1. Before this Court for determination is the Plaintiff/Applicant’s Notice of Motion dated 30th July 2024. The application, brought primarily under Rule 3(2) of the High Court (Practice and Procedure) Rules, Order 51 Rule 1 of the Civil Procedure Rules, and Section 5(1) of the Judicature Act, seeks an assortment of twelve (12) reliefs.
2. The prayers can be systematically condensed into three (3) core components:
i. The joinder of five (5) named principal and accountable officers of the 1st Defendant/Respondent as Interested Parties to this suit, namely: Peter Mogeni (Managing Director), Regina Anyika (Company Secretary & Legal Director), Shelemiah Jalango (Tentative Head of Debt Recoveries), Hedaya Malesi Kezzah (Tentative Head of Litigation), and Alex Kaswi (Debt Recovery Officer).
ii. An order citing, finding, and punishing the said officers for contempt of Court for acts allegedly committed during a Court-Annexed Mediation process.
iii. An order compelling the Defendants to purge their alleged contempt by unconditionally accepting specific terms of settlement proposed by the Plaintiff/Applicant.
3. The Application is supported by the Affidavit of Tengeri Osoro, sworn on 30th July 2024, alongside a Further Supporting Affidavit sworn on 8th November 2024.
4. The application is opposed by the 1st Defendant/Respondent via a Replying Affidavit sworn on 3rd October 2024 by Regina Anyika, in her capacity as the 1st Defendant’s Company Secretary and Director of Legal Services.
5. The Application was canvassed by way of written submissions. The Applicant, through their Counsel, Muga & Associates Advocates, filed submissions dated 8th November 2024. The Respondent’s submissions dated 18th November 2024 were filed by their Counsel, Walker Kontos – Advocates.
The Applicant’s Case
6. The Applicant contends that this matter had been referred to Court Annexed Mediation and that the Respondents and their officers acted in blatant disregard of the Civil Procedure (Court-Annexed Mediation) Rules, 2022.
7. It was the Applicant’s case that the Respondents caused unnecessary adjournments and delayed the mediation process for six months, failed to avail duly authorized officers capable of binding the bank, breached confidentiality obligations under the mediation rules, and introduced new representatives and new settlement terms after consensus had allegedly been reached.
8. The Applicant further averred that throughout the mediation process, one Alex Kaswi (intended 5th Interested Party) attended the sessions as the representative of the 1st Defendant and participated in negotiations for more than six (6) months, leading to agreed settlement terms. The Applicant contends that it later emerged that the said officer lacked authority to bind the bank and that this conduct amounted to bad faith and contempt of court.
9. The Applicant submitted that the Respondents violated Rules 16, 22, 25, and 29 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, and urges the Court to invoke its contempt jurisdiction and impose sanctions.
The Respondent’s Response
10. In response, the 1st Defendant raised objections to both the form and substance of the Application.
11. On the question of joinder, the Respondent argued that the intended Interested Parties are merely employees acting in the scope of their employment for the 1st Defendant, which enjoys a separate and distinct corporate legal personality. It was argued that the underlying banker-customer relationship and subsequent contract dispute remain strictly between the Plaintiff and the 1st Defendant in its capacity as a corporation – a separate legal entity.
12. The Respondent emphasized that these employees hold no personal stake or proprietary interest in the subject matter of the suit, specifically the outstanding debt liabilities and the secured commercial trucks and trailers.
13. On the allegations of contempt, the Respondent denied the existence of any clear, unambiguous, or positive court order that has been violated. It argues that mediation is by its nature a consensual, non-binding negotiation process, and a party's refusal to settle or disagreement on terms cannot be legally construed as a criminal or civil contempt of court.
14. Furthermore, the Respondent asserts that the quasi-criminal nature of contempt requires strict proof beyond a reasonable doubt, including proof of personal service or unequivocal actual knowledge of a clear order, none of which has been established by the Applicant.
