[2017] KEHC 4578 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISCELLANEOUS APPLICATION NO. 226 OF 2016

IN THE MATTER OF AN APPLICATION BY NABISWA WAKENYA MOSES TO APPLY FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AND PROHIBITION AGAINST THE UNIVERSITY OF NAIROBI AND THE STUDENT ORGANIZATION OF NAIROBI UNIVERSITY (SONU)

IN THE MATTER OF UNIVERSITIES ACT NO. 42 OF 2012 LAWS OF KENYA AND CONSTITUTION OF THE STUDENT ORGANIZATION OF NAIROBI UNIVERSITY (SONU)

IN THE MATER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA

BETWEEN

REPUBLIC………………………………….……….APPLICANT

VERSUS

THE UNIVERSITY OF NAIROBI…………....1ST RESPONDENT

THE STUDENT ORGANIZATION OF NAIROBI

UNIVERSITY (SONU)……………………....2ND RESPONDENT

EX PARTE: NABISWA WAKENYA MOSES

RULING

1. On 27th day of June, 2016, this Court issued the following orders:

1) An order of prohibition is hereby issuedprohibiting the 1st and 2nd Respondents from allowing any person other than the Applicant herein from discharging duties of SONU’s KNH Campus representative.

2) An order of mandamus is hereby issued compelling the 1st respondent to facilitate the swearing in of the Ex Parte Applicant as the duly legally elected official of the 2nd Respondent in the position of finance secretary as ruled on 5th May 2016 by the 2nd Respondent’s election committee panel.

2. The ex parte applicant has now moved this Court vide a Notice of Motion dated 28th October, 2016 seeking the following orders:

1) THAT this application be certified urgent and the same be heard ex-parte in the first instant.

2) THAT this Honourable court be pleased to find the Vice Chancellor, University of Nairobi in contempt of the order of Honourable Justice G.V Odunga in the High Court of Kenya, judicial Review Case Number 226 of 2016 on 27th June, 2016.

3) THAT the said the Vice Chancellor, University of Nairobi be arrested and committed to civil jail for a term not exceeding six (6) months.

4) THAT this Honourable Court be pleased to order that the Vice Chancellor, University of Nairobi should not be heard by the court until he purge the contempt.

5) THAT this Court be pleased to find the in contempt of the orders of the court and award damages which shall be assessed to compensate the Applicant.

6) THAT this Honourable Court be pleased to issue such other or further punitive orders in respect of the said contempt as may be necessary for the ends of justice to be met.

7) THAT the costs of and occasioned by this application be costs in the cause.

3. According to the applicant, following the delivery of the judgment on 27th June 2016 he instructed his advocates to serve the Respondents with the judgment of the court which they served. However after the Court had delivered its judgment, he noticed that the position in the Court order was erroneously indicated as that of Finance Secretary as opposed to the KNH campus representative .Thereupon he instructed his advocates on record to move the court to have the said errors rectified and an application was filed and a consent was recorded by his advocates and Respondents’ in Court on 4th October, 2016.

4. However, despite serving the Respondents with the amended order and the previous Judgment of the court, the Vice Chancellor has refused, ignored and neglected to swear him as the KNH Campus representative hence in contempt of Court. Instead, The 1st Respondent continues in contempt of the orders by allowing a different person to act as the KNH Campus representative whereas the court has issued prohibitory and mandamus orders which have not been set aside by this Court.

5. It was contended that the failure and refusal by the Vice Chancellor to swear him in as the KNH Campus representative after the Election petition’s panel and this court’s judgment is in itself an indicator that unless contempt orders are made and is committed to civil jail the authority of this court is ridiculed.

6. The applicant lamented that he had lost the opportunity to lead his fellow students through the actions of the 1st respondent who ought to have sworn him in as the KNH Campus representative from the ruling of the Election Petitions Panel and the judgment of this Court.

7. He therefore sought orders of contempt and damages in order to meet the ends of justice.

8. In response to the replying affidavit, the ex parte applicant averred that the replying affidavit does not disclose any plausible reason as to why the order of the court had not been complied with from 27th June 2016 when the judgment was delivered by the Honourable court yet the Respondents took part in the proceedings before the court and the fact of the existence of the contested position was never raised before the Court.

