Background
1. This ruling determines the application dated 14th January 2022 and amended on 2nd August 2023, brought under section 5 of the Judicature Act Cap 8 Laws of Kenya, High Court (Organization and Administration) (General) Rules, 2016, rules 39 and 40, and sections IA, 1B, 3, and 3A of the Civil Procedure Act.
2. The applicant seeks orders compelling the respondents to show cause why they should not be punished and sentenced for disobedience and failure to comply with this court's orders dated 18th December 2019 and 28th September 2020. Additionally, the applicant prays that the respondents be ordered to account for the assets and cover the costs of returning the machinery and equipment they attached and carted away, or alternatively, deposit the sale proceeds of assets belonging to the applicant with the court.
3. The application is supported by the affidavit of KEVIN MAMBIRI ANAMI, sworn on 4th August 2022. The applicant claims that the respondents proclaimed, attached, carted away, and ostensibly sold the applicant’s equipment and machinery, despite being shown and served with the court's ruling and orders barring any adverse actions pending the finalization of the voluntary administration process in Ravenna, Italy. The applicant argues that this contempt has disenfranchised other creditors' interests and diluted their rights.
The respondents’ case
4. The 1st respondent, in a replying affidavit sworn on 15th September 2023, avers he became aware of the orders on 6th December 2023 through a phone call and immediately ceased all contrary actions. He confirms representing clients in two cases with judgments against the applicants: Nairobi CMCC E395 of 2020 and Molo CMCC 120 of 2020.
5. He also confirms instructing Ms. Philips International Auctioneers to execute the decrees. He states the auctioneers proclaimed items on 26th February 2021 and attached them on 21st April 2021, facilitated by court orders, all occurring before he learned of the court orders. Upon learning of the orders during the second phase of execution, he contacted the auctioneers on 6th December 2021 to stop further action and states that warrants issued on 6th December 2022 had not been acted upon in compliance with the court orders.
6. The 1st respondent denies receiving any letters or emails from the applicants, pointing out the lack of receipt and acknowledgment evidence.
7. The 2nd respondent, an employee of the 3rd respondent (T/A Phillips International Auctioneers), also filed a replying affidavit on 15th September 2023. He denies being served with the orders, stating he only knew about them through a phone call from the 1st respondent on 6th December 2022. He confirms that after becoming aware of the orders, he did not act contrary to them and denies involvement in the execution of warrants from Nairobi CMCC E395 of 2020 after being served with the subject orders.
8. The 3rd respondent maintains through his replying affidavit that he was unaware of the subject orders until 6th December 2022 when informed via a phone call. He confirms not acting contrary to the court orders and denies receiving any emails or letters from the applicant. He participated in executing the warrants of attachment in Nairobi CMCC E395 of 2020 before knowing the court orders and learned about them through the 2nd respondent.
9. The 4th respondent's replying affidavit confirms issuing instructions to the 1st respondents to recover an outstanding amount from the applicant in Nairobi E395 of 2020, resulting in the judgment and decree, and execution. The 4th respondent confirmed receipt of Kshs. 10,932,031/= from the auctioneers, unaware of the court orders and never having been formally served.
10. The 5th respondent opposed the application, stating he was an instructing client on behalf of the 4th respondent, who instructed the 1st respondent to recover a debt due to the 4th respondent in Nairobi E395 of 2020. He only became aware of the contempt proceedings when served with a hearing notice and stated that he is no longer a director or shareholder of the 4th respondent.
Analysis and Determination
11. The uncontroverted facts are that this Court issued orders on 18th December 2019 and 28th September 2020 recognizing foreign insolvency proceedings, thereby granting a moratorium against all proceedings, judgments, and executions against the applicant. These orders preceded the respondents' actions.
12. The Orders of this court were and are still binding on the respondents. The court must determine whether the claim against the respondents has been proved to the required standards.
13. In tandem with the decision of this court in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the applicant must prove that:-
i. The defendant had knowledge of or proper notice of the terms of the order;
ii. That the defendant has acted in breach of the terms of the order and
iii. That the defendant's conduct was deliberate.
