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JudgmentTERESIA MBUGUA AND TECLAH KEMUNTO AND 8 Others VS THE REGIONAL INSTITUTE OF BUSINESS MANAGEMENT AND MASENO UNIVERSITY AND 3 Others17 min read

TERESIA MBUGUA AND TECLAH KEMUNTO AND 8 Others VS THE REGIONAL INSTITUTE OF BUSINESS MANAGEMENT AND MASENO UNIVERSITY AND 3 Others

High Court at Milimani High Court · · Lawrence N. Mugambi

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E242 OF 2023

BETWEEN

DAVID AYIEKO OUGO………………………………………..PETITIONER

VERSUS

REGIONAL INSTITUTE OF BUSINESS MANAGEMENT … 1ST RESPONDENT

MASENO UNIVERSITY……..…………………………....2ND RESPONDENT

                                                  R U L I N G

Introduction

  1. By a Notice of Motion application dated 28th November 2024, the Petitioner seeks orders that:
  2. Spent.
  3. Prof. Erick O. Nyambedha, the Ag. Deputy Vice-Chancellor (Academic and Student Affairs), Dr. Fredrick O. Aila, the Dean, School of Business and Economics and Ms. Rose Omoga-Chiaji, the Registrar, Academic and Student Affairs of Maseno University, the 2nd Respondent herein, do appear before this Court and show cause why they should not be cited for contempt of court for failing to accord the Petitioner any reasons for his omission from the 24th Graduation Ceremony scheduled for Friday, 6th December 2024.
  4. This Court be pleased to find and hold that Prof. Erick O. Nyambedha, the Ag. Deputy Vice-Chancellor (Academic and Student Affairs), Dr. Fredrick O. Aila, the Dean, School of Business and Economics and Ms. Rose Omoga-Chiaji, the Registrar, Academic and Student Affairs of Maseno University, the 2nd Respondent herein, are in contempt of and have disobeyed the Judgment of the Honourable Mr. Justice Lawrence Mugambi dated 16th May 2024.
  5. The said Prof. Erick O. Nyambedha, the Ag. Deputy Vice-Chancellor (Academic and Student Affairs), Dr. Fredrick O. Aila, the Dean, School of Business and Economics and Ms. Rose Omoga-Chiaji, the Registrar, Academic and Student Affairs of Maseno University, the 2nd Respondent herein be punished for contempt of court and be committed to civil jail for such period as this Court may determine.
  6. This Court do issue such further orders as it deems fit to prevent the ends of justice from being defeated.
  7. The costs of this Application be paid by the 2nd Respondent on a full indemnity basis.

Background of the Case

  1. This application is triggered by what the applicant states is the refusal by the Respondents to comply with the orders issued by this Court upon delivery of judgment in the Petition dated 10th July 2023.
  2. In the Judgment delivered on 16th May 2024 in favour of the Petitioner, this Court pronounced itself as follows:

“56. It is my finding that the conduct of both the 1st and 2nd Respondent towards the Petitioner violated his right to fair administrative action in that regard. It was not expeditious, efficient, reasonable and procedurally fair. In fact, the 2nd Respondent contravened Section 4(2) of the Fair Administrative Review Act as read with Article 47(2) of Constitution for failing to give the Petitioner written reasons for the adverse administrative action it took against him. I find that the 1st and 2nd Respondents action against the Petitioner was frustrating and utterly unjustifiable. The Petitioner’s right under Article 47 were violated by the 1st  and 2nd Respondent. I find no fault in the 3rd,4th and 5th Respondents.

57. The consequence is that the Petition succeeds to that extent. The reliefs that commend themselves to the Court are as follows:

1.A declaration that the 1st and 2nd Respondents action of excluding the Petitioner from the graduation ceremony of 16th December, 2022 without any notice or written explanation was a violation of his right to fair administrative action.

2. The Petitioner is entitled to general damages from the 1st and 2nd Respondent for the repressive conduct that subjected the Petitioner to intense stress, anxiety and hardship. The Court assess the same at Kshs. 500,000. It is separable so that each Respondent pays Kshs. 250,000.