9. According to the applicant, during the SONU elections he submitted his name and contested for the position of the students representative KNH Campus and when he lodged his petition before the Election Petitions panel a representative from KNH campus was an appointee of to the panel and in the said list of appointees the student representative from KNH Campus is referred to as such and not the student representative of the college of Health sciences hence the contention that the position of KNH Campus representative is non-existent contradicts the facts not disputed by the respondents during the hearing of the application for judicial review.

10. The applicant denied that he had integrity issues as alleged by the respondents in these proceedings or in any court with jurisdiction. The ex parte applicant asserted that the said position of KNH student representative is existent in substance as confirmed by Prof. Henry W. Mutoro in the Replying Affidavit sworn on 30/05/2016.

11. It was the ex parte applicant’s case that the Respondent’s assertion that swearing of the ex parte applicant cannot be done unless there is sufficient security personnel is in itself a duty they have failed to make requests for from the National Police service and the security agencies available in Kenya to facilitated the same and failing to so do in itself demonstrates the unwillingness to swear him to office. The ex parte applicant averred that the alleged riots and destructions witnessed on April 2nd 2016 were solely attributed to the SONU’s Chair person position and not the representative positions in the various campuses. In his view, the said Vice chancellor of the Respondents is not willing to organize the security details that may be required for him to be sworn in despite knowing that the same could be needed and is therefore reluctant to have him sworn in.

12. It was the applicant’s case that Kodiwo Antony Bernard has through the Respondents acted in the position contested whereas the Election Petition Panel had ruled against him and the Court had prohibited respondents from allowing him to act as such. In his view, what is being raised now is a mere technicality which does not vary or change the substance before the Court in any manner. To him, by the Respondents filing a notice of appeal does not automatically stay the proceedings of this Honourable court and the said notice of appeal and application for stay is just but a delay tactic being employed by Respondents to make sure the term when he ought to have been sworn in lapses and it be overtaken by events.

13. It was therefor averred that it is just and fair that the vice chancellor of the 1st Respondent who is charged with the responsibility of swearing the applicant in as an official of the 2nd Respondent be cited for contempt and the court grant timelines within which he can be sworn in. He further prayed that the Court also orders the 1st Respondent to pay any such sums of money as fine to the court and compensate him for denying him the opportunity to serve as an official of the 2nd respondent.

Respondent’s Case

14. The application was opposed by the Respondent.

15. According to the Respondent, it was aware of the Court’s orders dated the June 27th 2016 and October, 2016 respectively, which orders were to effect that an order of Prohibition was issued prohibiting the respondents from allowing any person other than the applicant herein from discharging duties of SONU’s KNH Campus representative on one part and an order of Mandamus was issued compelling the 1st respondent to facilitate the swearing in of the Ex parte Applicant as the duly legally elected official of the 2nd respondent in the position of SONU’s KNH Campus as ruled on 5th May 2016 by the 2nd respondent’s election committee panel.

16. According to the Respondent, it was discovered that there is no constituency of campus called SONU’s Campus within the SONU Organization structures and that Kodiwo Antony Bernard who the SONU Elections panel purported to have nullified his elections was sworn in as College of Health Sciences Campus Representative and not SONU’s KNH Campus representative. It was averred that Article 16 of the SONU Constitution 2015 recognizes representatives of six decentralized colleges of the First Respondents namely:-

a. The College of Education & External Studies situated at Kikuyu

b. The College of Agriculture & Veterinary situated at Upper Kabete

c. The college of Architecture & Engineering situated at the Main Campus

d. The College of Biological & Physical Sciences situated at Chiromo

e. The College of Health Sciences situated at the Kenyatta National Hospital

f. The College of Humanities and Social Sciences situate at the Main Campus

17. In addition to the above colleges representations of the SONU, there are established Mombasa, Kisumu and Lower Kabete Campus respectively in terms of Article 16 (c) of the SONU Constitution 2010. However, there is no such position or constituency as SONU’s KNH Campus Representative. According to the Respondent, the swearing in of SONU officials entails elaborate processes and procedures provided for in Article 26 of the SONU Constitution 2010 and that in the case of the applicant herein, were he to be sworn in as demanded, there must be adequate security personnel to keep public peace and order because SONU election are contested, resulting into students riots and destructions of property.

18. The Respondent averred that in the circumstances the Vice-Chancellor, the respondent and their staff are not in contempt of court orders as alleged by the applicant. They contended that the position of SONU’s KNH Campus representative is non-existent and the respondents have provided good-faith efforts to comply with the said court orders. The Respondent however averred that it had filed a notice of appeal and stay of execution of this honourable court in the Court of Appeal application number 238 of 2016 hence it is just and equitable to decline the contempt proceedings orders sought by the applicant herein.

