Orient Enterprises Limited VS Lu Minghui

1. The applicant, Orient Enterprises limited filed an Application Notice dated 21st September, 2023 under the provisions of Section 5(1) of the Judicature Act, Order 52 Rule 3 of the Rules of the Supreme Court of England & Wales (sic) as modified by the Civil Procedure (Amendment No. 2) Rules, 2012 (Rule 81.4 of Part 8 thereof, seeking the following orders-
(a) Spent;
(b) The contemnor be committed to civil jail for a period of six (6) months each and/or until further orders of this Court;
(c) The contemnor be fined such amount as this Honourable Court shall deem fit until further orders of this Honourable Court;
(d) The contemnor purge (sic) his contempt by complying with the terms or orders of this Honourable Court issued on 12th September, 2023 that;
(i) Pending the interpartes hearing and determination of the instant application, there be a stay of the arbitral proceedings in NCIA DIS/ARB/16/22 – Lu Minghui v Orient Enterprises Limited.
(e) The contemnor purge (sic) his contempt by withdrawing the order for directions dated 13th September, 2023;
(f) The contemnor purge (sic) his contempt by ceasing all proceedings in NCIA DIS/ARB/16/22 – Lu Minghui v Orient Enterprises Limited;
(g) This Honourable Court be pleased to make any other order as the justice of the case may demand including seeking assistance from the interested party for compliance and redress; and
(h) That costs of the Application Notice be awarded to the applicant.
2. The Application Notice is supported by the facts on the face of it and an affidavit sworn on 21st September, 2023, by Rajiv Pandya, a director of the applicant herein. The respondents filed no response(s) to oppose the instant application.
3. In the affidavit sworn by the applicant’s director, he deposed that this Court granted an order for stay of proceedings pending interpartes hearing of the application dated 11th September, 2023.
4. That on the 12th September, 2023 and in compliance with the Court order, the applicant’s Advocates served the 1st respondent, the 2nd respondent and the interested party with the order and application through the Secretariat of the Nairobi Centre for International Arbitration (NCIA) and the said party (interested party) acknowledged receipt of the order and application via email on dated 13th September, 2023. The applicant stated that an affidavit of service was duly filed to that effect.
5. The applicant deposed that in a surprising turn of events and in blatant disregard, breach and violation of the Court order, the 1st respondent via the interested party’s Secretariat at 15.49 p.m (sic) issued further directions on the arbitration proceedings via an order for directions dated 13th September, 2023 directing the 2nd respondent herein to file submissions in the case by 28th September, 2023.
6. The applicant’s contention is that the 1st respondent has acted contemptuously in that even though this Court has granted stay of proceedings, the applicant stands to suffer irreparable loss if the 1st respondent continues to disobey orders of this Court.
7. Mr. Wairoto, learned Counsel for the applicant relied on the depositions made by the applicant in the supporting affidavit and the supplementary affidavit. Mr. Bett who appeared for the interested party decided to take a neutral position. Ms Muthemba only indicated that her client, Lu Minghui appears as the 2nd respondent in the Application Notice herein, whereas in the 1st application, he had been cited as the 1st respondent.
8. There is no dearth in regard to the decisions delivered by Courts on the issue of contempt of Court. A case in point is the Court of Appeal decision in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, where the Court cited the decision by Romer, L.J. In Hadkinson –vs- Hadkinson (1952) ALL ER 567 as follows-
“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. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.”
9. In applying the above decision to the circumstances of this case, this Court relies on an affidavit of service filed by the applicant sworn on 14th September, 2023 demonstrating that service of the order made on 12th September, 2023 by this Court was served on the Arbitrator (Bwalya Lumbwe), the 2nd respondent and the Nairobi Centre for International Arbitration (interested party). The Arbitrator’s email address in the affidavit of service is given as arbitratorzambia@gmail.com. In the said affidavit, the Tracy Simiyu, Advocate working for the law firm representing the applicant averred that the email addresses she used had been used in previous correspondence between the applicant, the respondent (2nd respondent) and the Arbitrator (1st respondent).
10.  Given the said circumstances, it is this Court’s finding that the applicant duly and properly effected service of the exparte Court order of 12th September, 2023 to the 1st respondent, 2nd respondent and the interested party. Despite service of the said order staying arbitral proceedings in issue, until the interpartes hearing of the applicant’s application dated 11th September, 2023, the interested party on the instructions of the 1st respondent went ahead to issue directions dated 13th September, 2023, directing the 2nd respondent herein to file submissions in the case by 28th September, 2023.
11.  This Court’s finding on the conduct of the 1st respondent is that he acted in total defiance of the Court order made on 12th September, 2023, which he was served with, through email. In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the Court discussed the applicable law in contempt of Court as follows-
“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.”
12.  In the above mentioned case, the Court quoted an excerpt from the learned authors of the book Contempt in Modern New Zealand which states the following-
“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;
d) The defendant's conduct was deliberate.”
11. Ibrahim J., (as he then was) expressed himself as hereunder on the importance of obeying Court orders in the case of Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KLR 828-
“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.” (emphasis added).
13.  In the instant application, a second affidavit of service sworn on 22nd September, 2023 filed by the applicant shows that the 1st respondent, among others, was served with a Court order arising from the Application Notice for contempt of Court filed on the said date, which required the respondents and the interested party to respond to the said Application Notice by 26th September, 2023. No response was filed. Instead, the 1st respondent communicated via email to Tracy Simiyu Advocate on 26th September, 2023, explaining away his legal opinion about various provisions of the Arbitration Act. The email he sent to the said Tracy Simiyu Advocate on 26th September, 2023, is exhibited in a supplementary affidavit that was filed by the applicant.
14.  As it stands, the said email by the 1st respondent cannot be regarded as a Court document duly filed in response to the Application Notice for contempt of Court. It is evident from the email by the 1st respondent that the email address he used in sending the email to Tracy Simiyu Advocate, is the same address that the applicant sent the Court order of 12th September, 2023 to, for the 1st respondent’s attention. It is my finding therefore, that the said Court order was communicated to the 1st respondent hence proper service was effected. There is no doubt whatsoever in my mind that the 1st respondent disregarded and disobeyed the order given by this Court on 12th September, 2023.
15.  When called upon to defend himself in the Application Notice for contempt of Court, the 1st respondent declined to do so. Having decided to forego the right to defend himself, this Court arrives at the inevitable conclusion that the 1st respondent (Bwalya Lumbwe) who has been cited for contempt of Court is guilty of disobeying the Court order made by this Court on 12th September, 2023.
16.  The Application Notice dated 21st September, 2023 is therefore granted as prayed. Costs are awarded to the applicant.
DELIVERED, DATED AND SIGNED at NAIROBI in open Court on this 12th day of October, 2023.

NJOKI MWANGI
JUDGE

     In the presence of:
     Mr. Wairoto for the applicant
     No appearance for the 1st respondent
     No appearance for the 2nd respondent
     No appearance for the interested party
     Ms B. Wokabi – Court Assistant.