[2017] KEHC 2800 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 279 OF 2016

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

AND

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION.

AND

IN THE MATTER OF THE SOCIETIES ACT ( CAP 108) LAWS OF KENYA

AND

IN THE MATTER OF THE MEDICAL LABORATORY TECHNICIANS AND TECHNOLOGIST ACT (CAP 253 A ) LAWS OF KENYA

AND

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 LAWS OF KENYA

AND

IN THE MATTER OF THE BY LAWS ( CONSTITUTION) OF THE ASSOCIATION OF KENYA MEDICAL LABORATORY SCIENTIFIC OFFICERS

AND

IN THE MATTER OF DECISION BY THE REGISTRAR OF SOCIETIES ALLEGING CONTRAVENTIONS SECTION 31(4) AND 30(4) OF THE SOCIETIES ACT (CAP 108) LAWS OF KENYA CONTAINED IN LETTERS DATED 16TH MARCH 2016 AND 22ND MARCH 2016 RESPECTIVELY

AND

IN THE MATTER OF DECISION BY THE REGISTRAR OF SOCIETIES TO THE APPLICANTS CONTAINED IN A LETTER DATED 21ST APRIL 2016 CALLING FOR A CONVENING OF THE ANNUAL GENERAL MEETING AND ELECTION OF NEW OFFICIALS WITHIN THE NEXT 60 DAYS.

REPUBLIC.............................................................................................................................APPLICANT

VERSUS

REGISTRAR OF SOCIETIES...........................................................................................RESPONDENT

ASSOCIATION OF MEDICAL LABORATORY SCIENTIFIC OFFICERS....1ST INTERESTED PARTY

DANIEL C.A. SANGA.....................................................................................2ND INTERESTED PARTY

KIPRONO CHEPKOK...................................................................................3RD INTERESTED PARTY

CALISTUS SABINI BUTIYA.........................................................................4TH INTERESTED PARTY

EXPARTE

MICHAEL ABALA WANGA, SAFARI K. KITHI, AGLEAN CHELIMO, HARUN ANUNDA, ALEX OSORE, ROBERT KATSUTSU, HARUN BOWEN.

JUDGMENT ON CONTEMPT OF COURT ORDERS

1. By a notice of motion dated 13th October 2016 brought under the provisions of Section 5 of the Judicature Act, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law, the 2nd, 3rd and 4th interested parties Daniel C.A, Sanga; Kiprono Cheptok and Calistus Sabini Butiya seek from this court the following orders:

a. That the exparte applicants herein Michael Abala Wanga, Safari K. Kithi, Aglean Chelimo, Harun Anunda, Robert Katsutsu and Haron Bowenbe committed to civil jail for a term of six months for contempt of court for having deliberately disobeyed orders of this court made and issued on 10th October 2016.

b. That the court be pleased to make any other or further orders of the court geared towards protecting the dignity and authority of the court.

c. That costs of the application be provided for.

2. The application is predicated on the grounds on the face of the motion and affidavit of Daniel C.A. Sanga the 2nd interested party herein.

3. Principally, the applicants herein who are interested parties in these Judicial Review proceedings claim that on 10th October 2016 they as applicants/ interested parties herein obtained from this court an exparte order under certificate of urgency pending inter partes hearing thereof, prohibiting the exparte applicants herein Michael Abala, Wanga, Safari K. Kithi, Aglean Chelimo, Harun Anunda, Robert Katsutsu and Haron Bowen, by themselves and or through their agents, servants and employees from convening and or holding that conference called the 23rd Medical Laboratory Scientific and Exhibition Conference for the Association of Kenya Medical Laboratory Scientific Officers (AKMLSO) scheduled to be held from 11th-14th October 2016 at the Acacia Premier Hotel; Kisumu and further directing the said application to be mentioned on 12th October 2016 for further directions.

4. It is alleged by the applicants that the aforesaid order was served upon the said exparte applicant’s advocates Nzaku & Nzaku Advocates on 11th October 2016 and also personally upon the exparte applicants at the Acacia Premier Hotel, Kisumu on the same day.

5. That notwithstanding personal service of the order upon the exparte applicants, the exparte applicants/alleged contemnors deliberately disobeyed the orders issued on 10th October 2016 and also that besides personal service, they were made aware of the said orders but that in complete disregard and violation of the said order, the exparte applicants proceeded and convened and held that conference called the 23rd Medical Laboratory Scientific and Exhibition Conference for the Association of Kenya Medical Laboratory Scientific Officers ( AKMLSO) at Acacia Premier Hotel, Kisumu.

6. It is claimed that by such disobedience of a court order the dignity and authority of the court must be protected at all times and the conduct and action of the exparte applicants deliberately ignoring court orders greatly undermines the dignity and authority of the court.

7. The applicants assert that the orders sought are just and meant for the protection of the cause of justice and the Rule of Law and for protecting the authority of the court and the supremacy of the law.

8. It is claimed that the order was served on the exparte applicants by Alfred M.Njeru, a court process serve on 11th October 2016 at 7. 35 a.m. at Acacia Premier Hotel situate along Jomo Kenyatta Road next to Uchumi Supermarket Opposite Maseno University, Kisumu as shown by the process server’s affidavit of service annexed to the applicant’s affidavit marked as ‘DS2. ’

9. It is further claimed that the said order was served upon the exparte applicant’s advocate Nzaku & Nzaku Advocates and the Attorney General on 10th October 2016 as shown by annexture DS3, the affidavit of service sworn by Fred O. Mangoli, the process server. It is therefore alleged that the exparte applicants were aware of the court order but they blatantly disregarded it and proceeded to hold the conference which was prohibited by the order of this court, as shown by DS4 photographs taken at the said conference on 12th October 2016 and DS5 press statement issued by the exparte applicants on 12th October 2016.

10. The applicants claim that the disobedience of the court order is an example of impunity, utter disregard of the rule of law and judicial process and a classic case of parties who have no respect for the authority and jurisdiction of the court hence this court should punish the contemnors.

11. The exparte applicants filed replying affidavits sworn on 31st October 2016 by Harun Anunda and Harun Bowen denying the allegations by the applicants that the exparte applicants were served with any Court order and or pleadings and stated that the affidavit of service by the process server was full of lies and perjury.

12. Mr Anunda further deposed that he wished to cross examine the process server Mr Alfred M. Njeru on his affidavit of service. Further, that they were only made aware of the order of 10th October 2016 by their advocates on 12th October 2016 through the organization’s clerk and upon such information being received, the conference was stopped.

13. It was also deposed that the contempt of court are meant to harass and intimidate the exparte applicants, and unmerited.

