[2022] KEHC 13236 (KLR)

Republic v Mwarika, County Executive Committee Member for Finance, County Government of Mombasa & another; Mwarika (Exparte Applicant); County Government of Mombasa (Interested Party) (Judicial Review E003 of 2020) [2022] KEHC 13236 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 13236 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review E003 of 2020

JM Mativo, J

June 17, 2022

Between

Republic

Applicant

and

Mariam Swaleh Mwarika, County Executive Committee Member for Finance, County Government of Mombasa

1st Respondent

Abdulwahab Mbarak, Chief Officer County Government of Mombasa

2nd Respondent

and

Mwinyi Swaleh Mwarika

Exparte Applicant

and

County Government of Mombasa

Interested Party

Ruling

1. Vide an Application Notice dated 15th December 2021, the applicant seeks orders that this court cites the Respondents for contempt of this courts decree issued on 22nd June 2021. The applicant states that the said order was issued in the presence of the Respondent’s advocate when the court ordered the Respondent to settle the decree issued in CMCC No. 5416 of 2004. The applicant states that the said order which had a penal notice was served upon the Respondent’s advocate, but despite the foregoing the contemnors have refused to pay.

2. The Respondents despite being represented by an advocate did not file a reply to the application. At the time of the hearing, counsel for the Plaintiff stated that he was not ready to proceed because he was unable to secure the signature of the Chief Finance Officer. He prayed for 3 days to reply. The application was opposed by the applicant’s counsel who argued that the parties have been in court severally and no reply has been filed so far.

3. I declined the adjournment and directed the application to proceed. My decision was informed by the fact that on record is an affidavit of service showing that service was effected on 15th March 2022. This was confirmed by the Respondent’s counsel in court on 17th May 2022. On the said date, I directed the Respondent to file a response with 7 days and scheduled the matter for hearing on 7th June 2022.

4. The applicant’s counsel relied on the grounds in support of the application and urged the court to allow the application. On his part, the Respondents’ counsel argued that personal service upon the contemnors was not effected yet it is a prerequisite in applications of this nature. He cited section 5 of the Judicature Act1 and argued that the applicable law is the law currently in place in England and under the law, personal service is a requirement.1Cap 8, Laws of Kenya.

5. For starters, the purpose of a finding of contempt is to protect the fount of justice by preventing unlawful disdain for judicial authority. Obviously, recurrent non-compliance with court orders endangers judicial authority. It is important to note that it is a crime to unlawfully and intentionally to disobey a court order. The crime of contempt of court is said to be a “blunt instrument.” Because of this, “willful disobedience of an order made in civil proceedings is both contemptuous and a criminal offence.” Obedience of court orders ensures that the rule of law, good order and due administration of justice is maintained. Romer, L.J. in the locus classicus case ofHadkinson v Hadkinson2 expressed himself as follows:2[1952] ALL ER 567. “It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made 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.”

6. The ingredients of civil contempt are not laid down by statute but established by common law authorities. The following summary by Proudman J, DBE in FW Farnsworth Ltd v Lacy3 followed in Cuadrilla Bowland Ltd v Persons Unknown: -43[2013] EWHC 3487 (Ch).4[2020] EWCA Civ 9, [2020] 4 WLR 29. [25]: “A person is guilty of contempt by breach of an order only if all the following factors are proved to the relevant standard: (a) having received notice of the order the contemnor did an act prohibited by the order or failed to do an act required by the order within the time set by the order; (b) he intended to do the act or failed to do the act as the case may be; (c) he had knowledge of all the facts which would make the carrying out of the prohibited act or the omission to do the required act a breach of the order. The act constituting the breach must be deliberate rather than merely inadvertent, but an intention to commit a breach is not necessary, although intention or lack of intention to flout the court’s order is relevant to penalty.”

7. To succeed in the instant application, the applicant must prove5 (i) the terms of the order, (ii) Knowledge of the terms by the Respondent, (iii). Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities.6 A comprehensive exposition of elements of civil contempt is discussed in Contempt in Modern New Zealand7 as follows: -5See the High Court of South Africa In the case of Kristen Carla Burchell vs Barry Grant Burchell, Eastern Cape Division Case No. 364 of 20056Ibid, at page 47Available at ip36. publications.lawcom.govt.nz“… The applicant must prove to the required standard …that:-(a)the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;(b)the defendant had knowledge of or proper notice of the terms of the order;(c)the defendant has acted in breach of the terms of the order; and(d)the defendant's conduct was deliberate.

8. The orders alleged to have been flouted were issued in the presence of the Respondents counsel. It cannot be said that the Respondents are not aware of the order or the terms of the order. As for argument that the contemnors ought to be served person, the record shows that the defendant’s counsel attended court and acknowledged service and even asked for time to reply and the court granted him 7 days. Counsel said that he was unable to secure his client’s signature, so he had not filed the reply. Failure to secure a signature cannot be said to the same absence of service. If all what was remaining is the Respondents’ signature, then that is a confirmation that the Respondents were served. It is not open for counsel to come to court and on one claim that he has not been able to get his clients’ signature, and after the adjournment is refused, he claims the Respondents have not been served.

9. As I have stated in several decisions, contempt of court is not merely a mechanism for the enforcement of court orders, but the jurisdiction to commit recalcitrant litigants for contempt of court has at its heart the very effectiveness and legitimacy of the judicial system. That, in turn, means that the court called upon to commit such a litigant for his or her contempt is not only dealing with the individual interest of the frustrated successful litigant but also, it is importantly, acting as a guardian of the public interest.88Fakie NO v CCII Systems (Pty) Ltd [653/04] [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (31 March 2006).

10. I have weighed the grounds cited in support of the application. I have also considered the tests for allowing applications of this nature. It’s my finding that the application is merited. Accordingly, I allow the application dated 15th December 2021 and issue the following orders: -

a.That the Respondents Mariam Swaleh Mwarika, the County Executive Committee Member for Finance, County Government of Mombasa and Abdulwahab Mbarak, the Chief Officer County Government of Mombasa have jointly and severally guilty of contempt for failing to satisfy the decree issued in CMCC No. 5416 of 2004. b.That the said Respondents are granted 60 days to satisfy the said decree in default they be committed to civil jail for a period not exceeding six (6) months.c.No orders as to costs.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS­­­­­­­ 17TH DAY OF JUNE 2022JOHN M. MATIVOJUDGE