Clean Analytical System AB & CAS Kenya Limited v Faith Kagwiria & Lucy Waithaka [2015] KEHC 510 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.221OF 2015

1.  CLEAN  ANALYTICAL SYSTEM AB

2.  CAS KENYA LIMITED………………………………………PLAINTIFFS

VERSUS

FAITH KAGWIRIA ….....................................DEFENDANT/CONTEMNOR

AND

LUCY WAITHAKA…………………………….3RD PARTY/CONTEMNOR

RULING ON SENTENCE

1. On 8th December, 2015 this court found the defendant and the 3rd party to be in contempt of court orders made by Honourable Onyancha J on 16th June 2015.  The contemnors’ advocates mitigated and urged the court to exercise leniency and pardon.  The contemnors.  On behalf of the defendant it was submitted by Mr Okatch advocate that the defendant was remorseful.  That she  had withdrawn money  for purchases of a piece of land  although she  had not  annexed to  her affidavits  any such  evidence  but that she was  willing to  avail such evidence  before  sentence  is pronounced.  Further, that the dispute herein is basically between the defendant and her husband who had employed her through the plaintiff companies but that the relationship soured giving rise to the claims against her.  Further, that she has already filed an application seeking to vacate the exparte orders which were not deserved.  The defendant further pleaded that she regrets being in contempt   of court.  She has a sickly child who needs her constant care and fees in secondary school, while having regular appointments with the doctor.  That the freezing order had affected her greatly since she was a victim of circumstances.  Further, that she had always attended court, following the proceedings and being a single mother, her child will suffer if she is incarcerated.

2. On behalf of the 3rd party, her  advocate  Miss Mwathane submitted  that the third  party appreciates  the finding  of the court  and  that the  third party was  only carrying  out her  duties  as a bank manager in light  of the bank/customer  relationship but  that she  later ensured the order of the court was obeyed.  The third party was also said to have regularly attended court and submitted herself to the court.  That her employment would suffer and or be interrupted if she is incarcerated as she depends on it solely for the livelihood.  She prayed for leniency of the court.

3. I have considered the mitigating factors as submitted on behalf of the defendant and the 3rd party contemnors. From the onset, this court must send a strong signal to all parties and non parties to suits before any court of law that they are obliged by law to obey or assist the court in the enforcement of any such court orders whenever they are directed to do so. Contempt of court is a crime against the authority of the court and fair administration of justice.  It is not an offence against any party to the dispute.  it is a serious affront  to the rule of  law which is one of  the pillars  of good  governance  as well as a principle  and value espoused  in Article  10 of our Constitution.

4. Judicial power in Kenya it must be borne in mind  is vested  in the courts  and  tribunals  by Article 159 of the Constitution and that  power is a fundamental tenet  of the rule of law  that  court orders  must of  necessity  and not by choice be  obeyed  to the letter.  It is  therefore  not open to any person  or class of persons to choose whether  and when to obey or not to  comply with court orders or even ignore or assist  or aid any  other person in disobeying  the court orders.  It also matters not the status of the person expected to so obey the court orders.

5. Citing and  punishing one for  contempt  of court is one way of  ensuring  that lawful court orders  whether  made exparte  in the first  instance  orinterpartes  are obeyed  by all and sundry.  Exparte orders are not meant to be final or to determine the dispute between the parties. In this case  the exparte order  was meant to preserve the  subject matter  of the claim and the defendant was  in any event  going to have  at the earliest  opportunity to come to  court and  challenge  that order  as that is  an unimpeded  right and she has  already filed such an application which is  pending  on record.  There was therefore absolutely no reason why, upon being alerted by the 3rd party representing Equity Bank that there was a freezing order by the court, the defendant rushed to the bank to withdraw the money Kshs 2,000,000/- and when she was responding to the application   for contempt she did not attempt to indicate the urgent purpose for which the money was quickly withdrawn since just a few days earlier the bank statement shows that she had withdrawn huge sums of money from the said account.  The attempted mitigation through provision of a purchase/sale of land agreement is irrelevant since none of the withdrawals from the account between 3rd June, 2015 and 18TH June 2015 show any relation to the sale agreement and moreso, the defendant only attempted to explain  the withdrawals in mitigation and after the parties  had mitigated is when she filed  supporting  documents which included a sale agreement  and some report  made to the  police  to show  that there  was a person  named  Bengt  Inge  Brode threatening  her.  Those in my view are documents that are irrelevant at this stage of mitigation as the plaintiff did not have an opportunity to respond to them and it would be unfair and unjust to allow   and rely on such afterthought documents as mitigators.

6. This court nonetheless does appreciate that the dispute  is between  individuals  who  are known to one another  and that  they have had  an intimate  relationship  as shown by the correspondence  on record  which relationship  has soured  hence there  is likelihood  that some trust which existed  between them was  lost hence  the dispute.  But that is still no excuse for disobeying lawful court orders.  Contemnors  undermine the  dignity  and authority of the courts  and must be dealt  with firmly so that the judicial  authority of the courts  is not brought into disrepute it is not  for  the courts to allow  parties to steal a match on  it and obtain undeserved  forensic   advantage  by  willfully and flagrantly disobeying  court orders.