14. On the part of Mr Haron Bowen, he deposed that on the material date and time when he is alleged to have been served with a court order, he was not anywhere near Kisumu attending the named conference from 11th-14th October 2016 at Acacia Premier Hotel, Kisumu. He deposes that between the 10th-14th October 2016 he was in Naivasha attending a training by the Kenya School of Government organized by the Department of Health Services, Baringo County Government on a Program-Based Budgeting in the health sector course in which he was awarded a certificate annexed as HB1’A’. Mr Bowen therefore avers that the allegations that he was present at the conference in Kisumu or that he was served with a court order issued on 10th October 2016 is a blatant lie and therefore the process sever Mr Alfred M. Njeru’s affidavit of service is false and he should be punished for perjury.

15. In addition, Mr Bowen deposed that the affidavit of service sworn Alfred M. Njeru on 15th October 2016 to the effect that he served pleadings upon the deponent for directions on 17th October 2016 is misleading and shows how dishonest the process server is. Mr Bowen claims that he was only made aware of the contempt proceedings on 24th October 2016 which proceedings are meant to vex, harass and intimidate his co-applicants and him.

16. The 2nd exparte applicant Safari Kithi also filed a replying affidavit sworn by him on 16th November 2016 contending that he was never served with the court order and that neither was he made aware of the alleged court order.

17. Mr Safari deposed that the affidavit of service by one Alfred Njeru is totally misleading and full of lies and should be expunged from the record. That it is practically impossible and misleading to receive the court order in Nairobi on 11th October 2016 and serve the same in Kisumu the same day at 7. 30 a.m. That the affidavit of service by Alfred Njeru is vague and ambiguous at paragraph 4 thereof.

18. It was further contended that Mr Bowen was conspicuously absent from the conference and that therefore as none of the exparte applicants were served with the court order which did not even have a penal notice endorsed thereon of the consequences of disobedience, this application for contempt cannot stand.

19. Mr Kithi denied that his former advocates on record ever informed him of the existence of the court order allegedly disobeyed.

20. The replying affidavits of Haron Anunda, Michael Abala Wanga and Aglean Chelimo all sworn on 16th November, 2016 separately replicate Mr Kithi’s affidavit denying that they were aware of or were served with the court order allegedly disobeyed. The same facts denying disobedience, service or knowledge of the court order are also deposed by Robert Katsutsu on 16th November, 2016.

21. On 21st November 2016 and with leave of court, the interested parties/applicants herein filed a further affidavit responding to the exparte applicant’s replying affidavits. The further affidavit which was sworn on 21st November 2016 by Mr Daniel C. Sanga on his own behalf and on behalf of the 3rd and 4th interested parties reiterate the contents of the application for contempt of court dated 13th October 2016 together with the contents of his earlier supporting affidavit.

22. Mr Sanga maintains in his further affidavit that the exparte applicants cited herein for contempt of court were served with the order, certificate of urgency, notice of motion dated 10th October 2016 together with the supporting affidavit on 11th October 2016 as deposed by the process server Mr Alfred M. Njeru ‘DS2’ in his supporting affidavit and that despite being fully aware of the court orders made and issued by this court on 10th October 2016, they proceeded to convene and hold the conference from 11th October 2016 to 14th October 2016 which conference this court had prohibited.

23. It is further deposed that on 14th October 2016 the same Mr Alfred M. Njeru process server proceeded to serve upon the exparte applicants with the same order at about 7. 30 a.m. at Acacia Premier Hotel in Kisumu as per ‘DS1’ copy of the said affidavit of service.

24. In addition, it was deposed that even after being served with the order on 14th October 2016 the exparte applicants proceeded with the meeting in total defiance of the court order as per annexture ‘DS2’ copy of the programme of the conference; photographs taken on 14th October 2016 at the venue of the meeting marked ‘CDS3’ and ‘DS4’ an affidavit of Dr Stanley Kinge Waithaka who participated in the said conference from 12th October, 2016 up to 14th October, 2016 .

25. Further, it was deposed that it is therefore not true and that the exparte applicants are misrepresenting facts when they say that they were not served with the court order or that the meeting was stopped on 12th October 2016 upon receipt of a court order.

26. It was further contended that on 3rd November 2016 the exparte applicant’s replying affidavits were struck out by the court for being filed out of time without leave of court but that despite the court granting the exparte applicants an opportunity to address the court, they never denied that the affidavits were sworn by Harun Anunda.

27. It was also deposed that the activities of the exparte applicants were to hold themselves as officials of the 1st interested party Association despite the bar under the Societies Act. That Harun Anunda had already called for other meetings at the Nakuru Merika Hotel and an Annual Delegates meeting to be held on 17th December 2016.

28. The court observes that the exparte applicants’ initial replying affidavits were struck out on 17th October 2016, for having been filed out of time without leave of court.

29. Following that order, Mr Nzaku counsel for the exparte applicants became uneasy and sought leave of court to cease acting for his clients. The court granted him time to file his application to cease acting which he did.

30. The court then heard the exparte applicants one by one following their advocate’s intention to withdraw from the proceedings and each of the exparte applicants beseeched the court to grant them more time to seek alternative legal representation and leave to file fresh replying affidavits to the contempt application.

31. The court after hearing the exparte applicants in person reviewed its order which had directed the application for contempt of court to proceed to hearing and allowed the exparte applicants time to seek for legal representation and file replying affidavit to the contempt application.

32. On the basis of the proceedings of 3rd November 2016 the exparte applicants filed fresh replying affidavits on 17th November 2016 which I have alluded to above and which the further affidavit referred to hereinabove sworn by Daniel C.A. Sanga on 21st November 2016 was filed with leave of court, and supplementary affidavits were also filed on 2nd December 2016 by the 6th exparte applicant Mr Robert Katsutsu; the 1st exparte applicant, Michael Abala Wanga and the 3rd exparte applicant Aglean Chelimo deposing and contending that the affidavits of service sworn by Alfred M. Njeru on 11th November 2016 and 15th October 2016 respectively are totally misleading, full of lies and should be expunged from the record and praying that the court do summon the said process server for cross examination on his said affidavits.

33. It was contended that in the affidavit of Daniel C.A. Sanga sworn on 21st November 2016 the process server purports to have served the order, certificate of urgency and notice of motion dated 13th November 2016 on 14th October 2016 without specifying which order was purportedly served on the exparte applicant.

34. The exparte applicants also denied what Dr Stanley Kinge Waithaka swore in the annexture DS4 that Michael Abala Wanga made remarks about a court order alleged was true.

35. It was further contended that the order of 10th October 2016 was specific to the conference of 11-14th October 2016 hence it should not be used to frustrate and or paralyze the operations of the 1st interested party Association of Kenya Medical Laboratory Scientific Officers.

36. The exparte applicants urged the court to dismiss the contempt of court application as the applicants had failed to demonstrate that they ever served the orders upon the alleged contemnors or that they made the exparte applicants/alleged contemnors aware of the order of 10th October 2016.

