REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
JUDICIAL REVIEW DIVISION
MISC. APPLICATION NO. 289 OF 2018
1. GERALD JUMA GICHOHI
2. HUMPHREY KALAMA SHUME
3. PETER MWANGI KARIUKI
4. JAMES GITAU THANDI
5. DAVID GIKUNJU MWANGI
6. FRANCIS NGURE KUWONA
7. OBADIAH MAZA MWAMBONU
8. PLACIDE MWAKISACHI EDWARD
9. JOHN PHINEHAZ THAIRU
10. LAWRENCE KEARIE WARUKIRA ……………....…APPLICANTS
VERSUS
HON. PATRICK MARIRU,
PRINCIPAL SECRETARY,
MINISTRY OF DEFENCE ………………………………… RESPONDENT
AND
THE HON. ATTORNEY GENERAL ……….…. INTERESTED PARTY
RULING
1. The application that is before the court for determination is the one dated 6.11.23 wherein the applicant seeks the following orders;
1) Spent
2) THAT the Respondent herein Hon. Patrick Mariru the Principal Secretary Ministry of Defence be Summoned to appear before this Honourable Court and show cause why he should not be found guilty of contempt and punished accordingly for disobeying and defying the Judgment and Decree of the Order of Mandamus given by this Honourable Court on 26th March 2019.
3) THAT the Respondent herein Ho-n. Patrick Mariru be personally present in Court on all the dates appointed for hearing of this Application Notice.
4) THAT the Respondent herein Hon. Patrick Mariru on failing to show cause be cited and committed to prison for six (6) months and/or fined or punished in any other lawful manner that this Honourable Court shall deem appropriate.
5) Any other or further orders as this Honourable Court deems fit and just do issue.
6. That costs of this application.
2. The application is opposed through the replying affidavit of the respondent Mr. Patrick Mariru sworn on 29th December 2023.
The applicant’s case
3. On 29th May 2015 this Court, Lenaola, J, (as he then was) delivered judgment in High Court Petition No. 587 of 2012 (Gerald Juma Gichohi & 9 others v Attorney General) and awarded the applicants (then petitioners), who are former Kenya Air Force officers, various awards of damages totalling Ksh 20,200,000/-for violation of their fundamental rights in the aftermath of the failed 1st August 1982 military coup. The applicants were also awarded interest at Court rates from the date of judgment until payment in full, and costs of the petition.
4. Costs were subsequently taxed in the sum of Ksh 848,695/- and a Certificate of Taxation to that effect issued on 30th March 2017.
5. The decretal sum, certified costs and accrued interest contained in a Certificate of Order against the Government not having been satisfied, on 17th July 2018 the applicants took out the founding judicial review application herein seeking an order of Mandamus to compel the respondent to pay the said judgment debt together with accrued interest.
6. After hearing the applicants and the respondent, on 26th March 2019 this Honourable Court, delivered judgment herein granting an Order of Mandamus compelling the respondent to effect payment to the applicants of the decretal sum of Ksh 20,200,000/- with interest at the rate of 12% p.a. from 29th May 2015 and the taxed costs of Ksh 848,695/- with interest of 12% p.a. from the date of her judgment herein on 26th March 2019 until payment in full, and costs of the judicial review in the sum of Kshs. 100,000/-.
7. The respondent has always been aware of the judgment. The subject judgment and Decree of the Order of Mandamus herein have never been appealed against or set aside. Counsel for the respondent was present when the judgment of the Order of Mandamus was delivered.
8. A formal Decree of the Order of Mandamus was subsequently issued by this Honourable Court on 16th August 2019.
9. The Decree of Mandamus and demand letters have been served on all office bearers of the respondent including Hon. Mariru.This can be gleaned from the affidavit of service of Evans Nyabera Mberesia.
10. The applicants thereafter petitioned the Senate to compel the respondent to obey the decrees of this Court after which the Senate in a report of the Standing Committee on National Security, Defence and Foreign Relations directed the respondent's ministry to pay the judgment debts within 60 days from 3rd December 2019. There being no payment, they petitioned the National Assembly to facilitate funds to the respondent's ministry to meet the decrees.
11. The Speaker Hon. Justin Muturi, committed the applicants' petition to the Budget and Appropriations Committee which allocated the decretal sum of Ksh 20,200,000/- in the Supplementary Budget of the respondent's ministry for Year 2021/2022 which was approved by the National Assembly in the Supplementary Appropriations Act, 2022.
12. The respondent Hon. Patrick Mariru has always been aware of the disobedience of the subject Decree of this Honourable Court a fact that he expressly admitted during his appointment approval hearing by the National Assembly and he undertook to attend to the pending decrees immediately on taking office.
13. Soon after the respondent Hon. Patrick Mariru took office he was served by the advocates of the applicants with the subject Decree of Order of Mandamus endorsed with a Penal Notice and a letter demanding obedience to the Decree and the decisions of Parliament to remit the; decretal sum allocated by the National Assembly and to make arrangements to pay the balance of costs and interest
14. Consequent to the continued defiance to settle the judgment debt subject of the Decree of this Court of the Order of Mandamus and on account of accruing interest, the judgment debt now stands at Ksh 42,010,585/- as exhibited in the Order against Government.
15. It is the Applicant’s case that it is in the interest of access of justice, preservation of the integrity and public confidence in the Judiciary and Kenya's constitutional order that the respondent is found guilty of contempt of Court for disobedience of the subject Decree of Order of Mandamus.
