REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM NO. 015 of 2020
ANTHONY KIGAMBA HATO……...……………………….1ST PLAINTIFF
DAVID KAMAU CHEGE ……………………………………2ND PLAINTIFF
CECILIA WAMAITHA……………………………………….3RD PLAINTIFF
LYDIA NJOKI MWANGI…………………………………….4TH PLAINTIFF
VERSUS
JULIA WAMBUI GITONGA……………………………...……..DEFENDANT
LYDIA NYAWIRA NJERI……………………………….…..2ND DEFENDANT
SIMON GITIORA MUGO…………………………………...3RD DEFENDANT
ROMAN GAITURU WANYOIKE ……………………….....4TH DEFENDANT
PETER MACHARIA……………………………………........5TH DEFENDANT
JOSEPH NDUNGU MAINA…………………REGISTRAR OF COMPANIES
RULING
1. The application dated 20th September, 2022 was filed by the plaintiffs under the provisions of Order 40 Rule 3 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution of Kenya, 2010. The plaintiffs seek the following orders-
(i) Spent;
(ii) That the defendants/respondents be found culpable of contempt of Court and that they be jailed for a period not exceeding 6 months or they be punished as the Court deems fit.
(iii) That costs be in the cause.
2. The application is anchored on the affidavit of Anthony Kigambo Hato, the 1st plaintiff herein, sworn on 20th September, 2022. In the said affidavit, he deposed that as at the time of filing suit, the CR-12 was as per the exhibit 1 attached to his affidavit and that the Court ordered for the status quo to be maintained. That subsequent to the said order being given, the defendants/respondents proceeded to alter the contents of the CR-12 as per the exhibit marked B annexed to his affidavit. The 1st plaintiff prayed for the defendants to be found culpable of contempt of Court and be punished accordingly.
3. In a replying affidavit filed by Joseph Ndung’u Maina, the Chairman and Director of Witeithie Gwaka Investment Ltd and the 6th defendant herein, sworn on 2nd June, 2023, he deposed that the application of 20th September, 2022 does not indicate the orders which were violated and that the said orders were not attached by the applicant for clarity and specificity. He further deposed that the said lack of specificity of the orders said to have been violated is a fatal flaw and renders the application procedurally incompetent.
4. The 6th defendant stated that the above notwithstanding, he is conversant with the circumstances surrounding this matter and competent to respond to some of the issues raised in the plaintiffs’ application dated 20th September, 2022, of which their previous Advocate did not inform them about.
5. He stated that the plaintiffs had confirmed by the CR-12 attached to their application that the 1st to 6th defendants have been the legitimate office bearers of Witeithie Gwaka Investment Ltd and that has been the case since the year 2019 to date.
6. The 6th defendant deposed that the only orders he could think of as being the ones they are alleged to have violated are those issued to the 1st to 6th defendants on 21st October, 2019, as the legitimate office holders, which were obtained by them as against the plaintiffs, and served on the said plaintiffs.
7. The 6th defendant stated that the inclusion of Edward Wanjohi Mugo as the Secretary was not instituted by the defendants herein, but must have been instituted by the Registrar of Companies, the 7th defendant herein, pursuant to his legitimate duties and as required by the law in the annual returns. He also stated that it has not been shown that there has been any breach on the maintenance of the status quo of the operations of Witeithie Gwaka Investments Ltd.
8. He averred that no evidence had been adduced to indicate that the respondents instigated the lawful inclusion of the Company Secretary, and that the said inclusion renders the office holding complete as required by company law.
9. In the further affidavit filed by the 1st plaintiff, he contended that the Registrar of Companies must have been moved by the respondents to increase the numbers of Directors from 7 to 8, by the inclusion of Edward Wanjohi Mugo.
ANALYSIS AND DETERMINATION
10. From the outset, I must point out that apart from the provisions relied on by the applicant, this being a contempt of Court application, it should have been grounded on the Judicature Act and the Civil Procedure Rules of England as amended from time to time. It should therefore have been filed as an Application Notice in the format provided for under the said Rules. The applicable law is Rule 81.4 of the English Civil Procedure Rules (Amendment No. 3) Rules, 2020, which stipulates as follows-
“(1) Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.
