1. Aggrieved, the Appellant, AMOS KORIR, herein appealed against the ruling by Hon. Becky Cheloti Mulemia and delivered on 14th November, 2023 in the Chief Magistrate's Court at Nairobi, Milimani Commercial Court COMM SUIT NO E891 of 2022 being Amos Korir -v- Access Bank Kenya Limited & Another vide an amended memorandum of appeal dated 12th December 2023 seeking the following orders:-
i. THAT the Appeal herein be allowed with costs.
ii. THAT the Ruling, Orders and Decree emanating from the Judgment delivered by Hon. BECKY CHELOTI MULEMIA delivered on 14th November, 2023 in the Chief Magistrate's Court at Nairobi, Milimani Commercial Court COMMSU NO E891 of 2022 being AMOS KORIR -v-ACCESS BANK KENYA LIMITED & ANOTHER, be set aside and substituted with an order to the effect that the Appellant has proved his case as contained in the Application dated 14th July, 2013 and thus issue orders as prayed in the said Application dated 14th July 2023;
iii. THAT the Respondents be condemned to pay the Costs of the proceedings both at the Trial Court and before this Honorable Court.
iv. Any further or other alternative relief and/or order that this Honourable Court may deem fit and just to grant.
2. Grounds of appeal
1) THAT the Learned Trial Magistrate erred in law and fact in finding that the 1st Respondent's Country Managing Director, Samuel Minta, was not in contempt of the trial Honorable Court's Consent Orders entered into on 7th December 2022.
2) THAT the Learned Trial Magistrate erred in law and facts in finding that the Application for contempt dated 14th July 2023 had been overtaken by events despite overwhelming evidence that the consent orders entered into on 7th December 2022 had not been varied, set aside, reviewed and or appealed against and the same were obtained at the behest of the 1st Respondent's admission both in their pleadings being Preliminary Object dated 6th December 2022 and subsequent oral presentation in court on 7th December 2022 that Appellant's employment contract had not been terminated.
3) THAT the Trial Magistrate erred in law and facts in finding that the application dated 14th July 2023 had been overtaken by events despite the Respondent pleading that the entire suit being COMMSU E891 OF 2022 between Amos Korir-versus- Access Bank Kenya Limited & Another is prematurely in court as the investigations and disciplinary process over the Appellant had not been completed which admission formed the basis of the consent entered into and thereby birthed the Orders issued on the 7th December 2022.
4) THAT the Trial Magistrate erred in law and facts in failing to find that the Appellant had proved his case to the standard required by law despite overwhelming oral and documentary evidence in support of the Appellant's Application dated 14th July 2023.
5) THAT the Learned Trial Magistrate erred in law and in facts by failing to comprehensively consider and evaluate the tools provided to it by parties, being evidence, documentation and testimonials on record and thus arriving at findings and conclusions that are completely not supported by evidence on record and that by disregarding the pleadings filed by parties, the Learned Trial Magistrate became a party herself to the issues in controversy contrary to the now settled concept of bindingness of pleadings on not only to the parties, but also the court itself.
6) THAT the Learned Trial Magistrate completely failed to properly appreciate the now trite law relating to CONSENT ORDERS entered into by parties voluntarily and thereby rendered a decision per incuriam.
7) THAT the Learned Trial Magistrate erred in law and facts by failing to appreciate that the Appellant was not under obligation to produce evidence that is outside what the Appellant has pleaded in his pleadings. In particular, that if there was any purported termination of the employment contract of the Appellant, it was for the 1st Respondent to bring it to the attention of court and they had that opportunity on two occasions being 6th December 2022 when it was filing its responses and 7th December 2022 at the hearing.
8) THAT the Learned Trial Magistrate erred in law and fact by injudiciously disregarding the long established principles of equity when dismissing the application dated 14th July 2023 while admitting the conflicting evidence and pleadings of the 1st Respondent that on one had until 7th December 2022 the Appellant had not been terminated and on the other hand post 14th July 2023 the Appellant became terminated yet the alleged termination was purportedly done 24th November 2022 and the 1st Respondent concealed the purported termination from the Court and or Appellant at the hearing on 7th December 2022.
