[2023] KEHC 27533 (KLR)

Uzel & 8 others v Gitonga & 5 others (As the Management Board of the Mombasa Parents Club) (Civil Suit 47 of 2022) [2023] KEHC 27533 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27533 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 47 of 2022

F Wangari, J

November 17, 2023

Between

Dr Jean Uzel

1st Plaintiff

Dr Kerich Mary

2nd Plaintiff

Dr Michael Mbindyo Munywoki

3rd Plaintiff

Ahmed Ali Twahir

4th Plaintiff

Dominic Muange

5th Plaintiff

Joe Muthui

6th Plaintiff

Ali Abdulsamad

7th Plaintiff

Mrs Maryam Farouq

8th Plaintiff

Husein Sharif Abdalla

9th Plaintiff

and

Benjamin Gitonga

1st Defendant

Feisal Abeid

2nd Defendant

P Munyao

3rd Defendant

Michael Wangamati

4th Defendant

Khadija Khalid

5th Defendant

Joseph Weloba

6th Defendant

As the Management Board of the Mombasa Parents Club

Ruling

1. By a Chamber Summons Application dated 20th July 2022, the Applicant sought the following reliefs:a.Spent;b.Spent;c.That pending the hearing and determination of the Arbitration proceedings between the parties herein, the court be pleased to grant interim protection measure staying the ongoing recruitment exercise by the Respondents for the position of school principal, Nyali School as stated in the Press Advertisement of 8/6/2022;d.Pending the hearing and determination of the Arbitration between the parties herein, the Respondents be restrained from spending an amount in excess of Kshs. 500,000/= unless approved by the special general meeting of the Mombasa Parents in accordance with the Club’s valid Constitution;e.Pending the hearing and determination of the Arbitration between the parties herein, the Court be pleased to restrain the 1st to 6th Respondents from conducting any management activities for an on behalf of the Mombasa Parents Club and that there be a caretaker committee;f.The Court be pleased to order the Respondents to supply the Applicants the pertinent information relating to Mombasa Parents Club and more particularly a copy of the current Membership Register Notice of Annual General Meeting, that called for Amendment if the Constitution and Minutes of the AGM approving to change the Constitution as well as the Consent of the Registrar of Societies under Section 20 of the Societies Act.g.Costs of the Application be borne by the Defendant.

2. I note that on 28th July 2022, the Court issued a temporary Order of protection in terms of prayer 2 of the application thereby staying the recruitment exercise by the Respondents for the position of the school’s principal pending the hearing and determination of the Application.

3. The Respondents raised a preliminary objection dated 24th October, 2022 challenging the jurisdiction of this court on among other grounds that the matter was subject to arbitration. On 31st October, 2022, the court directed that the notice of preliminary objection be dealt with first and parties were then directed to file submissions which was duly done.

4. As the notice of preliminary objection was pending determination, the Applicants vide a Notice of Motion Application dated 13th February 2023 applied for the Court to find that Benjamin Gitonga, Feisal Abeid, Michael Wangamati, Khadija Khalid and Joseph Weloba (Respondents herein) were in contempt of the court order dated 28th July 2022 and to be as such committed to civil jail for a term not exceeding six (6) months.

5. Considering the directions of 31st October, 2022, the court considered the notice of preliminary objection and delivered its ruling on 2nd June, 2023 wherein the same was dismissed. It is after this ruling that the court issued directions on the application dated 13/2/2023. Parties were directed to file written submissions.

6. Considering that there are pending prayers in the application dated 20/7/2022, the court shall consider both applications together though giving precedence to the one on contempt. This is for the reason that in the event the court finds merit on the same, the Respondents cannot be heard on any other matter until they purge the contempt.

7. Parties duly complied by filing submissions on both applications as well as citing authorities in support of their rival positions.

Analysis and Determination 8. As stated above, the application for contempt shall be dealt with first. I have considered the application dated 13/2/2023, the 5th Respondent’s response, submissions for and against, the authorities cited as well as the law and I discern the following issues for determination: -a.Whether the orders sought for are merited;b.If the answer to (a) above is in the affirmative, what orders ought to issue?c.What is the order as to costs?

9. As pointed out, the only response on record is the one filed by the 5th Respondent, Khadija Khalid. In ordinary applications, the court would have deemed the other Respondents not to be opposed to the contempt application but considering that civil contempt such as the present one attracts a higher degree of proof than the ordinary civil cases, the court shall resist that invitation.