37. The parties’ advocates agreed and made oral submissions for and against the motion seeking to commit the exparte applicants for contempt of court order dated 10th October 2016. Mr Chebii submitted for the interested parties/applicants reiterating the contents of the application and maintaining that his clients had established that the exparte applicants had flagrantly disobeyed the orders of 10th October 2016 which was served on 10th October 2016 upon the exparte applicants and their advocates as demonstrated by the affidavit of service sworn by Alfred Njeru. Counsel maintained that albeit the exparte applicants did not sign on the order but that the Hotel Manager introduced the exparte applicants to the process server and that on the same day the order was served upon the exparte applicant’s former advocates, Nzaku &Nzaku advocates. Counsel also sought to correct the affidavit of service by Alfred Njeru on the date of receipt of instructions.

38. Further, Mr Chebii submitted that in any event, the exparte applicant’s counsel had appeared in court on 12th October 2016 and told the court that he had received the order and notified his clients that morning of the existence of the order. That there was no allegation made that the affidavit sworn by Mr Anunda which was expunged from the court record for being filed out of time was a forgery.

39. It was further submitted that the interested parties had annexed photographs showing that the meeting went on from 11-14th October 2016 despite the court order as further shown by the conference minutes and the affidavit of one of the conference participants Dr Waithaka Kinge.

40. It was submitted that albeit Mr Harun Bowen had sworn 2 affidavits alleging that he was not present at the conference hence he was not served with the court order, there is no Kenya School of Government in Naivasha but only in Nairobi, Baringo and Mombasa.

41. It was submitted that annexture HBI is dated 15th September 2016, a list of participants at Naivasha and that HB1 is a certificate of participation which does not show where the training was held.

42. On the issue of service or knowledge of the court order, it was submitted that authorities on this subject state that knowledge of the order is sufficient. The case of Shimmers Plaza Ltd v NBK [2015] eKLR was relied on and a submission made that the exparte applicant’s counsel was on record as having said that he had notified his clients of the order. Further reliance was placed on Re-Edward Muhinda Ndetei & 15 Others [2015] e KLR where it was held inter alia that a prohibitory injunction operates from time to time of issue not based on service. Counsel for the interested party applicant maintained that the exparte applicants were aware of the court order but proceeded to hold the prohibited conference. Further, that those acts of disobedience of the court order erodes the dignity and authority of the court and therefore should be punished by committal to jail or be fined.

43. It was submitted that the main/substantive motion was filed for Judicial Review orders of certiorari and mandamus to have the alleged contemnors registered as officials of the 1st interested party, but that the exparte applicants circumvented their own application and conducted acts which are contrary to the Societies Act as they were not the registered officials of the non-registered society hence the court should grant the orders sought.

44. On behalf of the exparte applicants, Mrs Manyarkiy opposed the contempt of court notice of motion maintaining that her clients never disobeyed the court order as they were neither served with the court order not made aware of the court order at any time before or on 11th October 2016 or before conclusion of the conference.

45. Counsel for the exparte applicants urged the court to examine the affidavit of service sworn by Alfred Njeru. She maintained that the legal requirement for one to be held in contempt of court is that service must be personal or the contemnor made aware of the court order.

46. Counsel maintained that there was no way an order issued on 10th October 2016 could be served the same day in Kisumu considering the distance and mode of service alleged which renders the alleged service on a Mr Mwangi a Hotel Manager in Kisumu suspicious.

47. Mr Manyarkiy maintained that Harun Bowen was not in Kisumu on the conference dates and that annexture HB1 is a list of those required to attend the seminar in Naivasha and the annexed certification of participation issued to Mr Harun Bowen.

48. Counsel maintained that Kenya School of Government is in Naivasha and that contempt of court proceedings are quasi criminal in nature hence the court should be careful in holding the alleged contemnors culpable since the degree of proof required is higher than on the balance of probabilities.

49. Counsel submitted that the expunged affidavits were forgeries as Mr Nzaku advocate never notified his clients of the existence of the court order of 10th October 2016.

50. Further, it was submitted on behalf of the exparte applicants that service upon an advocate in contempt proceedings is not proper service. That service should be upon the alleged contemnors. It was further submitted that it was the exparte applicants who brought these proceedings and obtained leave and stay which orders were not meant to curtail or frustrate operations of the exparte applicants and the 1st interested party as the order was specific to the conference in Kisumu.

51. Further, that there is no evidence of the presence of Dr Stanley Kinge at the conference in Kisumu hence his affidavit should be ignored. It was also submitted that there was no penal notice to caution contemnors of legal consequences of disobedience and that without knowledge and personal service of the order upon he exparte applicants, this application for contempt must fail with costs. Counsel relied on Gibson Kariuki vs Mugo Mbacho & Others HCC 124/2003 on the prerequisites for contempt of court order and Catherine Muthoni Ireri v George Mwaura Kibui HCC 1032/2003 on the standard of proof in contempt of court proceedings which is beyond reasonable doubt.

52. On the requirement of a penal notice, reliance was placed on Clementina Aoro Kabbis v Andrew Bwire Obara HC Miscellaneous 1742/2005.

53. On behalf of the respondent, Miss Mwangi submitted, supporting the application for contempt and stating that present day jurisprudence on contempt of court is that mere knowledge of an order is sufficient. Counsel submitted that on 12th October 2016 counsel for the exparte applicants Mr Nzaku was in court and admitted that he informed his clients of the order of 10th October 2016. Miss Mwangi further submitted that service was effected upon the exparte applicants and that despite the said service of the order upon the exparte applicants, the conference continued. She emphasized that court orders are not cosmetic and therefore the rule of law and dignity of the court must be upheld.

54. In a brief rejoinder, Mr Chebii for the interested parties/applicants submitted that the authorities relied on by the exparte applicant are old and out dated as the jurisprudence on contempt of court has since developed.

DETERMINATION

55. I have considered the foregoing and in my humble view, the main issues for determination in this matter are:

1) Whether the exparte applicants herein were served with or were made aware of the order of 10th October 2016 prohibiting them from convening or holding a conference of the Association.

2) Whether the exparte applicants brazenly disobeyed the orders of 10th October 2016.

3) What orders should this court make.

4) Who should bear costs of the application for contempt.

56. There are equally important ancillary questions that the court shall answer in the process of resolving the issues framed herein above.

57. Briefly, on 28th June 2016, Honourable Odunga J granted to the exparte applicants herein leave to institute Judicial Review proceedings seeking for orders of certiorari to remove into this court and quash the decisions of the respondent Registrar of Societies contained in her letter dated 21st April 2016 directing the exparte applicants to call for an Annual General Meeting with a view to electing new officials of the 1st interested party Association within 60 days; Mandamus to compel the respondent to register the exparte applicants as the elected officials of the 1st interested party and prohibition prohibiting the respondent from interfering with the running of the affairs of the 1st interested party Association.