9) THAT the Learned Trial Magistrate erred in law and fact in holding that the Appellant had not proved a case of contempt of court, whereas the Respondents failed to rebut the legal and factual evidential materials adduced before the court in support of the particulars of contempt set out in the Appellant's application dated 14th July 2023 and the further affidavit deposed by the Applicant.
3. The appeal arose from the ruling of the trial court where the application for contempt by the appellant seeking to enforce a consent order of 7th December 2022 was dismissed on the ground of non-disclosure by the claimant of having had his employment terminated on 21st November 2023 and payment of terminal dues. (Ruling dated 7th November 2023 at pages 307-308 of ROA)
4. The appellant’s position was that the Learned Trial Magistrate completely failed to properly appreciate the now trite law relating to CONSENT ORDERS entered into by parties voluntarily and thereby rendered a decision per incuriam. That the Learned Trial Magistrate erred in law and facts by failing to appreciate that the Appellant was not under obligation to produce evidence that is outside what the Appellant has pleaded in his pleadings. In particular, that if there was any purported termination of the employment contract of the Appellant, it was for the 1st Respondent to bring it to the attention of court and they had that opportunity on two occasions being 6th December 2022 when it was filing its responses and 7th December 2022 at the hearing.
5. The application for contempt was dated 14th July 2023 and supported by the appellant’s affidavit dated 14th July 2023. The court perused the affidavit. The appellant in paragraph 4 of the supporting affidavit stated that the investigation and disciplinary process post 7th December 2022 have never been concluded. That the respondent have only since paid him on 14th December 2023 which payment they contemptuously described as final dues in gross violation of orders of 7th December 2022. The appellant annexed the bank statement. On perusal (at page 97 of ROA) the court found that the entry for final dues was 14th December 2022 and not 2023 as averred by the appellant.
6. The appeal was canvased by way of written submissions by both parties.
DECISION
Whether the appeal was merited.
7. On whether the voluntary consent is binding, the respondent vide affidavit dated 19th July 2023 stated that the claimant /appellant failed to disclose his employment had been terminated on the 21st November 2022 when the consent was entered. The termination letter was produced at page 120 ROA. The court established that the appellant had been terminated from employment at time the advocates of the parties entered into the consent. The claimant was aware of that fact and received his final dues on the 14th of December 2022. The respondent’s advocates ought to have sought instructions before binding their client. The appellant submitted the Respondent had not pleaded termination in their pleadings leading to the consent and that the consent orders of 7th December had not to be set aside or varied and the trial court erred in not enforcing the same and relied on the decision in Abida Werimba Mwaniki & 2 others v Samwel Njeru M’ngendo & 2 others [2017] KEELC 3104 (KLR) where it was observed:- ‘’ 27. It was submitted by the Defendants’ counsel that the application for committal of his clients for contempt had been overtaken by events since the Plaintiffs had vacated the suit properties. I do not see how an application for contempt of court can be overtaken by events simply because the Plaintiffs have vacated or been constructively evicted by the Defendants. If the court were to validate such an argument, then all it would require an alleged contemnor to do to scuttle his punishment for contempt would simply be to evict the victim of such violation. This court cannot accept such a proposition.
The legal position on a person’s obligation to obey a court order is well settled in Kenya. I need not cite the numerous authorities on the matter. The obligation requires a party against who an order is issued to obey it even when they believe it to be irregular, unfair or oppressive, see Hadkinson Vs Hadkinson [1952] ALL ER 567. There is an unqualified obligation to obey a court order until it is varied, set aside or recalled.’’ The court agreed with the decisions.
8. The contempt application dated 14th July 2023 called for a committal to civil jail of the Managing Director of the respondent. That was a very serious sentence not to be taken lightly as it affects the liberty of an individual. The court was guided by several authorities on the matter as cited in Katsuri Limited v Kapurchand Depar Shah [2016] KEHC 6447 (KLR) by Justice Mativo to wit:-
‘’Contempt proceedings are quasi-criminal in nature and since the liberty of a person is at stake, the standard of proof is higher than in civil cases. This principle was reiterated in the case of Gatharia K. Mutikika vs Baharini Farm Ltd[17]where it was held as follows:-
"The Courts take the view that where the liberty of the subject is, or might be involved, the breach for which the alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved... I 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, in criminal cases. it is not safe to extend it to offence, 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 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 part of judges 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. A judge must be careful to see that the cause cannot be mode of dealing with persons brought before him. Necessary though the jurisdiction may be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found... 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 a contempt is threatened or has been committed, and on 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."
