[2023] KEHC 25391 (KLR)

Republic v Officer in Charge, Nairobi City County Government Treasury; Katiku & another (Exparte) (The Administrators of the Estate of Florence Mbula Ndambuki - Deceased) (Judicial Review Application E046 of 2020) [2023] KEHC 25391 (KLR) (Judicial Review) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25391 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E046 of 2020

JM Chigiti, J

November 17, 2023

Between

Republic

Applicant

and

The Officer in Charge, Nairobi City County Government Treasury

Respondent

and

Peter Mutuku Katiku

Exparte

Dominic Mululu Ndambuki

Exparte

The Administrators of the Estate of Florence Mbula Ndambuki - Deceased

Ruling

1. This court in its decision/ruling dated 2nd May,2023 found in favour of the ex-parte applicants, and allowed their prayers to issue orders of Mandamus and costs. That the order of mandamus was not complied with by the Respondents, despite service; hence, the ex-parte applicants now moves this court for orders of contempt against the Respondent.

2. Before this court is an application by way of a Notice of Motion dated 5th September, 2023 - brought under Section 5 of the Judicature Act, Cap(sic) 51 of the Civil Procedure Act. The ex-parte applicants seek orders:1. That the in-charge of the Nairobi City County Government Treasury, one Aisha Abdi be found in contempt of the court orders issued by this court on 2nd May, 2023 to pay the decretal amount in CMCC No. 1730 of 2009 Nairobi of Kshs 3,947,068. 68 plus interest thereon at 12% from 16thMay, 2022 until payment in full and that she be committed to Civil Jail for a period of six (6) months pending full payment of the decretal amount due to date.2. Thatthis court be pleased to deny the Respondent audience in this matter unless she purges the contempt of court committed herein.3. Thatthe Respondent be ordered to pay the costs of this application together with the accrued interest immediately upon the determination of this application.4. Any other this court may find just in the circumstances of this application.

3. The application is supported by the grounds on the face of it, and on the grounds in the Supporting Affidavit evenly dated, which is sworn by Dominic Mululu Ndambuki.

4. In sum, the applicants’ case is that on 2nd May,2023 the court in its decision issued an order of mandamus against the [Respondent] officer in-charge of the Nairobi City County Government Treasury, to pay to the applicants the decretal amount in Nairobi CMCC No. 1730 of 2008 being Ksh. 3,947,005. 68 plus incurred interest thereon from 16th May, 2022 until payment in full, and costs.

5. It is averred that the Respondent, the office bearer named Aisha Abdi, was served with the order; and personally acknowledged service on 7th June, 2023. Nevertheless, that the Respondent has refused and/or neglected to pay; thus she is in contempt of this court’s order.

6. The application is not responded to, by the Respondent.

7. The issue for determination, crystalizes to: Whether contempt orders ought to issue as against the Respondent’s office bearer, namely; Aisha Abdi.