58. The main motion was ordered to be filed within 14 days from 28th June 2016 and the leave so granted operated as stay of the respondent’s decision that required the exparte applicants to call for an Annual General Meeting within 60 days with a view to electing new officials.

59. The substantive notice of motion which is not traceable in this file is said to have been filed on 11th July 2017 within 14 days stipulated in the order for leave.

60. Upon granting of leave, and stay, Honourable Odunga J directed that this file be placed before me for further directions on 20th July 2016. On the 10thOctober 2016 the interested parties/applicants to this application approached this court with an application under certificate of urgency seeking for orders prohibiting the exparte applicants from convening and holding a conference of the 1st interested party Association as scheduled in Kisumu from 11-14th October 2016 at Acacia Premier Hotel as the exparte applicants were not the elected officials of the 1st interested party to hold such conference, going by the exparte applicant’s own application before the court which was seeking for orders of certiorari and mandamus to compel the respondent to register them as officials of the 1st interested party Association.

61. This court upon considering the application dated 10th October 2017 exparte and under certificate of urgency, granted interim orders of prohibition in terms of prayer 2 of the motion and directed the interested parties/applicants to serve the other parties to the application for interpartes mention on 12th October 2018 for further directions.

62. The record of the court shows that the said order was extracted, signed and sealed and issued by the Deputy Registrar on the same day 10th October 2016.

63. On 11th October 2016, the court process server, Mr Fred O. Mangoli swore an affidavit of service stating that on 11th October 2016 he received an order CA, notice of motion and supporting affidavit dated 10th October 2016 set for mention on 12thOctober 2016 from M.K.Chebii and Company Advocates with instructions to serve the exparte applicant’s advocates one Nzaku & Nzaku advocates and the Attorney General on behalf of the respondent.

64. The affidavit further states that on the same day at about 9. 49 a.m. the process server proceeded to the offices of Nzaku & Nzaku Advocates situate at Sirona House Suite 218 Kaunda/Koinange Streets Junction Nairobi and served upon the Secretary working with the said firm and she accepted service by signing and stamping at the front page of the copy returned.

65. The said process server deposes that on the same day at 10. 30 a.m. he proceeded to the offices of the Attorney General at Sheria House and served a Secretary.

66. By another affidavit of service sworn on 11th October 2016 by Alfred M. Njeru a process server, and filed in court on 12th October 2016, he deposes that he received the court order, certificate of urgency, notice of motion and supporting affidavit dated 10th October 2016 and set for mention on 12th October 2016, from Chebii & Company with instructions to serve the exparte applicants herein.

67. That on the same day at about 7. 30 a.m, he proceeded to Acacia Hotel in Kisumu where the meeting was scheduled to take place and upon arrival he met a receptionist who advised him to wait for the manager. That at about 7. 35 a.m. the manager, Mr Mwangi came and after introductions the process server served upon Mr Mwangi the named order and other documents but Mr Mwangi only accepted service and declined to sign.

68. It is further deposed that the process server inquired from Mr Mwangi on the whereabouts of the exparte applicants/alleged contemnors herein and that Mr Mwangi told the process server that “ they are the ones who were in his company.”

69. That the process server introduced himself to the alleged contemnors and the purpose of his visit, and that he also confirmed them to be the exparte applicants herein and he tendered to them documents and requiring their acknowledgment on the principal copies. That they accepted service but declined to sign stating that their lawyers are the ones who are in a position to receive the documents.

70. What later turned out, giving rise to these contempt of court proceedings is that despite the alleged service of the order issued on 10th October 2016 upon the exparte applicants and their advocates Nzaku & Nzaku Advocates, the exparte applicants allegedly proceeded with the holding of the conference yet the order prohibited them from convening or holding the said conference.

71. The exparte applicants in their replying affidavits vehemently deny ever being served with the said court order and or being aware of the said court order as alleged by the interested party’s appointed court process servers.

72. What emerges from the above analysis is that indeed there was and is a valid court order issued on 10th October 2016 by this court, which order clearly bars the alleged contemnors from holding the conference scheduled for 11th-14th October 2016 for the Assocation.

73. What is expressly clear from the court record is that Nzaku Advocates and the Honourable Attorney General were served with the court order on the same day that the order was issued which was on 10th October 2016 as shown by the affidavit of service sworn by Fred O. Mangoli. There are clear endorsements on the said copies of the order filed in court.

74. Mr Nzaku advocate who previously acted for the alleged contemnors has not sworn any affidavit denying that his law firm was served with the said orders, or that the received stamp did not belong to his law firm or challenging the process server’s affidavit.

75. Mr Nzaku’s own admission in court on 12th October, 2016 that he had informed his clients of the court order that morning, and the affidavits in reply filed by him on behalf of his clients have also not been disowned by him.

76. In addition, the alleged contemnors have not sought to cross examine the process server Mr Mangoli on the said affidavit of service to challenge the depositions made on oath. It follows that the fact of service of the court order upon Nzaku and Nzaku advocates remains as such fact which has not been controverted or at all.

77. The record also bears depositions by the alleged contemnors who state that they were only made aware of the court order of 10th October 2016 by their advocates on 12th October 2016 and through their organization’s clerk and upon such information being received, the conference was stopped hence there is no merit in the contempt proceedings which are meant to harass and intimidate them.

78. The court further notes that on 12th October 2016 Mr Nzaku advocate did inform the court and it is on record that when Mr Chebii notified the court of the disobedience of the court order of 10th October 2016, Mr Nzaku advocate stated as follows:

“ I called my clients this morning and told them that the orders exist. But my clients are officials and the issue of recognition is different from the issues of holding a conference. I am ready to file reply and the authorities within 2 hours.”

79. It was upon the court learning that there was an alleged contempt of court order that is directed that an appropriate application be filed and considered before any other issue in this matter could be considered.

80. From the above, it is clear to my mind that the court order was indeed served upon Mr Nzaku advocate on 10th October 2016 but he took his time until 12th October 2016 when he called his clients and notified them of the order. I am therefore inclined to believe the alleged contemnors when they say that they only learnt of the court order on 12th October 2016 from their advocate Mr Nzaku.

81. On the other hand, albeit Mr Alfred Njeru the process server deposes that he received the court order on 11th October 2016 and on the same day he proceeded to Acacia Premier Hotel in Kisumu and served the order upon the alleged contemnors at 7. 30 a.m., it is not practically possible that he did so on the same day. He does not state at what time he received the order in Nairobi, how he travelled to Kisumu and arrived at the Acacia Hotel, the conference venue and managed to serve the order that early morning.

