[2022] KEHC 15343 (KLR)

Republic v Pannju Agencies Company Limited & another; Pop Metal Fabricators and Hardware Limited (Exparte) (Miscellaneous Application E015 of 2022) [2022] KEHC 15343 (KLR) (Judicial Review) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15343 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application E015 of 2022

AK Ndung'u, J

November 11, 2022

Between

Republic

Applicant

and

Pannju Agencies Company Limited

1st Respondent

Chief Magistrate, Milimani Law Courts

2nd Respondent

and

Pop Metal Fabricators and Hardware Limited

Exparte

Ruling

1. On the January 21, 2022, the 2nd respondent made orders for the immediate release of motor vehicles registration numbers KCE 259X KCC 008Y and KBV 147A which vehicles were said to be in possession of the applicant herein illegally.

2. Aggrieved by the said orders, the applicant in this matter lodged judicial review proceedings seeking an order of certiorari to quash the said orders as well as an order of prohibition prohibiting the 1st respondent from dealing with the aforementioned vehicles pending the hearing and determination of MCCOMCU/E027/2022. That suits relates to a dispute about the ownership of the vehicles.

3. At the ex parte stage, this court made orders on the February 8, 2022 granting the applicant leave to institute judicial review proceedings and further ordering that the said leave was to operate as a stay of the orders of the 2nd respondent issued on January 21, 2022.

4. According to the applicant, there was disobedience of the orders of court made on February 8, 2022 and this prompted the filing of the notice of motion dated February 14, 2022. This ruling resolves that application.

5. It is the applicant’s case that at the time the orders were issued, Motor Vehicles Registration No KBV 147A and KCC 008Y were in possession of the applicant. It is averred that despite being served with the said orders, the 1st respondent in blatant breach of the orders proceeded at night to through its agents and towed away Motor Vehicle Registration No KCC 008Y from Portland Cement parking where the applicant was doing business. It is urged that this act is contemptuous and the court needs to act to protect the sanctity of its orders by punishing the 1st respondent or its directors.

6. In response to the application, one of the directors of the 1st respondent has, in a replying affidavit exonerated himself from the act of the towing of the subject motor vehicle stating that if the motor vehicle was towed, then the co-director Rose Wangeci Kimamo (Rose) is answerable.

7. In her response in a replying affidavit sworn on the May 6, 2022, Rose denies being in contempt of the court orders and depones that motor vehicle registration No KCC 008 Y was delivered to her home in her absence by one Harrison Ndungu Muregi, and in her words, ‘’who on hearing that there was a pending court case he delivered the motor vehicle to us as he was aware it belonged to us.’’ The vehicle is said to have been delivered to Rose’s home when her brother Michael Macharia Kimamo was the one at home as Rose had travelled to Naivasha. Michael has deponed to this fact in his affidavit sworn on May 6, 2022. He asserts that Muregi was the applicant’s driver.

8. Muregi refutes the allegation of driving the motor vehicle to Rose’s home and in his affidavit sworn on February 15, 2022 avers that he had parked the motor vehicle at Portland Cement on February 12, 2022 at about 7:15 p.m. On return at 1:40 a.m. he found the vehicle missing. A report was made at Athi River police station.

9. The application was canvassed by way of written submissions and all the parties did file in compliance with the court’s directions.

10. I have considered the application, the supporting grounds, affidavit evidence and learned submissions by counsel. Of determination is whether director Rose Wangeci Kimotho is guilty of contempt of court for disobeying the orders of court dated February 8, 2022 by having motor vehicle KCC 008Y towed from Portland Cement to her home. If in the affirmative, the court has to determine what sanctions to impose and finally make orders on costs of the application.

11. The court in the case of Hadkinson v Hadkinson(1952) 2 ALL ER56 eloquently summed up every person’s obligation to obey court orders as follows;“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt. "

12. This court has on several occasions emphasized the need to obey court orders and most recently in JR No302 of 2015; Republic v The Chief Executive Officer, Independent Electoral & Boundaries Commission Ex parte Office Technologies Limited where it stated thus;“The rule of law would be in great danger if the courts failed to ensure compliance with court orders. Without enforcement through punishing for contempt of court, the orders of court would remain mere rhetoric not worth the paper they are written on. My considered view is that a judge who fails to enforce his orders through punitive measures to those who disobey them has no business conducting the next trial, for, of what use would be court proceedings whose outcome is of no consequence?“I resonate with the finding of the court in Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex Parte Stanley Muturi where it was held as follows;"Court orders are not meant for cosmetic purposes. They are serious decisions that are meant to be and ought to be complied with strictly. As was held in Teacher's Service Commission v Kenya National Union of Teachers & 2 Others Petition No 23 of 2013:"The reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it about placating the applicant who moves the court by taking out contempt of court proceedings. It is about preserving and safeguarding the rule of law. A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed. A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option."

13. The ingredients to be proved in a contempt application are well settled. 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:Disobedience of a court order or judgment is a foundation for contempt of court proceedings against the contemnor.Where the contemnor is a company or other corporation, the committal order may be made against any director or other officer of that company.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.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.Judgments and orders must be served personally.The court may, however, dispense with personal service if it is satisfied that the contemnor had notice of the judgment or order;By being present when the judgment or order was given or made; orBy being notified of its terms by telephone, email or otherwise.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.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.The contempt of court application shall be made by an application notice in the same proceedings in which the judgment or order was made.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.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. "

14. The above ingredients are also summed up in the book Contempt in Modern New Zealand as follows;“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant.The defendant had knowledge of or proper notice of the terms of the order.The defendant has acted in breach of the terms of the order; andThe defendant’s conduct was deliberate.

15. In our instant suit, there is no contention over the existence ot orders of this court prohibiting the 1st respondent from any dealings with the subject motor vehicle. What the applicant needed to prove is the fact of Rose by herself or her agents towing the motor vehicle KCC 008 Y from Portland cement. Prove in contempt cases is higher than in ordinary civil cases in view of the penal consequences that are attendant thereto.

16. It is trite law that he who alleges the existence of a certain set of facts and wishes to have the court believe him, must discharge the onus placed upon him by the law. This onus does not shift to a defendant unless there is a specific law stating so. Section 107 of the Evidence Act states as follows: -Burden of proof;“Whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts”

17. The Halsbury’s Laws of England, 4thEdition, Volume 17, at para 13 and 14: describes it thus:“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the applicant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence.

18. The applicant’s assertion that the 1st respondent towed the motor vehicle is answered by the respondent through her affidavit and that of Michael who state that Muregi delivered the vehicle to the home of Rose. Muregi on his part states he left the vehicle at Portland Cement and found it missing. Section 3 (4) of the Evidence Act is clear and aptly applies to this case when it provides as follows;S 3 (4) “A fact is not proved when it is neither proved nor disproved.”

19. While on the face of it Rose’s and Michael’s assertions appear suspect, the circumstances under which the subject vehicle left Portland Cement, if at all, needed to be proved and that burden lay on the applicant. It is not lost on this court that this is a matter that found its way into the occurrence book at Athi River police station vide a report of loss of the motor vehicle. With a little more diligence the applicant would have with assistance of the police laid before the court cogent evidence of how the vehicle left Portland Cement. It would be expected that there must have been eye witnesses to the incident.

20. On the evidence before this court, it has not been proved that the 1st respondent, and specifically director Rose towed the vehicle.

21. So what orders are appropriate? The order that commends itself to me is for the dismissal of the contempt of court application. With the result that the application is dismissed. Each party to bear their own costs.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF NOVEMBER 2022A K NDUNG'UJUDGE