Analysis and Determination
15. I have considered the pleadings and the parties’ rival submissions. The issues that fall for determination are:
i. Whether the intended interested parties should be joined;
ii. Whether the Defendants are in contempt of court;
Whether the intended parties should be joined
16. The principles governing joinder of interested parties are settled.
17. In Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR the Supreme Court held that an interested party is one who has a stake in the proceedings and must demonstrate prejudice and relevance of participation. The Court clarified that:
"An interested party is someone who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause."
18. The Court further stated that to be properly joined, an intended party must show a direct, personal, or proprietary interest in the outcome of the litigation that cannot be sufficiently adequately protected by the existing parties.
19. In the present case, the primary dispute is between the Plaintiff and the corporate entity. No independent cause of action has been pleaded against the intended 1st to 5th Interested Parties.
20. The persons sought to be joined are officers of the 1st Defendant. They participated in mediation purely as agents of the corporation. The law is clear that a company acts through its officers, and that fact alone is not a basis for joinder unless personal liability is shown.
21. If an officer acts improperly in their official capacity, the liability remains that of the corporate principal unless statutory exceptions or fraud are pleaded with specificity to pierce the veil. No such case has been established in this case.
22. Accordingly, the application for joinder is a misdirection and is therefore denied.
Whether the Defendants are in contempt of court
23. It is settled law that contempt of court is quasi-criminal in nature and must be proved to a higher standard than on a balance of probabilities. In Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR, the Court held that the elements required to establish civil contempt are the presence of a clear and binding court order; knowledge of the order; breach; and willful and deliberate disobedience. The Court (Mativo J – as he then was) at Paragraph 40 thereof stated as follows:
“It is an established principle of law that[45] 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…”
24. In the present case, the Plaintiff cited the conduct of the Respondent’s officers during mediation. The Applicant’s complaint is essentially that the Respondents participated in mediation without a genuine intention to settle, delayed proceedings, failed to avail duly authorized representatives, and breached confidentiality obligations.
25. The Court has carefully examined the material placed before it, including correspondence annexed to the replying affidavit demonstrating exchanges between counsel and the mediator concerning dates, attendance, and participation in the mediation sessions.
26. While the Applicant strongly believes that the Respondents acted in bad faith, the evidence placed before Court does not establish willful disobedience of a court order.
27. The Court Annexed Mediation framework established under Part VIIIA of the Civil Procedure Act and the Civil Procedure (Court-Annexed Mediation) Rules, 2022, is intended to facilitate consensual settlement of disputes. Mediation is inherently voluntary in outcome, even where referral to mediation is court-directed.
28. Rule 25 of the Mediation Rules safeguards confidentiality of the process, while Rule 29 empowers the Court to impose sanctions where a party fails to participate in good faith. However, sanctions under Rule 29 are discretionary and must be invoked upon clear and cogent evidence of misconduct that undermines the mediation process.
29. In the present case, no executed settlement agreement has been exhibited before Court. The terms the Applicant seeks to enforce are proposals discussed during mediation. The Court cannot compel a party to adopt or execute settlement terms that were never formally executed and adopted as a mediation settlement agreement.
30. In any event, as correctly submitted by the Respondents, mediation is a consensual and confidential process. In Re Estate of BM (Deceased) [2019] eKLR, the Court held that if mediation collapses, the matter returns to court for determination, and materials from the process remain confidential. It therefore follows that a mediator does not issue binding orders and cannot compel agreement.
31. Equally, the allegation that the Respondent’s representative lacked authority to bind the bank does not, without more, amount to contempt of court. Corporate entities ordinarily act through internal approval structures, and the Court cannot ignore the realities of corporate governance.
32. The Court further notes that the Applicant seeks, among other orders, to have the Respondents denied audience and their pleadings struck out. Such orders are draconian and can only be issued in the clearest of cases where deliberate abuse of the court process is demonstrated.
33. The threshold for contempt or for punitive sanctions under Rule 29 has therefore not been met.
34. The upshot of the foregoing is that the Court finds the Notice of Motion dated 30th July 2024 without merit, and is hereby dismissed in its entirety, with costs to the Respondent.
35. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Muga………………for the Applicant
Ms. Gecaga……………for the Respondent
2. The prayers can be systematically condensed into three (3) core components:
i. The joinder of five (5) named principal and accountable officers of the 1st Defendant/Respondent as Interested Parties to this suit, namely: Peter Mogeni (Managing Director), Regina Anyika (Company Secretary & Legal Director), Shelemiah Jalango (Tentative Head of Debt Recoveries), Hedaya Malesi Kezzah (Tentative Head of Litigation), and Alex Kaswi (Debt Recovery Officer).
ii. An order citing, finding, and punishing the said officers for contempt of Court for acts allegedly committed during a Court-Annexed Mediation process.
iii. An order compelling the Defendants to purge their alleged contempt by unconditionally accepting specific terms of settlement proposed by the Plaintiff/Applicant.
3. The Application is supported by the Affidavit of Tengeri Osoro, sworn on 30th July 2024, alongside a Further Supporting Affidavit sworn on 8th November 2024.
4. The application is opposed by the 1st Defendant/Respondent via a Replying Affidavit sworn on 3rd October 2024 by Regina Anyika, in her capacity as the 1st Defendant’s Company Secretary and Director of Legal Services.
5. The Application was canvassed by way of written submissions. The Applicant, through their Counsel, Muga & Associates Advocates, filed submissions dated 8th November 2024. The Respondent’s submissions dated 18th November 2024 were filed by their Counsel, Walker Kontos – Advocates.
The Applicant’s Case
6. The Applicant contends that this matter had been referred to Court Annexed Mediation and that the Respondents and their officers acted in blatant disregard of the Civil Procedure (Court-Annexed Mediation) Rules, 2022.
7. It was the Applicant’s case that the Respondents caused unnecessary adjournments and delayed the mediation process for six months, failed to avail duly authorized officers capable of binding the bank, breached confidentiality obligations under the mediation rules, and introduced new representatives and new settlement terms after consensus had allegedly been reached.
8. The Applicant further averred that throughout the mediation process, one Alex Kaswi (intended 5th Interested Party) attended the sessions as the representative of the 1st Defendant and participated in negotiations for more than six (6) months, leading to agreed settlement terms. The Applicant contends that it later emerged that the said officer lacked authority to bind the bank and that this conduct amounted to bad faith and contempt of court.
9. The Applicant submitted that the Respondents violated Rules 16, 22, 25, and 29 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022, and urges the Court to invoke its contempt jurisdiction and impose sanctions.
The Respondent’s Response
10. In response, the 1st Defendant raised objections to both the form and substance of the Application.
11. On the question of joinder, the Respondent argued that the intended Interested Parties are merely employees acting in the scope of their employment for the 1st Defendant, which enjoys a separate and distinct corporate legal personality. It was argued that the underlying banker-customer relationship and subsequent contract dispute remain strictly between the Plaintiff and the 1st Defendant in its capacity as a corporation – a separate legal entity.
12. The Respondent emphasized that these employees hold no personal stake or proprietary interest in the subject matter of the suit, specifically the outstanding debt liabilities and the secured commercial trucks and trailers.
13. On the allegations of contempt, the Respondent denied the existence of any clear, unambiguous, or positive court order that has been violated. It argues that mediation is by its nature a consensual, non-binding negotiation process, and a party's refusal to settle or disagreement on terms cannot be legally construed as a criminal or civil contempt of court.
14. Furthermore, the Respondent asserts that the quasi-criminal nature of contempt requires strict proof beyond a reasonable doubt, including proof of personal service or unequivocal actual knowledge of a clear order, none of which has been established by the Applicant.
Analysis and Determination
15. I have considered the pleadings and the parties’ rival submissions. The issues that fall for determination are:
i. Whether the intended interested parties should be joined;
ii. Whether the Defendants are in contempt of court;
Whether the intended parties should be joined
16. The principles governing joinder of interested parties are settled.
17. In Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR the Supreme Court held that an interested party is one who has a stake in the proceedings and must demonstrate prejudice and relevance of participation. The Court clarified that:
"An interested party is someone who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause."
