[2023] KEHC 23576 (KLR)

St Mary Taach Asis Secondary School v Leev Contractors Limited (Civil Appeal 141 of 2023) [2023] KEHC 23576 (KLR) (16 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23576 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 141 of 2023

RN Nyakundi, J

October 16, 2023

Between

St Mary Taach Asis Secondary School

Appellant

and

Leev Contractors Limited

Respondent

Ruling

Coram: Before Justice R. NyakundiM/s Cheruiyot Melly & Associates AdvocatesJ.K M/s Oyaro & Associates Advocates 1. The ruling herein is with respect to two applications. Both applications are dated 19/9/2023 and seek Contempt of Court orders. In one application the Appellant seeks to cite the Director, Leev Contractors and Wingrift Auctioneers, acting under the instructions of the Respondent for contempt of the Court orders issued on 9/8/2023. In the second application the Respondent seeks to cite OCS Eldoret Central Police Station for contempt of Court for disobedience of Court orders by unlawfully issuing orders and/or causing the release of motor vehicle registration number KBG 110c from Joyland Storage Yard Kapsoya.

2. The genesis of this matter is the Small Claims Court Commercial Case No E736 of 2022, wherein the Respondent sued the Appellant for the sum of Kshs 1,000,000/= plus costs and interest.

3. Consequently, the Respondent served the said judgment and decree upon the Appellant’s principal, Ms. Peris Bor who made a promise to pay the decretal sum before July, 2023 and in effect executed a consent agreeing that in case of default, then execution should issue. The Respondent deposed that pursuant to the consent, the Appellant only made payments to the tune of Kshs 100,000/= and defaulted on the remainder prompting him to instruct Wingrift Auctioneers who proceeded to execute against the Appellant by proclaiming and having the same attached. That on 4/8/2023, the said auctioneers with the aid of police officer from Kisumu Central Police Station attached the Appellant’s motor in Kisumu and issued a notification of sale. That the suit motor vehicle was later detained at Joyland Yard Kapsoya , Eldoret.

4. However, vide an application dated 31/7/2023, the Appellant herein sought for stay of execution orders against the judgment and decree issued in Eldoret SCC Comm Case No E736/2022 wherein the Court herein when the matter came up on 9/8/2023 directed that status quo be maintained.

Analysis and Determination 5. Having duly considered both applications it is my finding that the following issues arise for determination:a.Whether the process of execution was proper in the first instanceb.Whether the Contempt of Court orders being sought herein can be issued

6. At this juncture it worth examining the laid-out procedure in law with regards to executing decrees against the government. Section 21 of the Government Proceedings Act provides:-(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney – General.(3)If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.”

7. In the case of Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza [2012] eKLR the Court observed as follows:In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, Section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.”

8. Being guided by the foregoing, a party wishing to realize fruits of his or her judgment against the government must first get issued with a certificate of costs and a certificate order against the government. In the present case, from the evidence that has been tendered through the Respondent’s Affidavit sworn on 19/9/2023 it is evident that the judgment by the trial Court herein was rendered on 15/2/2023. The decree and certificate of costs therein was consequently issued on 23/3/2023. A clear reading of Section 21 (1) of the Government Proceedings, Act indicates that the certificate order should be issued by the Court (21) days after expiry of the judgment.

9. n this particular case the Applicant did not furnish the Court with any Certificate of order against the Government. There is a specific procedure on how the Certificate of Order required under the Act is obtained. The procedure is contained in Order 29 of the Civil Procedure Rules. Under Rule 3 thereof, the application is made to the Deputy Registrar in the High Court or to the Court in the subordinate Court. The format of the Certificate of Order is provided in Appendix A Form No 22 of the Civil Procedure Rules. Form No 23 provides the format for a Certificate of Costs in the event it is separately issued. Once a party obtains the Certificate of Order and the Certificate of Costs, in the event the Certificate of Costs is obtained separately, together with the Decree, then such a party must satisfy the Court of service of those documents upon the party named in the Certificates. With that said, there is no doubt that the Respondent herein, to allegedly proceeded execute against the Appellant without following the due process.