3. Costs of the Petition.”

Petitioner’s Case

  1. The Application is anchored on the grounds on the face of the application and the supporting affidavit of the Petitioner/Applicant.
  2. The Petitioner depones that following this Court’s pronouncement, he made a number of follow ups, both physically and in writing to the 2nd Respondent enquiring about his expected graduation date. He avers that this was to no avail. He in particular deposes that on the 28th October 2024 he presented his written request to the Dean, School of Business and Economics, Dr. Francis Alila and a letter dated 24th October 2024 to the Office of the Registrar of Academics Affairs but the staff at the office refused to acknowledge receipt of his letter.
  3. The Petitioner depones that the 2nd Respondent’s subsequent graduation ceremony was set for 6th December 2024 and notified in its website. However, despite the many follow ups and intervention of his Advocate, his name was not included in the graduation list. He notes that this was the third time the 2nd Respondent had left him out of the graduation list.
  4. The Petitioner asserts thus that the 2nd Respondent continues to violate his constitutional rights and has also refused to give him any reasons for its failure to include him in the graduation list. He contends that the 2nd Respondent’s conduct is in contempt of this Court’s orders as issued in its judgment.

1st Respondent’s Case

  1. The 2nd Respondent’s response and submissions to this application is not in the Court file or Court Online Platform (CTS).

2nd Respondent’s Case

  1. In answer to the Application, the 2nd Respondent filed its Replying Affidavit by its Senior Legal Officer, Joy A. Akinyi sworn on 3rd December 2024.
  2. Counsel acknowledges this Court’s Judgment and the orders therein. However, she points out the stance taken by the Petitioner is unfounded and is without any legal basis, as it does not from part of the orders made by this Court at Paragraph 57 of the Judgment.
  3. She contended that the Court granted declaratory order, general damages and costs which the 2nd Respondent has already complied with. She was categorical that the orders did direct the 2nd Respondent to include the Petitioner in the graduation list as alleged.
  4. The 2nd Respondent stated that it had issued an advertisement in the daily newspaper on 17th April 2024 directing students to apply for transfer to campus of their choice for purposes of completion of studies before 30th May 2024. It is alleged that the Petitioner forwarded his application on 5th June 2024. Despite being late, the Petitioner’s application was considered and a response issued to him vide a letter dated 7th August 2024.
  5. Furthermore, it is stated that during the pendency of this suit, the 2nd Respondent’s Senate investigated the matter and discovered that the Petitioner and 6 other students marks had been falsified in a bid to meet the graduation requirements by manipulating the 2nd Respondent’s Management Information System (MIS) in a plot with an employee who on being discovered was removed from the employment.
  6. That the Petitioner was informed and required to complete those units so as to be compliant before being allowed to graduate. In the light of the foregoing, it was swore on behalf of the 2nd Respondent that the instant application is an attempt by the Petitioner to mislead the Court and to compel the 2nd Respondent to issue an unearned degree certificate. 
  7. In conclusion, it is argued that the Petitioner has failed to demonstrate the actions undertaken by the 2nd Respondent that justify grant of the contempt order. In like manner, it is stated that the Petitioner has not adduced evidence of contempt implicating Prof. Erick O. Nyambedha, Dr. Fredrick O. Aila and Ms. Rose Omoga Chiaji so as to warrant their punishment.
  8. To this end, the instant application is perceived to be misconceived, bad in law, frivolous and an abuse of the Court process. As such she urges that it be dismissed with costs.

Parties’ Submissions

Petitioner’s Submissions

  1. The firm of OK Law Advocates LLP on behalf of the Petitioner filed submissions dated 2nd December 2024. The key issues raised were: whether the 2nd Respondent has continued and compounded the violations found in the Judgment dated 16th May 2024 and therefore, in contempt of court and if so what remedies ought to be granted by this Court.
  2. Counsel on the first issue reiterating the Petitioner’s averments submitted that the 2nd Respondent had failed to issue any response to the Petitioner’s correspondence on his follow up after the Judgment. According to Counsel the 2nd Respondent had failed to discharge its duty by ensuring that the Petitioner is listed in the graduation list. This is said to be in defiance to the orders that were issued by this Court.
  3. To support this issue Counsel cited the case of Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning & 3 others [2017]eKLR where the Court highlighted the issues to be considered in an application for contempt as follows:

“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:

the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;

the defendant had knowledge of or proper notice of the terms of the order;

the defendant has acted in breach of the terms of the order; and

the defendant's conduct was deliberate…”