82. On this aspect the applicant has not attempted to explain that impossible situation, and so I decline to accept the version that the exparte applicants/alleged contemnors were served with the court order on 11th October 2016 or that they were made aware of the said order before 12th October,2016.

83. On the part of Mr Haron Bowen, he maintains that he was not in the conference as he was attending a seminar in Naivasha. He also annexed copy of certificate of participation. Albeit the applicant doubts that Mr Bowen was in Naivasha since the Kenya School of Government is not in Naivasha, there is no other contrary evidence to controvert the certificate of participation exhibited by Mr Bowen. Furthermore, Mr Bowen did not say that there is a Kenya School of Government in Naivasha, but that he was attending a training by Kenya School of Government seminar in Naivasha, organized by Department of Health Services, Baringo County Government on a programme Based Budgeting in the Health Sector.

84. I have examined the affidavits and annextures of the applicants and especially the marked photographs. None of those photographs or affidavits identify or name Mr Haron Bowen as having been in the Kisumu conference. There is no evidence that Mr Haron Bowen was notified of the order by Mr Nzaku advocate or that he was served or had an opportunity, during that time, to know or believe that a court order had been issued against him.

85. Mr Bowen deposes that he was made aware of the contempt proceedings on 24th October 2016. Even if that were not the case, and even if I were to believe Mr Alfred M. Njeru in his affidavit of 15th October 2016 that he served Mr Bowen for court’s directions on 17th October, 2016, this was after the conclusion of the conference and not before the holding of the conference which had been stayed by this court.

86. In the end I find that there is no evidence linking Mr Haron Bowen to the knowledge of or service of the order of 10th October 2016. Accordingly, I find him innocent and acquit him of the contempt allegations.

87. I further find that it was practically impossible for a process server to receive an order in Nairobi on 11th October 2016 and serve it the same day at 7. 30 a.m. in Kisumu without indicating what time he received the order and how he travelled to Kisumu, unless it was by remote control.

88. I further find that Mr Nzaku advocate admitted in court on 12th October 2016 that he had called and informed his clients that there was a court order and that it was on 12th October that the alleged contemnors except Mr Haron Bowen learnt of the court order.

89. The only question for this court is, the alleged contemnors having learnt of the court order on 12th October 2016 prohibiting them from holding the conference which had commenced on 11th October 2016 and was to end on 14th October 2016, did they obey that court order or did they brazenly disobey it and continue with the holding of the conference as if nothing had stopped them from so holding?

90. According to the applicant, the alleged contemnors continued with the conference with impunity. Photographs were produced/annexed showing that despite knowledge of the order, the conference went on. The alleged contemnors who also actively participated in the court proceedings and who were given the opportunity to address the court individually after Mr Nzaku their former advocate withdrew from representing them, never denied that the photographs produced belonged to them. The court had the opportunity to see the alleged contemnors and confirms that the photographs belong to them.

91. An invited presenter at the conference Dr Stanley Kinge Waithaka’s affidavit was filed as an annexure DS4 to the further affidavit sworn by Daniel C.A. Sanga sworn on 21st November 2016 to the effect that he ( Dr Stanley Kinge Waithaka) participated in the said conference from 12th October 2016 to 14th October 2016 and that he presented a paper at the said conference pursuant to the programme on 14th October 2016.

92. Further, that on the closing day of the conference, the chairman of the Association Mr Michael Abala Wanga one of the alleged contemnors herein informed the participants in his closing remarks that“there were some people who had obtained a court order to stop the conference but in spite of the court order, the conference had come to a successful conclusion.”

93. The exparte applicants despite such damning indictment against them, never challenged that evidence which is on oath by Dr Stanley Kinge Waithaka who is listed on the conference programme as one of the facilitators/speakers on 14th October 2016 at 12 noon -1210. Nothing could have been much easier than calling him for cross examination the way the exparte applicants/alleged contemnors had earlier on issued notice to cross examine Daniel C.A. Sanga, Alfred M. Njeru and Mr Mwangi on 21st October 2016.

94. Taking into account the fact that the alleged contemnors admit by annextures “DS5” knowing of the order on 12th October 2016, nothing prevented them from obeying the order on 12th October 2016 when they learnt of its existence from their own advocate Mr Nzaku which was in the morning hours. In United States v. Revie 834 F.2d 1198, 1203 (5th Cir. 1987)cited with approval in the Shimmers Plaza (supra) case, the court held that: “the defendant had adequate notice of a show cause order because his attorney was on notice. Therefore, a client may be similarly "served" with a court's order by his attorney's communication of its contents and this communication is presumed if the attorney has knowledge of the order.”

95. Although the alleged contemnors claim that upon learning of the court order they stopped the meeting, their own letter dated 17th October 2016 by Harun A. Anunda, the Secretary General of the Association addressed to the Principal MTC is clear that the conference was held at Acacia Hotel in Kisumu on Friday 14th October 2016 and the latter letter was inviting the Principal to a meeting at Nakuru Merika Hotel on 20th October 2016 at 9. 00 a.m. for a follow up to the Kisumu meeting.

96. More specifically, the affidavit sworn by Haron A. Anunda on 31st October 2016 at paragraph 5 thereof states:

“ 5 That I aver that in response to paragraph 5,7,8 and 9 of the supporting affidavit I wish to state that we were made aware of the court order of 10th October 2016 by our advocate on record on 12th October 2016 who relayed the message of the orders issued therein through the organization clerk and the same was relayed to us and the conference was put to a stop.”

97. Albeit the initial replying affidavits filed through Mr Nzaku’s firm and sworn by his clients before he obtained leave of court to withdraw from representing the alleged contemnors were expunged from the record, this particular copy of the replying affidavit referred to above was brought in these proceedings by the applicant as an annexture.

98. The alleged contemnors never opposed the inclusion of their former affidavits in reply, in evidence and they neither applied for that annexture which now came on record as and exhibit, to be expunged. Instead, Mr Michael Abala Wanga and his colleagues did on 2nd December 2016 swear supplementary affidavits with similar content merely denying that they knew of the order or that they were served with the order and stating at their respective paragraphs 6 of the supplementary affidavits, that there was no way they could have known that the order had been issued suspending the said conference. The above paragraphs 6 which is replicated by all the alleged contemnors except Mr Bowen says nothing about Mr Nzaku’s admission in court on 12th October 2016 that he had notified his clients that morning of the order.

99. Furthermore, there was no attempt to call Mr Nzaku advocate to swear an affidavit disowning his own admission in court that he had made his clients aware of the court order on 12th October 2016 or that he did not draft on behalf of his clients the replying affidavits which they swore before a commissioner for oaths wherein they expressly admitted that they were notified of the order on 12th October 2016 upon which they “stopped” the conference.

