State VS

1.    The application herein dated 3/7/2024 by the State is for this court to issue a notice to the Managing Director, Diamond Trust Bank – Moi Avenue Branch, Mombasa to personally attend court to show cause why contempt of court proceedings should not be commenced against him. The application is brought under Article 50 of the Constitution, section 3 & 5 of the Judicature Act (Cap. 8) Laws of Kenya and all other enabling provisions of the law.
2.    The grounds in support are captured on the face of the application and the supporting affidavit of IP Nickson Kiunga, the investigating officer, sworn on 3/7/2024. They are in summary that the respondent has failed to abide by this court’s order issued on 19/6/2020 allowing the applicant through the Office of the Directorate of Criminal Investigations at the department of Banking Fraud, Mombasa to continue with investigations into a case of alleged fraudulent appropriation or accounting by directors contrary to section 328(b)(ii) of the Penal Code. The investigations involve transactions in two current account numbers 0200928080 and 0200928044 at the respondent’s bank and operated by Anwar Mohamed Bayusuf Limited of which Nuru Islam Ali Jeizan, the complainant is a director.  The applicant had obtained the said orders on 28/2/2019 against the Respondent in Mombasa Magistrates Court Misc. Application No. 57 of 2019 Banking Fraud Investigations Unit v. Diamond Trust Bank Ltd. The history of what lead to the matter ending up at the High Court which then reinstated the orders for continuation of investigations is well captured in the ruling and order herein dated 19/6/2020 and I need not rehash it.
3.    IP Kiunga deposes further that the court order was issued in open court in the presence of both the applicant and the respondent and the respondent has failed to comply with the said orders. As a consequence, there has been delay in the investigations and conclusion of this matter thereby prejudicing the complainant and undermining the authority of this court unless the respondent is punished for the willful disobedience.
4.    The application is further supported by an affidavit sworn by the complainant Nuru Islam Ali Jeizan sworn on 8/7/2024. In the affidavit she is simply reiterating the position that indeed this court issued the orders allowing investigations to be continued by the Applicant’s agents, the DCI through the BFIU against the Respondent as had been allowed earlier by the Lower Court. She further deposes that the investigating officer has informed her that the respondent has declined to cooperate with the investigators by failing to provide information requested being documents related to the relevant transactions and fraudulent activities in the said accounts as set out in the audit report annexed to the affidavit, as well as the officers of the respondent who authorized and approved the transactions.
5.    The application is opposed by the respondent through a replying affidavit sworn on 19/7/2024 and further replying affidavit sworn on 11/9/2024 by Martin Mbithi, head of corporate, Coast region based at the Mombasa branch. He deposes that pursuant to he investigations by the applicant through the BFIU, Mombasa, the respondent on 25/3/2019 supplied various documents namely:
a.    account statements for account No. 0200928080.
b.    account statements for account No. 0200928044.
c.    letter of offer dated 9/12/2019.
d.    supplemental letter of offer dated 14/12/2011; and
e.    replacement letter of offer dated 6/6/2011.
6.    He deposes further that the complainant Anwar Mohamed Bayusuf Ltd, the complainant herein made a similar application dated 24/2/2024 in Msa HCCC No. 13 of 2013 Anwar Mohamed Bayusuf Ltd v. Diamond Trust Bank and that he swore a replying affidavit to the said application and the bank explained what information was in its possession and what information it had supplied. He has annexed a copy of the replying affidavit to the present affidavit. The High Court made a ruling thereon indicating that it was “satisfied that there was substantial compliance and that any outstanding documents can still be sought at pre-trial conference stage. If ultimately it is proved that the documents are unavailable, then the parties will have to leave it to the Court to decide the merits of the case on the basis of the available evidence.”
7.    He further reiterated in that replying affidavit that the bank had always furnished all the documents in its possession and had always cooperated. In view thereof, the bank had always been under the impression that it had complied with the investigations in respect to the documents that it had in its possession. The bank’s advocates therefore advise him that the bank is not in blatant, willful and/or failure to comply with the order of this court.
8.    The civil suit was eventually dismissed on 6/5/2024 and it is as a result of that dismissal that the complainant being a disgruntled borrower has instigated this application, because the bank is attempting to exercise its statutory power of sale over Mombasa/Block X/249, The complainant company is thus attempting to revive the dismissed civil claim.
9.    The respondent further deposes that the actions by the complainant are unconstitutional and against the law as the BFIU is compelling it to produce documents and evidence that is not in its possession.
10.    The application was disposed of by way of written submissions filed by learned counsels for the applicant, the complainant and the respondent.
11.    The applicant’s submissions are that the court’s authority is being undermined by the failure of the respondent to obey the court’s orders issued herein. The cases of Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya; Communications Commission of Kenya [2005] KEHC 1767 (KLR) and the Indian case of T.N. Godavarman Thirumulpad through the Amicus Curiae v Ashok Khot and Another (AIR 2006 SC 2007)   are cite by learned counsel to support the submission.
12.    Learned counsel for the complainant made extensive submissions on how the alleged frauds were committed on the two accounts as if the same were in a criminal trial. There is no criminal trial here, rather the issue is still under investigations. The investigations may confirm the alleged fraud or fail to do so. Most of the issues raised in the complainant’s submissions are not ripe for consideration at this point.
