[1] Before the Court for determination is the Notice of Motion dated 24th January 2024. It was filed by the petitioners under Sections 1A, 1B and 3A of the Civil Procedure Act, Section 5 of the Judicature Act, Chapter 8, Laws of Kenya, Rule 39 of the High Court (Organization and Administration) (General) Rules, 2016 and Order 53 Rule 4 of the Civil Procedure Rules. They prayed for orders that:
[a] Spent
[b] The Court do issue summons to the Principal Secretary, National Treasury and Planning, Mr. Chris Kiptoo and the Principal Secretary, State Department for Transport, Mr. Mohamed Daghar, to attend and appear before the Court on a date to be determined, to show cause why they should not be committed to jail or penalized for contempt of court.
[c] That the Principal Secretary, National Treasury and Planning, Mr. Chris Kiptoo and the Principal Secretary, State Department for Transport, Mr. Mohamed Daghar, be committed to jail for six months; or penalized on such terms as the Court may determine, for contempt of court for having deliberately disobeyed orders of this court issued on 16th May 2022.
[d] That any other or further orders of the Court, geared towards protecting the dignity of the Court, be issued.
[2] The application was premised on the grounds that, the respondents have deliberately disobeyed the orders of the Court issued on the 16th May 2022 despite having been served with the said orders and decree. They further averred that, in direct violation of the orders of the Court, the respondents have refused and/or failed to release to the petitioners the information sought vide the letters dated 16th December 2019 and 13th May 2021. The petitioners further averred that they made several follow-ups and reminders with the respondents to release the information sought and to comply with the said decree and orders of the Court but the respondents have persistently failed and or refused to comply.
[3] The petitioners asserted that the dignity of the Court must be protected at all times; and that it is in the interest of justice that the orders sought be issued as the constitutional provisions on accountability are binding on all public officers. The application was supported by the affidavit of the 1st petitioner, Mr. Khelef Khalifa, sworn on 24th January 2024. He averred that they obtained a decree in their favour on 16th May 2022; and that the decree was duly served on the respondents and such service acknowledged by them. The 1st respondent further averred that in spite of several requests and reminders to the respondents imploring them to abide by the decree, they are yet to comply.
[4] The petitioners further averred that the act of disobedience on the part of the respondents is in utter contempt of court, demonstrates disrespect to the Court and is a direct affront to the judicial process; and therefore ought to be punished accordingly.
[5] The respondents filed a Replying Affidavit sworn by Mohamed Daghar on 12th February 2024. They averred that the application for contempt is ill conceived since the parties were still in the motions of negotiating the extent of disclosure of the documentation forming the subject of the decree dated 7th September 2022. They further averred that they preferred an appeal to the Court of Appeal vide Mombasa Civil Appeal No. 085 of 2022, which appeal is pending hearing and determination; and that, in addition, they filed an application for stay of execution in this matter which is likewise pending hearing and determination.
[6] Consequently, the respondents urged the Court to find that there are justifiable reasons for non-compliance, adding that the parties have also been engaged in out of court negotiations for an amicable resolution of the dispute. They further deposed that, pursuant to those negotiations, the 2nd respondent made a proposal for partial release of the documents, but the proposal did not elicit a response from the petitioners. Thus, they averred that, in those circumstances, it would be manifestly unjust for the respondents to be held in contempt of court.
[7] The application was canvassed by way of written submissions, pursuant to the directions given herein on 5th February 2024. The petitioners filed written submissions dated 16th February 2024. They proposed two issues for determination, namely:
[a] Whether the respondents are liable for contempt of court; and
[b] Whether the Court should penalize the respondents for their act of contempt.
[8] The petitioners reasoned that, since it is indubitable that they have a decree in their favour for the release of the requested information to the 1st petitioner, or that the respondents were served with the decree and orders of the Court, there is no justification for non-compliance. They submitted that the act of refusing to obey the orders of the Court is sufficient proof of contempt. They referred to Kimanja Kamau (suing as the personal representative of the estate of Gideon Gitundu Kimere (deceased) v Francis Mwangi Mwaura & another [2018] eKLR as to the elements of contempt; contending that all those elements have been proved in this instance.
