[1] The Notice of Motion dated 22nd July 2024 was filed by the ex parte applicant, Kooba Kenya Limited, pursuant to Article 159(2)(d) of the Constitution of Kenya, Section 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya and Order 51 Rule 1 of the Civil Procedure Rules. The application seeks orders that:
[a] Spent
[b] The Court be pleased to cite the County Executive Member, Department of Finance, Mombasa County Government for contempt of the Court Orders issued on 14th June 2024.
[c] The Court do summon the County Executive Member, Department of Finance, Mombasa County Government to personally attend court to show cause why he should not be punished for contempt of court.
[d] The Court do give directions as to a hearing date when the County Executive Member, Department of Finance, Mombasa County Government, will appear before the Court under the Notice to Show Cause issued in Prayer (c) above.
[e] The Court be pleased to find that the County Executive Member, Department of Finance, Mombasa County Government is in contempt of the Judgment, Decree and the Court Orders of 14th June 2024 and that he be arrested and committed to civil jail for a period not exceeding six (6) months, or until such time as the contempt shall be purged.
[f] Costs of the application be borne by the respondents.
[2] The application was premised on the grounds that, by a Judgment delivered on 14th June 2024 in the presence of Counsel for all the parties, including the Advocates for the respondents, the Court issued an order of Judicial Review by way of Mandamus, directed to the County Executive Member for Finance, County Government of Mombasa, compelling him to forthwith pay the ex parte applicant Kshs. 151,000,000/= together with interest thereon and costs as awarded in the Decree and Certificate of Taxation issued in Mombasa High Court Petition No. 12 of 2017. The applicant further averred that, notwithstanding the Decree and Order of Mandamus, the respondents have treated the same with utmost contempt in that no efforts whatsoever have been made by the respondents towards compliance.
[3] The application was supported by the affidavit of Mr. Richard Bell, the Chief Executive Officer and Director of the ex parte applicant, in which he deposed, inter alia, that there is reasonable apprehension that if the trend of blatant disregard of the Orders of the Court by the respondent is not punished and stopped immediately, the Court’s authority will be irredeemably eroded, whilst the respondents will reign free with unbridled impunity. The applicant annexed copies of the Judgment dated 14th June 2024 as well as the Decree issued pursuant thereto, to buttress its averments.
[4] The respondents opposed the application. They relied on the affidavit sworn on 17th October 2024 by Mr. Jimmy Waliaula, the County Attorney at the County Government of Mombasa. The respondents averred that the County Executive Committee Member for Finance and Economic Planning was neither served with the application nor the Order of Mandamus. They added that the 2nd respondent is at risk of being condemned unheard considering that the application involves possible deprivation of a person’s liberty. Accordingly, the respondents prayed for the dismissal of the application.
[5] The application was urged by way of written submissions, pursuant to the directions given on 2nd October 2024. Accordingly, in its written submissions dated 7th November 2024, the applicant reiterated the factual background of the application and proposed the following issues for determination:
[a] Whether there was an existing Court Order that ought to be obeyed.
[b] Whether there was proof of service and knowledge of the Order.
[c] Whether the respondents deliberately breached the Order.
[d] Whether the applicant has proved its case.
[6] On the authority of Samuel M.N. Mweru & others v National Land Commission & 2 Others [2020] eKLR, the applicant submitted that the Order issued by the Court was unambiguous and binding on the respondents. Hence, it was the contention of the applicant that the continued non-compliance by the respondents is inexcusable. The applicant relied on the annexures to the Supporting Affidavit and urged the Court to find, not only that service of the Order was duly effected, but also that the respondents were all along aware of the Order, granted that the Judgment was delivered in the presence of their counsel.
[7] On whether the respondents deliberately disobeyed the Court Order, the applicant submitted that this is plain from the fact that the Decree is yet to be settled. The applicant relied on Africa Management Communication International Limited v Joseph Mathenge Mugo & another [2013] eKLR and Mutitika v Baharini Farm Limited [1985] eKLR and urged the Court to find that it has proved its contempt application to the requisite standard.
[8] In their response to the applicant’s submissions, the respondents relied on their written submissions dated 24th January 2025. In their view, the single issue for determination is whether they are guilty of contempt and whether the applicant has fulfilled the requirements to be granted the prayers sought in their application. They made reference to Kenya Human Rights Commission v Attorney General & Another [2018] eKLR by which the Contempt of Court Act, No. 46 of 2016 was declared invalid and resorted to the English Civil Procedure (Amendment No. 3) Rules, 2020, for the applicable procedure. Accordingly, the respondents submitted that the applicant was under obligation to satisfy the following requirements:
[a] That the respondents were personally served or made aware of the orders alleged to have been disobeyed;
[b] That the respondent willfully disobeyed the said Orders.
[9] In the submission of the respondents, the applicant failed to prove any of the above ingredients. They relied on Samuel M.N. Mweru & others v National Land Commission & 2 others (supra) and Mombasa Civil Appeal No. E107 of 2021: Ali Hassan Joho v Ashok Labshanker Doshi & 4 others and urged for the dismissal of the application dated 22nd July 2024.