In Peter K. Yego & Others vs Pauline Nekesa Kode[18]the court recognizing that contempt of court is criminal, held that it must be proved that one has actually disobeyed the court order before one is cited for contempt. The applicant in a application for contempt must prove beyond peradventure that the respondent is guilty of contempt.[19]
The High Court of South Africa in the case of Kristen Carla Burchell vs Barry Grant Burchell[20] held that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii). Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities.[21] As pointed out earlier, the alleged order was not annexed, nor was it shown that it the corporate veil had been lifted in order for the directors to be held personally liable.
Writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand[22] have authoritatively stated 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.
Although the proceedings are civil in nature, it is well established that an applicant must prove the elements beyond reasonable doubt, at least higher than the standard in civil cases, The fact that the liberty of the defendant could be affected means that the standard of prove is higher than the standard in civil cases. It is incumbent on the applicant to prove that the defendant's conduct was deliberate in the sense that he or she deliberately or willfully acted in a manner that breached the order.’’
9. In the instant case, the court established that the consent order of 7th December 2022 was vitiated on ground of mistake. The employee-employer relationship having terminated on the 21st November 2022(page 120 of ROA was the termination letter) the subsequent consent order on payment of salary from 7th December 2022(at page 80 of ROA) was mistaken. The court applying the foregoing authorities holds that the failure of the respondent to comply with the consent order was not deliberate, the Order to pay salaries having been issued post the termination of its employment relations with the Appellant. That was sufficient ground to dismiss the application for contempt seeking to enforce the said consent order. Contempt proceedings call for a party to show cause why they should not be punished for disobedience of a court order. The Respondent complied and demonstrated that it did not deliberately disobey the Consent Order to the trial court’s satisfaction.
10. The court on appeal upheld the decision of the trial court save to correct error of the termination date being 21st November 2022 and not 21st November 2023 as stated in the ruling. In the upshot, the appeal was dismissed with costs to the respondent.
11. It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 21st DAY OF FEBRUARY, 2025.
i. THAT the Appeal herein be allowed with costs.
ii. THAT the Ruling, Orders and Decree emanating from the Judgment delivered by Hon. BECKY CHELOTI MULEMIA delivered on 14th November, 2023 in the Chief Magistrate's Court at Nairobi, Milimani Commercial Court COMMSU NO E891 of 2022 being AMOS KORIR -v-ACCESS BANK KENYA LIMITED & ANOTHER, be set aside and substituted with an order to the effect that the Appellant has proved his case as contained in the Application dated 14th July, 2013 and thus issue orders as prayed in the said Application dated 14th July 2023;
iii. THAT the Respondents be condemned to pay the Costs of the proceedings both at the Trial Court and before this Honorable Court.
iv. Any further or other alternative relief and/or order that this Honourable Court may deem fit and just to grant.
2. Grounds of appeal
1) THAT the Learned Trial Magistrate erred in law and fact in finding that the 1st Respondent's Country Managing Director, Samuel Minta, was not in contempt of the trial Honorable Court's Consent Orders entered into on 7th December 2022.
2) THAT the Learned Trial Magistrate erred in law and facts in finding that the Application for contempt dated 14th July 2023 had been overtaken by events despite overwhelming evidence that the consent orders entered into on 7th December 2022 had not been varied, set aside, reviewed and or appealed against and the same were obtained at the behest of the 1st Respondent's admission both in their pleadings being Preliminary Object dated 6th December 2022 and subsequent oral presentation in court on 7th December 2022 that Appellant's employment contract had not been terminated.
3) THAT the Trial Magistrate erred in law and facts in finding that the application dated 14th July 2023 had been overtaken by events despite the Respondent pleading that the entire suit being COMMSU E891 OF 2022 between Amos Korir-versus- Access Bank Kenya Limited & Another is prematurely in court as the investigations and disciplinary process over the Appellant had not been completed which admission formed the basis of the consent entered into and thereby birthed the Orders issued on the 7th December 2022.
