REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAJIADO
PETITION NO. 13 OF 2019
TOM PARSALOI MILLIA…………………………………………….…1ST PETITIONER
REHEMA CHEBITOK SHABAN………………………………….…..2ND PETITIONER
VERSUS
AGRICULTURAL FINANCE CORPORATIONT……………...…….1ST RESPONDENT
B.K SILA T/A LEGACY AUCTIONEERING SERVICES………...2ND RESPONDENT
MANAGING DIRECTOR AGRICULTURAL FINANCE
CORPORATION……………………………………………..…………..3RD RESPONDENT
GENERAL MANAGER OPERATIONS, AGRICULTURAL FINANCE
CORPORATION………………………………………………………….4TH RESPONDENT
RULING
1. This Ruling relates to the Notice of Motion (the Application) dated 2oth March, 2023 and the Preliminary Objection (PO) dated 13th September, 2023. As directed by this Honourable Court on 23rd April 2024, the Application and the PO are being canvassed together.
2. The Application is anchored under Section 5 of the Judicature Act, Cap 8 Laws of Kenya Part 81.4 of the Civil Procedure Rules of England. It is seeking the following orders:
(i) Spent.
(ii) Spent.
(iii) That this Honourable Court be pleased to join the Mangaing Director and the General Manager Operations of Agriculture Finance Corporation as the 3rd and 4th Respondents respectively for purpose of this Application.
(iv) The proposed 3rd and 4th Respondents be ordered to appear before court to show cause why they should not be found guilty of contempt and punished for failing to obey the terms of the Court Order issued on 9th October, 2020.
(v) An order for committal for contempt be issued against the proposed 3rd and 4th Respondents for a period of six (6) months or such time as the court may determine for knowingly disobeying an order of the court issued on 2nd December, 2020.
(vi) That the cost of the application be paid by the 1st Respondent.
3. The Application is supported by the grounds found on the face of it and in the Supporting Affidavit sworn on 17th March, 2023 by the 1st Petitioner. The case for the petitioners is that judgement in this matter was delivered on 9th October, 2020. Orders were extracted and served on the proposed 3rd Respondent on 7th October, 2023; that the proposed 4th Respondent was aware and had knowledge of the said orders as depicted by his affidavit sworn on 6th October, 2020; that despite having knowledge of the said orders, the proposed 3rd and 4th Respondents have blatantly failed to comply with the said orders; that their actions are out of impunity and disrespect to this Honourable Court; that for proper enforcement of the orders, the 3rd and 4th Respondents are necessary parties to this suit and that this court should grant the orders sought to safeguard its dignity and the rule of law.
4. The Application is opposed through a Replying Affidavit dated 12th May 2023 sworn by the 1st Respondent’s Legal Officer Mainga Evans. It is the case for the Respondents that the Application is bad in law, is frivolous and should be dismissed; that the Application is prejudicial to the Respondent’s application dated 26th October, 2020 for review of the orders granted; that enjoining the 3rd and 4th Respondent is mischievous as it is being used as a punishment tool; that the petitioners have not responded to their application dated 26th October, 2020 which raises pertinent issues of privity of contract; that the petitioners cannot seek a remedy in court yet they are in utter contempt of the aforementioned application and that the Respondents would suffer real prejudice if the petitioner’s application is allowed.
5. The Petitioners filed a Supplementary Affidavit dated 21st August, 2023 to the effect that the Legal Officer who swore the Replying Affidavit dated 12th May, 2023 lacks locus standi and the same should be struck out. It was their case that the said affidavit did not mention any authority to act on behalf of either the Respondents or the proposed respondents herein; that contrary to the allegations made in the affidavit of 12th May, 2023, Petitioners did respond to the application dated 26th October, 2020 and that this court has not issued any orders for stay against the judgement delivered on 9th October, 2020.
Preliminary Objection
6. The Respondents raised a Preliminary Objection on the following grounds;
(i) That the Court lacks the jurisdiction to admit, hear and determine the Notice of Motion dated 20th March, 2023 filed by the petitioners.
(ii) That the claim is incurably defective and an abuse of the court process since the court became functus officio on 9th October, 2020 when it rendered its judgement and therefore the Notice of Motion dated 20th March, 2023 as constituted herein offends the doctrine of functus officio and should be dismissed with costs.