16. The Applicant relies on the case of Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others [2014] eKLR, the Court of Appeal expressed this caution thus (page 6);
“Because in terms of Section 5(2) of the Judicature Act, the court in punishing for contempt exercises ordinary criminal jurisdiction, it is paramount that the procedure for instituting such proceedings be scrupulously followed.”
17. Following the declaration of unconstitutionality of the Contempt of Court Act by this Court, Mwita J, in the case of Kenya Human Rights Coriimission v Attorney General & another [2018] eKLR, the legal framework to punish for contempt reverted to section 5 of the Judicature Act and section 36 of the High Court (Organization and Administration) Act.
18. By dint of section 5 of the Judicature Act, the procedural rules applicable in an application for contempt of court are found in Part 81, rule 81.4 of the English Civil Procedure Rules (as amended from time to time). Under these rules, leave is not required to commence contempt proceedings for breach of a court order. On the requisite procedure, the Court of Appeal in the case of Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others (supra) (page 5 and 6);
“PART 81 (Applications and Proceedings in Relation to Contempt of Court) provides different procedures for four different forms of violations. Part 81.4 relates to committal for "breach of a judgment, order or undertaking to do or abstain from doing an act." ... ...An application under Rule 81.4 (breach of judgment, order or undertaking) now referred to as "application...notice" (as opposed to a notice of motion) is the relevant one for application before us. It is made in the proceedings in which the judgment or order was made or the undertaking given. The application notice must set out fully the grounds on which the committal application is made and must identify separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon It is clear from this summary that leave, now called "permission" is not required where committal proceedings relate to breach of a judgment, order or undertaking.... We find on the basis of the new Civil Procedure Rules (of England) which are now contained in the Second Supplement to the 2012 White Book that no leave is required before bringing an application like the one before us, for committal for contempt relating to breach of this Court's order.” [Emphasis ours]
19. It is their case that the said applicable English procedure remains the same to date (save for inconsequential amendments to the rules over the years) as held by this Court, Olel J, in the case of Mutua v Mwangi [2023] KEHC 23700 (KLR) (paras 21 to 31 of the judgment). Consequently, the application as drawn contains all the basic requirements under the English Civil Procedure Rules.
20. On the issue of service of the decree they rely in the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, thus (page 5 and 7);
“Of the four forms of violations, only the contempt for "breach of judgment, order or undertaking to do or abstain from doing an act" has an outlined procedure of service of the order and the penal notice under rule 81.5, 81.6, 81.7 and 81.8. According to rule 81.9 all judgments or orders to do or not to do an act may not be enforced in contempt proceedings unless a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets, has been prominently displayed, on the front of the copy of the judgment or order served. Consequently, the court order and penal notice must be served simultaneously ... ...As a general rule under rule 81.6 all service under this breach should be personal service unless the court dispenses with the personal service under rule 81.8.”
21. The decree in question endorsed with the penal notice was served on the respondent and his predecessors on numerous occasions and in any event the respondent admitted in his replying affidavit that he has always had knowledge of the decree in question.
22. The Court of Appeal in Shimmers Plaza Limited v National Bank of Kenya Limited (supra), reiterated the legal position that the presence of counsel of the contemnor in Court when the order was given and knowledge of the order supersedes personal service, thus (page 8 to 9);
“On the other hand, however, this Court has slowly and gradually moved from the position that service of the order along with the penal notice must be personally served on a person before contempt can be proved. This is in line with the dispensations covered under rule 81.8(1) (supra). Kenya's growing jurisprudence right from the High Court has reiterated that knowledge of a court order suffices to prove service and dispenses with personal service for the purposes of contempt proceedings.
In the case of Basil Criticos Vs Attorney General and 7 Others [2012]eKLR pronounced himself as follows: - “...the law has changed and as it stands today knowledge supersedes personal service... where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary." This position has been affirmed by this Court in several other cases including the Wambora case (supra). It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or notice of the existence of the order of the Court forbidding it ... ... What then amounts to "notice"" Black's Law Dictionary, 9th Ed defines notice as follows: - "A person has notice of a fact or condition if that person — Has actual knowledge of it; Has received information about it; Has reason to know it; Knows about a related fact; is considered as having been able to ascertain it by checking an official filing or recording." Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings" We hold the view that it does? This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client's case. This is the position in other jurisdictions within and outside the commonwealth.”
23. Noteworthy, the respondent does not say that the judgment debt has ever been budgeted for ever since the liability judgment of Lenaola J (as he then was) in May 2015, or since the founding judicial review judgment of Nyaweya J (as she then was) of 26th March 2019 granting the Order of Mandamus or since the recommendation of the Senate of December 2019. Such hollow explanation for disobedience of the decree of mandamus was rejected by this Court in the similar case of Jacob Nturibi Japheth & 8 others v Principal Secretary Ministry of Defence [2022] eKLR, thus (para 17 to 18);
“17The Respondent's allegations that there is no provision for payment of the
Applicants ' claims in the Ministry 's budget does not hold any water as no reasons have been given as to why no provision has been made in subsequent years long after the award was made by Lenaola (as he then was). 18. As a result. I am inclined to find that the respondent is in contempt of court.”
