[ AMENDED NOTICE OF MOTION DATED 20TH FEBRUARY 2024]
1. The 1st defendant filed a notice of motion dated 27th October 2023, as amended on 20th February 2024, seeking for the following orders:
a. That the 1st defendant has fully purged the act of contempt and the issue of contempt be marked as fully settled.
b. The Honourable Court be pleased to mark this matter as settled so that the 1st defendant is at liberty to deal with the suit property namely the 1st and 2nd floors of the building known as Ikinu Plaza situated on Plot No. MOMBASA/BLOCK XVI/154 without any limitations arising from this suit.
c. The costs of this application be provided for.
The application is premised on the eleven (10) grounds on its face, and supported by the affidavit of Wambu Wainaina, sworn on 27th October 2023, in which he inter alia deposes that he is the registered owner of the 1st and 2nd floors of the building named as Ikinu Plaza, on MOMBASA/BLOCK XVI/154, suit property; that the late Julius Mbaabu M’Mweti was a tenant before his demise; that this court delivered a ruling on 18th October 2023, and found him to be in contempt of the Court order of 13th June 2017; that he was fined Kshs. 500,000, which was to be paid in 14 days, in default of which a warrant of arrest was to be issued, and he be committed to serve 6 (six) months imprisonment; that he was willing to comply with the orders of 13th June 2017, but his efforts were frustrated by the actions of the affected parties, who have however since left the suit property; that he has invited the plaintiff to resume the deceased’s tenancy as contemplated by the order of 18th October 2023; that he had a legitimate expectation that he was entitled to mitigation before being punished for contempt of court, which is in itself a quasi criminal offence; that he prays for the sentence be set aside and he be given an opportunity to mitigate; that he has paid the fine, and has also made the premises available to the plaintiff as from 1st November 2023, and he should be deemed to have purged the said offence. In the 1st defendant further affidavit sworn on 21st February 2024, he among others deponed that he paid the fine of Kshs. 500,000/- on the 1st November 2023; that though the plaintiff was informed through the letter dated the 24th October 2023 that the premises will be available to him from 1st November 2023, he is yet to pay the rent; that the plaintiff has not paid rent for the months of November 2023, to January 2024; that this court dealt with the issue of return of the seized items through its ruling dated 13th June 2017, more specifically the court directed the plaintiff to pursue the matter in the BPRT No. 50 of 2016; that the eviction did not take place, but it was levy for distress which the plaintiff ought to pursue to its logical conclusion; that the value of the seized items was of Kshs. 15,600 and not Kshs. 5,557,000; that the plaintiff’s capacity as administrator ad litem of the deceased’s estate has been challenged in High Court Succession Cause NO. 19 OF 2017, where he has been facing a challenge from his siblings since 2017; that for reasons of the said challenge, it may be impossible for the plaintiff to occupy the suit property, and consequently distribute the estate of the late Julius Mbaabu.
2. The application is opposed by the plaintiff through the grounds of opposition dated 14th November 2023, and undated replying affidavit sworn by the plaintiff. In the grounds of opposition, the plaintiff opposed the application on grounds inter alia that the said notice of motion was filed with the purpose of furthering the “2nd defendant’s contempt of court order issued on 13th June 2017”; that the application offends the requirements in Order 45 of the Civil Procedure Rules as the 1st defendant did not demonstrate the discovery of new and important evidence. The plaintiff deposes among others that the 1st defendant owns the entire building and not just the 1st and 2nd floors; that the application is a gimmick aimed at avoiding to comply with the court order after the 1st defendant conspiracy with the affected parties, then represented by the same counsel representing the him, failed; that the 1st defendant, through the 2nd defendant invaded the suit property and seized items as detailed in the letter by the plaintiff’s counsel dated 9th April 2024 listing and requesting return of seized items, that is annexed to the replying affidavit; that the 1st defendant has to date not disclosed or accounted the said items, despite the court order issued on the 13th July 2017. The plaintiff also filed a further affidavit sworn on the 27th May 2024, without leave and after the 1st defendant had filed their submissions. The depositions in the further affidavit will therefore, not be considered.
3. On 23rd January 2024, the court inter alia directed the parties to file and exchange submissions. The learned counsel for the 1st defendant and the plaintiff filed their submissions dated the 20th February 2024 and 27th May 2024 respectively, which the court has considered.
4. The following are issues for determinations by the court;
a. Whether the 1st defendant has purged the contempt.
b. Whether the order sought by 1st defendant that the suit be marked settled and that he be at liberty to deal with the suit property, without any limitations arising from this suit, should be issued at this stage.
c. Who bears the costs of this application?
5. The court has carefully considered the grounds on the amended notice of motion, grounds of opposition, affidavit evidence by the parties, submissions by the learned counsel, the superior courts decisions cited thereon and come to the following determinations:
a. To start with, the contention by the 1st defendant that the plaintiff’s is facing a challenge from his siblings on the administration of the deceased’s estate, is a matter to be left to the relevant succession court seized of the matter. The fact that the plaintiff has a grant that has not been revoked, at least from the evidence presented to this court, cements his capacity in this suit. The questions relating to the seizure of the plaintiff’s good by the defendants, and their accounting, are issues that require parties to adduce their evidence before the court can make a determination.
b. Contempt of court was described in the case of Econet Wireless Kenya Limited versus Minister for Information And Communication Of Kenya Authority [2005] eKLR as follows: -
“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the 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 the order believes it to be irregular or void.”