10. However, before I delve on the issues identified, it is proper to revisit the procedure for instituting contempt proceedings particularly so after the Contempt of Court Act, 2016 was declared unconstitutional in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR. Prior to the enactment of the Contempt of Court Act, 2016, section 5 (1) of the Judicature Act was the operative provision on matters contempt. This section states as follows: -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.

11. So, what happened after repeal of the Contempt of Court Act? In Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the court citing with approval the case of Republic v Kajiado County & 2 Others ex parte Kilimanjaro Safari Club Limited [2019] eKLR held as follows: -“…I agree with the above reasoning that since the Act that repealed section 5 of the Judicature Act has been declared unconstitutional, the effect is that section 5 of the Judicature Act still stands. Having concluded as aforesaid, I find it fit to examine the procedure for instituting contempt of court proceedings under section 5 of the Judicature Act…”

12. Discussing the procedure for instituting Contempt proceedings in Kenya, the High Court in the John Mugo Gachuki vs New Nyamakima Co. Ltd [2012] eKLR observed as follows: -“…It is unfortunate and regrettable that nearly 50 years after independence our procedure, with respect to punishment for contempt in our Court is referable to the procedure in the High Court of Justice in England. It is saddening that the entities entrusted with updating and drafting our laws have not seen the urgency of enacting our own law relating to such an important aspect of the Rule of Law. That being the position, ours is not to enact the law but to interpret the law as enacted…”

13. In Samuel M.N. Mweru & Others (supra), Mativo, J (as he then was) reiterated thus: -“…Therefore, 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…”

14. According to the law applicable in England, it is indicated that the same ought to be instituted by filing an application notice. This was the Court of Appeal’s rendition in Christine Wangari Gacheche v Elizabeth Wanjiru Evans & Others [2014] eKLR. In this case, the Court of Appeal held that leave was no longer a prerequisite following the implementation of the famous Lord Woolf’s “Access to Justice Report, 1996. ” On 1st October, 2012 the Civil Procedure (Amendment No. 2) Rules, 2012 came into force in England and it introduced part 81. PART 81 (Applications and Proceedings in Relation to Contempt of Court) provides different procedures for four different forms of violations.

15. Of relevance is Rule 81. 4 which relates to committal for breach of a judgment, order or undertaking to do or abstain from doing an act. An application under this rule is an application notice as stated above as opposed to a notice of motion.

16. So, with the above, is the present application competent? This question was answered in Clerk, Nairobi City County Assembly v Speaker, Nairobi City County Assembly & another; Orange Democratic Party & 4 others (Interested Parties) [2019] eKLR where the court while making reference to the Court of Appeal’s decision in Christine Wangari Gacheche (supra) observed as follows: -“…I believe the Court of Appeal would not dismiss the application for want of form because it is very much aware of the principles of administration of justice set out under Article 159 of the Constitution and also the policy set out under Order 51 rule 10 of our Civil Procedure Rules. The Rule 10 provides that:“(1)Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.(2).No application shall be defeated on technicality or for want of form that does not affect the substance of the application.”

17. The court went ahead and concluded as follows: -“…In the instant case the applicant filed a notice of motion seeking several orders inter alia that the 1st Respondent be committed to jail for contempt of court. The Application sets the grounds on which it is premised and further numerically states each contempt allegation and the dates when the actions were committed. The motion is supported by an affidavit which contains all the evidence concerning the acts of contempt of court committed by the respondents. Consequently, I see no offence to the law, no deficiency in the content or any prejudice occasioned to the respondents by the use of notice of motion as opposed to application notice. It has not been demonstrated that the use of notice of motion as opposed to application notice as the form of bringing the application affects the substance of the application…”

18. I will restate what my colleagues who came before me have been urging Parliament to do. At this age and time, it is quite tedious if not mind boggling to keep checking what the law on contempt in England is before commencing contempt proceedings. I will but add my voice to those calling on the Legislators to take up the mantle and settle the issue of contempt proceedings in this country once and for all. Otherwise, parties stand the risk of their applications to enforce orders being thrown out of the window due to the procedure of initiating the proceedings.