7. The Respondents seek to have the Application dismissed with costs to them.
Petitioners’ Submissions on the Application
8. Parties filed their submissions both to the Application and the PO. The Petitioners’ submissions in respect of the Application are dated 5th September, 2023. I have read the submissions and have understood the case for the Petitioners. They have reiterated that the Respondents were fully aware of the orders of the court; that the orders were unequivocal, clear and understandable; that the Respondent have not raised an issue as about their failing to understand the orders and that it is clear that the Respondents have willfully and deliberately failed to obey the said orders and should be held in contempt. The petitioners argue further that the Respondents use of their application for review dated 26th October, 2020 as an excuse for non-compliance does not hold water; that no stay orders have been given and neither has the court set aside the orders of 9th October, 2020 and therefore, the orders are alive and ought to be obeyed. The petitioners relied on Republic -vs- Principal Secretary, Ministry of Defence Ex-Parte George Kariuki Waithaka [2018] eKLR, where it was held that:
“It must however be remembered that Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying therewith, the honorable 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”.
9. They submitted that it was necessary to enjoin the proposed 3rd and 4th Respondents for reasons that the 1st Respondent is a public body which acts through its officers and other senior staff; that the proposed 3rd and 4th respondents being senior officers of the corporation are responsible for carrying out the orders of the court. They relied on Osano & Associates -vs- ICT Authority [2016] eKLR where it was held that:
“The Defendant is a public authority or body. It is a body corporate which acts through its officers. The Chief Executive Officer is responsible for carrying out lawful orders of the court. If the Chief Executive Officer is not available, or for good reason is not able to carry out the functions of the Authority, his responsibilities are carried out by the next in authority, in this case the Acting Chief Executive Officer who is Mr. Robert Mugo who has deponed to the Replying Affidavit herein. Since the orders of the court are clear, and the same were rendered in the presence of the counsel for the respondent, this court does not understand the assertion by the Respondent that the Applicant is in breach of substantive and procedural law in respect of contempt proceedings.”
10. They also relied on the case of Henry Musemate Murwa – vs- Francis Owino, Principal Secretary, Ministry of Public Service, Youth and Gender Affairs & Another [2021] eKLR. They reiterated that court orders are to be respected and adhered to failure to do this is to erode the rule of law and the sanctity of the courts and relied on the Court of Appeal decision Fred Matiangi the Cabinet Secretary Ministry of Interior and Coordination of National Government -vs- Miguna Miguna & 4 others[2018] eKLR where the court held that:
“We need to make it clear that as a Court we do not take lightly allegations of contempt of court.
No court should.
When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities.’’
Petitioners’ submissions on the Preliminary Objection
11. The Petitioners’ submissions in opposition to the PO are dated 6th May, 2024. It is their argument that a court does not become functus officio merely because it has rendered judgement and that parties can make post judgement applications provided they do not seek to re-litigate the case. They relied on section 34 of the Civil Procedure Act and the case of Silvanus Kizito -vs- Edith Nkirote Mwiti [2021] eKLR where it was held that:
“It was thus incorrect for the trial court to have held as she did that the court had become functus officio. The court does not become functus officio merely because it has delivered a final decision in civil proceedings. The court retains its power to undertake several actions including but not limited to stay, review, execution proceedings and such other acts and steps towards the closure of the file……..
“I understand the doctrine, like its sister, the res- judicata rule to seek to achieve finality in litigation. It is a way of a court saying, ‘I have done my part as far as the determination of the merits are concerned hence let some other court deal with it at a different level’. It is designed to discourage reopening a matter before the same court that has considered a dispute and rendered its verdict on the merits. It however does not command that the moment the court delivers its judgment in a matter then it becomes an abomination to handle all and every other consequent, complementary, supplementary and necessary facilitative processes…..”
12. It was their submissions that their application was proper and that the PO raised by the Respondents is a delaying tactic meant to delay the contempt proceedings. They relied further on the case of Okiya Omtatah Okoiti -vs- National Transport and Safety Authority & Another [2021] eKLR where the court held that:
“Nevertheless, the Petitioner also seek that the 1st Respondent and its Chief Executive Officer be found guilty and punished for contempt. So long as the Petitioner is seeking to enforce the judgement and the decree of this Court, he is entitled to approach the Court for the necessary orders. It does not require citation of any decided case to hold that a court of law has jurisdiction over a matter until the decree is fully satisfied. A decree-holder is free to engage the court for assistance in the execution of the decree. One of the methods for executing a decree is through the commencement of contempt of court proceedings. The Petitioner’s application can therefore not be declared functus officio in so far as it seeks to enforce the judgement and the decree of the Court.’’
