precede the application for contempt. Service of the order out of which contempt proceedings arise cannot be deemed to have been dispensed with or presumed in the course of the hearing of the application for contempt merely because the applicant is able to proof that the alleged contemnors had knowledge of the order.

31. Under rule 81. 4-(2) (e) a penal notice on the order served is mandatory.

32. The requirements to serve the order or judgment personally and the need for indorsement of a penal notice on the order or judgment are not new, among other requirements in a contempt of court application. In this country, they have been litigated upon over the years. 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 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 …”

33. Service of the order alleged to have been violated in this case had been served on the alleged contemnors’ advocates; the court said of this service as follows:“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.”

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

35. 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.”

36. 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.

37. In the ultimate, for reasons I have given, I am inclined to reach the conclusion that the applicant’s application falls short of the threshold necessary to cite the respondents for contempt. It is hereby dismissed. Parties will bear their respective costs. It is so ordered.

SIGNED, DATED AND DELIVERED VIA VIDEO LINK ON 1 DECEMBER 2023NGAAH JAIRUSJUDGE