19. Having been satisfied that the form to institute the proceedings is not fatal, I now turn to the merits of the application. Whenever an issue of contempt is raised, it is the duty of court to deal with it immediately. In Samuel M.N. Mweru & Others (supra), the court addressed the issue of contempt as follows: -“…A court without contempt power is not a court. The contempt power (both in its civil and criminal form) is so innate in the concept of jurisdictional authority that a court that could not secure compliance with its own judgments and orders is a contradiction in terms, an “oxymoron.” Contempt power is something regarded as intrinsic to the notion of court; even obvious, I would say. In the common lawyer’s eye, the power of contempt “is inherent in courts, and automatically exists by its very nature…”

20. I now turn to consider whether the Applicants have made out a case for the grant of the orders sought. If courts are to perform their duties and functions effectively and remain true to the spirit which they are sacredly entrusted with, the dignity and authority of the courts has to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the Rule of Law and a civilized life in the society.

21. It is for this purpose that courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside courts which tend to undermine their authority and bring them in disrepute and disrespect by scandalizing them and obstructing them from discharging their duties. When the court exercises this power, it does so to uphold the majesty of the law and of the administration of justice.

22. The foundation of judiciary is the trust and confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.

23. It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of courts is upheld at all times. The court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. This was well enunciated in Awadh v Marumbu [2004] KLR 458.

24. 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 void. (See the case of Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 per Ibrahim, J (as he then was).

25. The most comprehensive elements of civil contempt were stated by the learned authors of the book Contempt in Modern New Zealand who aptly summarized as follows: -“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -(a)the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;(b)the defendant had knowledge of or proper notice of the terms of the order;(c)the defendant has acted in breach of the terms of the order; and(d)the defendant's conduct was deliberate.”

26. It is not in dispute that on 28th July, 2022, this court granted a temporary measure of protection to the Applicants whose effect was to stay the recruitment exercise by the Respondents for the position of the school principal, Nyali School. There is no dispute that the terms of the order were clear and unambiguous as well as binding on the Respondents. Therefore, I have no hesitation to hold that the first element was satisfied. If that was not so, they would have approached the court for interpretation or to demonstrate their difficulty in complying with the order.

27. On the second element, there is an affidavit of service dated 1st August, 2022 and filed on 2nd August, 2022. Similarly, the Respondents appointed Counsel who filed his notice of appointment on their behalf. The Counsel was similarly served with the order. I equally have no hesitation that the Respondents had knowledge of the terms of the order. The issue of knowledge is further confirmed in the 1st Respondent’s letter dated 18th January, 2023.

28. On the third element, this requires a proper interpretation of the court order issued on 28th July, 2022. The order specifically addressed the position of school principal and not any other position. So, at the onset, the court is satisfied that the Respondents were at liberty to advertise and recruit individuals in all other capacities but for the school principal. However, the Applicants submit that the Respondents recruited a deputy principal and installed him as an acting principal so as to circumvent the court order.

29. The court was referred to a letter dated 18th May, 2022 where one Mr. Omar Babu who was the school deputy principal was appointed to take up the position of school principal in an acting capacity until further notice. Still on this issue, another letter dated 18th January, 2023 communicated the Respondents’ act of having employed a deputy principal who was to take on the role of acting principal. Another letter dated 13th February, 2023 authored by the new acting principal one Mr. Toney O. Ongugo was referred to buttress the issue that the appointment of the said Mr. Ongugo was simply an act to circumvent the court order.

30. The Applicants took issue with the fact that Mr. Babu had been the acting principal even before the order was made and continued even after the order and thus the appointment of Mr. Ongugo was a clear breach of the court order. As I have indicated above, the court order did not bar the Respondents from filling any other positions save for the principal’s position.

31. Having considered the Applicants’ contention, there is no doubt that Mr. Babu was appointed as acting principal in May, 2022 until further notice. (Emphasis added). This notification of appointment of Mr. Babu was made to the members (parents) formally and it was expected that in the event of any changes to Mr. Babu’s position, the same channel of notification ought to have been adopted.

32. In fact, the letter dated 18th January, 2023 did not convey to the parents on what was the fate of Mr. Babu after he was replaced. Was he to resume back his duties as the deputy principal? Or was his position declared redundant? All these questions can only be answered by the Respondents. I shall leave this at that.

33. On Mr. Ongugo’s appointment, this is how the communication was made: -“…The running and management of the school particularly with the introduction of Junior Secondary School requires the employment of a Principal with the requisite qualifications, expertise and experience. We are happy to report that we have employed a Deputy Principal, who will, pending determination of the suit in court, take on the role of Acting Principal. Mr. Tony Ongugo Ochieng has a wealth of experience not only as a teacher but also as a manager…” (Emphasis added)

34. The Respondents ought to give an explanation as to why they thought Mr. Babu could not continue on his role as an Acting Principal pending determination of the suit in court. Similarly, the usage of the words as quoted above leaves no doubt in the eyes of a reasonable man that the real intention of bringing in Mr. Ongugo was to circumvent the court order. I have no doubt in my mind that this act constituted breach of the terms of the court order. If indeed the Respondents were acting in good faith, nothing was so easy than to rebut the Applicants’ averments by way of affidavits.

