[2024] KEBPRT 584 (KLR)

Royal Gardens Limited v Koinange & another; Royal Matresses & 2 others (Interested Parties) (Tribunal Case E781 of 2022) [2024] KEBPRT 584 (KLR) (6 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 584 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E781 of 2022

P May, Member

February 6, 2024

Between

Royal Gardens Limited

Applicant

and

Barabara Wambui Koinange

1st Respondent

Hariki Auctioneers

2nd Respondent

and

Royal Matresses

Interested Party

Recon Suppliers Limited

Interested Party

Power Life Kardi East Africa Limited

Interested Party

Ruling

1. The Tribunal delivered a ruling on 13/2/2023 whereby it partially allowed the tenant’s application dated 1/9/2022. The Tribunal gave directions on when the manner of disposing the complaint. The parties however filed proceedings in the superior courts. There were temporary orders staying the proceedings before this Honourable Tribunal. The orders were subsequently lifted and the hearing was scheduled for 28/9/2023.

2. The parties appeared before the Tribunal on the said hearing date but the tenant pointed out to the court that there were orders issued by the superior court against the respondents which automatically denied them audience unless they complied with the said orders. The tenant thus urged the Tribunal to deny the respondents audience until such a time that they complied with the orders.

3. The parties supplied the Tribunal with the decisions of the superior courts that gave rise to the present contempt proceedings. The respondents have maintained that the present proceedings are irregular and arise from misinterpretation of the orders issued by the Milimani Environment and Land Court in ELC Misc Application No E273 of 2022. I have considered the application and the rival submissions and would proceed as follows:

4. The jurisdiction of the Tribunal has not been challenged but it is prudent that the Tribunal at the onset addresses the question of whether the BPRT is clothed with jurisdiction to sustain contempt of court proceedings against a litigant who has disobeyed court orders. In the case of David Mukuria Karanja V Samuel Karume Nganga [2021] eKLR Hon Cyprian Mugambi Nguthari while analyzing the provisions of Section 5(11) of Judicature Act at paragraph 6 and 7 stated as follows:It is clear from the above provision that the power to punish for contempt of court under the Judicature Act is reserved for the High Court and the Court of Appeal. The Tribunal has no powers to punish for contempt of court under the Act. Under the current dispensation, a party who wishes to proceed against another for contempt of the Tribunal’s orders ought to approach the High Court which is tasked with the duty of upholding the authority and the dignity of the subordinate court and to which the Tribunal is one.

5. Having made the above finding, the Tribunal will therefore turn to the question of whether the respondents are in contempt. Contempt of court is that conduct or action that defies or disrespects authority of court. Black’s Law Dictionary 9th Edition, defines contempt as: -“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.”

6. In Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR, the court held of contempt thus: -“Properly put, contempt is conduct that impairs the fair and efficient administration of justice. The reason why courts punish for contempt is to uphold the dignity and authority of the court, ensure compliance with directions of the court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by courts. Without sanctions for contempt, there would be a serious threat to the rule of law and administration of justice. For a party to be cited for contempt, he must have violated and or disobeyed an order that was directed at him.”

7. The Tribunal has perused the orders that were issued on 30/5/2023 and subsequently reviewed on 19/7/2023 and the same are quite explicit. The court having found that the respondents were in contempt ordered them to pay the tenant a sum of Kshs. 1,095,730 in lieu of the goods sold in order to purge contempt. The respondents were ordered further to pay a fine within a specified timeline.

8. In Katsuri Limited v Kapurchand Depor Shah [2016] eKLR, citing Kristen Carla Burchell v Barry Grant Burchell (Eastern Cape Division case No 364 of 2005), it was stated that: -“In order for an applicant to succeed in civil contempt proceedings, the applicant has to prove (i)the terms of the order,

(ii)knowledge of the terms by the respondent,

(iii)failure by the respondent to comply with the terms of the order.”

