' '' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
COMMERCIAL SUIT NO. E002 OF 2024
NAZMUDAN SHARIFF……………………………………...1ST PLAINTIFF
ALTAF SHARRIF……………………………………………..2ND PLAINTIFF
FIROZ SHARRIF……………………………………………..3RD PLAINTIFF
ARIF SHARRIF………………………………………………..4TH PLAINTIFF
VERSUS
SIMIYU JOHNSON MASIND T/A
MASINDE & COMPANY ADVOCATES…………………….DEFENDANT
RULING
Background
1. Vide Originating Summons dated 25th January 2024, the Plaintiff’s herein approached this Court seeking the following orders:
a. That the Defendant do render an account of all funds received in settlement of the judgement delivered on the 4th October 2018, in Bungoma HCCC No. 85 of 2005 between Nazmudin Shariff, Altaf Shariff, Feroz Shariff, Arif Sharrif versus Kenya Power & Lighting Co. Ltd and to prove to court the financial records and bank statements in proof of the funds received, and their status.
b. The Defendant to forthwith pay to the plaintiff/Applicants all funds received in settlement of the judgement delivered on the 4th October 2018, in Bungoma HCCC NO. 85 of 2005 between Nazmudin Sharriff, Altaf Sharrif, Feroz Sharrif, Arif Sharrif versus Kenya Power & Lighting Co. Ltd including but not limited to , any principal amount interest accrued, and any other related fees or disbursements received by the firm.
c. That the Defendant do bear costs of the suit
d. That interest on (c) and (d) above.
2. Vide a Judgement delivered by this Court on 17th May 2024, under the stewardship of the erudite Justice David Kemei, this Court proceeded to find that the Defendant’s actions of withdrawing their clients (Plaintiffs) decretal money without their explicit instructions and knowledge and depositing the same with Cytonn Limited was contrary to the dints of Order 52 Rule 4(a) and (b) due to the fact that the Defendant as the trustee of the plaintiffs is under an obligation to account for the money had and received on their account. My brother Judge further held that the arrangement between the Defendant and Cytonn Limited had nothing to do with the Plaintiffs and that courtesy of the existence of a fiduciary relationship of Advocate/Client, the Defendant had no option but to accede to the demands or claims by the Plaintiffs. The Court found that the Plaintiffs had established a case against the Defendant on a balance of probability warranting it to find merit in the Originating Summons dates 25th January 2024, and granted them the orders as sought.
3. Vide a certificate of urgency and Motion application dated 27th May 2024, the Defendant approached this Court seeking interim orders of stay of execution of the judgement of the Court as delivered on 27th May 2024. On 4th July 2024, this Court proceeded to hold that there was no evidence on record that the Decree Holder had commenced execution against the Judgment Debtor and the erudite Judge declined to issue the sought interim order of stay of execution. The Court directed the parties to canvass the Motion application by way of written submissions and if need be the parties to file further Affidavit and Replying Affidavit.
Application
4. Vide a Notice of Motion Application dated 15th January 2025, the Plaintiffs herein approached this Court seeking the following orders:
a. The Defendant SIMIYU JOHNSON MASINDE be committed to civil jail for a term of six months for contempt of Court for having deliberately disobeyed orders of this Court issued on 22nd May 2024.
b. Any other or further orders of the Court geared towards protecting the dignity and authority of the Court.
c. Costs of this application be borne by the Defendant.
5. The application is brought under Order 40 Rule 3 of the Civil Procedure Rules, 2010, Section 5 of the Judicature Act, Cap 8 Laws of Kenya. It is based on the grounds on the face of the Motion and supported by the Affidavit of the 1st Plaintiff, Nazmudin Shariff, and the annexures attached hereto. The Plaintiffs assert that despite the Defendant’s knowledge of the judgement of the Court as delivered on 17th May 2024, and the Decree thereto dated 22nd May 2024, the Defendant had deliberately failed, neglected and/or refused to comply with the said Court judgment, and that this Court ought to punish the Defendant for contempt as the Plaintiffs continue to suffer great prejudice as they continue to be denied access to funds they are rightfully entitled to.
6. In opposition, the Defendant, the alleged Contemnor, filed a Grounds of Opposition 19th February 2025, and a Replying Affidavit sworn on an even date by Johnson Simiyu Masinde, asserting that the mode of enforcement of a decree is well provided for under the law and that the mode of enforcement of a decree liability ought not to be confused by willful disobedience of Court orders. He averred that the proceedings for contempt before this Court are made in bad faith and are improper with the only aim of intimidating the Judgment Debtor.