[9] On the mandate and jurisdiction of the Court to punish for contempt, the petitioners relied on Section 5 of the Judicature Act and the cases of Christine Wangari Gachege v Elizabeth Wanjiru Evans & others [2014] eKLR and Republic v Principal Secretary, Ministry of Defence, Ex Parte George Kariuki Waithaka [2019] eKLR and submitted that to countenance disobedience of court orders would be to lead the country towards anarchy. On the contrary, by punishing the respondents for contempt would be to insulate court processes for purposes of compliance so that the rule of law and administration of justice are not undermined.
[10] The petitioners therefore contended that, having proved all the elements of contempt of court, the orders prayed for by them ought to issue. They made reference to Order 40 Rule 3 of the Civil Procedure Rules and the case of Henry Musemate Murwa v Francis Owino, Principal Secretary, Ministry of Public Service, Youth and Gender Affairs & another [2021] eKLR to support their prayer for the imprisonment of the respondents for a period not exceeding six months or for such other term as the Court may deem fit and just.
[11] The respondents relied on their written submissions dated 7th March 2024. They proposed the following issues for determination:
[a] Whether the respondents are willfully ignoring the orders of the Court issued on 16th May 2022.
[b] Whether it is in the public interest to hold the respondents in contempt while their appeal and application for stay of execution are pending hearing and determination.
[12] The respondents relied on Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227 and Oilfield Movers Ltd v Zahara Oil & Gas Limited [2020] eKLR to buttress their submission that contempt of court is an offence of a criminal character; and therefore requires proof to a standard slightly above a balance of probabilities. They urged the Court to consider that an appeal has been filed against the subject decree and orders, that there is a pending application for stay, and that the parties have been negotiating for an amicable out of court solution. In their submission, all these factors negate willful non-compliance.
[13] The respondents further submitted that, since the basis of the pending appeal is that the substance of the contracts is protected under Section 3(6) and (7) of the Official Secrets Act and form part of the exemptions under Section 6(1) and (2) of the Access to Information Act, it would not be in the public interest for the respondents to be committed to civil jail as proposed. They added that the subject contracts involve non-disclosure clauses that may expose the Government of Kenya to liability for breach of contract; thereby imposing and undue burden on the Kenyan taxpayer.
[14] I have given careful consideration to the application in the light of the Grounds of Opposition filed by the respondents as well as the written submissions presented by either side. Needless to mention that the Contempt of Court Act having been declared invalid on 9 November 2018 for lack of public participation pursuant to Articles 10 and 118(b) of the Constitution in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR, the nullification had the effect of reviving Section 5 of the Judicature Act; which is the principal enabling provision relied on by the petitioners.
[15] Consequently, I am in total agreement with the position taken in Republic v Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya, HCMCA No. 13 of 2008, that:
“The applicable law as regards contempt of court existing before the enactment of the Contempt of Court Act was restated by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others, [2014] eKLR. In that case the Court found that the English law on committal for contempt of court under Rule 81.4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertakings, was applied by virtue of section 5(1) of the Judicature Act which provided that:
“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.”
This section was repealed by section 38 of the Contempt of Act of 2016, and as the said Act has since been declared invalid, the consequential effect in law is that it had no legal effect on, and therefore did not repeal section 5 of the Judicature Act, which therefore continues to apply. In addition, the substance of the common law is still applicable under section 3 of the Judicature Act. This Court is in this regard guided by the applicable English Law which is Part 81 of the English Civil Procedure Rules of 1998 as variously amended...”[16] Similarly in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the above position was endorsed thus:
“I agree with the above reasoning that since the act that repealed section 5 of the Judicature Act [17] has been declared unconstitutional, the effect is that section 5 of the Judicature Act [18] still stands.”
[16] Section 5 of the Judicature Act states:
(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.
(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.
[17] There is no gainsaying that court orders must be strictly obeyed. As was aptly stated by Romer LJ in Hadkinson v Hadkinson [1952] AllER 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.