Similarly, in the case of T.N Gadavarman Thiru Mulpad v Ashok Khot and Another [2005] 5 SCC, the Supreme Court of India in emphasizing the dangers of disobeying court orders held as follows: -
“Disobedience of this Court's order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very corner stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. That is why it is imperative and invariable that Court's orders are to be followed and complied with.”
Counsel for the 1st defendant has argued that the 1st defendant has now complied with the court order, as he has paid the fine of Kshs. 500,000, and had invited the plaintiff to come back to the suit property at the rent amount of Kshs. 110,000 p.m which they allege is the same amount as what was charged to the late Julius Mbaabu. This invitation was done through a letter dated 24th October 2023. In reply, counsel for the plaintiffs argued that the plaintiff had required the seized items to be returned as a condition for him to retake possession, which position was communicated vide a letter dated 9th April 2024.
c. The standard of proof in contempt cases is higher than that acquired in an ordinary civil case. When finding for contempt, there must a demonstration of wilful and deliberate disobedience of a court order. In the case of Gatharia K. Mutikika – vs Baharini Farm Ltd [1985] KLR 227 the court held that:
“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.
However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be heard to process contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject…… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.”
d. The contempt application has been dealt with, and the contemnor sanctioned, and he paid the fine paid. The 1st defendant has not met the threshold under Order 45 Rule 1 of the Civil Procedure Rules for review of the court order of 18th October 2023. Further, I see no basis for the prayer that the 1st defendant has purged the contempt. The contemnor would have moved the court for mitigation had he been present in court during the delivery of the ruling. One of the prayers in the plaint dated 30th March 2017 is for damages, equivalent to the value of the destroyed/damaged seized items. The issues in the suit are therefore, yet to be settled either by consent or through merit hearing. The prayer that the suit be marked as settled is therefore premature.
e. Section 27 of the Civil Procedure Act provides the general rule on costs, which is that costs follow the event unless where for good reasons directed otherwise. As the 1st defendant has failed in his application, then he should pay the plaintiff’s costs.
5. The orders that commends themselves to be issued in view of the foregoing determinations are as follows:
a. That the amended notice of motion dated 20th February 2024 is without merit and is dismissed.
b. The 1st defendant to pay the plaintiff’s costs.
Orders accordingly.
1. The 1st defendant filed a notice of motion dated 27th October 2023, as amended on 20th February 2024, seeking for the following orders:
a. That the 1st defendant has fully purged the act of contempt and the issue of contempt be marked as fully settled.
b. The Honourable Court be pleased to mark this matter as settled so that the 1st defendant is at liberty to deal with the suit property namely the 1st and 2nd floors of the building known as Ikinu Plaza situated on Plot No. MOMBASA/BLOCK XVI/154 without any limitations arising from this suit.
c. The costs of this application be provided for.
The application is premised on the eleven (10) grounds on its face, and supported by the affidavit of Wambu Wainaina, sworn on 27th October 2023, in which he inter alia deposes that he is the registered owner of the 1st and 2nd floors of the building named as Ikinu Plaza, on MOMBASA/BLOCK XVI/154, suit property; that the late Julius Mbaabu M’Mweti was a tenant before his demise; that this court delivered a ruling on 18th October 2023, and found him to be in contempt of the Court order of 13th June 2017; that he was fined Kshs. 500,000, which was to be paid in 14 days, in default of which a warrant of arrest was to be issued, and he be committed to serve 6 (six) months imprisonment; that he was willing to comply with the orders of 13th June 2017, but his efforts were frustrated by the actions of the affected parties, who have however since left the suit property; that he has invited the plaintiff to resume the deceased’s tenancy as contemplated by the order of 18th October 2023; that he had a legitimate expectation that he was entitled to mitigation before being punished for contempt of court, which is in itself a quasi criminal offence; that he prays for the sentence be set aside and he be given an opportunity to mitigate; that he has paid the fine, and has also made the premises available to the plaintiff as from 1st November 2023, and he should be deemed to have purged the said offence. In the 1st defendant further affidavit sworn on 21st February 2024, he among others deponed that he paid the fine of Kshs. 500,000/- on the 1st November 2023; that though the plaintiff was informed through the letter dated the 24th October 2023 that the premises will be available to him from 1st November 2023, he is yet to pay the rent; that the plaintiff has not paid rent for the months of November 2023, to January 2024; that this court dealt with the issue of return of the seized items through its ruling dated 13th June 2017, more specifically the court directed the plaintiff to pursue the matter in the BPRT No. 50 of 2016; that the eviction did not take place, but it was levy for distress which the plaintiff ought to pursue to its logical conclusion; that the value of the seized items was of Kshs. 15,600 and not Kshs. 5,557,000; that the plaintiff’s capacity as administrator ad litem of the deceased’s estate has been challenged in High Court Succession Cause NO. 19 OF 2017, where he has been facing a challenge from his siblings since 2017; that for reasons of the said challenge, it may be impossible for the plaintiff to occupy the suit property, and consequently distribute the estate of the late Julius Mbaabu.
