[2022] KEHC 614 (KLR)

Republic v The County Executive Member In Charge of Finance & Economic Planning County Government of Mombasa & 2 others (Civil Case E001 of 2021) [2022] KEHC 614 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 614 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case E001 of 2021

JM Mativo, J

June 17, 2022

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

Between

Republic

Applicant

and

The County Executive Member in Charge of Finance & Economic Planning County Government of Mombasa

1st Respondent

The Chief Officer, Finance, County Government of Mombasa

2nd Respondent

County Government of Mombasa

3rd Respondent

Ruling

1. The factual matrix which triggered the application dated 11th March 2022 the subject of this ruling is straight forward and essentially uncontroverted or common ground. For starters, there is no dispute that the applicant has a court decree in its favour issued in Mombasa CMCC No. 2542 of 2015, East African Glassware Limited v County Government of Mombasa.

2. There is no contest that a Certificate of Order Against the Government and Certificate of Order for Costs Against the Government were issued on 11th September 2020 and served upon the Respondents. Its uncontested that the said decree is still unsatisfied. Its common ground that that the Respondent’s failure to satisfy the decretal sum caused the applicant to apply for a writ of Mandamus which was issued on 29th September 2021 compelling the Respondents to satisfy the said decree then standing at Kshs. 2,677,579. 72 plus interests thereon at the rate of 12% per annum from 23rd December 2014 until payment in full plus costs ofKshs 292,981/=. Its undisputed that no appeal has been preferred against the said decision.

3. In the instant application, the applicant seeks the following orders: -a.that personal service of the application be dispensed with but instead service be effected upon the County Attorney, County Government of Mombasa, who is on record for the Respondents in this matter.b.that the Respondents, namely, Asha Abdi and Maryam Mbaruk, the Chief Officer, Finance, County Government of Mombasa and County Executive Member in Charge of Finance & Economic Planning, County Government of Mombasa, be committed to civil jail for a period of six (6) months and or until further orders of this court.c.That the contemnors be fined personally such an amount at this court shall at its discretion deem fit to be paid within 14 days from the date of the order.d.that the contemnors be ordered to purge the contempt by directing that the said sums be paid.e.That they pray that this court makes any other orders as justice may demand.f.That the costs of the application be awarded to the applicant.

4. The key ground in support of the application is that despite being aware of the court orders, the Respondent have continuously disobeyed the court order and failed to satisfy the decree.

5. In opposition to the application, the Respondents filed the Replying affidavit of Jimmy Waliaula, the Acting County Attorney, County Government of Mombasa. The salient grounds raised in the affidavit are:- (i) that contempt proceedings are quasi criminal in nature and that they impinge on a person’s liberty; (ii) that prayer one of the applications seeks that service of the application be dispensed with; (iii) and that not all the Respondents have been served.

6. In his submissions, the applicant’s counsel relied on his written submissions dated 28th April 2022 and submitted that the order of mandamus is clear and unambiguous, and that the Respondents were served with the application and that the service is uncontested. He relied on Woburn Estate Limited v Margaret Bashforth1 in which the court cited Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah & another2which held that a party who is aware of a court order whether null or valid, regular or irregular, cannot be permitted to disobey it. He submitted that in absence of an explanation as to why the order has not been complied with, the only reasonable inference is that the disobedience is wilful and urged this court not to condone the disobedience and cited Samuel M. N. Mweru v National Land Commission and 2 others.31[2016] e KLR.2Civil Application No. 39 of 1990. 3[2020] e KLR.

7. Also, the applicant’s counsel argued that because the Respondent’s filed a Reply to the application, they are aware of the application nor have they disputed that the order of mandamus was not complied with. He argued that the County Attorney has severally appeared in this case seeking time to file a reply on behalf of the contemnors which means that the contemnors are aware of the application and the orders. Lastly, he cited Cecilia Karuru Ngayu v Barclays Bank of Kenya & another4 and urged the court to award costs to the applicant.4[2016] e KLR.

8. The Respondent’s counsel relied on the Replying affidavit dated 17th May 2022 and argued that prayer (a) of the application is testimony that the Respondents have not been served. He submitted that the applicant has not satisfied the requirements for the orders sought.

9. Before I deal with the issues in this case, it is necessary to discuss, briefly, the constitutional provisions on judicial authority and those regarding the binding nature of court orders; the law regarding contempt with reference to case law (including the general distinction between civil and criminal contempt); and the applicable standard of proof. Article 159 of the Constitution, indeed, bestows judicial authority in the courts. This Article must be read with the supremacy clause of the Constitution.

10. The purpose of a finding of contempt is to protect the fount of justice by preventing unlawful disdain for judicial authority. Discernibly, continual non-compliance with court orders imperils judicial authority. A formulation of a coherent approach is thus necessary. This is particularly so because a certain means of enforcement for non-compliance, including committal to prison, may violate certain rights of the alleged contemnor, including the right to freedom and security of the person which includes the right “not to be deprived of freedom arbitrarily or without just cause.”

