END TO END VS CHIEF OFFICER TRADE & ENTERPRISES DEVELOPMENT AND CECM, TRADE ENTERPRISES KWALE COUNTY AND 1 Others

1. The Plaintiff/Applicant’s Notice of Motion dated 13/10/2022 seeks orders of this court to reinforce the orders of 17/11/2021 and extended on 6/12/2021 by granting a status quo order meaning there shall be no opening, no launching, no entry into premises of the market by the respondents or anyone acting on their instructions pending the hearing and determination of this application and to punish the 1^st respondent Chief Officer, Trade & Enterprises Development and County Engineer Hassan Ngalaa, the County Governor H.E. Fatuma Achani, the village administrator Mr. Suleiman Shibe, the market officer, Mr. Kevin Bongo, the County Police Commander Mr. Josphat Kinyua, the OCS Kwale police station, Mr. Philip Ngata by way of hefty fines and imprisonment for disobedience of the court’s orders.
2. On 17/11/2021, this court granted orders inter alia as follows on the plaintiff/applicant’s application dated 8/11/2021:

“3. THAT in the interim, restraining orders do issue to the respondents whether by themselves, their agents and/or servants from re-advertising, re-tendering, subcontracting their agents and/or servants from re-advertising, re-tendering, sub-contracting or in any way interfering with the contract referenced as CGK-EU/124/DTDCDTI/2018-2019 for proposed construction of Fresh Produce Wholesale Market at Kombani-Waa Ng’ombeni Ward in Kwale County pending further orders on 29/11/2021.”

1. On 29/11/2021 when the matter came back to court, the orders were extended to 6/12/2021 and on that date the orders were extended this time until the hearing and determination of the application dated 8/11/2021. That application has not been heard yet due to intervening issues including several other applications coming up and eventually ending up at the Court of Appeal in Mombasa Civil Appeal No. E013 of 2022 Chief Officer, Trade & Enterprise Development, Kwale County and 2 others v. End to End Limited (consolidated) leading to a stay of the proceedings herein. Upon determination of the appeal on 22/3/2024, the Court of Appeal ordered that the contempt of court applications be given priority over other applications and thus the present proceedings.
2. On 6/12/2021 when this court extended the orders issued on 17/11/2021 it also on the oral application of learned counsel for the applicant directed the County Commander, Kwale; the OCS Kwale police station to ensure that the interim orders granted by the court to the plaintiff were enforced.
3. On 13/10/2022, the plaintiff/applicant filed the present application of the same date for contempt of court against the 1^st respondent Chief Officer, Trade & Enterprises Development and County Engineer Hassan Ngalaa, the County Governor H.E. Fatuma Achani, the village administrator Mr. Suleiman Shibe, the market officer, Mr. Kevin Bongo, the County Police Commander Mr. Josphat Kinyua, the OCS Kwale police station, Mr. Philip Ngata and calling for their punishment by way of fine and committal to imprisonment for six months for disobedience of this court’s orders dated 6/12/2021. It is this application that comes up for hearing.
4. The application also prays for orders that the court reinforces its earlier orders issued on 17/11/2021 and extended on 6/12/2021.
5. The application is brought under Order 40 Rule 3(1), (3), Order 51 Rule 1 of the Civil Procedure Rules, sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act (Cap. 21) Laws of Kenya and all other enabling provisions of the law.
6. The grounds in support of the application as set out on the face of the application and the supporting affidavit sworn on 13/10/2022 by Abdirahman Mohamud Abdow, a director of the plaintiff company are that the orders allegedly breached were served upon all the respondents on 7/12/2021 but on 10/10/2022 the 3rd respondent’s new Governor H.E. Fatuma Achani together with the village administrator Mr. Suleiman Shibe, the market officer, Mr. Kevin Bongo and the 1^st respondent Mr. Hassan Ngalaa together with persons described in the application as hired goons known as “wakali wao” determined to force an entry into the market brought down the back gate and proceeded to attack the plaintiff’s guards manning the same thereby badly injuring three of them.
7. According to the applicant, the said actions were made possible by the inaction and complicit nature of the County Police Commander Mr. Josphat Kinyua, the OCS Kwale police station, Mr. Philip Ngata as the plaintiff’s guards had been tipped off beforehand and reported the incident at Kwale police station and Kombani police post and the officers failed to ensure compliance of the court orders that peace prevails.
8. The applicant further states that unless this court pronounces itself with clarity and unambiguity by reinforcing and reaffirming its orders of no interference with the premises of the market, the respondents and their officers will continue to misinterpret, mislead and take advantage of any loopholes in the enforcement of the orders of this court aforesaid.
9. The applicant further states that the reluctance and supposed collusion of the OCS Kwale police station with the respondents in disobeying the said orders the same ought to be redirected for enforcement by the Regional Police Commander and Regional Police Commissioner.
10. The application is opposed by some of the alleged contemnors being the 1^st respondent Chief Officer, Trade & Enterprises Development the County Engineer Hassan Ngalaa, the County Governor of Kwale, H.E. Fatuma Achani, and the market officer, Mr. Kevin Bongo, who responded to the application by way of their respective replying affidavits. I have not seen any responses by the County Police Commander Mr. Josphat Kinyua, the OCS Kwale police station, Mr. Philip Ngata and the village administrator Mr. Suleiman Shibe.
11. All the affidavits are common in content. Besides reiterating the history of the matter, each of them deposes as is pertinent to the present application that initially the County Government of Kwale (CGK) was not aware of the ex parte orders of injunction obtained by the plaintiff dated 17/11/2021 which is the substratum of the present application as the CGK had only been served with a mention notice of the plaintiff’s application coming up on 11/11/2021 for purposes of fixing a date for hearing.
12. They also depose that the Governor’s act of attempting to open Kombani market on 7/10/2022 was in relying upon orders of the Magistrates Court in Kwale CMCC No. E215 of 2021 where orders of injunction were issued restraining the Plaintiff herein End to End Ltd and the Defendants from interfering with the traders’ activities at Kombani market.
13. That however, upon consultation and on obtaining proper legal advice from their advocates on record they had to follow the court orders herein closed down Kombani market and it has remained closed ever since. The market has fallen into a state of disrepair and will require millions of shillings to get it back to use. The same is a public facility and was funded and was funded by the European Union and the County Government of Kwale to the tune of KShs 105,911,142.44.
14. They further depose that they are law abiding citizens who obey all court orders and had no intention of disobeying court orders and will continue to do so.
15. Hon. Fatuma Achani, the Governor of Kwale County filed a further affidavit sworn on 16/8/2024 annexing the orders of the magistrates court upon which she deposes that she relied in the attempt to open the market.
16. The contempt application was argued by way of written submissions filed by learned counsels for the parties who also provided several authorities to back up their arguments.
17. I have considered the application and the affidavits in reply that were filed by the defendants in opposition thereto.  I have also considered the submissions by the parties’ respective learned counsels and the authorities cited.
18. The law on contempt of court is now well settled and I do not need to belabor anything much on it.  In the case of Katsuri Limited vs. Kapurchand Depar Shah (2016) eKLR, it was held that in order to succeed in civil contempt proceedings, the applicant has to prove:
19. The terms of the order alleged to have been disobeyed.
20. Knowledge of these terms by the respondent; and
21. Failure by the Respondent to comply with the terms of the order.
22. In its Issues Paper titled “Contempt in Modern New Zealand”, NZLC IP36 also available on the Internet at the Law Commission’s website: www.lawcom.govt.nz, the Law Commission of New Zealand considering the issue of civil contempt of court has stated as follows:-