9. In the present instance, the respondents have not denied knowledge of the orders in question. They have attempted to challenge the mode of which they were to be executed. A plain reading of the orders is explicit; the payment of the amount awarded by the court was necessary so as to purge the contempt. Period.

10. I will now turn to the question of whether or not the Contemnor has audience before the BPRT Tribunal. In the locus classicus case of Hadkinson –V- Hadkinson 91952) 2 All E.R. 567, At Page 575 Lord Denning made the following observation: -“I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues it impedes the cause of justice by making it more difficult for the court to ascertain the truth or to enforce orders which it may make, then, the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed”.In the same case of Hadkinson V Hadkinson (supra) the court further emphasized on the need to obey court orders and stated as follows:-“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 Cottenham, L.C., said in Chuck –vs- Cremer (1) (1 Coop. temp.Cott 342):“A party, who knows 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 judge whether an order was null or valid- whether it was regular or irregular. That 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 affected by it, was plain. He should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.

11. In the present case, there is evidence to show that the respondents did not only participate in the proceedings that gave rise to the orders in question but has also been reminded including in the present proceedings to purge the contempt. The terms of the order were clear. The respondents’ decision to ignore compliance with the order was therefore willful having been notified of the terms of the order.

12. In A.B. & Another v R.B. [2016] eKLR, the Court of Appeal cited with approval the Constitutional Court of South Africa’s decision in Burchell v. Burchell Case No.364 of 2005 where it was held: -“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the court and requires other organs of the state to assist and protect the court. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively have the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”

13. Mohammed Ibrahim J (as he was then) pronounced himself in the case of Econet Wireless Kenya Limited vs Minister for Information & Communication of Kenya & Another (2005) eKLR as follows:-“It is my view that due to the gravity with which the law and the court is deem any contempt of court or allegations thereof, the court usually under an obligation to deal with such contempt of court or investigate allegations that it has taken place. This is in particular where the alleged contemnor is a party in proceedings and is affected by the orders granted by the court. Where an application for committal for contempt of court orders are made the court will treat the same with a lot of seriousness and urgency and more often will suspend any other proceedings until the matter is dealt with and if the contempt is proven to punish the contemnor or demand that it is purged or both. For instance, an alleged contemnor will not be allowed to prosecute any application to set aside orders or take any other step until the application for contempt is heard. The reasons for this approach are obvious – a contemnor would have no right of audience in any court of law unless he is punished or he purges the contempt. So, the court is obliged to hear the application for committal first before any other matter. This is a general rule which must be applied strictly.” (emphasis mine).

14. Similarly, in the case of; Kenya Revenue Authority v Chief Magistrate’s Court at Migori; Maurice Juma Achar (Interested party) (2021) eKLR the court held as follows:-“No doubt there had been disobedience of the court’s order. The law is clear, that the orders of the court must be obeyed and a party seeking audience of the court must purge that contempt before being heard. The court has actually to protect its dignity and authority…even if a party believes that the court’s order is irregular or void, the party must first of all comply before seeking the intervention of the court.

15. Having found that the respondents are in contempt thus not deserving audience before they purge the contempt and taking cognizance that Article 159 of the Constitution requires this Tribunal to adjudicate on matters before it in an expeditious manner, it would be prudent to set timelines within which the respondents have to purge the contempt so as to ensure that the hearing of the complaint is not derailed any further.

16. In the end therefore the following orders commend itself:a.That Barbara Wambui Koinange and Harrison Kiarie t/a Hariki Auctioneers condemned to purge the contempt by paying the tenant the sum of Kshs. 1,095,730 pursuant to the orders issued in Milimani ELC Misc Application No. E273 of 2022 within 30 days from the date hereof.b.Each party shall bear their own costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 6THDAY OF FEBRUARY, 2024. HON. PATRICIA MAY - MEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of;Amuka holding brief for Otwal for the TenantMs. Migure for the 2nd Interested Party