Determination

19. I have considered the issues raised herein.

20. Before dealing with the issues raised in this applicant, it is important to revisit the current position with respect to contempt of Court. Parliament vide Act No. 46 of 2016 enacted the Contempt of Court Act, 2016 which was assented to on 23rd December, 2016 and commenced on 13th January, 2017.

21. According to the said Act contempt includes civil contempt which means wilful disobedience of any judgment, decree, direction, order, or other process of a court or wilful breach of an undertaking given to a court. It is therefore clear that the wilful disobedience of a judgement, decree or order properly constitutes contempt of Court. Section 30 of the said Act provides that:

(1) Where a State organ, government department, ministry or corporation is guilty of contempt of court in respect of any undertaking given to a court by the State organ, government department, ministry or corporation, the court shall serve a notice of not less than thirty days on the accounting officer, requiring the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer.

(2) No contempt of court proceedings shall be commenced against the accounting officer of a State organ, government department, ministry or corporation, unless the court has issued a notice of not less than thirty days to the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer.

(3) A notice issued under subsection (1) shall be served on the accounting officer and the Attorney-General.

(4) If the accounting officer does not respond to the notice to show cause issued under subsection (1) within thirty days of the receipt of the notice, the court shall proceed and commence contempt of court proceedings against the accounting officer.

(5) Where the contempt of court is committed by a State organ, government department, ministry or corporation, and it is proved to the satisfaction of the court that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of any accounting officer, such accounting officer shall be deemed to be guilty of the contempt and may with the leave of the court be liable to a fine not exceeding two hundred thousand shillings.

(6) No State officer or public officer shall be convicted of contempt of court for the execution of his duties in good faith.

22. According to the foregoing provisions, before any civil contempt of court proceedings are instituted in disobedience of a judgement, decree or order, the applicant must first move the Court to issue a notice to show cause against the accounting officer of the State organ, government department, ministry or corporation concerned. Such notice is to be served on both the accounting officer and the Attorney General. If no response to the notice is received, the Court may then at the expiry of the said thirty days’ notice period proceed to commence contempt of court proceedings against the concerned accounting officer. In my view the thirty days’ period is meant to enable the Attorney General to give legal advice to the entity concerned and thus avoid the necessity of contempt proceedings. Where however the entity believes that contempt of court proceedings ought not to be commenced, the entity is required to within the said period show cause, in my view preferably by way of an affidavit why the said proceedings ought not to be commenced. The Court will then determine whether cause has been shown or not based on the material before it. Without the rules of procedure having been promulgated it is therefore my view that an application for notice ought to be accompanied by an affidavit and that application may be heard ex parte since the merits thereon may be dealt with when the cause is shown by the entity or public officer concerned.

23. Where no cause is shown and the contempt of court proceedings are commenced, the Court can however only find that officer guilty of contempt upon satisfactory proof that the said contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of the accounting officer. Such officer will then be liable to a fine not exceeding two hundred thousand shillings.

24. With respect to the contempt of court proceedings subsequent to the issuance of the notice to show cause, section 7(3) of the said Act provides that:

“…any proceedings to try an offence of contempt of court provided for under any other written law shall not take away the right of any person to a fair trial and fair administrative action in accordance with Articles 47 and 50 of the Constitution.”

25. In this case the Respondents’ case is that the procedure adopted by the applicant is not the one contemplated under section 30 of the Contempt of Court Act. It however ought to be noted that the rules necessary for the implementation of the said Act are yet to be implemented.

26. As was rightly stated in Republic vs. Returning Officer of Kamukunji Constituency & The Electoral Commission of Kenya HCMCA No. 13 of 2008, while it is the responsibility of the Court not to unduly interfere with the Executive when it lawfully exercises its powers and performs its functions, the High Court has the responsibility for the maintenance of the rule of law. Therefore, there can be no gap in the application of the rule of law and that the Court must at all times embrace a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. The Court went on to state that as nature abhors a vacuum, even the enforcement of the rule of law abhors a vacuum or a gap in its enforcement. Therefore where there is a lacuna with respect to enforcement of remedies provided under the Constitution or an Act of Parliament, or if, through the procedure provided under an Act of Parliament, an aggrieved party is left with no alternative but to invoke the jurisdiction of the Court, the Court is perfectly within its rights to investigate the allegations. To fail to do so would be to engender and abet an injustice and as has been held before, a court of justice has no jurisdiction to do injustice. See M Mwenesi vs. Shirley Luckhurst & Another Civil Application No. Nai. 170.