35. If I am wrong on my conclusion on this aspect, which I trust I am not, paragraph 6 of the 5th Respondent’s replying affidavit dated 4th July, 2023 leaves not iota of doubt as to the real position of Mr. Ongugo. The 5th Respondent confirms as much in her resignation letter dated 7th February, 2023. Paragraph 6 of the replying affidavit states as follows: -6)That I did not participate whatsoever in any board meeting that culminated in the appointment of Mr. Tony Ongugo as the substantive School Principal. In fact, my frustrations as a board member was primarily due to continuous sidelining of some members in many decisions of the board as can be clearly discerned from my resignation letter.

36. In her letter, she noted as follows: - “…My decision has been informed by the continuous lack of openness in the Board. Some of the fundamental changes in the school are learnt on parents’ WhatsApp groups…” It thus confirms that the Respondents’ actions in bringing in Mr. Ongugo was not in good faith but to go round the court order. I am thus satisfied that the third element on breach was satisfied.

37. Was this conduct deliberate? In Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR, the court while discussing willful and deliberate conduct observed thus: -“…There cannot be deliberate and willful disobedience, unless the contemnor had knowledge of the existence of that order. And because contempt is of a criminal nature, it is always important that breach of the order be proved to the required standard; first, that the contemnor was aware of the order having been served or having personal knowledge of it, and second; that he deliberately and willfully disobeyed it…”

38. There is no contention that the Respondents were served with the court order of 28th July, 2022 and that indeed they had knowledge of its existence. That has been explained in detail elsewhere in this ruling. In any event, none of the Respondents other than the 5th Respondent denied service and knowledge of the court order.

39. If indeed there was dispute, the same ought to have been controverted by affidavit evidence. None was filed. Being aware of the order, the Respondents blatantly proceeded to circumvent the order by appointing a substantive principal in disguise of a deputy principal who was only to be in acting capacity. This is willful disobedience in its pure and unadulterated form and this court will not tolerate such conduct.

40. I take caution that even as courts punish for contempt to safeguard the peaceful and development of society and the rule of law, it must be borne in mind that the power to punish for contempt is a discretionary one and should be used sparingly. Having cautioned myself as above, the words of Ibrahim, J (as he then was) in Econet Wireless Kenya Ltd (supra) rings true today as it were in the year 2005 thus: -“… The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the 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 the order believes it to be irregular or void…”

41. Before disposing off the matter, it is incumbent that I comment on the 5th Respondent. The 5th Respondent resigned before the current contempt proceedings were commenced. Her resignation was in consonance with Article 30 (a) of the Mombasa Parents Club Constitution. She equally filed a response distancing herself from the appointment subject of the proceedings. As such, it would be a travesty of justice if she were to be lumped together with the other Respondents. I say so while alive to the collective responsibility of the Club Management Board as per the Club’s Constitution. In exercising my discretion, I hereby proceed to discharge her from these proceedings.

42. I think I have said enough to demonstrate that the application dated 13th February, 2023 has merit and it is hereby allowed save as stated above.

43. On the second issue, having found merit in the application, the following orders flow therefrom: -a.The court has found the Respondents, Benjamin Gitonga, Feisal Abeid, Michael Wangamati and Joseph Weloba for being in contempt of the court orders issued on 28/7/2022, extended on 4/8/2022 and further extended on 3/11/2022;b.The court having found the 5th Respondent, Khadija Khalid to have resigned before the commencement of the contempt proceedings does hereby discharge her from these proceedings;c.Consequent to the findings in (a) above, the four named contemnors shall be required to appear in court on a date to be fixed on 17/11/2023 to show cause why they should not be committed to civil jail;d.The determination of the application dated 20/7/2022 shall be held in abeyance pending the conclusion of these contempt proceedings;e.Costs to be in the cause.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 17THDAY OF NOVEMBER, 2023………………………..F. WANGARIJUDGEIn the presence of;Mr. Kago Advocate h/b for Sitonik Advocate for the ApplicantsMs. Seif Advocate h/b for Wangila Advocate for the RespondentsMr. Barille, Court Assistant