“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove …that:

1. the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;
2. the defendant had knowledge of or proper notice of the terms of the order, normally as the result of personal service;
3. the defendant has acted in breach of the terms of the order; and,
4. the defendant’s conduct was deliberate.”
5. In the case of Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR) the Court of Appeal held that the standard of proof of contempt of court must be beyond a balance of probabilities but not beyond reasonable doubt. The Court of Appeal said:

“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. We envisage no difficulty in courts determining the suggested standard of proof. 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 offence which can be said to be quasi – criminal in nature…”

1. There is however, a difference in the Kenyan and New Zealand practice on the standard of proof required for civil contempt of court. Whereas New Zealand applies the criminal standard of beyond reasonable doubt, the Kenyan standard is lower being between the civil standard of balance of probabilities and criminal standard of beyond reasonable doubt.
2. The burden of proof of the contempt alleged against the defendant is on the plaintiff.
3. I am not satisfied that the plaintiff/applicant has discharged this burden of proof for several reasons.
4. First is the proof that the respondents were served with the orders sought to be enforced. The orders complained of were first issued by this court on 11/11/2021 where the court issued an order of status quo to be maintained. The court said as follows:

“In the light of the representations by counsel it is hereby ordered that the current status quo obtaining in respect of the subject contract as at 11.17 a.m. on this 11^th day of November 2021 be maintained pending further orders of the court on 17/11/2021.”