27. The courts have recognised that unlawful interference with a citizen’s rights give rise to a right to claim redress and if the Applicant has a right he must of necessity have the means to vindicate it and a remedy if they are injured in the enjoyment or exercise of it: and indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal. See Rookes vs. Barnard [1964] AC 1129.

28. I therefore affirm the holding in Nation Media Group Limited vs. Attorney General [2007] 1 EA 261 that:

“The Judges are the mediators between the high generalities of the Constitutional text and the messy details of their application to concrete problems. And Judges, in giving body and substance to fundamental rights, will naturally be guided by what are thought to be the requirements of a just society in their own time. In so doing, they are not performing a legislative function. They are not doing work of repair by bringing an obsolete text up to date. On the contrary they are applying the language of these provisions of the Constitution according to their true meaning. The text is “living instrument” when the terms in which it is expressed, in their Constitutional context invite and require periodic re-examination of its application to contemporary life.”

29. In The Centre for Human Rights and Democracy & Others vs. The Judges and Magistrates Vetting Board & Others Eldoret Petition No. 11 of 2012, it was held by a majority as follows:

“In our view where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any Constitutional or legal right or any burden is imposed in the contravention of any Constitutional or legal provision or without the authority of the law or any such legal wrong or injury is threatened, the High Court has powers to grant appropriate reliefs so that the aggrieved party is not rendered, helpless or hapless in the eyes of the wrong visited or about to be visited upon him or her.”

30. It is therefore my view and I hold that the absence of a facilitative rules, guidelines or framework on contempt of court does not bar the Court from enforcing its orders by way of contempt proceedings pursuant to section 30 of the Contempt of Court Act.

31. In this case the 1st Respondent concedes that it was aware of the orders of this Court. It however contends that it has appealed the judgement and sought stay. The law is however clear that the mere fact that a party has appealed and sought stay of the decision sought to be appealed against does not excuse non-compliance therewith. It is therefore not a defence to contempt of court proceedings that a party has appealed the decision. As was held in Teacher’s Service Commission vs. Kenya National Union of Teachers & 2 Others Petition No. 23 of 2013:

“The reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it about placating the applicant who moves the court by taking out contempt of court proceedings. It is about preserving and safeguarding the rule of law. A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed. A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.”

32. The other ground relied upon by the 1st Respondent is the issue of security. However the 1st Respondent has not shown the attempts it has taken towards compliance with the Court’s decision. I therefore do not buy into the idea that the 1st Respondent was unable to comply with the order of the Court due to security reasons. In any case in Republic vs. The Kenya School of Law & AnotherMiscellaneous Application No. 58 of 2014, this Court stated:

“Court orders, it must be appreciated are serious matters that ought not to be evaded by legal ingenuity or innovations. By deliberately interpreting Court orders with a view to evading or avoiding their implementation can only be deemed to be contemptuous of the Court. Where a party is for some reason unable to properly understand the Court order one ought to come back to Court for interpretation or clarification.”

33. It was therefore appreciated by Ojwang, J (as he then was) in B vs. Attorney General [2004] 1 KLR 431that:

“The Court does not, and ought not to be seen to, make Orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.”

34. With respect to the allegation that the position of Finance Secretary is non-existent, on 4th October, 2016 a consent was recorded in these proceedings by which the application dated 13th September, 2016 was allowed. That application sought rectification of the judgement entered herein to substitute the order compelling the 1st Respondent to swear the ex parte applicant as the duly elected official of the 2nd Respondent in the position of Finance Secretary as opposed to the order compelling the applicant’s swearing as KNH Campus Representative. Accordingly, that ground does not stand.

35. It is therefore clear that the 1st Respondent has not presented any justifiable ground or basis for not complying with the orders of this Court.

36. In the premises I hereby issue a Notice to the 1st Respondent’s Vice-Chancellor Academic to appear in Court and show cause why appropriate action cannot be taken against him.

37. The applicant will have the costs of these proceedings.

38. Orders accordingly.

Dated at Nairobi this 17th day of July, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Miss Kosgey for Mr Nyangito for the Applicant

Miss Omollo for the Respondent

CA Mwangi