24. The defence of 'lack of budget allocation for the decree' is also dishonest. As averred by the applicants, both houses of Parliament have recommended to the respondent to settle the judgment debt herein. It is the respondent who has never budgeted for it. Indeed, as averred in the supporting affidavit, acting on the petition from the applicants, and even without a budget proposal from the respondent, the National Assembly allocated the decretal sums herein to respondent's ministry in its Supplementary Budget for the Year 2021/2022.
25. The applicants contend that the alleged lack of budget allocation for the judgment debt over the years, far from being a defence for non-payment, is itself a persistent, serious and material breach of management of public finance under section 94(1)(a)(i) of the Public Finance Management Act which provides that:
“94. The following factors, singly or in combination, may further indicate that a State organ or public entity is in serious material breach or persistent material breach of the measures established under this Act — (a) the State organ or public entity (i) has failed to make any payments as and when due.”
26. In Shimmers Plaza Limited v National Bank of Kenya Limited (supra), the non-negotiable duty to obey court orders at the risk of being punished for contempt was reaffirmed, thus (page 10 to 11);
“It cannot be gainsaid that the duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. As stated by Romer, L.J. In Hadkinson —vs Hadkinson, (1952) ALL ER 567, "It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless. and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, L.C., said in Chuck —vs- Cremer (1) (1 Coop. temp. Cott 342): "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it...it would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid — whether it was regular or irregular... Further, this Court in Refrigeration and Kitchen Utensils Ltd. —vs- Gulabchand Popatial Shah & Another, Civil Application No. 39 of 1990 held, ".. ...It is essential fOr the maintenance of the rule of law and good order that the authority and dignity of our courts is upheld at all times." The above pronouncements of law ring true now as they did over sixty years ago when they were made in Hadkinson 's case. Unfortunately, what we have now is persons both ordinary mortals and persons in authority treating Court orders with unbridled contempt with blatant impunity... We reiterate here that court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not. For as Theodore Roosevelt, the 26" President of the United States of America once said: “No man is above the law and no man is below it; nor do we ask any man's permission to obey it. Obedience of the law is demanded as a right; not as a favour.” The courts should not fold their hands in helplessness and watch as their orders are disobeyed with impunity left, right and centre. This would amount to abdication of our sacrosanct duty bestowed on u3 by the Constitution. The dignity, and authority of the Court must be protected, and that is why those who flagrantly disobey them must be punished, lest they lead us all to a state of anarchy.”
27. The Supreme Court affirmed the importance of punishing for contempt of court in the case of Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2023] KESC 14 (KLR) thus (para. 97 and 98):
“97. At the same time, there is no doubt that contempt is something to be taken most seriously in the administration of justice. As we noted in Republic v Ahmed Abolfathi Mohammed & another SC Criminal Application No. 2 of 2018; 12018JeKLR: "[28J It is, therefore evident that not only do contemnors demean the integrity and authority of courts, but they also deride the rule of law. This must not be allowed to happen.”
28. Reliance is also placed in the case of Muigai & 3 others v Estates of Captain Kariuki (DCD) & 8 others (supra) noted the frustration visited on the courts by government officials who fail to obey court orders thus (para 30);
“We appreciate the frustration of the court due to the flagrant disobedience of court orders by those in government who should lead the way in demonstrating respect to the court.”
The Respondents case:
29. In his replying affidavit of Mr. Patrick Mariru sworn on 29th December 2023 the respondent concedes that he is the accounting officer responsible for paying the judgment debt herein paragraphs 1 and 5 of the replying affidavit. The respondent does not deny service of the subject Decree of the Order of Mandamus.
30. Mr. Patrick Mariru pointed out that he has not received such an allocation to defray the subject Decree. From Paragragh 7 through to 10 it is his evidence that the reason for the failure to settle the decree is the lack of allocation of funds from the treasury, lack of approval the National Assembly. Notably at Paragraph 10 of his affidavit it is his evidence that the failure to make payment of the decree is financial constraints.
Analysis and determination:
31. From the way the reliefs are crafted, the court is of the view that the only issue that is ripe for determination at this stage is whether or not the Hon. Patrick Mariru, Principal Secretary Ministry of Defence should be summoned to appear before this Honourable Court and show cause why he should not be found guilty of contempt and punished accordingly for disobeying and defying the Judgment and Decree of the Order of Mandamus given by this Honourable Court on 26th March 2019. As such, this court does not see the need to generate any issues that will lead to the determination of the other prayers at this juncture.
32. The court will give the parties a chance to argue their cases on whether not to cite the applicant for contempt and whether or not to punish the respondent once the respondent appears in court in line with summons to attend court.
33. This court is at this stage going to ascertain whether or not it will exercise its discretion on whether or not in summoning the Respondent to attend court in person to show cause.
34. On 29th May 2015 this Court, Lenaola, delivered judgment in High Court Petition No. 587 of 2012 (Gerald Juma Gichohi & 9 others v Attorney General) and awarded the applicants (then petitioners), who are former Kenya Air Force officers, various awards of damages totaling Ksh 20,200,000/-for violation of their fundamental rights in the aftermath of the failed 1st August 1982 military coup. The applicants were also awarded interest at Court rates from the date of judgment until payment in full, and costs of the petition.
35. Costs were subsequently taxed in the sum of Ksh 848,695/- and a Certificate of Taxation to that effect issued on 30th March 2017.