14. Likewise, in Re Bramblevale Ltd [1970] 1 CH 128, Lord Denning emphasized that contempt of court is a criminal offense requiring satisfactory proof, including evidence that the person lied when questioned. A critical step before citing someone for contempt is proving service of the court order alleged to have been breached.
15. The requirement on mode of service for purposes of proving knowledge and notice of a court order has evolved. The Halsbury’s Laws of England (4th Ed) Vol 9 para 61 states that personal service is generally required, but the emerging jurisprudence in Kenya, as seen in the case of Basil Criticos Vs Attorney General and 8 Others [2012] eKLR, indicates that knowledge can supersede personal service if the party acts with knowledge of the court order.
16. The court must be satisfied that an alleged contemnor had full knowledge or notice of the court order even in the absence of personal service.
17. Turning to the evidence before the court, no affidavit is on record to support the claim that the respondents were served. If they had been served, an affidavit of service to that effect would certainly have been filed or a copy thereof exhibited on the applicant’s affidavit to demonstrate how, when and where they were served.
18. The letters purportedly sent to the 1st respondent bear no acknowledgement of receipt or certificate of postage and the emails have not been returned, acknowledged or responded to further leaving doubt as to whether the email addresses were correct and functional and whether in fact the emails were ever received by the 1st respondent.
19. The evidence on record confirms the averment by the applicant which is that the orders of the court had been advertised in the local dailies.
20. The question is whether advertisement of court orders can be deemed as sufficient notice for purposes of contempt proceedings. I take the view that for an advertisement to be considered valid service on an alleged contemnor, it must be reasonably likely to come to the attention of the person concerned.
21. This generally means that the advertisement should be specifically directed at the alleged contemnor or placed in a manner where it is reasonably certain that the alleged contemnor will see it. A general public advertisement may not meet this standard as it was not sufficiently targeted to ensure that the alleged contemnor would become aware of the court order.
Disposition
22. In the absence of sufficient proof of service and knowledge of the subject court orders, no good case has been made for granting the orders prayed for. The application dated 14th January 2022 is therefore dismissed. I make no orders as to costs.
1. This ruling determines the application dated 14th January 2022 and amended on 2nd August 2023, brought under section 5 of the Judicature Act Cap 8 Laws of Kenya, High Court (Organization and Administration) (General) Rules, 2016, rules 39 and 40, and sections IA, 1B, 3, and 3A of the Civil Procedure Act.
2. The applicant seeks orders compelling the respondents to show cause why they should not be punished and sentenced for disobedience and failure to comply with this court's orders dated 18th December 2019 and 28th September 2020. Additionally, the applicant prays that the respondents be ordered to account for the assets and cover the costs of returning the machinery and equipment they attached and carted away, or alternatively, deposit the sale proceeds of assets belonging to the applicant with the court.
3. The application is supported by the affidavit of KEVIN MAMBIRI ANAMI, sworn on 4th August 2022. The applicant claims that the respondents proclaimed, attached, carted away, and ostensibly sold the applicant’s equipment and machinery, despite being shown and served with the court's ruling and orders barring any adverse actions pending the finalization of the voluntary administration process in Ravenna, Italy. The applicant argues that this contempt has disenfranchised other creditors' interests and diluted their rights.
The respondents’ case
4. The 1st respondent, in a replying affidavit sworn on 15th September 2023, avers he became aware of the orders on 6th December 2023 through a phone call and immediately ceased all contrary actions. He confirms representing clients in two cases with judgments against the applicants: Nairobi CMCC E395 of 2020 and Molo CMCC 120 of 2020.
5. He also confirms instructing Ms. Philips International Auctioneers to execute the decrees. He states the auctioneers proclaimed items on 26th February 2021 and attached them on 21st April 2021, facilitated by court orders, all occurring before he learned of the court orders. Upon learning of the orders during the second phase of execution, he contacted the auctioneers on 6th December 2021 to stop further action and states that warrants issued on 6th December 2022 had not been acted upon in compliance with the court orders.
6. The 1st respondent denies receiving any letters or emails from the applicants, pointing out the lack of receipt and acknowledgment evidence.