4) THAT the Trial Magistrate erred in law and facts in failing to find that the Appellant had proved his case to the standard required by law despite overwhelming oral and documentary evidence in support of the Appellant's Application dated 14th July 2023.
5) THAT the Learned Trial Magistrate erred in law and in facts by failing to comprehensively consider and evaluate the tools provided to it by parties, being evidence, documentation and testimonials on record and thus arriving at findings and conclusions that are completely not supported by evidence on record and that by disregarding the pleadings filed by parties, the Learned Trial Magistrate became a party herself to the issues in controversy contrary to the now settled concept of bindingness of pleadings on not only to the parties, but also the court itself.
6) THAT the Learned Trial Magistrate completely failed to properly appreciate the now trite law relating to CONSENT ORDERS entered into by parties voluntarily and thereby rendered a decision per incuriam.
7) THAT the Learned Trial Magistrate erred in law and facts by failing to appreciate that the Appellant was not under obligation to produce evidence that is outside what the Appellant has pleaded in his pleadings. In particular, that if there was any purported termination of the employment contract of the Appellant, it was for the 1st Respondent to bring it to the attention of court and they had that opportunity on two occasions being 6th December 2022 when it was filing its responses and 7th December 2022 at the hearing.
8) THAT the Learned Trial Magistrate erred in law and fact by injudiciously disregarding the long established principles of equity when dismissing the application dated 14th July 2023 while admitting the conflicting evidence and pleadings of the 1st Respondent that on one had until 7th December 2022 the Appellant had not been terminated and on the other hand post 14th July 2023 the Appellant became terminated yet the alleged termination was purportedly done 24th November 2022 and the 1st Respondent concealed the purported termination from the Court and or Appellant at the hearing on 7th December 2022.
9) THAT the Learned Trial Magistrate erred in law and fact in holding that the Appellant had not proved a case of contempt of court, whereas the Respondents failed to rebut the legal and factual evidential materials adduced before the court in support of the particulars of contempt set out in the Appellant's application dated 14th July 2023 and the further affidavit deposed by the Applicant.
3. The appeal arose from the ruling of the trial court where the application for contempt by the appellant seeking to enforce a consent order of 7th December 2022 was dismissed on the ground of non-disclosure by the claimant of having had his employment terminated on 21st November 2023 and payment of terminal dues. (Ruling dated 7th November 2023 at pages 307-308 of ROA)
4. The appellant’s position was that the Learned Trial Magistrate completely failed to properly appreciate the now trite law relating to CONSENT ORDERS entered into by parties voluntarily and thereby rendered a decision per incuriam. That the Learned Trial Magistrate erred in law and facts by failing to appreciate that the Appellant was not under obligation to produce evidence that is outside what the Appellant has pleaded in his pleadings. In particular, that if there was any purported termination of the employment contract of the Appellant, it was for the 1st Respondent to bring it to the attention of court and they had that opportunity on two occasions being 6th December 2022 when it was filing its responses and 7th December 2022 at the hearing.
5. The application for contempt was dated 14th July 2023 and supported by the appellant’s affidavit dated 14th July 2023. The court perused the affidavit. The appellant in paragraph 4 of the supporting affidavit stated that the investigation and disciplinary process post 7th December 2022 have never been concluded. That the respondent have only since paid him on 14th December 2023 which payment they contemptuously described as final dues in gross violation of orders of 7th December 2022. The appellant annexed the bank statement. On perusal (at page 97 of ROA) the court found that the entry for final dues was 14th December 2022 and not 2023 as averred by the appellant.
6. The appeal was canvased by way of written submissions by both parties.
DECISION
Whether the appeal was merited.