36. The decretal sum, certified costs and accrued interest as contained in a Certificate of Order against the Government having not been satisfied, on 17th July 2018 the applicants filed the judicial review application herein seeking an order of Mandamus to compel the respondent to pay the said judgment debt together with accrued interest.
37. After hearing the applicants and the respondent, on 26th March 2019 this Honourable Court, Nyamweya, J, (as she then was), delivered judgment herein granting an Order of Mandamus compelling the respondent to effect payment to the applicants of the decretal sum of Ksh 20,200,000/- with interest at the rate of 12% p.a. from 29 th May 2015 and the taxed costs of Ksh 848,695/- with interest of 12% p.a. from the date of her judgment herein on 26th March 2019 until payment in full, and costs of the judicial review in the sum of Kshs. 100,000/-.
38. A Decree of the Order of Mandamus was subsequently issued by this Honourable Court on 16th August 2019.
39. After hearing the applicants' representatives and representatives of the respondent's ministry, the Senate in a report of the Standing Committee on National Security, Defence and Foreign Relations directed the respondent's ministry to pay the judgment debts within 60 days from 3rd December 2019.
40. The Speaker Hon. Justin Muturi, now Attorney General committed the applicants' petition to the Budget and Appropriations Committee which allocated the decretal sum of Ksh 20,200,000/- in the Supplementary Budget of the respondent's ministry for Year 2021/2022 which was approved by the National Assembly in the Supplementary Appropriations Act, 2022.
41. After hearing the applicants' representatives and representatives of the respondent's ministry, the Senate in a report of the Standing Committee on National Security, Defence and Foreign Relations directed the respondent's ministry to pay the judgment debts within 60 days from 3rd December 2019.
42. In his replying affidavit of Mr. Patrick Mariru sworn on 29th December 2023 the respondent concedes that he is the accounting officer responsible for paying the judgment debt herein paragraphs I and 5 of the replying affidavit. The respondent does not deny service of the subject Decree of the Order of Mandamus.
43. Mr. Patrick Mariru pointed out that has not received such an allocation to defray the subject Decree. From Paragraph 7 through to 10 it is his evidence that the reason for the failure to settle the decree is the lack of allocation of funds from the treasury, lack of approval the national assembly. Notably at Paragraph 10 of his affidavit it is his evidence that the failure to make payment of the decree is financial constraints.
44. In Shimmers Plaza Limited v National Bank of Kenya Limited (supra), the non-negotiable duty to obey court orders at the risk of being punished for contempt was reaffirmed, thus (page 10 to 11);
“It cannot be gainsaid that the duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. As stated by Romer, L.J. In Hadkinson —vsHadkinson, (1952) ALL ER 567, "It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless. and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, L.C., said in Chuck —vs- Cremer (1) (1 Coop. temp. Cott 342): "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it...it would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid — whether it was regular or irregular... Further, this Court in Refrigeration and Kitchen Utensils Ltd. —vs- Gulabchand Popatial Shah & Another, Civil Application No. 39 of 1990 held, ".. ...It is essential fOr the maintenance of the rule of law and good order that the authority and dignity of our courts is upheld at all times." The above pronouncements of law ring true now as they did over sixty years ago when they were made in Hadkinson 's case. Unfortunately, what we have now is persons both ordinary mortals and persons in authority treating Court orders with unbridled contempt with blatant impunity... We reiterate here that court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not. For as Theodore Roosevelt, the 26" President of the United States of America once said: "No man is above the law and no man is below it; nor do we ask any man's permission to obey it. Obedience of the law is demanded as a right; not as a favour.” The courts should not fold their hands in helplessness and watch as their orders are disobeyed with impunity left, right and centre. This would amount to abdication of our sacrosanct duty bestowed on u3 by the Constitution. The dignity, and authority of the Court must be protected, and that is why those who flagrantly disobey them must be punished, lest they lead us all to a state of anarchy.”
45. The Supreme Court affirmed the importance of punishing for contempt of court in the case of Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2023] KESC 14 (KLR) thus (paras 97 and 98):
“97. At the same time, there is no doubt that contempt is something to be taken most seriously in the administration of justice. As we noted in Republic v Ahmed Abolfathi Mohammed &another SC Criminal Application No. 2 of 2018; 12018JeKLR: "[28J It is, therefore evident that not only do contemnors demean the integrity and authority of courts, but they also deride the rule of law. This must not be allowed to happen.”
46. This court is satisfied that there is a need for Hon. Patrick Mariru the Principal Secretary Ministry of Defence to attend court to show cause why he should not be found guilty of contempt and punished accordingly for disobeying and defying the Judgment and Decree of the Order of Mandamus given by this Honourable Court in person.
Disposition:
47. The duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. The rule of law will be promoted if the order below is granted.
Order
The Application dated 6.11.23 is allowed in the following terms:
1) Prayer 2 and 3 are allowed.
Hon. Patrick Mariru the Principal Secretary Ministry of Defence is hereby summoned to appear before this Honourable Court to show cause why he should not be found guilty of contempt and punished accordingly for disobeying and defying the Judgment and Decree of the Order of Mandamus given by this Honourable Court in person on 10.7.24 at 11AM.
2) Prayers 4, 5 and 6 shall abide the outcome of prayer 2 and 3.
3) Costs in the cause.
Dated, signed and delivered at Nairobi this 8th Day of April 2024.
