1. This ruling is in respect to chamber summons dated 13th December, 2022 filed by Derek Kimanthi Gachare in which he seeks the following prayers: -
i. THAT this Honourable Court be pleased to find THE EXECUTIVE DIRECTOR OF FAULU BANK LIMITED in contempt of the order of Honourable Oscar Wanyaga (SRM) in the Chief Magistrate's Court at Thika, in Civil Suit No 194 of 2017- Derek Kimanthi Gachare Vs. Faulu Bank & Immediate Auctioneers issued on 21st November 2019.
ii. THAT the said EXECUTIVE DIRECTOR OF FAULU BANK LIMITED be arrested and committed to prison for a term not exceeding six (6) months;
iii. THAT this Honourable Court be pleased to order that the said EXECUTIVE DIRECTOR OF FAULU BANK LIMITED not be heard by the court until they purge the contempt;
iv. THAT this Honourable Court be pleased to issue such other or further punitive orders in respect of the said contempt as may be necessary for the ends of justice to be met;
v. THAT the costs of this application and of the appeal be borne by the 1st respondent.
2. The application is premised on the grounds on face of it and a supporting affidavit sworn on the even date by the applicant.
3. In response the 1st respondent opposed the application and filed a replying affidavit.
4. By consent of parties this application was canvassed by way of written submissions. The applicant filed written submissions.
Appellant/Plaintiff’s case
5. The appellant deposed that on the 21st November 2019, Honourable Oscar Wanyaga (SRM) in the Chief Magistrate's Court at Thika, in Civil Suit No 194 of 2017- Derek Kimanthi Gachare Vs. Faulu Bank & Immediate Auctioneers made the following orders inter alia:
"In order to preserve the subject matter of this suit, the court hereby issues an order restraining the defendants/respondents from disposing, selling, or in any other way interfering with ownership or condition of motor vehicle No. KBW 667H pending further orders of the court on the hearing date to be fixed as earlier directed.”
6. The appellant stated the above order was made in court in the presence of the counsel for the defendant (respondent) and counsel for the plaintiff (appellant). The case was then fixed for hearing on 26th February 2020.
7. The appellant stated that notwithstanding the order of 21" November 2019, on 14th January 2020 the 1st respondent wrote a letter to the appellant advising him that they had sold motor vehicle No. KBW 667H at a public auction in manifest disobedience of the Honourable Court's orders in an act that would eventually render the hearing moot and of no effect.
8. The appellant stated that It is essential for the Court to commit the contemnors to jail to compel obedience of the Court order.
Respondent’s case
9. It is the respondent’s case that the Appellant/applicant was a customer of the 1st Respondent and the 1st Respondent advanced an asset facility to the Appellant/applicant for purchase of motor vehicle registration number KBW 667H with the said motor vehicle being the security and/ or collateral.
10. The respondent stated that the continued default in repayment of the principal sum together with accrued interest, entitled the 1st Respondent to be at liberty to realize the security in recovery of the outstanding amount.
11. The respondent deposed that the Appellant/applicant filed a notice of motion application dated 7th March, 2017 and procured interim injunctive orders against the 1st Respondent on 8th March, 2017. He referred to annexed and marked "MK1" a copy of the order. THAT despite the 1st Respondent filing and serving grounds of opposition and defence, the Appellant/applicant never set down the matter for hearing having obtained interim orders on 8th March, 2017.
12. The respondent stated the Appellant/applicant enjoyed interim orders for over two years without bothering to set down the matter for hearing. Further to this, the Appellant/applicant even after procuring interim orders, did not make any attempt to settle his indebtedness which is very prejudicial to the 1st Respondent's interest. She stated further that interim orders are not issued in perpetuity and since the same had never been extended they had since lapsed.
13. It was the respondent’s case that despite proper service, the Appellant/applicant did not attend the hearing whereupon the 1st Respondent made an application for dismissal for want of prosecution and the said application dated 7th March, 2017 was dismissed with costs. She referred to annexed copy of the order of 13th February, 2019. The respondent stated that the Appellant/applicant while in default of his obligations has always hid behind this honourable court's orders to achieve some mischief, to the detriment and prejudice of the 1st Respondent.
14. THAT there being no subsisting orders restraining the 1st Respondent from exercising its right of sale, the 1st Respondent issued all the requisite notices and complied with the applicable laws before instructing the 2nd Respondent to repossess and sell the subject motor vehicle. She referred to attached a copy of the Proclamation Notice.
15. The respondent stated that upon repossession of the subject motor vehicle KBW 667H, a sale by Public Auction was advertised in the Daily Nation Newspaper of 26th August, 2019 announcing that the Public Auction was to be held on 3rd September, 2019.
16. THAT on 3rd September, 2019 at 11.00 a.m., the Public Auction was conducted at the auctioneers premises where the subject motor vehicle KBW 667H attracted bids and was sold to the highest bidder one HENRY KARIUKI THUO at Kenya Shillings Two Million Eight Hundred Thousand (Kshs. 2,800,000.00).
17. The respondent stated that on 12th September 2019, the Appellant/applicant served upon the 1st Respondent with his application dated 22nd August, 2019 together with a hearing notice for 13th September, 2019 which was received under protest.
SUBMISSIONS
18. By consent of parties, this appeal was This appeal was canvassed by way of written submissions. The appellant filed undated written submissions through the firm of and the 1st Respondent filed written submissions dated 8th September 2023 I have carefully analyzed and considered the submissions and case law in support.