2. The application is opposed by the plaintiff through the grounds of opposition dated 14th November 2023, and undated replying affidavit sworn by the plaintiff. In the grounds of opposition, the plaintiff opposed the application on grounds inter alia that the said notice of motion was filed with the purpose of furthering the “2nd defendant’s contempt of court order issued on 13th June 2017”; that the application offends the requirements in Order 45 of the Civil Procedure Rules as the 1st defendant did not demonstrate the discovery of new and important evidence. The plaintiff deposes among others that the 1st defendant owns the entire building and not just the 1st and 2nd floors; that the application is a gimmick aimed at avoiding to comply with the court order after the 1st defendant conspiracy with the affected parties, then represented by the same counsel representing the him, failed; that the 1st defendant, through the 2nd defendant invaded the suit property and seized items as detailed in the letter by the plaintiff’s counsel dated 9th April 2024 listing and requesting return of seized items, that is annexed to the replying affidavit; that the 1st defendant has to date not disclosed or accounted the said items, despite the court order issued on the 13th July 2017. The plaintiff also filed a further affidavit sworn on the 27th May 2024, without leave and after the 1st defendant had filed their submissions. The depositions in the further affidavit will therefore, not be considered.
3. On 23rd January 2024, the court inter alia directed the parties to file and exchange submissions. The learned counsel for the 1st defendant and the plaintiff filed their submissions dated the 20th February 2024 and 27th May 2024 respectively, which the court has considered.
4. The following are issues for determinations by the court;
a. Whether the 1st defendant has purged the contempt.
b. Whether the order sought by 1st defendant that the suit be marked settled and that he be at liberty to deal with the suit property, without any limitations arising from this suit, should be issued at this stage.
c. Who bears the costs of this application?
5. The court has carefully considered the grounds on the amended notice of motion, grounds of opposition, affidavit evidence by the parties, submissions by the learned counsel, the superior courts decisions cited thereon and come to the following determinations:
a. To start with, the contention by the 1st defendant that the plaintiff’s is facing a challenge from his siblings on the administration of the deceased’s estate, is a matter to be left to the relevant succession court seized of the matter. The fact that the plaintiff has a grant that has not been revoked, at least from the evidence presented to this court, cements his capacity in this suit. The questions relating to the seizure of the plaintiff’s good by the defendants, and their accounting, are issues that require parties to adduce their evidence before the court can make a determination.
b. Contempt of court was described in the case of Econet Wireless Kenya Limited versus Minister for Information And Communication Of Kenya Authority [2005] eKLR as follows: -
“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the 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 the order believes it to be irregular or void.”
Similarly, in the case of T.N Gadavarman Thiru Mulpad v Ashok Khot and Another [2005] 5 SCC, the Supreme Court of India in emphasizing the dangers of disobeying court orders held as follows: -
“Disobedience of this Court's order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very corner stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. That is why it is imperative and invariable that Court's orders are to be followed and complied with.”
Counsel for the 1st defendant has argued that the 1st defendant has now complied with the court order, as he has paid the fine of Kshs. 500,000, and had invited the plaintiff to come back to the suit property at the rent amount of Kshs. 110,000 p.m which they allege is the same amount as what was charged to the late Julius Mbaabu. This invitation was done through a letter dated 24th October 2023. In reply, counsel for the plaintiffs argued that the plaintiff had required the seized items to be returned as a condition for him to retake possession, which position was communicated vide a letter dated 9th April 2024.
c. The standard of proof in contempt cases is higher than that acquired in an ordinary civil case. When finding for contempt, there must a demonstration of wilful and deliberate disobedience of a court order. In the case of Gatharia K. Mutikika – vs Baharini Farm Ltd [1985] KLR 227 the court held that:
“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.
However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be heard to process contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject…… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.”
d. The contempt application has been dealt with, and the contemnor sanctioned, and he paid the fine paid. The 1st defendant has not met the threshold under Order 45 Rule 1 of the Civil Procedure Rules for review of the court order of 18th October 2023. Further, I see no basis for the prayer that the 1st defendant has purged the contempt. The contemnor would have moved the court for mitigation had he been present in court during the delivery of the ruling. One of the prayers in the plaint dated 30th March 2017 is for damages, equivalent to the value of the destroyed/damaged seized items. The issues in the suit are therefore, yet to be settled either by consent or through merit hearing. The prayer that the suit be marked as settled is therefore premature.
e. Section 27 of the Civil Procedure Act provides the general rule on costs, which is that costs follow the event unless where for good reasons directed otherwise. As the 1st defendant has failed in his application, then he should pay the plaintiff’s costs.
5. The orders that commends themselves to be issued in view of the foregoing determinations are as follows:
a. That the amended notice of motion dated 20th February 2024 is without merit and is dismissed.
b. The 1st defendant to pay the plaintiff’s costs.
Orders accordingly.