Respondents submissions on the Application
13. The Respondents’ submissions on the Application are dated 27th May 2024. They have dealt at length with the application dated 26th October 2020 and argued that the Application dated 20th March 2023 was filed 2 years after the Application dated 26th October 2020. They submitted that the Application dated 20th March 2023 is malicious in its entirety and ought to be dismissed.
14. They submitted that an applicant for contempt of court must prove four elements to persuade the court to rule in its favour, namely
(i) That the terms of the order were clear and unambiguous and were binding on the defendant.
(ii) That the defendant had knowledge of or proper notice of the terms of the order.
(iii) That the defendant acted in breach of the terms of the order, and,
(iv) The defendant’s conduct was deliberate.
15. They submitted that the Applicants/Petitioners did not address the fourth element that the Respondents’ conduct was deliberate. They further submitted on the high standard required in discharging the burden of proof in contempt of court proceedings where the orders sought would infringe on the freedom of any person.
Respondents’ submissions on the PO
16. The submissions are dated 2nd July, 2024. The following issue has been raised for determination: Whether the Court is functus officio and lacks jurisdiction to admit, hear and determine the petitioner’s application.
17. The Respondents relied on the case of Mukisa Biscuit Manufacturing Company -vs- West End Distributors Limited [1969] EA 696 in respect to the definition of preliminary objection where it was held that:
“A Preliminary Objection consist of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose off the suit……”
18. They submitted that they have met the prerequisite conditions for preliminary objection in that the court lacks jurisdiction to entertain the application herein; that the court became functus officio when it delivered judgement on 9th October, 2020; that the doctrine of functus officio was considered by the Court of Appeal in Telkom Kenya Limited -vs – John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR where the court held that:
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal In re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered,….”
19. They also relied on the Supreme Court decision in Raila Odinga & 2 others -vs- Independent Electoral & Boundaries Commission & 3 others [2013] eKLR, that:
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
20. They submitted that the decision of 9th October, 2020 brought the matter to its conclusion. That the directions given by the court were specifically made to lapse for a period of 21 days. That the directions did not require parties to report back to the court to show whether the said directions had been complied with and that the petitioners were barred from reopening the case. They relied on various cases cited in their submissions including the Supreme Court case of Shollei -vs- Judicial Service Commission & another (Application 10(E016 of 2022)[2023]KESC 8 (KLR)(Civ)(17th February, 2023) (Ruling) where it was held that:
“Noting that in the case of Raila Odinga vs IEBC & 3 others [2013] eKLR this court referred to the case of Jersey Evening Post Limited v A Thani [2002] JLR 542 at pg 550 where it was stated that: A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”
21. It was their submissions that every case has to come to an end as outlined in the Court of Appeal case of Ngugi -vs Kinyanjui and 3 others (1989)eKLR where the court held that “the law will not allow any dispute between the same parties to be reopened while the judgement still remains on record.”
Determination on the PO
22. By its very nature, a PO requires the issues it is raising to be determined first before a court can proceed to deal with any other issues. The PO raised in this matter simply questions the jurisdiction of this court to determine the Notice of Motion dated 20th March 2023 for the reason that this Honourable Court became functus officio upon pronouncing itself in the judgment delivered on 9th October 2020.
23. I have understood both sides of the story and I wish to address the following issues:
(i) Whether this court lacks jurisdiction to determine the Application.
(ii) Whether the Application is merited.
24. In Mukisa Biscuit case, cited above, a preliminary objection “raises a pure point of law which has been pleaded and which if argued as a preliminary point may dispose of the suit…” The issue being raised is that this court lacks jurisdiction to determine the Notice of Motion dated 20th March 2024. From the submissions of the parties and the authorities relied on, it is clear to me that a court becomes functus after it has performed all its duties in a particular case.