1. In his affidavit of service sworn on 15/11/2021, the process server Maurice Oginga Obuoro deposes that on the 11^th day of November 2021, the same day of the orders he proceeded to the defendants’ offices at Kwale Township South Coast, a place which was personally known to him with instructions  to serve a Court Order, Notice of Motion, Supporting Affidavit, Plaint, Verifying affidavit and compliance documents upon the 1^st, 2^nd and 3^rd defendants and then he goes ahead to depose “with the Court order which he accepted by signing and stamping on the principal copy.”
2. He deposes further again that “upon reaching the said offices at Kwale County, I served both defendants who accepted service by signing and stamping at the principal copies which I return to this court honourable court duly served” Clearly, this was a copy and paste job that was not done pursuant to service of a court order.
3. First, there is no identification of the court order which was being allegedly served especially after the process server had attempted to identify each of the documents allegedly served and then one known as “compliance documents” being part of them. He then went on to depose about a court order without citing the date of the said order. All the same the copy of the order attached to the affidavit of service and bearing the received stamp of the County Government of Kwale Department of Tourism, Trade and Enterprise Development is the one dated 11/11/2021 on maintaining the status quo as reproduced above.
4. But more importantly, the process server deposes that he served the documents at the defendants’ offices without identifying which particular defendant was served. That, in my view, cannot be evidence that any of the defendants and alleged contemnors herein was served with the court orders complained of. There is no evidence that the Chief Officer, Trade & Enterprise Development or the CECM Trade & Enterprise Development or the Governor, County Government of Kwale was served with the order.
5. Even though the plaintiff’s director deposes in his affidavit in support of this application that the orders of 17/11/2021 and extended on 6/12/2021 were duly served upon the defendants on 7/12/2021 by the plaintiff/applicant’s advocate there is no affidavit of service evidencing the same. The affidavit of service herein was sworn on 15/11/2021 and none is shown after 6/12/2021.
6. It is only after the plaintiff/applicant herein obtained the orders in the present application dated 13/10/2022 that a process server by the name of Musyoka Samuel filed an affidavit of service sworn on 24/10/2022 showing that he served the orders of that date upon the respondents and the other alleged contemnors at their offices through their respective secretaries. But those are not the orders, the basis of the present application. Those orders came after the alleged breach of this court’s orders of 17/11/2021 as extended on 6/12/2021.
7. So that, even though the plaintiff’s application is based on breach of the orders dated 17/11/2021 and extended on 6/12/2021 there is no affidavit of service filed for these orders.
8. I therefore find that there is no evidence of service of this court’s orders of 17/11/2021 and extended on 29/11/2021 and further extended on 6/12/2021 that have been shown to have been served upon any of the defendants and other alleged contemnors.
9. The other reason is that the three defendants have deposed in their respective affidavits that there was confusion arising from contrary orders issued by the magistrates court concerning the operations of the market and they misguidedly acted on the same. However, upon their advocates advising them on the hierarchy of courts and their functioning, they complied and have continued to comply with this court’s orders to-date.
10. Indeed, the plaintiff acknowledges through the supporting affidavit that there was such confusion over the issue and that is why he deposes that this court pronounces itself with clarity any ambiguity in the orders, reinforces and reaffirms the same so as not to cause further confusion. Otherwise the defendants continue to comply with the court orders and so there is nothing they are in contempt of.
11. The mischief that the law of contempt of court seeks to cure is deliberate disobedience of court orders. In the case of Samuel M. N. Mweru & others v National Land Commission & 2 others [2020] eKLR it was held that the breach complained of has to be both deliberate and mala fides.  In this case the defendants plead that they did not deliberately disobey the court orders after the orders extracted in the present application were properly brought to their attention and I have no reason not to believe them because there is no evidence of further disobedience of the court’s orders. In the case of Directline Assurance Co Ltd v Jamii Bora Bank Ltd & 5 Others (2015) eKLR where it was stated that;

“Now, to the second issue, what is the role of contempt proceedings in civil litigation? To my mind contempt proceedings are quasi – criminal in nature, and is a tool employed by a civil court to ensure obedience to the civil court’s orders and directions. A civil court has no interest in punishing a litigant, unless a litigant leaves the court with no option but to resort to quasi- criminal proceedings to punish a litigant.  When a court orders are being disobeyed, or are about to be disobeyed, and the contemnor comes down and purges the contempt, either out of his own freewill or at the prompt of the court, the court will accept the purge of the contempt unless circumstances exist to suggest that the coming down, or the alleged purging of the contempt, is not genuine, or is done in bad faith, or is in itself a continuation of the original contempt.  In accepting the coming down of the contemnor, the court will assess the reasons given for the disobedience, the time taken to come down, and the cost incurred in the process.” 

1. I am persuaded to follow this decision and find that therefore, even if the defendants had been found to be in breach of the orders complained of, they would not be punished because they had purged he contempt and continue to abide by the court order.
2. Consequently, I find that it has not been proved to the required standard that the defendants had knowledge of or proper notice of the terms of the orders complained of and that the defendants conduct in not abiding by the terms was deliberate.
3. The final issue this court would like addressed is the greater public interest in the matter. There can be no dispute that a market that is meant for use by the members of the public and which is 85% to 100% completed in construction as indicated by the parties herein in their respective affidavits should not stay idle for so long due to this dispute. Then there is the fact of wastage where it is indicated that the structures are being vandalized meaning extra expense on the taxpayer besides the failure to utilize the facilities. This dispute needs to be resolved amicably at once and have the facilities utilized by the intended users, the public. I therefore wish to suggest that the parties consider taking up court annexed mediation to resolve the dispute.
4. I find the application to be without merit and the same is dismissed.
5. Each party will bear its own costs.

Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 22^nd day of November 2024.

ANDAYI W. F.

JUDGE

In the presence of:

Abdiaziz and Anjiko (Ms) for Plaintiff/Applicant.

Kibara for the Defendant/Respondent.

Johnson Court Assistant.

30 days Right of Appeal granted.