10. Moving onto the Contempt of Court applications.

11. It is noteworthy to mention that on 9th November 2018, Mwita J, in Kenya Human Rights Commission v Attorney General &another [2018] eKLR, declared that the entire Contempt of Court Act No 46 of 2016 as invalid for lack of public participation as required by Articles 10 and 118(b) of the Constitution and found that the said Act as enacted encroached upon the independence of the Judiciary.

12. Be as it may however, before the enactment of the since deleted Contempt of Act, Section 5 of the Judicature Act Cap 8 Laws of Kenya, was the only statutory basis with respect to the procedure for institution contempt of Court proceedings. That Section provides:1. 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 that power shall extend to upholding the authority and dignity of subordinate courts.2. An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.

13. A party seeking recourse for contempt of Court proceeding would then have to rely on the provisions of Section 3 of the Judicature Act that provides that;The jurisdiction of the Supreme Court, the Court of Appeal, the High Court, the Environment and Land Court, the Employment and Labour Relations Court and of all subordinate courts shall be exercised in conformity with—a)the Constitutionb)subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedulec)subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that dateProvided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.”

14. Therefore, in Kenya the law that governs contempt of Court proceedings is the English law applicable in England at the time the alleged contempt is committed. Section 5 of the Judicature Act imposes a duty on the High Court, the Court of Appeal and law practitioners to ascertain the applicable law of contempt in the High Court of Justice in England, at the time the application is brought.

15. Contempt of Court is in the nature of criminal proceedings and, therefore, proof of a case against a Contemnor is higher than that of balance of probability. Due to the gravity of consequences that ordinarily flow from contempt proceedings, it is proper that the order be served and the person cited for contempt should have had personal knowledge of that order. This was aptly stated in Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227,that:A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…. It must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the party of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.

16. In the present case, it is clear that the execution process was flawed from onset. The Respondent cannot therefore purport to cite the OCS Eldoret Central Police Station for contempt when it has not demonstrated to this Court that there was wilful disobedience of Court orders by the OCS that emanated from a process that was flawed from onset.

17. From the pleadings on record it is also evident that by the time the status quo order of 9/8/2023 were being issued, the Respondent herein had seemingly already attached the Appellant’s motor vehicle. Be as it may however, the Respondent contends that on 15/9/2023, the OCS Eldoret in company of other police officers went to the storage yard and demanded the release of the suit motor vehicle. The Appellant cannot therefore seek to cite the Respondent for the wilful disobedience of the orders of 9/8/2023 when the suit motor vehicle is no longer in the Respondent’s custody the same having been released on 15/9/2023.

18. I need to remind parties that Court orders are never issued in vain and such parties are obligated to obey Court orders at all times. As was again stated by the Supreme Court of India in Mahinderjit Singh Bitta v Union of India & others 1 A No 10 of 2010 (13th October, 2011):In exercise of its contempt jurisdiction, the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and willful violation of the order of the court, even to constitute a civil contempt. Every party is lis before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution. (Emphasis).

19. While appreciating that Court orders ought to be complied with. I must mention that with the foregoing in mind I cannot hold the OCS Eldoret Central Police Station in contempt nor the Respondent and Wingrift Auctioneers. In order to do so parties must demonstrate that there was wilful disobedience of the said orders by the OCS Eldoret Central Police and the Respondent and Wingrift Auctioneers which at this particular juncture I cannot conclusively answer in the affirmative.

20. In view of my above analysis and findings, the conclusion becomes irresistible that both contempt of Court applications herein cannot stand as they do not satisfy the prerequisites for the Court to grant the orders sought. Accordingly, I dismiss them with no orders as to costs.

21. It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 16th DAY OF OCTOBER, 2023. ........................R. NYAKUNDIJUDGEIn the Presence of:Mr. Oyaro for the Appellant