7. The 3rd party is before this court representing the Equity Bank which was served with the order of this court to facilitate its enforcement. The order was served on the third party personally as the operations manager of the bank.  Equity  Bank of Harambee Avenue  Branch, Nairobi, admittedly, holds more than one account with the  defendant and upon the court order  being  served on the 3rd party, instead of  concentrating  on obeying it,  she  alerted  the defendant  who, before  being served  with the  said  order, but with full knowledge  of the temporary freezing order,  rushed  to the  bank and withdrew  the money.  It is important for parties to know that courts do not fish for evidence to prove facts that are alleged.  In  the circumstances  of this case, the 3rd party was trying to be  too clever  with the court  by saying  there  were over  120 accounts  that can be  opened  and that  names of account  holders  could  be similar  so the court order was ambiguous. This court is  empowered  under the  provisions  of Section 119  of the Evidence Act  to presume the  existence of any fact  which  it thinks  likely to have happened, regard  being had  to  the common cause of  natural events, human conduct  and  public  and private business, in their relation to the fact  of the particular case. It is  on that basis that  the court did presume  that  indeed, if what the 3rd party was attempting  to explain was plausible, nothing prevented  her  from availing those  documentation  to court.  Furthermore, that customers with more than one  account, in a bank, there is always  a link between one account and another account for the same person or persons for ease of tracking the customer’s transactions with the bank hence it could not have taken the defendant  to withdraw  money  from the same  branch of the  bank before  the 3rd party  noticed, if she had acted  on the orders of the court to freeze all the defendant’s accounts in the branch and not inform the defendant.  This court also takes note that had the 3rd party not notified the defendant, the money would most likely not have been withdrawn at that lighting speed.

8. It is an unqualified obligation of every person against whom a court order has been made   or directed at to obey it instant unless and until that order is varied or discharged.  It matters not that the order was obtained exparte or without disclosing material facts or even without jurisdiction.  As long as such order has not been reviewed, varied or set aside, (see Order 40 Rule 4 (1), it is the duty of the person against whom it is issued to comply and complain later by putting in place mechanisms to have it set aside or varied.  The consequences of failure to obey a court order are that any action taken in breach of that order is a nullity and of no consequence.  In this case, the interim orders  granted against  the defendant  and directed at the Bank  was not meant  to finally determine  this  despite  between  the parties  whether  they are  related  or not as stated by the defendant.  Equally, the  obedience  of court  orders  supersedes  the Bank/customer  relationship between  the defendant  and the 3rd party’s employer  Equity Bank.  The interim order was only meant to give interim protection of the subject matter in order not to expose the disposable asset to preventable peril.

9. The 3rd party chose to willfully disobey the said court order.  She  is the one  who dragged the defendant to  the bank with a notification  then sat back and watched the defendant  who had not been formally  served with the said court order withdraw the funds from the account. The third party then pretended that the court order was vague and ambiguous. The 3rd party must therefore, together, jointly and severally with the defendant be ready to face and bear the consequences of such disobedience however undesirable.

10. Therefore, having considered all the circumstances of this case and the touchy mitigation and pleas made by the contemnors through their respective advocates, I make the following pronouncements.

That the defendant FAITH KAGWIRIAand the third  party LUCY WAITHAKA (contemnors) shall jointly  and severally within seven days  from the date hereof  purge the contempt  committed  by restoring/restituting  the whole  sum  of kshs  2,000,000  two million  Kenya shillings back into the  Equity Bank Harambee Avenue Branch account  No.0240261946083 from which it  has unlawfully withdrawn in flagrant disobedience  of this court’s order.

That the defendant and the third party contemnors are hereby ordered to pay into court a fine of Kenya shillings two hundred and fifty thousand (kshs 250,000) each, by end of today.

In default  of purging the  contempt  within 7 days  or unless the period  is reviewed  by this court, the contemnors  shall be arrested and detained  in prison  for a period of three(3)  months.

In default of payment of the fine herein as imposed, the contemnors shall be detained in prison for a term of three months or until the said fine is paid, whichever is the earlier.

Dated, signed and delivered in open court at Nairobi this 10th day of December, 2015.

R.E. ABURILI

JUDGE

10/12/2015

Coram R.E. Aburili J

C.A. Adline

Mr Masse for the applicant

Mr Akhulia for third party (3rd party present)

No appearance   for defendant (defendant in person present)

COURT-   Ruling on sentence read and pronounced in open court as scheduled.

R.E. ABURILI

JUDGE

Mr Akhulia-   I seek stay of execution.

Mr Odhiambo now appearing for the defendant in court and states - We ask for 2 weeks stay to enable us file an appeal.

COURT-   The court  did on 8th December 2015 find  the defendant  and third party in contempt  of court orders and today the contemnors  have been ordered to purge the  contempt  within 7 days and also  pay a fine  of shs  250,000 each  in default   to be detained  in prison.

The third party and defendants have applied for stay of execution of the sentence pending appeal.  I have considered the applications for stay   of execution of the sentence. The court has  ordered for  purging of the contempt  which the  contemnors  appear  determined  to defeat  accordingly I decline to  grant any stay orders as prayed.

Orders accordingly.

R.E. ABURILI

JUDGE

10/12/2015