(2) A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—
(a) the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);
(b) the date and terms of any order allegedly breached or disobeyed;
(c) confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;
(d) if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;
(e) confirmation that any order allegedly breached or disobeyed included a penal notice…...”
11. I have however decided to consider the application on its merits. In so doing, I have gone through the submissions filed by the applicant’s Counsel and those filed by the respondents’ Counsel. Without belabouring the point, the applicants accuse the respondents of breach of a Court order. The said Court order was however not exhibited in order for this Court to gain sight of what the status quo orders were all about. This Court finds the supporting affidavit filed by the 1st plaintiff to be vague in regard to the Court order that is said to have been breached. It is not the work of this Court to embark on a second guessing mission and fill in gaps in the evidence tabled by the 1st plaintiff herein.
12. It is trite that the standard of proof in a case of contempt of Court is higher than that of a balance of probabilities and below the standard of beyond reasonable doubt. It is an intermediate standard. In Mutitika vs Baharini Farm Limited (1985) KLR 229, 234, the Court of Appeal held thus:
“In our view, the standard of proof in contempt proceedings must be higher than proof on the 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 an offence which can be said to be quasi-criminal in nature.”
13. Even if the respondents’ deponent is correct as to the Court order he presumes to be the subject of the contempt application, the applicants were required to support their application with credible evidence that it is the respondents who moved the Registrar General to include the name of the Company Secretary, Edward Wanjohi Mugo, in the CR-12 of Witeithie Gwaka Investments Ltd. That evidence was however not adduced.
14. This Court finds the application dated 20th September, 2022 lacking in merit. It is dismissed with costs to the1st to 6th defendants/ respondents.
It is so ordered.
NJOKI MWANGI
JUDGE
DATED, SIGNED and DELIVERED at NAIROBI on this 8th day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
In the presence of:
No appearance for the plaintiffs/applicants
Mr. P.M Karanja for the 1st to 6th defendants
No appearance for the 7th defendant
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM NO. 015 of 2020
ANTHONY KIGAMBA HATO……...……………………….1ST PLAINTIFF
DAVID KAMAU CHEGE ……………………………………2ND PLAINTIFF
CECILIA WAMAITHA……………………………………….3RD PLAINTIFF
LYDIA NJOKI MWANGI…………………………………….4TH PLAINTIFF
VERSUS
JULIA WAMBUI GITONGA……………………………...……..DEFENDANT
LYDIA NYAWIRA NJERI……………………………….…..2ND DEFENDANT
SIMON GITIORA MUGO…………………………………...3RD DEFENDANT
ROMAN GAITURU WANYOIKE ……………………….....4TH DEFENDANT
PETER MACHARIA……………………………………........5TH DEFENDANT
JOSEPH NDUNGU MAINA…………………REGISTRAR OF COMPANIES
RULING
1. The application dated 20th September, 2022 was filed by the plaintiffs under the provisions of Order 40 Rule 3 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution of Kenya, 2010. The plaintiffs seek the following orders-
(i) Spent;
(ii) That the defendants/respondents be found culpable of contempt of Court and that they be jailed for a period not exceeding 6 months or they be punished as the Court deems fit.
(iii) That costs be in the cause.
2. The application is anchored on the affidavit of Anthony Kigambo Hato, the 1st plaintiff herein, sworn on 20th September, 2022. In the said affidavit, he deposed that as at the time of filing suit, the CR-12 was as per the exhibit 1 attached to his affidavit and that the Court ordered for the status quo to be maintained. That subsequent to the said order being given, the defendants/respondents proceeded to alter the contents of the CR-12 as per the exhibit marked B annexed to his affidavit. The 1st plaintiff prayed for the defendants to be found culpable of contempt of Court and be punished accordingly.
3. In a replying affidavit filed by Joseph Ndung’u Maina, the Chairman and Director of Witeithie Gwaka Investment Ltd and the 6th defendant herein, sworn on 2nd June, 2023, he deposed that the application of 20th September, 2022 does not indicate the orders which were violated and that the said orders were not attached by the applicant for clarity and specificity. He further deposed that the said lack of specificity of the orders said to have been violated is a fatal flaw and renders the application procedurally incompetent.