7. On whether the voluntary consent is binding, the respondent vide affidavit dated 19th July 2023 stated that the claimant /appellant failed to disclose his employment had been terminated on the 21st November 2022 when the consent was entered. The termination letter was produced at page 120 ROA. The court established that the appellant had been terminated from employment at time the advocates of the parties entered into the consent. The claimant was aware of that fact and received his final dues on the 14th of December 2022. The respondent’s advocates ought to have sought instructions before binding their client. The appellant submitted the Respondent had not pleaded termination in their pleadings leading to the consent and that the consent orders of 7th December had not to be set aside or varied and the trial court erred in not enforcing the same and relied on the decision in Abida Werimba Mwaniki & 2 others v Samwel Njeru M’ngendo & 2 others [2017] KEELC 3104 (KLR) where it was observed:- ‘’ 27. It was submitted by the Defendants’ counsel that the application for committal of his clients for contempt had been overtaken by events since the Plaintiffs had vacated the suit properties. I do not see how an application for contempt of court can be overtaken by events simply because the Plaintiffs have vacated or been constructively evicted by the Defendants. If the court were to validate such an argument, then all it would require an alleged contemnor to do to scuttle his punishment for contempt would simply be to evict the victim of such violation. This court cannot accept such a proposition.
The legal position on a person’s obligation to obey a court order is well settled in Kenya. I need not cite the numerous authorities on the matter. The obligation requires a party against who an order is issued to obey it even when they believe it to be irregular, unfair or oppressive, see Hadkinson Vs Hadkinson [1952] ALL ER 567. There is an unqualified obligation to obey a court order until it is varied, set aside or recalled.’’ The court agreed with the decisions.
8. The contempt application dated 14th July 2023 called for a committal to civil jail of the Managing Director of the respondent. That was a very serious sentence not to be taken lightly as it affects the liberty of an individual. The court was guided by several authorities on the matter as cited in Katsuri Limited v Kapurchand Depar Shah [2016] KEHC 6447 (KLR) by Justice Mativo to wit:-
‘’Contempt proceedings are quasi-criminal in nature and since the liberty of a person is at stake, the standard of proof is higher than in civil cases. This principle was reiterated in the case of Gatharia K. Mutikika vs Baharini Farm Ltd[17]where it was held as follows:-
"The Courts take the view that where the liberty of the subject is, or might be involved, the breach for which the alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved... I 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, in criminal cases. it is not safe to extend it to offence, 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 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 part of judges 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. A judge must be careful to see that the cause cannot be mode of dealing with persons brought before him. Necessary though the jurisdiction may be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found... 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 a contempt is threatened or has been committed, and on 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."
In Peter K. Yego & Others vs Pauline Nekesa Kode[18]the court recognizing that contempt of court is criminal, held that it must be proved that one has actually disobeyed the court order before one is cited for contempt. The applicant in a application for contempt must prove beyond peradventure that the respondent is guilty of contempt.[19]
The High Court of South Africa in the case of Kristen Carla Burchell vs Barry Grant Burchell[20] held that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii). Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities.[21] As pointed out earlier, the alleged order was not annexed, nor was it shown that it the corporate veil had been lifted in order for the directors to be held personally liable.
Writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand[22] have authoritatively stated 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.
Although the proceedings are civil in nature, it is well established that an applicant must prove the elements beyond reasonable doubt, at least higher than the standard in civil cases, The fact that the liberty of the defendant could be affected means that the standard of prove is higher than the standard in civil cases. It is incumbent on the applicant to prove that the defendant's conduct was deliberate in the sense that he or she deliberately or willfully acted in a manner that breached the order.’’
9. In the instant case, the court established that the consent order of 7th December 2022 was vitiated on ground of mistake. The employee-employer relationship having terminated on the 21st November 2022(page 120 of ROA was the termination letter) the subsequent consent order on payment of salary from 7th December 2022(at page 80 of ROA) was mistaken. The court applying the foregoing authorities holds that the failure of the respondent to comply with the consent order was not deliberate, the Order to pay salaries having been issued post the termination of its employment relations with the Appellant. That was sufficient ground to dismiss the application for contempt seeking to enforce the said consent order. Contempt proceedings call for a party to show cause why they should not be punished for disobedience of a court order. The Respondent complied and demonstrated that it did not deliberately disobey the Consent Order to the trial court’s satisfaction.
10. The court on appeal upheld the decision of the trial court save to correct error of the termination date being 21st November 2022 and not 21st November 2023 as stated in the ruling. In the upshot, the appeal was dismissed with costs to the respondent.
11. It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 21st DAY OF FEBRUARY, 2025.