…………………………………
J. CHIGITI (SC)
JUDGE
IN THE HIGH COURT AT NAIROBI
JUDICIAL REVIEW DIVISION
MISC. APPLICATION NO. 289 OF 2018
1. GERALD JUMA GICHOHI
2. HUMPHREY KALAMA SHUME
3. PETER MWANGI KARIUKI
4. JAMES GITAU THANDI
5. DAVID GIKUNJU MWANGI
6. FRANCIS NGURE KUWONA
7. OBADIAH MAZA MWAMBONU
8. PLACIDE MWAKISACHI EDWARD
9. JOHN PHINEHAZ THAIRU
10. LAWRENCE KEARIE WARUKIRA ……………....…APPLICANTS
VERSUS
HON. PATRICK MARIRU,
PRINCIPAL SECRETARY,
MINISTRY OF DEFENCE ………………………………… RESPONDENT
AND
THE HON. ATTORNEY GENERAL ……….…. INTERESTED PARTY
RULING
1. The application that is before the court for determination is the one dated 6.11.23 wherein the applicant seeks the following orders;
1) Spent
2) THAT the Respondent herein Hon. Patrick Mariru the Principal Secretary Ministry of Defence be Summoned to appear before this Honourable Court and show cause why he should not be found guilty of contempt and punished accordingly for disobeying and defying the Judgment and Decree of the Order of Mandamus given by this Honourable Court on 26th March 2019.
3) THAT the Respondent herein Ho-n. Patrick Mariru be personally present in Court on all the dates appointed for hearing of this Application Notice.
4) THAT the Respondent herein Hon. Patrick Mariru on failing to show cause be cited and committed to prison for six (6) months and/or fined or punished in any other lawful manner that this Honourable Court shall deem appropriate.
5) Any other or further orders as this Honourable Court deems fit and just do issue.
6. That costs of this application.
2. The application is opposed through the replying affidavit of the respondent Mr. Patrick Mariru sworn on 29th December 2023.
The applicant’s case
3. On 29th May 2015 this Court, Lenaola, J, (as he then was) delivered judgment in High Court Petition No. 587 of 2012 (Gerald Juma Gichohi & 9 others v Attorney General) and awarded the applicants (then petitioners), who are former Kenya Air Force officers, various awards of damages totalling Ksh 20,200,000/-for violation of their fundamental rights in the aftermath of the failed 1st August 1982 military coup. The applicants were also awarded interest at Court rates from the date of judgment until payment in full, and costs of the petition.
4. Costs were subsequently taxed in the sum of Ksh 848,695/- and a Certificate of Taxation to that effect issued on 30th March 2017.
5. The decretal sum, certified costs and accrued interest contained in a Certificate of Order against the Government not having been satisfied, on 17th July 2018 the applicants took out the founding judicial review application herein seeking an order of Mandamus to compel the respondent to pay the said judgment debt together with accrued interest.
6. After hearing the applicants and the respondent, on 26th March 2019 this Honourable Court, delivered judgment herein granting an Order of Mandamus compelling the respondent to effect payment to the applicants of the decretal sum of Ksh 20,200,000/- with interest at the rate of 12% p.a. from 29th May 2015 and the taxed costs of Ksh 848,695/- with interest of 12% p.a. from the date of her judgment herein on 26th March 2019 until payment in full, and costs of the judicial review in the sum of Kshs. 100,000/-.
7. The respondent has always been aware of the judgment. The subject judgment and Decree of the Order of Mandamus herein have never been appealed against or set aside. Counsel for the respondent was present when the judgment of the Order of Mandamus was delivered.
8. A formal Decree of the Order of Mandamus was subsequently issued by this Honourable Court on 16th August 2019.
9. The Decree of Mandamus and demand letters have been served on all office bearers of the respondent including Hon. Mariru.This can be gleaned from the affidavit of service of Evans Nyabera Mberesia.
10. The applicants thereafter petitioned the Senate to compel the respondent to obey the decrees of this Court after which the Senate in a report of the Standing Committee on National Security, Defence and Foreign Relations directed the respondent's ministry to pay the judgment debts within 60 days from 3rd December 2019. There being no payment, they petitioned the National Assembly to facilitate funds to the respondent's ministry to meet the decrees.
11. The Speaker Hon. Justin Muturi, committed the applicants' petition to the Budget and Appropriations Committee which allocated the decretal sum of Ksh 20,200,000/- in the Supplementary Budget of the respondent's ministry for Year 2021/2022 which was approved by the National Assembly in the Supplementary Appropriations Act, 2022.
12. The respondent Hon. Patrick Mariru has always been aware of the disobedience of the subject Decree of this Honourable Court a fact that he expressly admitted during his appointment approval hearing by the National Assembly and he undertook to attend to the pending decrees immediately on taking office.
13. Soon after the respondent Hon. Patrick Mariru took office he was served by the advocates of the applicants with the subject Decree of Order of Mandamus endorsed with a Penal Notice and a letter demanding obedience to the Decree and the decisions of Parliament to remit the; decretal sum allocated by the National Assembly and to make arrangements to pay the balance of costs and interest
14. Consequent to the continued defiance to settle the judgment debt subject of the Decree of this Court of the Order of Mandamus and on account of accruing interest, the judgment debt now stands at Ksh 42,010,585/- as exhibited in the Order against Government.