100. This court will not rely on the photographs annexed as proof of disobedience of court order as it is not clear whether the photographs were taken before or after 12th October 2012 when the alleged contemnors became aware of the court order. The said photographs are also not dated.

101. Nonetheless, I am persuaded beyond doubt that by the sworn affidavit of Dr Kinge, Mr Nzaku’s submissions in court on 12th October 2016 on behalf of his clients when the issue of disobedience of the court order was first brought up, and by the annexture “ DS-5” annexed to Mr Daniel C.A. Sanga’s further affidavit which is the alleged contemnors’ respective sworn affidavits admitting that the alleged contemnors were made aware of the court order of 10th October 2016 on 12th October 2016 during the conference which was ongoing from 11th October 2016 to 14th October 2016; and the letter by Mr Abala to the Principal of MTC, that the exparte applicants/alleged contemnors were made aware of the court order and therefore they were expected to obey it..

102. Before I conclude on this aspect of disobedience of court order of 10th October 2016 and knowledge thereof, I must mention something about the affidavit of service by Mr Alfred M. Njeru. I have perused two of his affidavits of service, the one claiming that he served the order upon the alleged contemnors on 11th October 2016 stopping the meeting at Kisumu and on 13th October 2016 for directions of 17th October 2016. My own assessment of those affidavits is that they are vague, ambiguous and incapable of persuading this court that Mr Alfred M. Njeru is a competent court process server.

103. My reasons for the above assessment are that the affidavits do not disclose the time and place when and where the process server received the court orders and how he travelled to Kisumu to effect service. In the affidavit of 15th October 2016, he says he received the order, among other documents, for service for directions set for 17th October 2016 from M.K. Chebii & Company Advocates and on 14th October 2016 at 7. 30 a.m he proceeded to Acacia Premier Hotel Kisumu and effected service after waiting at the reception for the alleged contemnors to come out of their rooms. That after a while the exparte applicants emerged and since he had known them all, served them and that because he had served them three days earlier he was able to identify them one by one. He then proceeds to state that the alleged contemnors started to hurl abusive words towards him with arrogance, harsh and violence but they nonetheless accepted service but declined to sign on the principal copy stating that they had a lawyer on record to whom documents could be channeled.

104. It is unbelievable that all the alleged contemnors were served at the same time, or that they all emerged from their respective hotel rooms simultaneously at exactly or about 7. 30 a.m. and that without mentioning who among them said what, they all simultaneous hauled abusive words, were arrogant, harsh or violent towards the process server.

105. To my mind, the affidavit of service does not meet the standard of service expected of a competent process server.

106. Having said that, I reiterate that the earlier affidavit claiming that the process server served the order on 11th October 2016 in Kisumu after receiving it the same day was an impossible task.

107. However, having found that the exparte applicants/alleged contemnors were aware of the court order of 10th October 2016 on 2th October 2016 when they were notified by their advocate Mr Nzaku, the question is whether knowledge of the court order without personal service is sufficient for one to be expected to obey that court order.

108. The exparte applicant’s/alleged contemnor’s advocate maintained, citing ancient case law, that personal service of court order is a pre condition in contempt of court proceedings because contempt of court is a quasi criminal offence and therefore the standard of proof required is higher than on merely a balance of probabilities hence the court should be careful in holding alleged contemnors culpable. She maintained that the expunged affidavits sworn by the alleged contemnors saying they were notified by their advocate of the existence of the order on 12th October 2016 was a forgery and that service on an advocate in contempt proceedings is not proper service. She further claimed that there was no penal notice to caution the contemnors of the legal consequence of disobedience of a court order. Counsel relied on 3 cases of Gibson Kariuki vs Mugo Mbacho & Others HCC 124/2003; Catherine Muthoni Ireri v George Mwaura Kibui HC 1032/2003 and HC Miscellaneus Application 1742/2005 Auro Kabiis vs Andrew Bwire Obara.

109. To counter the above position held by the exparte applicant’s counsel, the applicant’s counsel Mr Chebii contended that the cases relied on were outdated and that they do not reflect the current legal position on knowledge/service of court order and the issue of penal notice to warn on legal consequences of disobedience thereof.

110. He relied on 4 cases as filed on 2nd November 2016 namely Shimmers Plaza Ltd vs NBK Ltd [2015] e KLR, Justus Kariuki Mate & Another v Honourable Martin Nyaga Wambora & another [2014] e KLR; Equity Bank Ltd v Bryan Yongo & Another[2014] e KLR and Re Edward Mutinda Ndetei & 15 Others [2015] e KLR.

111. I have compared the two sets of decisions relied on by the respective parties. My take is that HCC 124/2003 is a High Court decision decided in Meru High Court on 27th February 2008 by Honourable W.Ouko J ( as he then was) HCC 1032/2008 is a High Court decision made on 24th May 2007 by Honourable K.H. Rawal J ( as she then was) whereas HCC 1742/2005 is also a High Court decision made on B.P Kubo J ( as he then was) on 25th October 2006.

112. All the above decisions are well reasoned but are not binding on this court. In addition, they were all decided prior to 2010. It follows that they are not recent decisions.

113. On the other hand, the applicant cited recent authorities of 2014, and 2015. The shimmers Plaza case is a Court of Appeal decision and an authority frequently cited on contempt of court and so is the Justus Kariuki Mate vs Martin Nyaga Wambora case.

114. The Equity Bank vs Bryan Yongo and Re Edward Mutinda Ndeteicases are all High Court decisions with one item in common that they echo the holdings in the Shimmers Plaza Ltd and Martin Wamboracases whish latter are the Court of Appeal cases.

115. This court is by the rule of precedence bound by the decisions of the Court of Appeal and Supreme Court but not bound by decisions made a court of concurrent jurisdiction.

116. In the Shimmers Plaza case, the Court of Appeal accepted the holding by Lenaola J ( as he then was) in Basil Criticos v Attorney General & 8 Others[2012] e KLRon the issues of knowledge and personal service of the court orders for purposes of contempt of court proceedings and stated:

“……the law has changed and as it stands today knowledge supersedes personal service ,…where a party clearly acts and shows that he had knowledge of a court order; the strict requirement that personal service must be proved is rendered unnecessary.”

117. The above position was affirmed by the Court of Appeal in the Martin Wambora (supra case). And in the said Martin Wambora case, the Court of Appeal relied on Black’s Law Dictionary, 9th Edition which defines notice as “ A person has notice of a fact or condition if that person:

Has actual knowledge of it;

Has received information about it;

Has reason to know about it;

Is considered as having been able to ascertain by checking an official filing or recording.