25. Section 34(1) of the Civil Procedure Act provides as follows:
34. Questions to be determined by court executing decree
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit
26. To my mind, and relying on the above section and authorities, the duty of the court does not end with the passing of a judgement or ruling. The court that has heard and determined a matter is called upon to deal with issues arising from the execution of the orders granted in such judgment or ruling. As stated in Telcom Kenya Ltd v John Ochanda, functus officio bar is only upon ‘merit-based decisional engagement. To say otherwise would be to leave litigants with impotent decision incapable of realization towards closure of the file. Put in the context of the application before me, I do not consider the Decreeholder to ask the court to rehear and make a decision about the disputes in the file on the merits. I understand the decree holder/applicant to be saying that the judgment of the court that gave timelines for compliance remains unattended by the judgment debtor…’
27. The supreme Court in the case of Raila Odinga, cited above also referred to the case of Jersey Evening Post Limited v. A. Thani [2002] JLR 542 at pg. 550 where the Court stated:-
“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”
28. I am persuaded that this court’s duty did not end upon delivering the judgment on 9th October 2020. That judgment and orders of this court have not been perfected in my considered view, it would be a failure by this court if it were to close its doors to the Petitioners/Applicants who would be left holding orders of this court which they are unable to execute. It is my considered view that this court retains jurisdiction to determine whether the Notice of Motion dated 20th March 2023 is merited or whether it is aimed at perfecting the judgment and orders granted by this court.
29. My determination of the issues raised in the PO is that this court is seized with jurisdiction to determine that application. It is not functus officio as claimed by the Respondents because what the Petitioners are asking the court to do is to aid them in actualizing the judgment and orders of this court. Consequently, the Preliminary Objection dated 13th September 2023 is hereby dismissed. That dismissal paves the way for the consideration of the Notice of Motion dated 20th March 2023.
Determination on the Notice of Motion
30. From the outset, I wish to clarify that I will determine the Notice of Motion partly for the reasons I will state in this ruling.
31. The orders of the court giving rise to the Notice of Motion were issued on 9th October, 2020. Those orders were as a result of a constitutional petition filed by the Petitioners herein challenging among others their right to access to information. The said orders were as follows:
(a) A declaration do issue that the 1st Respondent is in breach of the provisions of Article 35 of the Constitution by failing to publish information relating to the beneficiaries of the Presidential directive on waiving of loans.
(b) An order is hereby issued compelling the 1st Respondent to release to the Petitioners within 21 days (21) days from the date hereof the following information.
(i) A list of all beneficiaries of the Presidential directive of 10th July 2017 on waiving of loans
ii) counties the beneficiaries come from
iii) criteria used to identify the beneficiaries
iv) amount of loans waived.
(c) Each party to bear own costs.
32. The 1sst Respondent is corporation and performs its duties and obligations through its officers. I agree with the decision in Osano & Associates case, cited above, that:
“The Defendant is a public authority or body. It is a body corporate which acts through its officers. The Chief Executive Officer is responsible for carrying out lawful orders of the court. If the Chief Executive Officer is not available, or for good reason is not able to carry out the functions of the Authority, his responsibilities are carried out by the next in authority, ………………………... Since the orders of the court are clear, and the same were rendered in the presence of the counsel for the respondent, this court does not understand the assertion by the Respondent that the Applicant is in breach of substantive and procedural law in respect of contempt proceedings.”
33. The Applicants have stated that the orders of this court were clear and unambiguous; that they were served on the 3rd proposed Respondent and that the 4th proposed Respondent was aware of the said orders given that he swore an Affidavit affirming that he understood the import of the judgment of this court when seeking a review of the same. Indeed, in the Supporting Affidavit sworn by Bonano Badia who described himself as the General Manager Operations attest to that.
34. Having given this matter due consideration, it is my considered view that at this stage, this court is in a position to grant prayers 3 and4 of the Notice of Motion dated 20th March 2020. I hesitate to consider prayer 5 of the Application, preferring, instead to leave that prayer in abeyance to allow the parties ventilate the same upon having the additional Respondents on board. This way, no party will be prejudiced given the nature of the contempt of court proceedings.
35. For the avoidance of doubt, I hereby order that the Managing Director and the General Manager Operations of the 1st Respondent are hereby enjoined in these proceedings as the 3rd and 4th Respondents, respectively, for the purpose of the remaining prayer five (5) in the Notice of Motion dated 20th March 2023. Further, the 3rd and 4th Respondents shall appear in court to show cause why they should not found guilty of contempt of court and punished for failing to obey the terms of the Court Orders issued on 9th October 2020.