Analysis and determination
7. The Court has carefully considered the application, the Affidavits sworn in support and in opposition thereto, the Grounds of Opposition as preferred, as well as the parties’ respective written submissions from which the only issue for determination is whether the Defendant is in contempt of Court orders issued on 22nd May 2024.
8. Contempt of Court is conduct or action that defies or disrespects authority of Court. Black’s Law Dictionary 9th Edition, defines contempt as:
“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.”
9. Section 5 (1) of the Judicature Act, Cap 8 Laws of Kenya confers on this court the jurisdiction to punish for contempt in the following terms: -
“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.”
10. Courts punish for contempt to uphold the dignity and authority of the Court, ensure compliance with directions of the Court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by Courts: See Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR.
11. Additionally, in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, Mativo J. pronounced himself as follows:
“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.”
12. In the case of Samuel M. N. Mweru Case (Supra), Mativo J. set down the test for contempt as follows:
“40. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii). Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated: -
“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -
a. the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;
b. the defendant had knowledge of or proper notice of the terms of the order;
c. the defendant has acted in breach of the terms of the order; and
d. the defendant''''s conduct was deliberate.”
13. It is important to reiterate that contempt proceedings are quasi criminal in nature and require a high standard of proof due to the serious consequences involved. The Plaintiffs herein have not commenced execution of the Court Decree as issued on 22nd May 2024, as clearly stipulated under the Civil Procedure Act or Civil Procedure Rules. In deed this application reeks of mischief and bad faith solely aimed at intimidating the defendant. Whereas this court appreciates the fact that the plaintiffs, as the successful parties are entitled to enjoy the fruits of the judgment, they must adhere to the laid down procedures for execution of the judgment. This court will not condone the actions of the plaintiffs which overtly demonstrate mala fide and abuse of Court process. Due to these reasons the Plaintiffs'' application for contempt of Court fails and is dismissed with an order that each party bears it’s own costs.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
MS Kimani h/b for Mr. Ochieng for the Plaintiffs/Applicants
Mr. Wasilwa Makhakara for Defendants …………..Absent
Peter Machoni…………………………Court Assistant.
'' '
IN THE HIGH COURT OF KENYA
AT BUNGOMA
COMMERCIAL SUIT NO. E002 OF 2024
NAZMUDAN SHARIFF……………………………………...1ST PLAINTIFF
ALTAF SHARRIF……………………………………………..2ND PLAINTIFF
FIROZ SHARRIF……………………………………………..3RD PLAINTIFF
ARIF SHARRIF………………………………………………..4TH PLAINTIFF
VERSUS
SIMIYU JOHNSON MASIND T/A
MASINDE & COMPANY ADVOCATES…………………….DEFENDANT
RULING
Background
1. Vide Originating Summons dated 25th January 2024, the Plaintiff’s herein approached this Court seeking the following orders:
a. That the Defendant do render an account of all funds received in settlement of the judgement delivered on the 4th October 2018, in Bungoma HCCC No. 85 of 2005 between Nazmudin Shariff, Altaf Shariff, Feroz Shariff, Arif Sharrif versus Kenya Power & Lighting Co. Ltd and to prove to court the financial records and bank statements in proof of the funds received, and their status.
b. The Defendant to forthwith pay to the plaintiff/Applicants all funds received in settlement of the judgement delivered on the 4th October 2018, in Bungoma HCCC NO. 85 of 2005 between Nazmudin Sharriff, Altaf Sharrif, Feroz Sharrif, Arif Sharrif versus Kenya Power & Lighting Co. Ltd including but not limited to , any principal amount interest accrued, and any other related fees or disbursements received by the firm.
c. That the Defendant do bear costs of the suit
d. That interest on (c) and (d) above.
2. Vide a Judgement delivered by this Court on 17th May 2024, under the stewardship of the erudite Justice David Kemei, this Court proceeded to find that the Defendant’s actions of withdrawing their clients (Plaintiffs) decretal money without their explicit instructions and knowledge and depositing the same with Cytonn Limited was contrary to the dints of Order 52 Rule 4(a) and (b) due to the fact that the Defendant as the trustee of the plaintiffs is under an obligation to account for the money had and received on their account. My brother Judge further held that the arrangement between the Defendant and Cytonn Limited had nothing to do with the Plaintiffs and that courtesy of the existence of a fiduciary relationship of Advocate/Client, the Defendant had no option but to accede to the demands or claims by the Plaintiffs. The Court found that the Plaintiffs had established a case against the Defendant on a balance of probability warranting it to find merit in the Originating Summons dates 25th January 2024, and granted them the orders as sought.