4. The 6th defendant stated that the above notwithstanding, he is conversant with the circumstances surrounding this matter and competent to respond to some of the issues raised in the plaintiffs’ application dated 20th September, 2022, of which their previous Advocate did not inform them about.
5. He stated that the plaintiffs had confirmed by the CR-12 attached to their application that the 1st to 6th defendants have been the legitimate office bearers of Witeithie Gwaka Investment Ltd and that has been the case since the year 2019 to date.
6. The 6th defendant deposed that the only orders he could think of as being the ones they are alleged to have violated are those issued to the 1st to 6th defendants on 21st October, 2019, as the legitimate office holders, which were obtained by them as against the plaintiffs, and served on the said plaintiffs.
7. The 6th defendant stated that the inclusion of Edward Wanjohi Mugo as the Secretary was not instituted by the defendants herein, but must have been instituted by the Registrar of Companies, the 7th defendant herein, pursuant to his legitimate duties and as required by the law in the annual returns. He also stated that it has not been shown that there has been any breach on the maintenance of the status quo of the operations of Witeithie Gwaka Investments Ltd.
8. He averred that no evidence had been adduced to indicate that the respondents instigated the lawful inclusion of the Company Secretary, and that the said inclusion renders the office holding complete as required by company law.
9. In the further affidavit filed by the 1st plaintiff, he contended that the Registrar of Companies must have been moved by the respondents to increase the numbers of Directors from 7 to 8, by the inclusion of Edward Wanjohi Mugo.
ANALYSIS AND DETERMINATION
10. From the outset, I must point out that apart from the provisions relied on by the applicant, this being a contempt of Court application, it should have been grounded on the Judicature Act and the Civil Procedure Rules of England as amended from time to time. It should therefore have been filed as an Application Notice in the format provided for under the said Rules. The applicable law is Rule 81.4 of the English Civil Procedure Rules (Amendment No. 3) Rules, 2020, which stipulates as follows-
“(1) Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.
(2) A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—
(a) the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);
(b) the date and terms of any order allegedly breached or disobeyed;
(c) confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;
(d) if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;
(e) confirmation that any order allegedly breached or disobeyed included a penal notice…...”
11. I have however decided to consider the application on its merits. In so doing, I have gone through the submissions filed by the applicant’s Counsel and those filed by the respondents’ Counsel. Without belabouring the point, the applicants accuse the respondents of breach of a Court order. The said Court order was however not exhibited in order for this Court to gain sight of what the status quo orders were all about. This Court finds the supporting affidavit filed by the 1st plaintiff to be vague in regard to the Court order that is said to have been breached. It is not the work of this Court to embark on a second guessing mission and fill in gaps in the evidence tabled by the 1st plaintiff herein.
12. It is trite that the standard of proof in a case of contempt of Court is higher than that of a balance of probabilities and below the standard of beyond reasonable doubt. It is an intermediate standard. In Mutitika vs Baharini Farm Limited (1985) KLR 229, 234, the Court of Appeal held thus:
“In our view, the standard of proof in contempt proceedings must be higher than proof on the 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 an offence which can be said to be quasi-criminal in nature.”
13. Even if the respondents’ deponent is correct as to the Court order he presumes to be the subject of the contempt application, the applicants were required to support their application with credible evidence that it is the respondents who moved the Registrar General to include the name of the Company Secretary, Edward Wanjohi Mugo, in the CR-12 of Witeithie Gwaka Investments Ltd. That evidence was however not adduced.
14. This Court finds the application dated 20th September, 2022 lacking in merit. It is dismissed with costs to the1st to 6th defendants/ respondents.
It is so ordered.
NJOKI MWANGI
JUDGE
DATED, SIGNED and DELIVERED at NAIROBI on this 8th day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
In the presence of:
No appearance for the plaintiffs/applicants
Mr. P.M Karanja for the 1st to 6th defendants
No appearance for the 7th defendant
Ms B. Wokabi – Court Assistant.