36. Each party shall bear its own costs of this application.
37. Orders shall issue accordingly.
Dated, signed and delivered this 17th day of January 2025
IN THE HIGH COURT OF KENYA AT KAJIADO
PETITION NO. 13 OF 2019
TOM PARSALOI MILLIA…………………………………………….…1ST PETITIONER
REHEMA CHEBITOK SHABAN………………………………….…..2ND PETITIONER
VERSUS
AGRICULTURAL FINANCE CORPORATIONT……………...…….1ST RESPONDENT
B.K SILA T/A LEGACY AUCTIONEERING SERVICES………...2ND RESPONDENT
MANAGING DIRECTOR AGRICULTURAL FINANCE
CORPORATION……………………………………………..…………..3RD RESPONDENT
GENERAL MANAGER OPERATIONS, AGRICULTURAL FINANCE
CORPORATION………………………………………………………….4TH RESPONDENT
RULING
1. This Ruling relates to the Notice of Motion (the Application) dated 2oth March, 2023 and the Preliminary Objection (PO) dated 13th September, 2023. As directed by this Honourable Court on 23rd April 2024, the Application and the PO are being canvassed together.
2. The Application is anchored under Section 5 of the Judicature Act, Cap 8 Laws of Kenya Part 81.4 of the Civil Procedure Rules of England. It is seeking the following orders:
(i) Spent.
(ii) Spent.
(iii) That this Honourable Court be pleased to join the Mangaing Director and the General Manager Operations of Agriculture Finance Corporation as the 3rd and 4th Respondents respectively for purpose of this Application.
(iv) The proposed 3rd and 4th Respondents be ordered to appear before court to show cause why they should not be found guilty of contempt and punished for failing to obey the terms of the Court Order issued on 9th October, 2020.
(v) An order for committal for contempt be issued against the proposed 3rd and 4th Respondents for a period of six (6) months or such time as the court may determine for knowingly disobeying an order of the court issued on 2nd December, 2020.
(vi) That the cost of the application be paid by the 1st Respondent.
3. The Application is supported by the grounds found on the face of it and in the Supporting Affidavit sworn on 17th March, 2023 by the 1st Petitioner. The case for the petitioners is that judgement in this matter was delivered on 9th October, 2020. Orders were extracted and served on the proposed 3rd Respondent on 7th October, 2023; that the proposed 4th Respondent was aware and had knowledge of the said orders as depicted by his affidavit sworn on 6th October, 2020; that despite having knowledge of the said orders, the proposed 3rd and 4th Respondents have blatantly failed to comply with the said orders; that their actions are out of impunity and disrespect to this Honourable Court; that for proper enforcement of the orders, the 3rd and 4th Respondents are necessary parties to this suit and that this court should grant the orders sought to safeguard its dignity and the rule of law.
4. The Application is opposed through a Replying Affidavit dated 12th May 2023 sworn by the 1st Respondent’s Legal Officer Mainga Evans. It is the case for the Respondents that the Application is bad in law, is frivolous and should be dismissed; that the Application is prejudicial to the Respondent’s application dated 26th October, 2020 for review of the orders granted; that enjoining the 3rd and 4th Respondent is mischievous as it is being used as a punishment tool; that the petitioners have not responded to their application dated 26th October, 2020 which raises pertinent issues of privity of contract; that the petitioners cannot seek a remedy in court yet they are in utter contempt of the aforementioned application and that the Respondents would suffer real prejudice if the petitioner’s application is allowed.
5. The Petitioners filed a Supplementary Affidavit dated 21st August, 2023 to the effect that the Legal Officer who swore the Replying Affidavit dated 12th May, 2023 lacks locus standi and the same should be struck out. It was their case that the said affidavit did not mention any authority to act on behalf of either the Respondents or the proposed respondents herein; that contrary to the allegations made in the affidavit of 12th May, 2023, Petitioners did respond to the application dated 26th October, 2020 and that this court has not issued any orders for stay against the judgement delivered on 9th October, 2020.
Preliminary Objection
6. The Respondents raised a Preliminary Objection on the following grounds;
(i) That the Court lacks the jurisdiction to admit, hear and determine the Notice of Motion dated 20th March, 2023 filed by the petitioners.
(ii) That the claim is incurably defective and an abuse of the court process since the court became functus officio on 9th October, 2020 when it rendered its judgement and therefore the Notice of Motion dated 20th March, 2023 as constituted herein offends the doctrine of functus officio and should be dismissed with costs.