15. It is the Applicant’s case that it is in the interest of access of justice, preservation of the integrity and public confidence in the Judiciary and Kenya's constitutional order that the respondent is found guilty of contempt of Court for disobedience of the subject Decree of Order of Mandamus.
16. The Applicant relies on the case of Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others [2014] eKLR, the Court of Appeal expressed this caution thus (page 6);
“Because in terms of Section 5(2) of the Judicature Act, the court in punishing for contempt exercises ordinary criminal jurisdiction, it is paramount that the procedure for instituting such proceedings be scrupulously followed.”
17. Following the declaration of unconstitutionality of the Contempt of Court Act by this Court, Mwita J, in the case of Kenya Human Rights Coriimission v Attorney General & another [2018] eKLR, the legal framework to punish for contempt reverted to section 5 of the Judicature Act and section 36 of the High Court (Organization and Administration) Act.
18. By dint of section 5 of the Judicature Act, the procedural rules applicable in an application for contempt of court are found in Part 81, rule 81.4 of the English Civil Procedure Rules (as amended from time to time). Under these rules, leave is not required to commence contempt proceedings for breach of a court order. On the requisite procedure, the Court of Appeal in the case of Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others (supra) (page 5 and 6);
“PART 81 (Applications and Proceedings in Relation to Contempt of Court) provides different procedures for four different forms of violations. Part 81.4 relates to committal for "breach of a judgment, order or undertaking to do or abstain from doing an act." ... ...An application under Rule 81.4 (breach of judgment, order or undertaking) now referred to as "application...notice" (as opposed to a notice of motion) is the relevant one for application before us. It is made in the proceedings in which the judgment or order was made or the undertaking given. The application notice must set out fully the grounds on which the committal application is made and must identify separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon It is clear from this summary that leave, now called "permission" is not required where committal proceedings relate to breach of a judgment, order or undertaking.... We find on the basis of the new Civil Procedure Rules (of England) which are now contained in the Second Supplement to the 2012 White Book that no leave is required before bringing an application like the one before us, for committal for contempt relating to breach of this Court's order.” [Emphasis ours]
19. It is their case that the said applicable English procedure remains the same to date (save for inconsequential amendments to the rules over the years) as held by this Court, Olel J, in the case of Mutua v Mwangi [2023] KEHC 23700 (KLR) (paras 21 to 31 of the judgment). Consequently, the application as drawn contains all the basic requirements under the English Civil Procedure Rules.
20. On the issue of service of the decree they rely in the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, thus (page 5 and 7);
“Of the four forms of violations, only the contempt for "breach of judgment, order or undertaking to do or abstain from doing an act" has an outlined procedure of service of the order and the penal notice under rule 81.5, 81.6, 81.7 and 81.8. According to rule 81.9 all judgments or orders to do or not to do an act may not be enforced in contempt proceedings unless a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets, has been prominently displayed, on the front of the copy of the judgment or order served. Consequently, the court order and penal notice must be served simultaneously ... ...As a general rule under rule 81.6 all service under this breach should be personal service unless the court dispenses with the personal service under rule 81.8.”
21. The decree in question endorsed with the penal notice was served on the respondent and his predecessors on numerous occasions and in any event the respondent admitted in his replying affidavit that he has always had knowledge of the decree in question.
22. The Court of Appeal in Shimmers Plaza Limited v National Bank of Kenya Limited (supra), reiterated the legal position that the presence of counsel of the contemnor in Court when the order was given and knowledge of the order supersedes personal service, thus (page 8 to 9);
“On the other hand, however, this Court has slowly and gradually moved from the position that service of the order along with the penal notice must be personally served on a person before contempt can be proved. This is in line with the dispensations covered under rule 81.8(1) (supra). Kenya's growing jurisprudence right from the High Court has reiterated that knowledge of a court order suffices to prove service and dispenses with personal service for the purposes of contempt proceedings.
In the case of Basil Criticos Vs Attorney General and 7 Others [2012]eKLR pronounced himself as follows: - “...the law has changed and as it stands today knowledge supersedes personal service... where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary." This position has been affirmed by this Court in several other cases including the Wambora case (supra). It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or notice of the existence of the order of the Court forbidding it ... ... What then amounts to "notice"" Black's Law Dictionary, 9th Ed defines notice as follows: - "A person has notice of a fact or condition if that person — Has actual knowledge of it; Has received information about it; Has reason to know it; Knows about a related fact; is considered as having been able to ascertain it by checking an official filing or recording." Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings" We hold the view that it does? This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client's case. This is the position in other jurisdictions within and outside the commonwealth.”
23. Noteworthy, the respondent does not say that the judgment debt has ever been budgeted for ever since the liability judgment of Lenaola J (as he then was) in May 2015, or since the founding judicial review judgment of Nyaweya J (as she then was) of 26th March 2019 granting the Order of Mandamus or since the recommendation of the Senate of December 2019. Such hollow explanation for disobedience of the decree of mandamus was rejected by this Court in the similar case of Jacob Nturibi Japheth & 8 others v Principal Secretary Ministry of Defence [2022] eKLR, thus (para 17 to 18);
“17The Respondent's allegations that there is no provision for payment of the
Applicants ' claims in the Ministry 's budget does not hold any water as no reasons have been given as to why no provision has been made in subsequent years long after the award was made by Lenaola (as he then was). 18. As a result. I am inclined to find that the respondent is in contempt of court.”