11. It is important to note that it “is a crime unlawfully and intentionally to disobey a court order.” The crime of contempt of court is said to be a “blunt instrument.” Because of this, “willful disobedience of an order made in civil proceedings is both contemptuous and a criminal offence.” Simply put, all contempt of court, even civil contempt, may be punishable as a crime. Traditionally, contempt of court has been divided into two categories according to whether the contempt is criminal or civil in nature. These types of contempt are distinguished on the basis of the conduct of the contemnor. Criminal contempt brings the moral authority of the judicial process into disrepute and as such covers a multiplicity of conduct interfering in matters of justice pending before a court. Civil contempt, in contrast, involves the disobedience of court orders.

12. Applications for committal for contempt of court have become an increasingly common feature of High Court litigation, particularly in seeking to enforce compliance with court decrees against public entities. The consequences of a finding of contempt are potentially serious, including, for natural persons, a possible loss of liberty. For these reasons any non-compliance with the applicable procedure may be fatal. A contempt application must include statements of all the following: — (a) the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court); (b) the date and terms of any order allegedly breached or disobeyed; and (c) a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order. As to whether there has been compliance with these requirements, the overall test is whether the respondent, having regard to the background against which the committal application is launched, would be in any doubt as to the substance of the breaches alleged.

13. It is indisputable that obedience of court orders ensures that the rule of law, good order and due administration of justice is maintained. Laying emphasis that obedience of court orders is not optional Romer, L.J. in the locus classicus case of Hadkinson v Hadkinson5 expressed himself as follows:5[1952] ALL ER 567. “It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

14. The long-established rule is that the essential ingredients of civil contempt must be proved by the applicant to the required standard which is higher than civil cases. The burden also lies on the applicant to satisfy the court that the applicable procedural requirements have been met. The ingredients of civil contempt are not laid down by statute but established by common law authorities. The following summary by Proudman J, DBE in FW Farnsworth Ltd v Lacy6 followed in Cuadrilla Bowland Ltd v Persons Unknown: -76[2013] EWHC 3487 (Ch).7[2020] EWCA Civ 9, [2020] 4 WLR 29. [25]: “A person is guilty of contempt by breach of an order only if all the following factors are proved to the relevant standard: (a) having received notice of the order the contemnor did an act prohibited by the order or failed to do an act required by the order within the time set by the order; (b) he intended to do the act or failed to do the act as the case may be; (c) he had knowledge of all the facts which would make the carrying out of the prohibited act or the omission to do the required act a breach of the order. The act constituting the breach must be deliberate rather than merely inadvertent, but an intention to commit a breach is not necessary, although intention or lack of intention to flout the court’s order is relevant to penalty.”

15. Read carefully, authorities indicate that the Application Notice need only set out a succinct summary of the claimant’s case, to be read in the light of the relevant background known to the parties.8The amount of detail required will depend on the nature of the alleged contempt. If, for example, the alleged contempt arises out of breach of an order requiring the defendant to do a specific act by a specific date or time, it may be sufficient simply to allege non-compliance. Where the order is more complicated, more details of the alleged breach will be required.8see Deutsche Bank AG v Sebastian Holdings Inc and anr [2020] EWHC 353

16. The first hurdle this application will surmount lies in prayer (a) of the application. In this prayer, the applicant prays that personal service of the application be dispensed with and instead service be effected upon the County Attorney, County Government of Mombasa, who is on record for the Respondents in this matter. The Respondent’s counsel argued that this being a contempt application, it must be served personally upon the cited persons. On its part the applicant argues that the County Attorney appeared in court several times and even asked for time to seek instructions and they indeed filed a reply.

17. Both parties were alive to the fact that the Contempt of Court Act 2016 was declared unconstitutional for lack of public participation as required by Articles 10 and 118(b) of the Constitution of Kenya and encroaches on the independence of the Judiciary.9 They all correctly submitted that we reverted to Section 5 of the Judicature Act10 which provides that the law of contempt of court applicable in Kenya is the law presently applicable in England. The Court of Appeal in Al Hujura Agency Limited v Director-General, National Employment Authority11 upheld the said position was as stated by the High Court at Kajiado in Republic v Kajiado County & 2 others ex parte Kilimanjaro Safari Club Limited12 which held that: -9See Kenya Human Rights Commission v Attorney General & another [2018] e KLR.10Cap 8, Laws of Kenya.11[2021] e KLR.12[2019] e KLR.“in light of the Contempt of Court Act being declared unconstitutional, the court must revert to the law which governed contempt of court prior to declaration of unconstitutionality; the Court has a responsibility in maintenance of the rule of law, and there can be no gap in the application of the rule of law; in the absence of a means of enforcement of a remedy, the Court is within its right to adopt such a procedure as would effectually give meaningful relief to the aggrieved Party; and that such residual power is aimed at meeting the ends of justice, and avoidance of abuse of the process of court.”