7. The Respondents seek to have the Application dismissed with costs to them.
Petitioners’ Submissions on the Application
8. Parties filed their submissions both to the Application and the PO. The Petitioners’ submissions in respect of the Application are dated 5th September, 2023. I have read the submissions and have understood the case for the Petitioners. They have reiterated that the Respondents were fully aware of the orders of the court; that the orders were unequivocal, clear and understandable; that the Respondent have not raised an issue as about their failing to understand the orders and that it is clear that the Respondents have willfully and deliberately failed to obey the said orders and should be held in contempt. The petitioners argue further that the Respondents use of their application for review dated 26th October, 2020 as an excuse for non-compliance does not hold water; that no stay orders have been given and neither has the court set aside the orders of 9th October, 2020 and therefore, the orders are alive and ought to be obeyed. The petitioners relied on Republic -vs- Principal Secretary, Ministry of Defence Ex-Parte George Kariuki Waithaka [2018] eKLR, where it was held that:
“It must however be remembered that Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying therewith, the honorable 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”.
9. They submitted that it was necessary to enjoin the proposed 3rd and 4th Respondents for reasons that the 1st Respondent is a public body which acts through its officers and other senior staff; that the proposed 3rd and 4th respondents being senior officers of the corporation are responsible for carrying out the orders of the court. They relied on Osano & Associates -vs- ICT Authority [2016] eKLR where it was held that:
“The Defendant is a public authority or body. It is a body corporate which acts through its officers. The Chief Executive Officer is responsible for carrying out lawful orders of the court. If the Chief Executive Officer is not available, or for good reason is not able to carry out the functions of the Authority, his responsibilities are carried out by the next in authority, in this case the Acting Chief Executive Officer who is Mr. Robert Mugo who has deponed to the Replying Affidavit herein. Since the orders of the court are clear, and the same were rendered in the presence of the counsel for the respondent, this court does not understand the assertion by the Respondent that the Applicant is in breach of substantive and procedural law in respect of contempt proceedings.”
10. They also relied on the case of Henry Musemate Murwa – vs- Francis Owino, Principal Secretary, Ministry of Public Service, Youth and Gender Affairs & Another [2021] eKLR. They reiterated that court orders are to be respected and adhered to failure to do this is to erode the rule of law and the sanctity of the courts and relied on the Court of Appeal decision Fred Matiangi the Cabinet Secretary Ministry of Interior and Coordination of National Government -vs- Miguna Miguna & 4 others[2018] eKLR where the court held that:
“We need to make it clear that as a Court we do not take lightly allegations of contempt of court.
No court should.
When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities.’’
Petitioners’ submissions on the Preliminary Objection
11. The Petitioners’ submissions in opposition to the PO are dated 6th May, 2024. It is their argument that a court does not become functus officio merely because it has rendered judgement and that parties can make post judgement applications provided they do not seek to re-litigate the case. They relied on section 34 of the Civil Procedure Act and the case of Silvanus Kizito -vs- Edith Nkirote Mwiti [2021] eKLR where it was held that:
“It was thus incorrect for the trial court to have held as she did that the court had become functus officio. The court does not become functus officio merely because it has delivered a final decision in civil proceedings. The court retains its power to undertake several actions including but not limited to stay, review, execution proceedings and such other acts and steps towards the closure of the file……..
“I understand the doctrine, like its sister, the res- judicata rule to seek to achieve finality in litigation. It is a way of a court saying, ‘I have done my part as far as the determination of the merits are concerned hence let some other court deal with it at a different level’. It is designed to discourage reopening a matter before the same court that has considered a dispute and rendered its verdict on the merits. It however does not command that the moment the court delivers its judgment in a matter then it becomes an abomination to handle all and every other consequent, complementary, supplementary and necessary facilitative processes…..”
12. It was their submissions that their application was proper and that the PO raised by the Respondents is a delaying tactic meant to delay the contempt proceedings. They relied further on the case of Okiya Omtatah Okoiti -vs- National Transport and Safety Authority & Another [2021] eKLR where the court held that:
“Nevertheless, the Petitioner also seek that the 1st Respondent and its Chief Executive Officer be found guilty and punished for contempt. So long as the Petitioner is seeking to enforce the judgement and the decree of this Court, he is entitled to approach the Court for the necessary orders. It does not require citation of any decided case to hold that a court of law has jurisdiction over a matter until the decree is fully satisfied. A decree-holder is free to engage the court for assistance in the execution of the decree. One of the methods for executing a decree is through the commencement of contempt of court proceedings. The Petitioner’s application can therefore not be declared functus officio in so far as it seeks to enforce the judgement and the decree of the Court.’’