19. Having carefully analyzed the pleadings, submissions and authorities cited by the parties before this Court and taking into account the various issues for determination as framed by the parties, I hereby frame the main issue for determination to be whether this court should proceed to cite the respondents for contempt of its orders issued on 21st November 2019.
20. Contempt of court is governed by the Contempt of Court Act, 2016. The objectives of the Act are set out in Section 3:-
3. The objectives of this Act are to —
(a) uphold the dignity and authority of the court;
(b) ensure compliance with the directions of court;
(c) ensure the observance and respect of due process of law;
(d) preserve an effective and impartial system of justice; and
(e) maintain public confidence in the administration of justice as administered by court.
Section 4 of the Contempt of Court Act provides as follows: -
4.(1) Contempt of court includes —
(a) civil contempt which means willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court;
(b) criminal contempt which means the publication, whether by words, spoken or written, by signs, visible representation, or otherwise, of any matters or the doing of any other act which —
(i) scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court;
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice.
(2) In any case not relating to civil or criminal proceedings as contemplated under subsection (1), an act that is willfully committed to interfere, obstruct or interrupt the due process of the administration of justice in relation to any court, or to lower the authority of a court, or to scandalize a judge, judicial officer in relation to any proceedings before the court, on any other manner constitutes contempt of court.
21. The essence of the power to punish for contempt is to ensure that the dignity and authority of courts is maintained. Obedience to court orders is to ensure that there is law and order.
22. From the record I note that the on the 21st November 2019, Honourable Oscar Wanyaga (SRM) in the Chief Magistrate's Court at Thika, in Civil Suit No 194 of 2017- Derek Kimanthi Gachare Vs. Faulu Bank & Immediate Auctioneers made the following orders inter alia:
"In order to preserve the subject matter of this suit, the court hereby issues an order restraining the defendants/respondents from disposing, selling, or in any other way interfering with ownership or condition of motor vehicle No. KBW 667H pending further orders of the court on the hearing date to be fixed as earlier directed.”
23. The applicant stated that the respondents were served with the said court orders. The applicant is now seeking to cite the respondents for contempt of court for reasons that despite the respondent being restrained from selling the suit motor vehicle No. KBW 667H they proceed to sale it by public auction.
24. The court needs to ascertain whether the applicant herein has met the basic elements set out to prove a case for contempt of court. In the case of Katsuri Limited v Kapurchand Depar Shah [2016] eKLR, the court stated that;
“The applicant must prove to the required standard (in civil contempt cases which is higher than in criminal 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.
25. I will therefore analyze each element as set out above. I have looked at the court order issued by the court and it is clear that the order issued by the court was clear and unambiguous and was addressed to the respondents, hence binding upon him.
26. On the second issue the alleged contemnor ought to have knowledge of or proper notice of the terms of the order. From the evidence on record the applicant stated that the respondent was served and/or made aware of the said orders a fact which the respondents does not deny. The court is therefore satisfied that they had sufficient knowledge of the contents of the court order.
27. The issue of whether the respondents are in breach of the court order . The applicant has alleged that the respondent breached the court order and that despite the respondent being restrained from selling the suit motor vehicle they sold it against the court orders.
28. The respondent on its part does not deny selling the motor vehicle No. KBW 667H. The respondent in its replying affidavit confirmed to court that upon repossession of the subject motor vehicle KBW 667H, a sale by Public Auction was advertised in the Daily Nation Newspaper of 26th August, 2019 announcing that the Public Auction was to be held on 3rd September, 2019.
29. THAT on 3rd September, 2019 at 11.00 a.m., the Public Auction was conducted at the auctioneers premises where the subject motor vehicle KBW 667H attracted bids and was sold to the highest bidder one HENRY KARIUKI THUO at Kenya Shillings Two Million Eight Hundred Thousand (Kshs. 2,800,000.00).
30. The nature of a claim of contempt of court though civil in nature has been held to be of a criminal character as it has the potential of limiting one’s liberty to freedom when one is committed to civil jail. The standard of proof of such a claim is higher than proof on a balance of probability but not beyond reasonable doubt. This was so held in the case of Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227, where the court rendered itself thus:
“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…. It 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 criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.”
31. Having analyze the court proceedings and record and not that both parties have actively participated in this matter. I note that the respondents during the court proceedings did not inform the court at any point that the suit motor vehicle had already been sold on 3rd September 2019.
32. This court had issued interim orders to protect the subject matter on 21st November 2019. The respondent never informed court through evidence that the subject motor vehicle already been sold and the interim orders had been overtaken by events. I therefore find that the respondents did not act in good faith and concealed from court important information. I therefore hold them in contempt of court orders issued on 21st November 2019.
33. I hereby make orders that the application dated 13th December 2023 is hereby allowed. The EXECUTIVE DIRECTOR OF FAULU BANK LIMITED is in contempt of the order of Honourable Oscar Wanyaga (SRM) in the Chief Magistrate's Court at Thika, in Civil Suit No 194 of 2017- Derek Kimanthi Gachare Vs. Faulu Bank & Immediate Auctioneers issued on 21st November 2019. He is fined Ksh 200,000 payable within 30 days from today and in default to serve a prison term of 2 months. the is defendant to pay costs KSH 50, 000// It is so ordered'
DATED at NAIROBI this ……30TH……..day of……JULU………………… 2024.