24. The defence of 'lack of budget allocation for the decree' is also dishonest. As averred by the applicants, both houses of Parliament have recommended to the respondent to settle the judgment debt herein. It is the respondent who has never budgeted for it. Indeed, as averred in the supporting affidavit, acting on the petition from the applicants, and even without a budget proposal from the respondent, the National Assembly allocated the decretal sums herein to respondent's ministry in its Supplementary Budget for the Year 2021/2022.
25. The applicants contend that the alleged lack of budget allocation for the judgment debt over the years, far from being a defence for non-payment, is itself a persistent, serious and material breach of management of public finance under section 94(1)(a)(i) of the Public Finance Management Act which provides that:
“94. The following factors, singly or in combination, may further indicate that a State organ or public entity is in serious material breach or persistent material breach of the measures established under this Act — (a) the State organ or public entity (i) has failed to make any payments as and when due.”
26. In Shimmers Plaza Limited v National Bank of Kenya Limited (supra), the non-negotiable duty to obey court orders at the risk of being punished for contempt was reaffirmed, thus (page 10 to 11);
“It cannot be gainsaid that the duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. As stated by Romer, L.J. In Hadkinson —vs Hadkinson, (1952) ALL ER 567, "It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless. and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, L.C., said in Chuck —vs- Cremer (1) (1 Coop. temp. Cott 342): "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it...it would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid — whether it was regular or irregular... Further, this Court in Refrigeration and Kitchen Utensils Ltd. —vs- Gulabchand Popatial Shah & Another, Civil Application No. 39 of 1990 held, ".. ...It is essential fOr the maintenance of the rule of law and good order that the authority and dignity of our courts is upheld at all times." The above pronouncements of law ring true now as they did over sixty years ago when they were made in Hadkinson 's case. Unfortunately, what we have now is persons both ordinary mortals and persons in authority treating Court orders with unbridled contempt with blatant impunity... We reiterate here that court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not. For as Theodore Roosevelt, the 26" President of the United States of America once said: “No man is above the law and no man is below it; nor do we ask any man's permission to obey it. Obedience of the law is demanded as a right; not as a favour.” The courts should not fold their hands in helplessness and watch as their orders are disobeyed with impunity left, right and centre. This would amount to abdication of our sacrosanct duty bestowed on u3 by the Constitution. The dignity, and authority of the Court must be protected, and that is why those who flagrantly disobey them must be punished, lest they lead us all to a state of anarchy.”
27. The Supreme Court affirmed the importance of punishing for contempt of court in the case of Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2023] KESC 14 (KLR) thus (para. 97 and 98):
“97. At the same time, there is no doubt that contempt is something to be taken most seriously in the administration of justice. As we noted in Republic v Ahmed Abolfathi Mohammed & another SC Criminal Application No. 2 of 2018; 12018JeKLR: "[28J It is, therefore evident that not only do contemnors demean the integrity and authority of courts, but they also deride the rule of law. This must not be allowed to happen.”
28. Reliance is also placed in the case of Muigai & 3 others v Estates of Captain Kariuki (DCD) & 8 others (supra) noted the frustration visited on the courts by government officials who fail to obey court orders thus (para 30);
“We appreciate the frustration of the court due to the flagrant disobedience of court orders by those in government who should lead the way in demonstrating respect to the court.”
The Respondents case:
29. In his replying affidavit of Mr. Patrick Mariru sworn on 29th December 2023 the respondent concedes that he is the accounting officer responsible for paying the judgment debt herein paragraphs 1 and 5 of the replying affidavit. The respondent does not deny service of the subject Decree of the Order of Mandamus.
30. Mr. Patrick Mariru pointed out that he has not received such an allocation to defray the subject Decree. From Paragragh 7 through to 10 it is his evidence that the reason for the failure to settle the decree is the lack of allocation of funds from the treasury, lack of approval the National Assembly. Notably at Paragraph 10 of his affidavit it is his evidence that the failure to make payment of the decree is financial constraints.
Analysis and determination:
31. From the way the reliefs are crafted, the court is of the view that the only issue that is ripe for determination at this stage is whether or not the Hon. Patrick Mariru, Principal Secretary Ministry of Defence should be summoned to appear before this Honourable Court and show cause why he should not be found guilty of contempt and punished accordingly for disobeying and defying the Judgment and Decree of the Order of Mandamus given by this Honourable Court on 26th March 2019. As such, this court does not see the need to generate any issues that will lead to the determination of the other prayers at this juncture.
32. The court will give the parties a chance to argue their cases on whether not to cite the applicant for contempt and whether or not to punish the respondent once the respondent appears in court in line with summons to attend court.
33. This court is at this stage going to ascertain whether or not it will exercise its discretion on whether or not in summoning the Respondent to attend court in person to show cause.
34. On 29th May 2015 this Court, Lenaola, delivered judgment in High Court Petition No. 587 of 2012 (Gerald Juma Gichohi & 9 others v Attorney General) and awarded the applicants (then petitioners), who are former Kenya Air Force officers, various awards of damages totaling Ksh 20,200,000/-for violation of their fundamental rights in the aftermath of the failed 1st August 1982 military coup. The applicants were also awarded interest at Court rates from the date of judgment until payment in full, and costs of the petition.
35. Costs were subsequently taxed in the sum of Ksh 848,695/- and a Certificate of Taxation to that effect issued on 30th March 2017.