Respondents submissions on the Application
13. The Respondents’ submissions on the Application are dated 27th May 2024. They have dealt at length with the application dated 26th October 2020 and argued that the Application dated 20th March 2023 was filed 2 years after the Application dated 26th October 2020. They submitted that the Application dated 20th March 2023 is malicious in its entirety and ought to be dismissed.
14. They submitted that an applicant for contempt of court must prove four elements to persuade the court to rule in its favour, namely
(i) That the terms of the order were clear and unambiguous and were binding on the defendant.
(ii) That the defendant had knowledge of or proper notice of the terms of the order.
(iii) That the defendant acted in breach of the terms of the order, and,
(iv) The defendant’s conduct was deliberate.
15. They submitted that the Applicants/Petitioners did not address the fourth element that the Respondents’ conduct was deliberate. They further submitted on the high standard required in discharging the burden of proof in contempt of court proceedings where the orders sought would infringe on the freedom of any person.
Respondents’ submissions on the PO
16. The submissions are dated 2nd July, 2024. The following issue has been raised for determination: Whether the Court is functus officio and lacks jurisdiction to admit, hear and determine the petitioner’s application.
17. The Respondents relied on the case of Mukisa Biscuit Manufacturing Company -vs- West End Distributors Limited [1969] EA 696 in respect to the definition of preliminary objection where it was held that:
“A Preliminary Objection consist of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose off the suit……”
18. They submitted that they have met the prerequisite conditions for preliminary objection in that the court lacks jurisdiction to entertain the application herein; that the court became functus officio when it delivered judgement on 9th October, 2020; that the doctrine of functus officio was considered by the Court of Appeal in Telkom Kenya Limited -vs – John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR where the court held that:
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal In re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered,….”
19. They also relied on the Supreme Court decision in Raila Odinga & 2 others -vs- Independent Electoral & Boundaries Commission & 3 others [2013] eKLR, that:
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
20. They submitted that the decision of 9th October, 2020 brought the matter to its conclusion. That the directions given by the court were specifically made to lapse for a period of 21 days. That the directions did not require parties to report back to the court to show whether the said directions had been complied with and that the petitioners were barred from reopening the case. They relied on various cases cited in their submissions including the Supreme Court case of Shollei -vs- Judicial Service Commission & another (Application 10(E016 of 2022)[2023]KESC 8 (KLR)(Civ)(17th February, 2023) (Ruling) where it was held that:
“Noting that in the case of Raila Odinga vs IEBC & 3 others [2013] eKLR this court referred to the case of Jersey Evening Post Limited v A Thani [2002] JLR 542 at pg 550 where it was stated that: A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”
21. It was their submissions that every case has to come to an end as outlined in the Court of Appeal case of Ngugi -vs Kinyanjui and 3 others (1989)eKLR where the court held that “the law will not allow any dispute between the same parties to be reopened while the judgement still remains on record.”
Determination on the PO
22. By its very nature, a PO requires the issues it is raising to be determined first before a court can proceed to deal with any other issues. The PO raised in this matter simply questions the jurisdiction of this court to determine the Notice of Motion dated 20th March 2023 for the reason that this Honourable Court became functus officio upon pronouncing itself in the judgment delivered on 9th October 2020.
23. I have understood both sides of the story and I wish to address the following issues:
(i) Whether this court lacks jurisdiction to determine the Application.
(ii) Whether the Application is merited.
24. In Mukisa Biscuit case, cited above, a preliminary objection “raises a pure point of law which has been pleaded and which if argued as a preliminary point may dispose of the suit…” The issue being raised is that this court lacks jurisdiction to determine the Notice of Motion dated 20th March 2024. From the submissions of the parties and the authorities relied on, it is clear to me that a court becomes functus after it has performed all its duties in a particular case.