3. Vide a certificate of urgency and Motion application dated 27th May 2024, the Defendant approached this Court seeking interim orders of stay of execution of the judgement of the Court as delivered on 27th May 2024. On 4th July 2024, this Court proceeded to hold that there was no evidence on record that the Decree Holder had commenced execution against the Judgment Debtor and the erudite Judge declined to issue the sought interim order of stay of execution. The Court directed the parties to canvass the Motion application by way of written submissions and if need be the parties to file further Affidavit and Replying Affidavit.
Application
4. Vide a Notice of Motion Application dated 15th January 2025, the Plaintiffs herein approached this Court seeking the following orders:
a. The Defendant SIMIYU JOHNSON MASINDE be committed to civil jail for a term of six months for contempt of Court for having deliberately disobeyed orders of this Court issued on 22nd May 2024.
b. Any other or further orders of the Court geared towards protecting the dignity and authority of the Court.
c. Costs of this application be borne by the Defendant.
5. The application is brought under Order 40 Rule 3 of the Civil Procedure Rules, 2010, Section 5 of the Judicature Act, Cap 8 Laws of Kenya. It is based on the grounds on the face of the Motion and supported by the Affidavit of the 1st Plaintiff, Nazmudin Shariff, and the annexures attached hereto. The Plaintiffs assert that despite the Defendant’s knowledge of the judgement of the Court as delivered on 17th May 2024, and the Decree thereto dated 22nd May 2024, the Defendant had deliberately failed, neglected and/or refused to comply with the said Court judgment, and that this Court ought to punish the Defendant for contempt as the Plaintiffs continue to suffer great prejudice as they continue to be denied access to funds they are rightfully entitled to.
6. In opposition, the Defendant, the alleged Contemnor, filed a Grounds of Opposition 19th February 2025, and a Replying Affidavit sworn on an even date by Johnson Simiyu Masinde, asserting that the mode of enforcement of a decree is well provided for under the law and that the mode of enforcement of a decree liability ought not to be confused by willful disobedience of Court orders. He averred that the proceedings for contempt before this Court are made in bad faith and are improper with the only aim of intimidating the Judgment Debtor.
Analysis and determination
7. The Court has carefully considered the application, the Affidavits sworn in support and in opposition thereto, the Grounds of Opposition as preferred, as well as the parties’ respective written submissions from which the only issue for determination is whether the Defendant is in contempt of Court orders issued on 22nd May 2024.
8. Contempt of Court is conduct or action that defies or disrespects authority of Court. Black’s Law Dictionary 9th Edition, defines contempt as:
“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.”
9. Section 5 (1) of the Judicature Act, Cap 8 Laws of Kenya confers on this court the jurisdiction to punish for contempt in the following terms: -
“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.”
10. Courts punish for contempt to uphold the dignity and authority of the Court, ensure compliance with directions of the Court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by Courts: See Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR.
11. Additionally, in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, Mativo J. pronounced himself as follows:
“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.”
12. In the case of Samuel M. N. Mweru Case (Supra), Mativo J. set down the test for contempt as follows:
“40. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii). Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated: -
“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -
a. the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;
b. the defendant had knowledge of or proper notice of the terms of the order;
c. the defendant has acted in breach of the terms of the order; and
d. the defendant''''s conduct was deliberate.”
13. It is important to reiterate that contempt proceedings are quasi criminal in nature and require a high standard of proof due to the serious consequences involved. The Plaintiffs herein have not commenced execution of the Court Decree as issued on 22nd May 2024, as clearly stipulated under the Civil Procedure Act or Civil Procedure Rules. In deed this application reeks of mischief and bad faith solely aimed at intimidating the defendant. Whereas this court appreciates the fact that the plaintiffs, as the successful parties are entitled to enjoy the fruits of the judgment, they must adhere to the laid down procedures for execution of the judgment. This court will not condone the actions of the plaintiffs which overtly demonstrate mala fide and abuse of Court process. Due to these reasons the Plaintiffs'' application for contempt of Court fails and is dismissed with an order that each party bears it’s own costs.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
MS Kimani h/b for Mr. Ochieng for the Plaintiffs/Applicants
Mr. Wasilwa Makhakara for Defendants …………..Absent
Peter Machoni…………………………Court Assistant.
'' '