For, a person 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, that they should come to the court and not take upon themselves to determine such question. That the course of a party knowing of an order which was null and irregular, and who might be affected by it, was plain, he should apply to court that it might be discharged. As long as it exists, it should not be disobeyed." (Also see Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] KLR 828)
[18] Hence, it is now settled that in an application of this nature, an applicant must prove the following prerequisites, namely:
[a] That the terms of the order are clear and unambiguous;
[b] That the contemnor had knowledge or proper notice of the order;
[c] That the respondent has deliberately failed to obey the order;
(see Katsuri Limited v Kapurchand Depar Shah [2016] eKLR)
[19] In the instant matter, there is no dispute that the petitioners have a judgment in their favour dated 13th May 2022 in respect of which a decree was extracted on 16th May 2022 and served on the respondents for compliance. It is also common ground that the respondents are yet to comply with the terms of the said decree. While it is true that, whereas there has been an appeal to the Court of Appeal, no order of stay has been issued either by this Court or the Court of Appeal.
[20] Additionally, a perusal of the court record confirms that the parties have been engaged in negotiations, and that on the 18th September 2023, counsel for the petitioners gave an undertaking not to pursue any contempt application pending the outcome of those negotiations. It is however not true that the instant application was filed in breach of that undertaking as wall posited by the respondents. To the contrary, the record shows that on 20th January 2024, counsel for the petitioners intimated to the Court that the negotiations had fallen through and that the petitioners would be filing an application for contempt. In the premises, and from that moment on, the respondents were put on notice and were therefore under duty to obey the orders of the Court.
[21] In Shimmers Plaza Limited v National Bank of Kenya Limited (Civil Appeal 33 of 2012) [2015] KECA 945 (KLR) (Civ) (18 February 2015) (Ruling) the Court of Appeal held:
"... 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 26th 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 to the law is demanded as of right; not as a favour."
(also see Republic v Principal Secretary, Ministry of Defence Ex Parte George Kariuki Waithaka, supra)
[22] The foregoing notwithstanding, Section 21 of the Government Proceedings Act states:
(1) Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:
Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.
(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon: Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.
(4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.
[23] In addition, Order 29 Rule 3 of the Civil Procedure Rules states:
“Any application for a certificate under section 21 of the Government Proceedings Act (which relates to satisfaction of orders against the Government) shall be made to a registrar or, in the case of a subordinate court, to the court; and any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicant shall be made to the court and may be made ex parte without a summons, and such certificate shall be in one of Form Nos. 22 and 23 of Appendix A with such variations as circumstances may require.
[24] There is no indication of compliance with this provision of the law by the petitioners before resorting to contempt proceedings. Such a serious omission only goes to show that the application was prematurely filed. It is an integral part of a contempt application that willful disobedience be proved on the part of the alleged contemnor. This is particularly so in the circumstances hereof where the respondents contend that they made a proposal for partial compliance which the petitioners are yet to respond to. Partial compliance, to my mind, is not out of sync with the fact that the respondents have a pending appeal as well as an application for stay of execution pending appeal.
[25] In the premises, I am in agreement with the expressions of Hon. Mativo, J. (as he then was) in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR that:
And as O’Regan J pointed out, the power to imprison for coercive and non-punitive purposes is ‘an extraordinary one’:
‘The power to order summary imprisonment of a person in order to coerce that person to comply with a legal obligation is far-reaching. There can be no doubt that indefinite detention for coercive purposes may involve a significant inroad upon personal liberty. Clearly it will constitute a breach of s 12 of the Constitution unless both the coercive purposes are valid and the procedures followed are fair. In this case there seems no doubt that the purpose is a legitimate one. It also seems necessary and proper, however, for the exercise of the power to be accompanied by a high standard of procedural fairness.’[48]
46. Contempt of court is not merely a mechanism for the enforcement of court orders. The jurisdiction of the superior courts to commit recalcitrant litigants for contempt of court when they fail or refuse to obey court orders has at its heart the very effectiveness and legitimacy of the judicial system. That, in turn, means that the court called upon to commit such a litigant for his or her contempt is not only dealing with the individual interest of the frustrated successful litigant but also, as importantly, acting as guardian of the public interest.[49]
[26] In the light of the foregoing, it is my finding that the instant application is premature. The same is accordingly struck out with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 6TH DAY OF NOVEMBER 2024