25. Section 34(1) of the Civil Procedure Act provides as follows:
34. Questions to be determined by court executing decree
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit
26. To my mind, and relying on the above section and authorities, the duty of the court does not end with the passing of a judgement or ruling. The court that has heard and determined a matter is called upon to deal with issues arising from the execution of the orders granted in such judgment or ruling. As stated in Telcom Kenya Ltd v John Ochanda, functus officio bar is only upon ‘merit-based decisional engagement. To say otherwise would be to leave litigants with impotent decision incapable of realization towards closure of the file. Put in the context of the application before me, I do not consider the Decreeholder to ask the court to rehear and make a decision about the disputes in the file on the merits. I understand the decree holder/applicant to be saying that the judgment of the court that gave timelines for compliance remains unattended by the judgment debtor…’
27. The supreme Court in the case of Raila Odinga, cited above also referred to the case of Jersey Evening Post Limited v. A. Thani [2002] JLR 542 at pg. 550 where the Court stated:-
“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”
28. I am persuaded that this court’s duty did not end upon delivering the judgment on 9th October 2020. That judgment and orders of this court have not been perfected in my considered view, it would be a failure by this court if it were to close its doors to the Petitioners/Applicants who would be left holding orders of this court which they are unable to execute. It is my considered view that this court retains jurisdiction to determine whether the Notice of Motion dated 20th March 2023 is merited or whether it is aimed at perfecting the judgment and orders granted by this court.
29. My determination of the issues raised in the PO is that this court is seized with jurisdiction to determine that application. It is not functus officio as claimed by the Respondents because what the Petitioners are asking the court to do is to aid them in actualizing the judgment and orders of this court. Consequently, the Preliminary Objection dated 13th September 2023 is hereby dismissed. That dismissal paves the way for the consideration of the Notice of Motion dated 20th March 2023.
Determination on the Notice of Motion
30. From the outset, I wish to clarify that I will determine the Notice of Motion partly for the reasons I will state in this ruling.
31. The orders of the court giving rise to the Notice of Motion were issued on 9th October, 2020. Those orders were as a result of a constitutional petition filed by the Petitioners herein challenging among others their right to access to information. The said orders were as follows:
(a) A declaration do issue that the 1st Respondent is in breach of the provisions of Article 35 of the Constitution by failing to publish information relating to the beneficiaries of the Presidential directive on waiving of loans.
(b) An order is hereby issued compelling the 1st Respondent to release to the Petitioners within 21 days (21) days from the date hereof the following information.
(i) A list of all beneficiaries of the Presidential directive of 10th July 2017 on waiving of loans
ii) counties the beneficiaries come from
iii) criteria used to identify the beneficiaries
iv) amount of loans waived.
(c) Each party to bear own costs.
32. The 1sst Respondent is corporation and performs its duties and obligations through its officers. I agree with the decision in Osano & Associates case, cited above, that:
“The Defendant is a public authority or body. It is a body corporate which acts through its officers. The Chief Executive Officer is responsible for carrying out lawful orders of the court. If the Chief Executive Officer is not available, or for good reason is not able to carry out the functions of the Authority, his responsibilities are carried out by the next in authority, ………………………... Since the orders of the court are clear, and the same were rendered in the presence of the counsel for the respondent, this court does not understand the assertion by the Respondent that the Applicant is in breach of substantive and procedural law in respect of contempt proceedings.”
33. The Applicants have stated that the orders of this court were clear and unambiguous; that they were served on the 3rd proposed Respondent and that the 4th proposed Respondent was aware of the said orders given that he swore an Affidavit affirming that he understood the import of the judgment of this court when seeking a review of the same. Indeed, in the Supporting Affidavit sworn by Bonano Badia who described himself as the General Manager Operations attest to that.
34. Having given this matter due consideration, it is my considered view that at this stage, this court is in a position to grant prayers 3 and4 of the Notice of Motion dated 20th March 2020. I hesitate to consider prayer 5 of the Application, preferring, instead to leave that prayer in abeyance to allow the parties ventilate the same upon having the additional Respondents on board. This way, no party will be prejudiced given the nature of the contempt of court proceedings.
35. For the avoidance of doubt, I hereby order that the Managing Director and the General Manager Operations of the 1st Respondent are hereby enjoined in these proceedings as the 3rd and 4th Respondents, respectively, for the purpose of the remaining prayer five (5) in the Notice of Motion dated 20th March 2023. Further, the 3rd and 4th Respondents shall appear in court to show cause why they should not found guilty of contempt of court and punished for failing to obey the terms of the Court Orders issued on 9th October 2020.
36. Each party shall bear its own costs of this application.
37. Orders shall issue accordingly.
Dated, signed and delivered this 17th day of January 2025