13.    Learned counsel for the respondent submits that there is lack of independence by the applicant in prosecuting this application due to the participation of the complainant. This court gave the complainant as the victim of the alleged crime under investigation to participate in the proceedings herein and file submissions.
14.    The other submissions by learned counsel for the respondent are on the law of contempt which this court cannot delve into extensively at this stage. However, a notice to show cause is not a contempt application and so I cannot delve into those submissions at this point. It is only in default of the Notice to Show Cause, that the contempt of court proceedings will be commenced against the respondent.
15.    I have considered the application, the supporting affidavits by the applicant and the complainant and the responses thereto by the respondent. The issue for determination is whether the has sufficiently demonstrated the need for the applicant’s manager, Mombasa branch to attend court and show cause why contempt of court proceedings should not be commenced against him.
16.    In the application dated 28/2/2019, the BFIU, Mombasa the magistrates Court issued the following orders:
a.    that No. 89822 P.C. Nickson Kiunga be allowed to access, investigate, obtain information and carry away account opening documents for the following account numbers:
i.    0200928080
ii.    0200928044
b.    that the respondent
i.    do supply statements of the above account numbers from the time of their opening to-date.
ii.    do supply any letters of offer for any facility(s) given under the above account numbers.
iii.    any transaction slips or cheque(s) used for the above account number from the time of opening to-date.
iv.    any other document(s) or information relevant to this case which will help in the investigations.
17.    This court then directed that the be at liberty to continue with its investigations from where it had reached.
18.    There is no dispute that the respondent was aware of the orders issued herein. It participated fully in the proceedings and was served with the orders of the court both in the Magistrates Court and the High Court as required by law.
19.    On whether or not it has complied with the court orders, in its replying affidavit the respondent heavily relies on the civil court case proceedings to say that it was under the impression that it had complied with the orders made herein on investigations. Indeed, learned counsel for the respondent submits that the applicant cannot under the guise of conducting a criminal investigation subject the bank to further request of documents which the High Court had addressed. 
20.    There is no affirmative deposition that each of the orders above has been complied with. The deposition by the Head of Corporate that “they were under the impression” clearly shows that the orders have not been complied with.
21.    The respondent also relies heavily on the civil case proceedings to depose that since it complied with orders to supply documents in that case, then concomitantly it has complied in this case. That cannot be the case because the issue of compliance in the civil case versus the present criminal case was fully dealt with in the ruling of this court on 19/6/2020 and this court found that it was necessary to comply with the court orders in these criminal proceedings. 
22.    The respondent also says that it furnished all the documents in its possession and always cooperated. But the supply of documents was not the only order sought by the investigators. This court in its ruling considered the issue of why the investigations were important as distinct from the supply of documents in the civil case. The respondent has not set out one by one how it has discharged the said court order in order to satisfy the court that indeed it is in full compliance.
23.    Learned counsels for the parties have respectively submitted extensively, citing various authorities on the issue of contempt of court, especially on the standard of proof to be satisfied in such a case. I have to start by pointing out that a notice to show cause is not a contempt application. At this point the court is not determining whether the offence of contempt has been committed or not. The respondent will have an opportunity at the appropriate time to do so. Therefore, the application herein is not for contempt of court to commit the respondent’s officer for contempt of court. This application gives an opportunity to the respondent’s officer to attend court and show cause why, for instance, the respondent has not been and may not be able to satisfy the court order. If the court is satisfied that indeed there are good reasons, for instance, impossibility to execute the court order in the form in which it is or for any other good cause, then the alleged respondent will have satisfied the notice. If not, then it will be cited for contempt. In the alternative, the respondent can step forward and say it is henceforth going to execute the court order as it is and that moves the matter forward. At this point therefore, this court has to be careful not to delve into the issue of whether or not there is contempt of court by the respondent’s officer and therefore I find that most of the submissions made by learned counsels are not relevant to the application at this stage.
24.    I am satisfied at this point that there is a court order, the same was served upon the respondent and so has knowledge of it and there is cause to believe that the same has not been complied with in terms issued by the court unless otherwise explained by the respondent to the satisfaction of the court.
25.    On the issue of which court needs to receive that explanation from the respondent, I agree with the submission by learned counsel for the respondent, following the decision in re ZJA & TA (Minors) [2020] eKLR of which I am persuaded, that the proper court to determine the issue of contempt of court is the Magistrates Court from which the original orders were issued. Therefore, the case should be remitted to the Magistrates Court from where the orders emanated to determine whether or not contempt of court has been committed by the respondent.
26.    Consequently, I am satisfied that it is desirable and it is hereby ordered that the respondent\'s manager, Mombasa branch, should appear before the Magistrates Court, Mombasa to show cause why contempt of court. proceedings should not be commenced against him.
27.    This file is remitted to the Magistrate’s Court Mombasa to be placed before the Chief Magistrate, Criminal Division on 15/10/2024 to assign a magistrate to handle the case from the point of issuance of the said Notice to Show Cause and appearance of the said manager onwards. 
28.    Orders accordingly. 
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 7th day of October 2024