  1. Like dependence was placed in Central Bank of Kenya & Another vs. Ratilal Automobiles Limited & Others, Civil Application No. 247 of 2006.
  2. Furthermore, Counsel submitted that the Court ought to check the 2nd Respondent’s excesses. This is since the 2nd Respondent continues to violate the Petitioner’s rights in a similar fashion which ultimately has seen the Petitioner be excluded from the graduation list. Reliance was placed in Jesse Waweru Wahome & 2 others vs Kenya Engineers Registration Board [2012] eKLR where it was held that:

“[103.] In a country like ours where citizens place a premium on University Education, it is not right to leave graduates in a suspended state where they do not know their fate especially where parents have made sacrifices to educate their children, students have taken out loans from the Higher Education Loan Board (HELB) and are expected to re-pay these loans and the state has invested taxpayers money in investing in facilities and educating engineering graduates.   This is a situation that cries out of justice, especially the kind of justice that is the promise enshrined in our Constitution. 

[104.] The petitioners are part of a class of Kenya who the country desires to have, they have kept the faith by going to school, studied under a system that was guaranteed by the state and did [what] was required of them at all stages of their young and productive lives. To leave them in a state where their chosen and cultivated path of success is uncertain is an affront to their human dignity.”

  1. Equal dependence was placed in Charles Kaindo Kuria & 20 Others -vs- Technical University of Kenya [2019] eKLR.
  2. In view of this continued violation, Counsel asserted in the next issue that, the 2nd Respondent’s officers ought to be punished for contempt of Court.

2nd Respondents’ Submissions

  1. Counsel, Joy A. Akinyi for the 2nd Respondent filed submissions dated 4th December 2024 and outlined that the issue for discussion was whether the instant application meets all the ingredient of contempt of Court.
  2. Counsel relying in Sheila Cassatt Issenberg  Watoto World Centre v Antony Machatha Kinyanjui [2021] KEHC 5692 (KLR) underscored the ingredients as:

“i.  The order alleged to have been breached “must state clearly and unequivocally what should and should not be done.” This ensures that a party will not be found in contempt where an order is unclear…

ii.  The party alleged to have breached the order must had actual knowledge of it.”

  1. Similar dependence was placed in University Academic Staff Union (Maseno Chapter) v Maseno University [2023] KEELRC 641 (KLR).
  2. Counsel submitted that for the application to be successful, the Petitioner must show that there was willful and deliberate disobedience of a court order. It was argued that the Petitioner had failed to demonstrate this. This is because he did not highlight the order directed at the 2nd Respondent that was not complied with.
  3. The 1st Respondent’s Advocate was emphatic that there was no order or anywhere in the body of the judgment that the Court directed the 2nd Respondent to ensure that the Petitioner graduates or is in the list in the upcoming graduation ceremony contending that the  Petitioner had misinterpreted the Court orders.
  4. Furthermore, Counsel submitted that, the Petitioner was required to fulfil the requirements highlighted by the 2nd Respondent as seen in the affidavit before he would be allowed to graduate. In conclusion, Counsel submitted that the 2nd Respondent had complied with the orders of this Court contrary to the Petitioner’s allegations.

Analysis and Determination

  1. There is only one issue that arises for determination in this application, namely:

Whether the 2nd Respondent is in contempt of the Court Orders issued in the Judgment dated 16th May 2024.

  1. Basically, contempt of Court is any act that defies or is disrespectful to the Court and may be manifested in different ways such as deliberate refusal to obey a court order, showing disrespect towards the Court during judicial proceedings (Contempt in the face of the Court) or scandalizing the   Court   with misinformation. 
  2. The law governing contempt of Court proceedings in Kenya was explained in the case of Alfred Mutua v Boniface Mwangi (2022) eKLR as follows:

“13. Before the enactment of the nullified Contempt of Court Act which deleted section 5 of the Judicature Act Cap 8 Laws of Kenya, the first port of call with respect to the procedure for institution contempt of Court proceedings in this country was and therefore is section 5 of the Judicature Act Cap 8 Laws of Kenya. That section provides:

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.

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.

14. Therefore, the law that governs contempt of court proceedings is the English law applicable in England at the time the contempt was committed. The procedure in the High Court of Justice in England was considered in detail by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others [2014] eKLR. In that case the Court recognised that the only statutory basis for contempt of court law in so far as the Court of Appeal and the High Court are concerned is section 5 of the Judicature Act.

