Beatrice Njeri Chege AND Tris Motorcycles Limited VS Beth Mobility Llp AND Questworks Motorlabs Llp AND 1 Others

1. The applicants have filed the application dated 7th June 2023 under Certificate of Urgency, under section 5 of the Judicature Act Cap 8 Laws of Kenya, sections 1A,1B and 3A, 63(c)and (e) of the Civil Procedure Act, Articles 50 and 159 of the Constitution of Kenya and all other enabling provisions of law.  The application seeks to have the respondents and the alleged contemnors committed to civil jail for willfully disobeying the orders issued by this court on 22nd May 2023.

2. The application is supported by the affidavit of Ambrose BEATRICE NJERI CHEGE, a Director of the 2nd applicant in the matter. The respondents have opposed the application through a replying affidavit dated 22nd June 2023 sworn by PHILIP MWANGI KAMAU, a partner in the 1st and 2nd respondent’s partnership. The affidavit is sworn on behalf of the 1st and 2nd respondent and the 1st to 7th alleged contemnors, although the 3rd and 4th contemnors also filed Grounds of Objection dated 30th June 2023.

3. The application was canvassed by way of oral hearing with the parties advancing their respective positions.

4. The background to the application is largely uncontroverted. Parties agree that on 13th June 2022 the lower court in MCCOMSU E462 of 2022 ordered the attachment of the applicants’ and 3rd respondent’s moveable and immovable assets and froze their bank accounts. Dissatisfied with this decision, the applicants filed an appeal, to wit HCCOMMA E096/2022 and an application dated 26th July 2022 seeking stay of execution of the orders of 13th June 2022 pending the appeal.

5. Interim stay orders were granted on 1st August 2022 pending the hearing and determination of the application. Subsequently the court rendered a decision on the said application, dated 28th February 2023, granting a conditional stay of execution, which required the applicants to deposit the decretal amount in a joint account within 30 days, in default of which the stay orders would be deemed as vacated.

6. It is further not contested that on 13th March 2023 the applicants filed an application seeking to review this order on the basis that there was an error on the face of it. The application was filed under certificate of urgency and came before Hon. Justice Mabeya, on 15th March 2023. The judge directed that the application be served for directions on 22nd May 2023.

7. The matter came up for mention on 22nd May 2023 when I reserved 3rd November 2023 for ruling on the application for review and extended the interim orders herein until the 3rd November 2023.

8. The applicants aver that on 30th May 2023, a week after the alleged interim orders had been extended, the defendants and alleged contemnors seized, attached and carted away the applicants’ business stock in motorcycles and riding gear.

9. The applicant avers that Mr Wachira, Counsel for the 1st and 2nd respondents first feigned ignorance of the illegal seizure and later denied knowledge of any orders of the court. It is the applicants’ case that the orders were given in the presence of Mr Wachira for the 1st and 2nd respondents/contemnors as well as Mr Waweru Advocate for the 3rd respondent/contemnor.

10. In order to successfully prove civil contempt, four elements must be proven. These were laid out in North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi [2016] eKLR as follows;

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.

11. I have perused the court record for 22nd May 2023 and there is no doubt that the applicants and the respondents were represented. Mr Gachomo appeared for the applicants, Mr Wachira for the 1st and 2nd respondents and Ms Waweru for the 3rd respondents. That qualifies the fact that the parties were aware of the proceedings and any orders granted on the material day.

12. But then, it would appear to me that the actual bone of contention in this matter is not whether parties were aware of the orders but whether there were any interim orders that were extended by the orders of 21st March 2023 and subsequently on 22nd May 2023. The applicants’ aver that they sought prayer 2 of the application dated 13th March 2023 for stay pending the hearing and determination of the application, which prayer was granted.

13. According to Mr Wachira for the 1st and 2nd respondents, there were no interim orders to be extended and there was no stay in place as at 21st March and 22nd May 2023. The respondents aver that once the substantive application for stay pending appeal was heard and a conditional stay was granted on 28th February 2023, the stay orders were subject to compliance of the conditions within 30 days.

14. This timeline had lapsed on 30th March 2023. The applicants failed to comply within the set time. They did not seek an extension of the interim orders but had instead filed the application for review of these orders.

15. This means that there were technically no interim orders to extend. According to the respondents, counsel for the applicants’ deliberately hoodwinked the court that there were interim orders of stay issued by the court on the application dated 15th March 2023 and sought that they be extended until the ruling of 3rd November 2023.

16. Mr Kwenjera for the 3rd and 4th contemnors relied on the Grounds of Opposition filed on 30th June 2023. Counsel agreed with the 1st and 2nd respondents’ submissions and again emphasized that it was not clear which interim orders the applicant sought to extend during the mention of 21st March 2023.

17. The court record indicates that when the matter came up before me on 21st March 2023, Ms Waweru was holding brief for Mr Gachomo for the applicants. Ms Odimu was present, holding brief for Mr Kwenjera for the 1st and 2nd respondents and there was no appearance for the 3rd respondent.

18. The directions of the court on this day were that:

Let the respondents put in their response to the application (of 13th March 2023) within 15 days from today. Thereafter, parties to file and exchange submissions within 30 days on a 15-day basis. Mention on 22nd May 2023 to confirm compliance. Interim orders extended until then. On 22nd May 2023 the Court again extended the interim orders until 3rd November 2023, when the ruling on the review application would be delivered.

19. Having carefully perused the court record and proceedings, I am inclined to agree with the respondents and the alleged contemnors that after the 30 period stay ordered by the Court on 28th February 2023 lapsed, no other interim orders appear to have been granted that were capable of being extended as the court was led to believe on 21st March 2023 and 22nd May 2023.

20. The conclusion is that this court does not find the respondents in contempt of any orders of this court. Consequently, the application dated 7th June 2023 is dismissed with costs to the respondents.