118. The court further stated:

[32] “ The trial court was correct in holding that the law as then was in contempt of court had since changed; the law as it stands today is that knowledge of an order is sufficient for purpose of contempt proceedings. The appellants herein had notice of the said order through service upon Boniface Njiru (Advocate) and out of what the 1st respondent referred to as abundant caution” the same orders were advertised in the local daily newspaper to notify all and sundry……..”

119. In the Shimmers s Plaza Ltd (supra) case the Court of Appeal stated:

“ On the other hand, however, this court has slowly and gradually moved from the position that service of the order along with the penal notice must be personally served on a person before contempt can be proved. This is in line with the dispensations covered under 81:8(1) (supra).

Kenya’s growing jurisprudence right from the High Court has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings……..

120. It is important however that the court satisfies itself beyond any shadow of doubt that the person alleged to be in contempt committed the act complained of with full knowledge or notice of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty. This standard has not changed since the old celebrated case of Exparte Langley 1879, 13 Ch D 110(CA)where Thesinger J stated as follows page 119.

“…..The question in each case, and depending upon the particular circumstances of the case, must be, was there or was there not such a notice given to the person who is charged with contempt of court that you can infer from the facts that he had notice infact of the order which has been made “ And in a matter of this kind, bearing in mind that the liberty of the subject is to be affected, I think that those who assert that there was such a notice ought to prove it beyond reasonable doubt.”

121. On whether knowledge of the judgment or order by an advocate of the alleged contemnor suffices for contempt proceedings, the Court of Appeal in the Shimmers Plaza case stated affirmatively.

“ We hold it does” This is more so in a case as this one where the advocate was in court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view in irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.

122. This is the position in other jurisdictions within and outside the commonwealth.

123. In addressing the issue of whether service of a judgment or order on the solicitor for the Ministers is sufficient knowledge of the order on their part to found liability in contempt; the Supreme Court of Canada in Bhatnager v Canada (Minister of Employment and Immigration)[1990] 2 SCR 217 at page 226, LJ Sopinkaheld that:

“ In my opinion, a finding of knowledge on the part of the client may in some circumstances be inferred from the fact the solicitor was informed. Indeed, in the ordinary case in which a party is involved in isolated pieces of litigation, the inference may readily be drawn. In the case of Minister’ of the Crown who administers large departments and are involved in a multiplicity of proceedings, it would be extraordinary if orders were brought, routinely to their knowledge, in such a case there must be circumstances which reveal a special reason for bringing the order to the attention of the minister ( emphasis by underline).

124. The Court of Appeal further went on to cite the Canadian case above

“…….on other cases there can be no doubt that the common law has always required personal service or actual personal knowledge of a court order as a precondition to liability in contempt…….knowledge is in most cases ( including criminalcases) proved circumstantially, and in contempt cases inference of knowledge will always be available where facts capable of supporting the inference are proved ( see Avery v Andrews [1882] 5 I L Jch. 414 ( emphasis by underline)

In United States v Revie 834 F. 2d 1198 (5th Cir. 1987) the court held that the defendant had adequate notice of a show cause because his Attorney was on notice. Therefore, a client may be similarly “served” with a court’s order by his attoney’s communication of its contents and this communication or presumed if the attorney has knowledge of the order.”

125. In the instant case, there is overwhelming evidence beyond any cloud of doubt that Mr Nzaku’s office which represented the exparte applicants/alleged contemnors was served with the court order of 10th October 2016 on the same day. The said advocate Mr Nzaku appeared in court on 12th October 2016 and confirmed to court that he had received the order and had communicated its contents to his clients. His said clients who are the alleged contemnors then each swore affidavits in reply to the motion for contempt saying they had only been made aware of the court order on 12th October 2016 and stopped d the ongoing conference.

126. Later after their affidavits in reply were expunged from the record because they were filed late without leave of court, their advocate Mr Nzaku angrily withdrew from acting for them in protest and when the court granted them leave to file fresh replying affidavits, they disowned the first affidavits saying they were forgeries because they contained facts admitting that the alleged contemnors had been made aware of the court order on 12th October 2016. Nonetheless, the expunged affidavits were brought in these proceedings as evidence by the applicant. The alleged contemnors never brought in the proceedings their former advocates who filed the expunged affidavits on their behalf to deny that he received their instructions to file those affidavits on their behalf.

127. The allegation of forgery does not pinpoint what part or parts of the affidavits was or were forgeries. It was a general allegation of forgery.

128. It follows that the evidence of knowledge of the court order and service upon the alleged contemnors’ advocates Nzaku & Nzaku and the fact that Mr Nzaku advocate notified the alleged contemnors of the contents of the order on 12th October 2016 was never challenged by the alleged contemnors.

129. In Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others ( Civil Application No. 233 of 2007,it was held:

“ The dispensation of service under Rule 81. 8 (1) is subject to whether the person can be said to have had notice of the terms of the judgment or order. The notice of the order is satisfied if the person or his agent can be said to either have been present when the judgment or order was made or given; or was notified of its terms by telephone, email or otherwise. In our view, ‘otherwise’ would mean any other action that can be proved to have facilitated the person having come into knowledge of the terms of the judgment and or order. This would definitely include a situation where a person is represented in court by counsel.

Once the applicant has proved notice, the respondent bears an evidential burden in relation to willfulness and malafides disobedience.”

130. In this case, it is clear that Mr Nzaku was served with the court order on 10th October 2016 and on 12th October 2010 he notified his clients, the alleged contemnors. On the said latter date, Mr Nzaku advocate attended court and admitted notifying his clients of the order in question. The said order was then said to have been disobeyed and the court directed that an appropriate application be filed in court for directions on 17th October 2016.

131. At that moment, no doubt, the alleged contemnors were holding a conference which had been prohibited and nothing prevented them from stopping the conference and seeking to vary the court’s orders. To date, no application to vary the impugned order has been placed before the court. The order in issue was a prohibitory injunction in nature directed at the respondents/alleged contemnors to stop holding a conference. It was a clear order.

132. J.M. Paterson 6th Edition of Kerr on injunctions states.

“The agents, however, of a man against whom an injunction has been awarded, although not named in the order, may be committed for contempt, if having knowledge of the injunction, they act in contravention of the order of the court. Moreover, any person, whether an agent or not , who, knowing of an injunction, aids and abets the party enjoined in committing a breach of it, is liable to be committed. In such cases, the committal is not, technically for breach of an injunction but for a contempt of court tending to obstruct the course of justice.”

133. In the instant case, it clearly emerges that the exparte applicant’s agents, Nzaku & Nzaku advocates were served with the court order and they went ahead to notify the alleged contemnors. There is nothing to show that Mr Nzaku aided or abetted the disobedience of the court order by telling his clients not to obey it. There is also no evidence to support the allegation that Mr Nzaku forged affidavits from his clients which affidavits were only expunged from the record for being filed out of time without leave of court and not because of their contents.