18. While upholding the above decision, the Court of Appeal had this to say: -“46. The Court would therefore fall back on Articles 159 and 165(6) of the Constitution, read with English Law on committal for contempt of court under Rule 84. 1 of the English Civil Procedure Rules, which deals with breach of Judgments, Order or Undertakings, applicable by virtue of Section 5[1] of the Judicature Act. 47. Section 5(1) of the Judicature Act 2012 provides that the High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.”

19. The law applicable in England for the time being is Part 81. 4 of the English Civil Procedure Rules which sets out the requirements of a contempt application. This rule guarantees procedural fairness.

20. Relevant to the issue at hand is Part 81. 5 which provides for service of contempt applications. Unless the court directs otherwise, every contempt application must be supported by an affidavit and served personally on the defendant, save where the defendant is legally represented in which case the application may be served on the representative unless they object in writing within seven days of receipt; in those circumstances the issue of service should be referred to the court dealing with the contempt application. Because of its centrality to the issue at hand, I here below reproduce the said rule. It provides:Rule 81. 5(1)Unless the court directs otherwise in accordance with Part 6 and except as provided in paragraph (2), a contempt application and evidence in support must be served on the defendant personally.(2)Where a legal representative for the defendant is on the record in the proceedings in which, or in connection with which, an alleged contempt is committed—(a)the contempt application and evidence in support may be served on the representative for the defendant unless the representative objects in writing within seven days of receipt of the application and evidence in support;(b)if the representative does not object in writing, they must at once provide to the defendant a copy of the contempt application and the evidence supporting it and take all reasonable steps to ensure the defendant understands them;(c)if the representative objects in writing, the issue of service shall be referred to a judge of the court dealing with the contempt application; and the judge shall consider written representations from the parties and determine the issue on the papers, without (unless the judge directs otherwise) an oral hearing.

21. The applicant filed an affidavit of service dated 31st March 2022 stating that service was effected upon the contemnors personal secretaries at their respective offices. The process server also avers that he served through their postal addresses. This mode of service does not meet the requirements of the above rule. It is not personal service as described in the above rule.

22. The other important point to note is that the contemnors advocate may be served. This is The language of sub-rule (2) which provides that where a legal representative for the defendant is on the record in the proceedings in which, or in connection with which, an alleged contempt is committed—(a) the contempt application and evidence in support may be served on the representative for the defendant unless the representative objects in writing within seven days of receipt of the application and evidence in support.

23. Sub Rule (b) provides that if the representative does not object in writing, they must at once provide to the defendant a copy of the contempt application and the evidence supporting it and take all reasonable steps to ensure the defendant understands them. There is nothing to show that these procedural steps were complied with. Sub-rule (c) provides that if the representative objects in writing, the issue of service shall be referred to a judge of the court dealing with the contempt application; and the judge shall consider written representations from the parties and determine the issue on the papers, without (unless the judge directs otherwise) an oral hearing.

24. The Respondent’s counsel did not object in writing. However, on 21st March 2022, the Respondent’s counsel attended court and informed the court he was yet to reply because he was yet to receive instructions from his client who he said had been outside the country. He requested for 14 days to file a reply. The applicant’s counsel described the request as unfair to his clients who have been trying to enforce a court decree since 20th August 2019. He however asked for 14 days and requested that in the next hearing date, the cited persons do attend court personally. The key point to note is that at this stage, none of the parties mentioned the Respondent’s failure to object as provided in Rule 81. 5 which to me translates to condonation on the part of the applicant. On the said date, I granted the Respondent’s counsel 14 days to file the Reply and directed inter alia that the parties do file submissions.

25. Significantly, pursuant to the above orders, the Respondent’s counsel filed a Replying affidavit sworn by a on Jimmy Waliaula dated 17th May 2022. Critical to the issue at hand is the averments a paragraphs 6 & 7 that service cannot be dispensed in applications of this nature, and that personally he had been unable to trace the Respondent. He deposed that the 1st alleged contemnor had travelled out of the country, and, that not all the Respondents had been served with the application. To me, these averments cannot be lightly taken particularly considering the clear provisions of the above rule and the absence of evidence of service upon both contemnors as required by the above rules. The other important point is that properly construed, the above averments constitute an objection, more so, because the form of the objection in writing under the rule is not defined. All that is required is that it be in writing filed by the advocate on record. Simply put, the Replying affidavit amounts to an objection. This is buttressed by the fact that it was filed with the leave of the court, albeit late.

26. The other grounds which weaken the applicant’s case is the prayer that service upon the contemnors be dispensed. If the applicant acknowledges that service was not effected to the extent of seeking leave to dispense with service, then it’s an admission that personal service as required by the above rule has not been effected and in absence of compliance with the provisions of the above rule, coupled with a clear averment disputing service, which as held herein above amounts to an objection as contemplated by the above provisions, then the prayer to dispense with service is unavailable. This prayer having collapsed, then the other prayers are unattainable. The upshot is that the applicant’s application dated 11th March 2022 is dismissed with no orders as to costs.

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