[2023] KEHC 23187 (KLR)

Republic v Principal Secretary, Ministry of Agriculture Livestock & Fisheries (State Department of Crops Developments & another; Baragu (Exparte) (Application 511 of 2015) [2023] KEHC 23187 (KLR) (Judicial Review) (6 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23187 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 511 of 2015

J Ngaah, J

October 6, 2023

Between

Republic

Applicant

and

The Principal Secretary, Ministry of Agriculture Livestock & Fisheries (State Department of Crops Developments

1st Respondent

The Attorney General

2nd Respondent

and

Ernest Cherimo Baragu

Exparte

Ruling

1The application before this Court is a motion by the applicant dated March 9, 2020 expressed to filed under Section 5(1) of the Judicature Act, sections 3A and 63 of the Civil Procedure Act, Order 53 Rule 2(2) of the Supreme Court of England,1965, The Contempt of Court Act,1981 and Part 8, Civil Procedure (Amendment No.2) Rules, 2012 Laws of England.

2The motion seeks the following orders: 1. That the Application be certified urgent, service therefore be dispensed with and the same proceed ex-parte in the first instance.

2. That this Honorable Court be pleased to find Principal Secretary/ Accounting Officer Ministry of Agriculture, Livestock & Fisheries partially in contempt of the Order of Honorable Lady Justice RE Aburili dated July 27, 2016.

3. That the said Principal Secretary/Accounting Officer be arrested and committed to prison for a term not exceeding six (6) months.

4. That this Honorable Court be pleased to order that the said Principal Secretary/Accounting Officer be not given audience by the court until he purges the contempt by paying the ex-parte applicant the balance due of Kshs 1,189,918/= as at August 1, 2019.

5. That this Honorable Court be pleased to issue such other or further punitive orders in respect of the said contempt as may be necessary for the end of justice to be met.

6. That the costs of and occasioned by this application be provided for”

3The application is supported by an affidavit sworn on 9 March 2020 by Mr. Warui Karoki, the applicant’s learned counsel.

4According to Mr. Karoki, on 11 February 2016 the applicant sought for an order of mandamus to compel the Principal Secretary, Ministry of Agriculture, Livestock & Fisheries to settle the decree, the applicant obtained in Milimani Chief Magistrates Court Civil Case No. 6883 of 2003. The decree was for the sum of Kshs 664,820/= plus interest at 12% per annum until payment in full. The judgment in subordinate court was delivered on 29 January 2008.

5The Certificate of Order Against the Government was issued by the Chief Magistrate on 8 February 2012, confirming the amount payable as per the decree with interest until payment in full.

6The applicant subsequently filed in this court an application for an order for mandamus to compel the Principal Secretary, Ministry of Agriculture and Livestock to settle the decretal sum. The order was obtained from this Honourable Court on 27 July, 2016.

7According to counsel, the order was extracted and that he personally served upon the respondents on 29 September 2016 with a covering letter and penal notice which they both acknowledged receipt.

8In January 2018, the Principal Secretary Ministry of Agriculture & Livestock paid Kshs 885, 532. 50 to the applicant’s advocates in part settlement of the decretal sum. According to the applicant’s counsel, there is a balance of Kshs 1,189,918/= which the applicant has neglected, ignored or refuse to settle hence the present application.

9Fredrick Ragui Kariuki, a senior state counsel in the office of the Attorney General swore a replying affidavit on behalf of the respondents and admitted that indeed the respondents were aware of the order granted by this Honourable Court on 27 July 2016 according to which the applicant was to be paid the sum of Kshs 664,820/= together with interest calculated at 12% per annum.

10Following the order, the 1st respondent paid the sum of Kshs 885,523. 50 which was the decretal sum and the interest for six years calculated in accordance with section 4(4) of the Limitations of Actions Act, cap. 22 and costs.

11The demand by the applicant for Kshs 1,872,356/=, according to the respondents, is exaggerated and is contrary to section 4(4) of the Limitation of Actions Act.

12The respondents’ position is that this provision of the law is to the effect that no arrears of interest is recoverable after six years from the date when the interest became due. They also urge that the costs awarded by Aburili, J. when she allowed the applicant’s application for the order of mandamus have also not been taxed.

13It is also contended that the mandamus order was not served and neither was it endorsed with the penal notice.

14This last point appears to be contradict the respondents’ depositions that the payment in part settlement of the decree was made after they were served with the order for mandamus. If that is the case, they cannot allege that they were not served with the order.

15But there is some merit in the contention that the order served was not endorsed with the penal notice. What is purported to be the penal notice is contained in a covering letter forwarding the order to the respondents. This is not sufficient for purposes of contempt of court proceedings.

16Apart from the requirement to serve the order personally, it has been held that without the display of the penal notice, the judgment or order may not be enforced unless it is an undertaking contained in a judgment or order.

17The need to comply with these conditions, amongst other conditions, is a question that has been settled by the Court of Appeal in its previous decisions where this question has arisen.

18In 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 of what with what is popularly referred to as ‘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.

19As 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 …”

20Where 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 …”

21The court further noted: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 October 25, 1993, and November 1, 1993, therefore, is a wasted effort.”

22The court described personal service as “an elementary but mandatory procedural rule which in contempt proceedings has (been) prescribed “personal service”.

23And 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.

24This 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.”

25The 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.

26The applicant’s application falls short of the second condition. The decree that was served was not endorsed with the penal notice. As the Court of Appeal has clearly stated, where the order or decree is not clearly endorsed with the penal notice, the application is incompetent and has to be dismissed.

27Besides the applicant’s application being incompetent, it appears that the amount alleged to be outstanding is in dispute. There is some force in the respondents’ submissions that the demand for interest is contrary to section 4 (4) of the Limitations of Actions Act which states as follows:(4)An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.

28The court in the case of Assia Pharmaceuticals Ltd v Kenya Alliance Insurance Co. Ltd(Civil Case 1605 of 1999) [2021] KEHC 19 (KLR) (Commercial and Tax) (21 July 2021) (Ruling) held as follows;It is important to mention that the word “action” in section 4(4) of the Limitation of Actions Act has been judicially construed to include execution proceedings. This position was appreciated by the Court of Appeal in Njuguna v Njau,13Malakwen Arap Maswai v Paul Koskei14 and M’ikiara M’rinkanya & another v Gilbert Kabeere M’mbijiwe.15 In these three decisions, the Court of Appeal construed the word “action” in section 4 (4) of the Act as including all kinds of civil proceedings including execution proceedings.”

29The applicant’s does not deny to have calculated interest outside the time stipulated under section 4(4) of the Limitation of Actions Act but his answer to this question is this: 4. That the replying affidavit by the respondents appears to be seeking review of Lady Justice Aburili judgment and orders dated 27th July, 2016 which in part reads “to settle the whole decretal sum of Kshs 664,820 in CMCC 688 of 2003 with interest of 12% per annum until payment in full. The judgment and order in the applicant’s possession does not have section 4(4) of the Limitation Act (sic) but instead reads: “until payment in full.”

30With due respect to the learned counsel for the applicant, the whole purpose of the order of mandamus was to enforce settlement of an existing decree as expressed in the certificate of order against the government issued on February 8, 2012. The order of mandamus could not have varied the decree or its terms and, at any rate, it cannot be interpreted to have contravened the provisions of section 4(4) of the Limitation of Actions Act.

31For the foregoing reasons, I am not satisfied that the applicant has made out a case for grant of the prayers sought. The application is dismissed. Parties will bear their respective costs.

DATED, SIGNED AND DELIVERED ON 6 OCTOBER 2023NGAAH JAIRUSJUDGE