[10] The facts of this case are not in dispute. They were well summarized in the applicant’s written submissions and need no reiteration; save to emphasize that, on the 14th June 2024, the Court issued an Order of Mandamus compelling the 2nd respondent to forthwith pay to the applicant the decretal sum of Kshs. 151,000,000/= together with interest thereon as well as costs awarded at Kshs. 3,397,240.65 in Mombasa High Court Petition No. 12 of 2017. A Decree was duly extracted for service on the respondents whose copy was annexed to the Supporting Affidavit and marked Annexure “KB-2” in support of the application.
[11] One of the enabling provisions cited by the applicant is Section 5 of the Judicature Act, which 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.
[12] Needless to mention that the Contempt of Court Act, No. 46 of 2016, was declared invalid on 9 November 2018 for lack of public participation in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR. The effect of the decision, to my mind, was the revival of the Section 5 of the Judicature Act. I am fortified in this stance by the position taken in Republic v Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya, HCMCA No. 13 of 2008, in which it was held:
“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...”
[13] 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.”
[14] That said, it is now settled that in an application of this nature, an applicant must prove the following prerequisites:
[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 vs. Kapurchand Depar Shah [2016] eKLR)
[15] There is no dispute that an Order of the Court was issued or that the Order was unambiguous. Granted the averments and arguments raised by the respondents in their Replying Affidavit and written submissions, the only issues in contention are:
[a] Whether service was effected;
[b] Whether the applicant has met the threshold to warrant the issuance of the orders sought herein.
[16] The standard of proof in contempt matters was well discussed by the Court of Appeal in Mutitika v Baharini Farm Ltd [1985] eKLR thus:
“In, Re Breamblevale Ltd [1969] 3 All ER 1062, Lord Denning MR. (as he then was), at page 1063, had this to say,
“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt”.
With the greatest possible respect to that eminent English judge, that proof is much too high for an offence “of a criminal character” and, ipso facto, not a criminal offence properly so defined...
…In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi-criminal in nature…”
[17] Although the respondents submitted that it was imperative that the contempt application be personally served on the alleged contemnors, this argument is untenable in the circumstances of this case. In Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, the Court of Appeal made it clear that there has been a shift from the stringent requirement of personal service in favour of proof of knowledge of order, where applicable. The Court held:
"...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... Kenya's growing jurisprudence right from the High Court has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for purposes of contempt proceedings. For instance, Lenaola, J. in the case of Basil Criticos vs Attorney General and 8 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."
[18] I note that the applicants relied on Ali Hassan Joho v Ashok Doshi (supra) in which the Court of Appeal held:
“…When it comes to the determination as to whether the person cited for contempt was aware or ought to have been aware of the order, that person, if he was not a party to the proceedings, must be personally served with the application seeking to cite him for contempt. This is more so as contempt proceedings are quasi-criminal in nature and as such a person’s liberty is at risk.”
[19] In this instance there is no new party to the application. The respondents, and in particular the County Executive Member for Finance, have been parties to these proceedings from its inception. They have all along been aware of the order of Mandamus. The court record also confirms that they were duly represented by counsel on the 14th June 2024 when the Court delivered its Judgment in this matter. Under those circumstances, it cannot be validly argued that personal service ought to have been effected.
[20] Indeed, the Court of Appeal also pointed out, in the Shimmers Plaza case (supra), that:
“...The notice of the order is satisfied if the person or his agent can be said to either have been present when the judgment or order was given or made; or was notified of its terms by telephone, email or otherwise. In our view, ‘otherwise’ would mean any other action that can be proved to have facilitated the person having come into knowledge of the terms of the judgment and/or order. This would definitely include a situation where a person is represented in court by counsel. Once the applicant has proved notice, the respondent bears an evidential burden in relation to willfulness and mala fides disobedience...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.”
[21] In the premises, I have no hesitation in holding that the respondents were fully aware of the order in question.
[22] Needless to say 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 vs. Minister for Information & Communication of Kenya & Another [2005] KLR 828)
[23] In the instant matter the applicant has satisfied all the conditions aforementioned and that the order of Mandamus issued herein on 22nd February 2024 is yet to be obeyed by the respondents. It is likewise plain that no justification has been given for this state of affairs.
[24] Accordingly, I reiterate the expressions of the Court of Appeal in the Shimmers Plaza 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 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."
[25] In the result, I am satisfied that the applicant has proved to the requisite standard that the 2nd respondent, as the accounting officer, is in contempt of the court order issued herein on 14th June 2024. Consequently, the Notice of Motion dated 22nd July 2024 is hereby allowed and orders granted as hereunder:
[a] That the County Executive Member, Department of Finance, Mombasa County Government, be and is hereby cited for contempt of the Court Orders issued on 14th June 2024.
[b] The County Executive Member, Department of Finance, Mombasa County Government be and is hereby summoned to personally attend court to show cause why he should not be punished for contempt of court.
[c] Costs of the application be borne by the respondents.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF FEBRUARY 2025