Analysis and Determination 8. The Court in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR had this to say on contempt proceedings;“20. I am aware of a recent High Court ruling rendered in Republic v Kajiado County & 2 Others ex parte Kilimanjaro Safari Club Limited in which the court held as follows:-“Section 39 (2) (g) of the Act enjoins the Chief Justice to make Rules to provide for, among other things, the procedure relating to contempt of court. However, the rules to regulate the commencing and prosecuting of contempt of court applications under the Act are yet to be made. The law that previously applied in this regard was the Contempt of Court Act of 2016, until the decision of the High Court (J. Chacha Mwita) made on 9th November 2018 in Kenya Human Rights Commission v Attorney General & Another, [2018] eKLR. The said decision declared the Contempt of Court Act of 2016 invalid for lack of public participation as required by Articles 10 and 118(b) of theConstitution, and for encroaching on the independence of the Judiciary.I am in the circumstances obliged to revert to the provisions of the law that operated before the enactment of the Contempt of Court of Act, to avoid a lacuna in the enforcement of Court’s orders. It was in this respect observed in Republic vs. Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya, HCMCA No. 13 of 2008, that the High Court has the responsibility for the maintenance of the rule of law, hence there cannot be a gap in the application of the rule of law. In addition, 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 adopt such a procedure as would effectually give meaningful relief to the party aggrieved, in exercise of the inherent jurisdiction granted to the Court by section 3A of the Civil Procedure Act to grant such orders that meet the ends of justice and avoid abuse of the process of Court.The applicable law as regards contempt of court existing before the enactment of the Contempt of Court Act was restated by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others, [2014] eKLR. In that case the Court found that the English law on committal for contempt of court under Rule 81. 4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertakings, was applied by virtue of section 5(1) of the Judicature Act which provided that:“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.”This section was repealed by section 38 of the Contempt of Act of 2016, and as the said Act has since been declared invalid, the consequential effect in law is that it had no legal effect on, and therefore did not repeal section 5 of the Judicature Act, which therefore continues to apply. In addition, the substance of the common law is still applicable under section 3 of the Judicature Act. This Court is in this regard guided by the applicable English Law which is Part 81 of the English Civil Procedure Rules of 1998 as variously amended, and the requirement for personal service of court orders in contempt of Court proceedings is found in Rule 81. 8 of the English Civil Procedure Rules.”21. I agree with the above reasoning that since the act that repealed section 5 of the Judicature Act has been declared unconstitutional, the effect is that section 5 of the Judicature Act still stands. Having concluded as aforesaid, I find it fit to examine the procedure for instituting contempt of court proceedings under section 5 of the Judicature Act which provides as follows: -(1)The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.

9. The court in Felicity Mutete Mutula v. Nairobi County Government [2021] eKLR laid down the requirements thus;“From the foregoing Rules, I would say that some of the salient features in an application for contempt of court are as follows:1. Disobedience of a court order or judgment is a foundation for contempt of court proceedings against the contemnor.2. Where the contemnor is a company or other corporation, the committal order may be made against any director or other officer of that company.3. The judgment or order in question must be served on the person required to do or not to do the act in question unless the court expressly dispense with personal service.4. Where the person required to do or not to do an act is a company or other corporation, a copy of the judgment or order must also be served on the alleged contemnor.5. Judgments and orders must be served personally.6. The court may, however, dispense with personal service if it is satisfied that the contemnor had notice of the judgment or order;a.By being present when the judgment or order was given or made; orb.By being notified of its terms by telephone, email or otherwise.7. The court may also dispense with personal service if it thinks it is just to do so or may make an order in respect of service by an alternative method or an alternative place.8. There shall be permanently displayed on the front copy of the judgment or order served a warning to the person required to do or not to do the act in question that disobedience to the order would be contempt of court punishable by imprisonment, a fine or sequestration of assets. Without this display the judgment or order may not be enforced unless it is an undertaking contained in a judgment or order.9. The contempt of court application shall be made by an application notice in the same proceedings in which the judgment or order was made.10. The application notice must set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and must also be supported by one or more affidavits containing all the evidence relied upon.

11. The application notice and the evidence in support must be served personally on the respondent although the court may dispense with service under paragraph (10) if it considers it just to do so: or may make an order in respect of service by an alternative method or at an alternative place. "

10. According to the supporting Affidavit of Dominic Mululu Ndambukithe orders issued on 2nd May, 2023 were duly served upon the In-charge of the Nairobi City County Government Treasury is one Aisha Abdi who the 7th June, 2003 who acknowledged receipt thereof but refused to effect payments as ordered by the court.

11. The affidavit of service of the order / decree of mandamus marked D.M.M I attests to this.

Disposition: 12. It is this court’s finding and I so hold that the applicant has proved to the required standard that:a.The terms of the order of 2nd May,2023 were clear and unambiguous and were binding on the Respondent.b.The Respondent had knowledge of or proper notice of the terms of the order issued on 2nd May,2023. c.The Respondent has acted in breach of the terms of the order of 2nd May, 2023; andd.The Respondent’s conduct is deliberate.

Order: 1. The Application dated 5th September, 2023 has merit and Respondent is hereby convicted for the contempt of the court order of 2nd May,2023.

2. The matter will proceed for mitigation and sentencing.

3. costs in the cause.

DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. ...................JOHN CHIGITI (SC)JUDGE