7. The 2nd respondent, an employee of the 3rd respondent (T/A Phillips International Auctioneers), also filed a replying affidavit on 15th September 2023. He denies being served with the orders, stating he only knew about them through a phone call from the 1st respondent on 6th December 2022. He confirms that after becoming aware of the orders, he did not act contrary to them and denies involvement in the execution of warrants from Nairobi CMCC E395 of 2020 after being served with the subject orders.
8. The 3rd respondent maintains through his replying affidavit that he was unaware of the subject orders until 6th December 2022 when informed via a phone call. He confirms not acting contrary to the court orders and denies receiving any emails or letters from the applicant. He participated in executing the warrants of attachment in Nairobi CMCC E395 of 2020 before knowing the court orders and learned about them through the 2nd respondent.
9. The 4th respondent's replying affidavit confirms issuing instructions to the 1st respondents to recover an outstanding amount from the applicant in Nairobi E395 of 2020, resulting in the judgment and decree, and execution. The 4th respondent confirmed receipt of Kshs. 10,932,031/= from the auctioneers, unaware of the court orders and never having been formally served.
10. The 5th respondent opposed the application, stating he was an instructing client on behalf of the 4th respondent, who instructed the 1st respondent to recover a debt due to the 4th respondent in Nairobi E395 of 2020. He only became aware of the contempt proceedings when served with a hearing notice and stated that he is no longer a director or shareholder of the 4th respondent.
Analysis and Determination
11. The uncontroverted facts are that this Court issued orders on 18th December 2019 and 28th September 2020 recognizing foreign insolvency proceedings, thereby granting a moratorium against all proceedings, judgments, and executions against the applicant. These orders preceded the respondents' actions.
12. The Orders of this court were and are still binding on the respondents. The court must determine whether the claim against the respondents has been proved to the required standards.
13. In tandem with the decision of this court in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the applicant must prove that:-
i. The defendant had knowledge of or proper notice of the terms of the order;
ii. That the defendant has acted in breach of the terms of the order and
iii. That the defendant's conduct was deliberate.
14. Likewise, in Re Bramblevale Ltd [1970] 1 CH 128, Lord Denning emphasized that contempt of court is a criminal offense requiring satisfactory proof, including evidence that the person lied when questioned. A critical step before citing someone for contempt is proving service of the court order alleged to have been breached.
15. The requirement on mode of service for purposes of proving knowledge and notice of a court order has evolved. The Halsbury’s Laws of England (4th Ed) Vol 9 para 61 states that personal service is generally required, but the emerging jurisprudence in Kenya, as seen in the case of Basil Criticos Vs Attorney General and 8 Others [2012] eKLR, indicates that knowledge can supersede personal service if the party acts with knowledge of the court order.
16. The court must be satisfied that an alleged contemnor had full knowledge or notice of the court order even in the absence of personal service.
17. Turning to the evidence before the court, no affidavit is on record to support the claim that the respondents were served. If they had been served, an affidavit of service to that effect would certainly have been filed or a copy thereof exhibited on the applicant’s affidavit to demonstrate how, when and where they were served.
18. The letters purportedly sent to the 1st respondent bear no acknowledgement of receipt or certificate of postage and the emails have not been returned, acknowledged or responded to further leaving doubt as to whether the email addresses were correct and functional and whether in fact the emails were ever received by the 1st respondent.
19. The evidence on record confirms the averment by the applicant which is that the orders of the court had been advertised in the local dailies.
20. The question is whether advertisement of court orders can be deemed as sufficient notice for purposes of contempt proceedings. I take the view that for an advertisement to be considered valid service on an alleged contemnor, it must be reasonably likely to come to the attention of the person concerned.
21. This generally means that the advertisement should be specifically directed at the alleged contemnor or placed in a manner where it is reasonably certain that the alleged contemnor will see it. A general public advertisement may not meet this standard as it was not sufficiently targeted to ensure that the alleged contemnor would become aware of the court order.
Disposition
22. In the absence of sufficient proof of service and knowledge of the subject court orders, no good case has been made for granting the orders prayed for. The application dated 14th January 2022 is therefore dismissed. I make no orders as to costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 31ST DAY OF MAY 2024.
F. MUGAMBI
JUDGE