36. The decretal sum, certified costs and accrued interest as contained in a Certificate of Order against the Government having not been satisfied, on 17th July 2018 the applicants filed the judicial review application herein seeking an order of Mandamus to compel the respondent to pay the said judgment debt together with accrued interest.
37. After hearing the applicants and the respondent, on 26th March 2019 this Honourable Court, Nyamweya, J, (as she then was), delivered judgment herein granting an Order of Mandamus compelling the respondent to effect payment to the applicants of the decretal sum of Ksh 20,200,000/- with interest at the rate of 12% p.a. from 29 th May 2015 and the taxed costs of Ksh 848,695/- with interest of 12% p.a. from the date of her judgment herein on 26th March 2019 until payment in full, and costs of the judicial review in the sum of Kshs. 100,000/-.
38. A Decree of the Order of Mandamus was subsequently issued by this Honourable Court on 16th August 2019.
39. After hearing the applicants' representatives and representatives of the respondent's ministry, the Senate in a report of the Standing Committee on National Security, Defence and Foreign Relations directed the respondent's ministry to pay the judgment debts within 60 days from 3rd December 2019.
40. The Speaker Hon. Justin Muturi, now Attorney General committed the applicants' petition to the Budget and Appropriations Committee which allocated the decretal sum of Ksh 20,200,000/- in the Supplementary Budget of the respondent's ministry for Year 2021/2022 which was approved by the National Assembly in the Supplementary Appropriations Act, 2022.
41. After hearing the applicants' representatives and representatives of the respondent's ministry, the Senate in a report of the Standing Committee on National Security, Defence and Foreign Relations directed the respondent's ministry to pay the judgment debts within 60 days from 3rd December 2019.
42. In his replying affidavit of Mr. Patrick Mariru sworn on 29th December 2023 the respondent concedes that he is the accounting officer responsible for paying the judgment debt herein paragraphs I and 5 of the replying affidavit. The respondent does not deny service of the subject Decree of the Order of Mandamus.
43. Mr. Patrick Mariru pointed out that has not received such an allocation to defray the subject Decree. From Paragraph 7 through to 10 it is his evidence that the reason for the failure to settle the decree is the lack of allocation of funds from the treasury, lack of approval the national assembly. Notably at Paragraph 10 of his affidavit it is his evidence that the failure to make payment of the decree is financial constraints.
44. In Shimmers Plaza Limited v National Bank of Kenya Limited (supra), the non-negotiable duty to obey court orders at the risk of being punished for contempt was reaffirmed, thus (page 10 to 11);
“It cannot be gainsaid that the duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. As stated by Romer, L.J. In Hadkinson —vsHadkinson, (1952) ALL ER 567, "It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless. and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, L.C., said in Chuck —vs- Cremer (1) (1 Coop. temp. Cott 342): "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it...it would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid — whether it was regular or irregular... Further, this Court in Refrigeration and Kitchen Utensils Ltd. —vs- Gulabchand Popatial Shah & Another, Civil Application No. 39 of 1990 held, ".. ...It is essential fOr the maintenance of the rule of law and good order that the authority and dignity of our courts is upheld at all times." The above pronouncements of law ring true now as they did over sixty years ago when they were made in Hadkinson 's case. Unfortunately, what we have now is persons both ordinary mortals and persons in authority treating Court orders with unbridled contempt with blatant impunity... We reiterate here that court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not. For as Theodore Roosevelt, the 26" President of the United States of America once said: "No man is above the law and no man is below it; nor do we ask any man's permission to obey it. Obedience of the law is demanded as a right; not as a favour.” The courts should not fold their hands in helplessness and watch as their orders are disobeyed with impunity left, right and centre. This would amount to abdication of our sacrosanct duty bestowed on u3 by the Constitution. The dignity, and authority of the Court must be protected, and that is why those who flagrantly disobey them must be punished, lest they lead us all to a state of anarchy.”
45. The Supreme Court affirmed the importance of punishing for contempt of court in the case of Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2023] KESC 14 (KLR) thus (paras 97 and 98):
“97. At the same time, there is no doubt that contempt is something to be taken most seriously in the administration of justice. As we noted in Republic v Ahmed Abolfathi Mohammed &another SC Criminal Application No. 2 of 2018; 12018JeKLR: "[28J It is, therefore evident that not only do contemnors demean the integrity and authority of courts, but they also deride the rule of law. This must not be allowed to happen.”
46. This court is satisfied that there is a need for Hon. Patrick Mariru the Principal Secretary Ministry of Defence to attend court to show cause why he should not be found guilty of contempt and punished accordingly for disobeying and defying the Judgment and Decree of the Order of Mandamus given by this Honourable Court in person.
Disposition:
47. The duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. The rule of law will be promoted if the order below is granted.
Order
The Application dated 6.11.23 is allowed in the following terms:
1) Prayer 2 and 3 are allowed.
Hon. Patrick Mariru the Principal Secretary Ministry of Defence is hereby summoned to appear before this Honourable Court to show cause why he should not be found guilty of contempt and punished accordingly for disobeying and defying the Judgment and Decree of the Order of Mandamus given by this Honourable Court in person on 10.7.24 at 11AM.
2) Prayers 4, 5 and 6 shall abide the outcome of prayer 2 and 3.
3) Costs in the cause.
Dated, signed and delivered at Nairobi this 8th Day of April 2024.
…………………………………
J. CHIGITI (SC)
JUDGE