134. In other words, any other party could still use the said affidavits as the applicant herein did, in evidence, by annexing it to their further affidavit.

In Republic v Attorney General exparte Envanson Gidraph Kamau Waitiki & Another Mombasa Civil Application 40/2000 Muriithi J stated:

“No matter how judicious an order of the court is, if it is not complied with, or implemented, the same remains worthless paper directive with no practical effect in resolution of the dispute adjudicated by the court.”

135. And the Court of Appeal in the Shimmers Plaza Ltd (supra) case citing Romer L.J Hadkison vs Hadkison [1952] 2 ALL ER 567 at page 569where it held:

“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.Lord Cottehn ham, L.C, temp. Cotts.342):

“ A party who know as of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judged whether an order was null or valid- whether it was regular or irregular. That is why they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be discharged , as long as it existed it must not be disobeyed. Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court( and I am not now considering disobedience of orders relating merely to matters of procedures, is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the court by such person will be entertained until he has purged himself of his contempt.”

136. In the instant case, there is every indication and sufficient cogent evidence to show that the alleged contemnors had knowledge of the court order, and that therefore the alleged service by Alfred Njeru on 13th October 2016 was unnecessary since their advocate Mr Nzaku was served and he was present in court on 12th October 2016 when the issue of disobedience of the said court order was raised.

137. There is also sufficient evidence and which is beyond reasonable doubt that the chairman of the Association did give his closing remarks on 14th October 2016 to the effect that the conference had successfully come to an end despite a court order stopping them from continuing with the conference. The affidavit by Mr Kinge was not contradicted or at all. There was evidence that Dr Kinge was on the programme of the conference on 14th October 2016 as a speaker from 12. 00 noon-12. 10 and he deposed that he arrived at the conference on 13th October 2016. The alleged contemnors have not disowned the conference programme which was produced as an exhibit by the applicants. They have not given reasons why Dr Kinge would be motivated to lie against them in such a serious matter of contempt of court.

138. Consequently, I find and hold that the alleged contemnors brazenly disobeyed the court order of 10th October 2016 by continuing to hold a conference on 12th-14th October 2016 at Acacia Premier Hotel, Kisumu despite knowledge of the court order and service of the said court order on their advocate Mr Nzaku who conceded in court that he notified the alleged contemnors of the court order on of 10th October, 2016 on 12th October 2016 in the morning.

139. The terms of the order of 10th October 2016 are clear and unambiguous, it was an interim injunctive order temporarily prohibiting the exparte applicants from convening and or holding the scheduled conference called 23rd Medical Laboratory Scientific & Exhibitions Conference for the Association of Kenya Medical Laboratory Scientific Officers(AKMLSC) scheduled to be held from 11th- 14th October 2010 at Acacia Premier Hotel, Kisumu.

140. The order was not final as it were issued exparte in the first instance pending hearing interpartes.

141. From the conduct of the respondents, that of continuing with the conference even after being notified of the order stopping the same, it is clear that they had the necessary mensrea to disobey the court order. This is so because the chairman Mr Abala had the audacity to give closing remarks saying that although there was a court order halting the conference, it had gone on successfully. In other words, no court order could have stopped the scheduled conference and therefore his depositions that the conference was stopped upon learning of the court order, or that they could have stopped the conference had they been served with the court order is nothing but pure cosmetic public relations stunts.

142. Temporary injunctions are granted in order to prevent the ends of justice from being defeated. It is for that reason that Section 63(c ) of the Civil Procedure Act provides that incase of disobedience of such temporary injunction, the court may commit the person guilty thereof to prison and order that his property be attached and sold.

143. In addition, Order 40 Rule 3 of the Civil Procedure Rules prescribes the procedure of punishment of breach of temporary injunction as follows:

“3(1) In cases of disobedience, or breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release.”

144. In the instant case, albeit the exparte applicants counsel claimed that the order did not have a penal notice on the consequences of disobedience, from the plethora of authorities cited, it is clear that knowledge of the order is sufficient and not personal service. Furthermore, the provisions of Section 63(c ) of the Civil Procedure Act does not mandate that a penal notice be appended on the order before service or before one can be found guilty of contempt of court. On the face of it, the order of 10th October 2016 as extracted the same day is clear as to what was being prohibited and who was being prohibited from doing what. It does not require any other interpretation.

145. In Johnson V Walton [1990]1FLR350 at 352 Lord Donaldson MR stated :

“ It cannot be too clearly stated that, when an injunctive order is made or when an undertaking is given, it operates until it is revoked on appeal or by the court itself, and it has to be obeyed whether or not it should have been granted in the first instance.”

146. Section 5 of the Judicature Act ( now repealed by the Contempt of Court Act , 2016) conferred on the High Court and the Court of Appeal the power to punish for contempt of court.

147. The provisions of Section 63( c ) and (e) and Order 40 of the Civil Procedure Act and Rules respectively confer on the court whose orders have been breached the jurisdiction to punish for contempt.

148. In Spoke V Bankany Board of Health, Wood Vc stated:

“The simple and only view is that an order must be obeyed. That those who wish to get rid of that order must do so by the proper cause, an appeal. So long as it exists the order must be obeyed and obeyed to the letter.”

149. In Stan crub v Trow brudge VDC, Warringlon J( cited in Mwaniki Silas Ngari V John S. Akama & Another [2015] e KLR it was stated:

“If a person or corporation is restrained by injunction from doing a particular act, that person or corporation commits s a breach of the injunction, and is liable for a process of contempt, if he or it infact does the act, and if it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order.”

150. Theodore Roosevelt, the 26th President of the United States of America once said:-

“No man is above the law and no man is below it; nor do we ask any man’s permission to obey it. Obedience to the law is demanded as a right; not as a favour.’’

151. Having found there exists a clear valid order of this court made on 10th October 2016 and which order the exparte applicants (except) Mr Haron Bowen and Mr Alex Osore, were made aware of on 12th October 2016; and having found that the exparte applicants brazenly disobeyed the said order by continuing with the conference despite the prohibition, I hereby find each of the exparte applicants herein namely Michael Abala Wanga, Safari K. Kithi, Aglean Chelimo, Harun Anunda, and Robert Katsutsuguilty of contempt of court order issued on 10th October 2016 and convict each of them accordingly for contempt of court.

152. I shall pronounce appropriate sentence only after hearing the exparte applicants/contemnors hereinabove in mitigation.

153. The contemnors shall meet the costs of these contempt proceedings, payable to the applicants, to be agreed or assessed by the court.

Dated, signed, and delivered in open court at Nairobi this 9th day of October, 2017.

R. E. ABURILI

JUDGE

In the presence of:

Mr Chebii for the applicants

Mrs Manyarkiy for the contemnors

Miss Mwangi for the Respondent

All contemnors are present in court

CA: George