18. The Court further stated that to be properly joined, an intended party must show a direct, personal, or proprietary interest in the outcome of the litigation that cannot be sufficiently adequately protected by the existing parties.
19. In the present case, the primary dispute is between the Plaintiff and the corporate entity. No independent cause of action has been pleaded against the intended 1st to 5th Interested Parties.
20. The persons sought to be joined are officers of the 1st Defendant. They participated in mediation purely as agents of the corporation. The law is clear that a company acts through its officers, and that fact alone is not a basis for joinder unless personal liability is shown.
21. If an officer acts improperly in their official capacity, the liability remains that of the corporate principal unless statutory exceptions or fraud are pleaded with specificity to pierce the veil. No such case has been established in this case.
22. Accordingly, the application for joinder is a misdirection and is therefore denied.
Whether the Defendants are in contempt of court
23. It is settled law that contempt of court is quasi-criminal in nature and must be proved to a higher standard than on a balance of probabilities. In Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR, the Court held that the elements required to establish civil contempt are the presence of a clear and binding court order; knowledge of the order; breach; and willful and deliberate disobedience. The Court (Mativo J – as he then was) at Paragraph 40 thereof stated as follows:
“It is an established principle of law that[45] 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…”
24. In the present case, the Plaintiff cited the conduct of the Respondent’s officers during mediation. The Applicant’s complaint is essentially that the Respondents participated in mediation without a genuine intention to settle, delayed proceedings, failed to avail duly authorized representatives, and breached confidentiality obligations.
25. The Court has carefully examined the material placed before it, including correspondence annexed to the replying affidavit demonstrating exchanges between counsel and the mediator concerning dates, attendance, and participation in the mediation sessions.
26. While the Applicant strongly believes that the Respondents acted in bad faith, the evidence placed before Court does not establish willful disobedience of a court order.
27. The Court Annexed Mediation framework established under Part VIIIA of the Civil Procedure Act and the Civil Procedure (Court-Annexed Mediation) Rules, 2022, is intended to facilitate consensual settlement of disputes. Mediation is inherently voluntary in outcome, even where referral to mediation is court-directed.
28. Rule 25 of the Mediation Rules safeguards confidentiality of the process, while Rule 29 empowers the Court to impose sanctions where a party fails to participate in good faith. However, sanctions under Rule 29 are discretionary and must be invoked upon clear and cogent evidence of misconduct that undermines the mediation process.
29. In the present case, no executed settlement agreement has been exhibited before Court. The terms the Applicant seeks to enforce are proposals discussed during mediation. The Court cannot compel a party to adopt or execute settlement terms that were never formally executed and adopted as a mediation settlement agreement.
30. In any event, as correctly submitted by the Respondents, mediation is a consensual and confidential process. In Re Estate of BM (Deceased) [2019] eKLR, the Court held that if mediation collapses, the matter returns to court for determination, and materials from the process remain confidential. It therefore follows that a mediator does not issue binding orders and cannot compel agreement.
31. Equally, the allegation that the Respondent’s representative lacked authority to bind the bank does not, without more, amount to contempt of court. Corporate entities ordinarily act through internal approval structures, and the Court cannot ignore the realities of corporate governance.
32. The Court further notes that the Applicant seeks, among other orders, to have the Respondents denied audience and their pleadings struck out. Such orders are draconian and can only be issued in the clearest of cases where deliberate abuse of the court process is demonstrated.
33. The threshold for contempt or for punitive sanctions under Rule 29 has therefore not been met.
34. The upshot of the foregoing is that the Court finds the Notice of Motion dated 30th July 2024 without merit, and is hereby dismissed in its entirety, with costs to the Respondent.
35. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Muga………………for the Applicant
Ms. Gecaga……………for the Respondent