15. Under Rule 81.4 of the English Civil Procedure Rules (Amendment No. 3) Rules, 2020 provides for the requirements of a contempt application and provides that:

      1. Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.
      2. A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—
        1. the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);
        2. the date and terms of any order allegedly breached or disobeyed;
        3. confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;
        4. if the court dispensed with personal service, the terms and date of the court's order dispensing with personal service.
        5. confirmation that any order allegedly breached or disobeyed included a penal notice;
        6. the date and terms of any undertaking allegedly breached;
        7. confirmation of the claimant's belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;
        8. a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;
        9. that the defendant has the right to be legally represented in the contempt proceedings;
        10. that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;
        11. that the defendant may be entitled to the services of an interpreter;
        12. that the defendant is entitled to a reasonable time to prepare for the hearing;
        13. that the defendant is entitled but not obliged to give written and oral evidence in their defence;
        14. that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;
        15. that the court may proceed in the defendant's absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;
        16. that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;
        17. that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;
        18. that the court's findings will be provided in writing as soon as practicable after the hearing; and
        19. that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public.”
  1. The rationale behind contempt of Court was discussed in Republic v Kenya School of Law & 2 others Ex parte Juliet Wanjiru Njoroge & 5 others (2015) eKLR where the Court stated thus:

“23. In my considered view, Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders the honourable thing to do is to come back to court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal. In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim, J (as he then was) stated:

“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, 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 void”.

  1. It is however necessary that a party who moves the Court for contempt of court orders to meet the requisite threshold for such an application as laid down in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR where the Court held as follows:

“40. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove

  1. 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:-

        1. the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;
        2. the defendant had knowledge of or proper notice of the terms of the order;
        3. the defendant has acted in breach of the terms of the order; and
        4. the defendant's conduct was deliberate.”
  1. The starting point in determining whether or not the 2nd Respondent is in contempt of Court is reference to the orders that were issued by this Court in its Judgment of 16th May, 2024. The 2nd Respondent acknowledged that it was in fact aware of these orders which were as follows:
  2. A declaration that the 1st and 2nd Respondents action of excluding the Petitioner from the graduation ceremony of 16th December, 2022 without any notice or written explanation was a violation of his right to fair administrative action.
  3. The Petitioner is entitled to general damages from the 1st and 2nd Respondent for the repressive conduct that subjected the Petitioner to intense stress, anxiety and hardship. The Court assess the same at Kshs. 500,000. It is separable so that each Respondent pays Kshs. 250,000.
  4. Costs of the Petition.
  5. These orders are explicit. The first order declared that the Petitioner’s rights had been violated by the Respondents. The second awarded the Petitioner general damages for the proved constitutional violations.
  6. There was no order of mandamus compelling or directing the          2nd Respondent to include the Petitioner in the graduation list of          6th December 2024 or indeed any impending graduation as the Court was clear that degrees can only me awarded to the students who have satisfied the academic requirements for the award and the Petitioner had not proved that. The Court noted at paragraph 53:

“…It is the legal duty of the 2nd Respondent to certify students who have fulfilled the academic qualifications for purposes of graduation. The Petitioner did not provide proof that he sat and passed the unit in question to qualify for award of degree. This is an academic requirement that is governed by regulations governing training by the 2nd Respondent…This Court declines to the invitation to interfere with the mandate of the 2nd Respondent by declaring a unqualified student qualified…”

  1. The Petition only succeeded on the basis of violation of the Petitioner’s  right to fair administrative action because the court considered that it was unreasonable and unfair for the respondent not to have communicated the information about the mandatory unit which the Petitioner was required to take as a common unit and also not offer it when it was supposed to be undertaken only for that information to be revealed  when it was  late as the Petitioner was about to graduate.  The Court did not however exempt him from meeting the defined academic requirements that were a prerequisite condition for the award of degree so as to graduate from the university. 
  2. The 2nd Respondent has not therefore contravened the terms of the orders issued on 16th May, 2024 and is thus not therefore in contempt.
  3. The Application lacks merit and is hereby dismissed.
  4. Each Party to bear its own costs.

Dated, signed and delivered virtually at Nairobi this 7th day of February, 2025.

……………………………….

L N MUGAMBI

JUDGE

Details

Delivered
Court rank
High Court
Station
Milimani High Court (High Court at Milimani High Court)
Division
High Court Constitution and Human Rights
Case type
Constitution and Human Rights Petition (Civil)
Judge
Lawrence N. Mugambi

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