Jacob Nturibi Japheth, Celina Kagwira Koome (Legal Representative and Administrator of the Estate of the Late David Koome Mwithimbu), Kinoti Silas Mugambi, Japhet Muriithi Mukinda, Gilbert Muriithi Muguna, Paul Mbaya Mbui, Zachary Charles Mututa, Julius Mwiti Thaara & William Nkubu Nchebere v Principal Secretary Ministry of Defence [2022] KEHC 26955 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

MISCELLANEOUS APPLICATION NO. 321 OF 2019

JACOB NTURIBI JAPHETH…...........................................1ST APPLICANT

CELINA KAGWIRA KOOME.............................................2ND APPLICANT

(Legal Representative and Administrator of the Estate of the Late David Koome Mwithimbu)

KINOTI SILAS MUGAMBI..............................................3RD APPLICANT

JAPHET MURIITHI MUKINDA......................................4TH APPLICANT

GILBERT MURIITHI MUGUNA.....................................5TH APPLICANT

PAUL MBAYA MBUI..........................................................6TH APPLICANT

ZACHARY CHARLES MUTUTA.....................................7TH APPLICANT

JULIUS MWITI THAARA................................................8TH APPLICANT

WILLIAM NKUBU NCHEBERE.....................................9TH APPLICANT

VERSUS

THE PRINCIPAL SECRETARY

MINISTRY OF DEFENCE.....................................................RESPONDENT

RULING

1. The motion before this court is dated 12th October, 2021 and is said to be filed under Order 51 Rule 1 of the Civil Procedure Rules, Section 1A,1B,3 and 3A of the Civil Procedure Act and Section 5(1) of the Judicature Act. The application seeks the following orders:

(i)   THATthe Respondent herein being the Principal Secretary in the Ministry of Defence; namely Dr. Ibrahim M. Mohamed be and is hereby cited for Contempt of Court for disobeying the Mandamus Order of this Honourable Court issued pursuant to the judgement delivered on 14th May,2020 and be committed to Civil Jail for a term of Six (6) months.

(ii) THAT the Respondent herein being the Principal Secretary in the Ministry of Defence namely Dr. Ibrahim M. Mohamed be and is hereby ordered to purge the Contempt of Court on such terms as this Honourable Court deems just and fit.

(iii)  THAT Summons do issue against the said Respondent herein being the Principal Secretary in the Ministry of Defence namely Dr. Ibrahim M. Mohamed to compel him to appear before this Honourable Court.

(iv) THATa Mandatory Order do issue to compel the said Respondent herein; namely Dr. Ibrahim M. Mohamed being the Principal Secretary in the Ministry of Defence to abide by the Judgment and Order of this Honourable Court made on 14th May,2020.

2. The application is supported by the grounds on its face and a Supporting Affidavit sworn by Japhet Muriithi Mukindia, the 4th Applicant herein. Mr. Mukindia averred that an Order of Mandamus was issued on 14th May, 2020 pursuant to judgement in Petition No.124 of 2014(consolidated with petitions 119,120,121,122,123,125,126 and 151 all of 20214) compelling the Principal Secretary to make payment of Kshs. 44,102,399 plus costs and interest at the rate of 12% per annum from 18th November, 2020 until payment in full.

3. The deponent further averred that on various dates between 19th May,2020,12th January, 2021 and 28th April, 2021 the Principal Secretary was served with the said court order but payment is yet to be effected. It is the Applicants’ case that the Respondent’s excuse that it is suffering from financial constraints and hence the non-compliance was rejected in the Court’s judgement of 14th May,2020 which order is yet to be overturned.

4. The Respondent in response filed a Replying Affidavit dated 26th October,2021 sworn by Dr. Ibrahim M. Mohamed, the Principal Secretary and Accounting Officer in the Ministry of Defence. In the affidavit Mr. Mohammed alleges that the Ministry is currently operating under a constrained budget and that no funds have been allocated by Parliament for the settling of decretal awards. Further, that he should not be held personally responsible for the budgetary constraints as it is outside his mandate and control.

5. He contended further, that committing a person to civil jail is personal in nature and therefore the need for personal service so that the person is notified and afforded an opportunity to be heard. It was the Respondent’s case that it has not been established that the funds are available and that there is non-compliance on the part of the Respondent.

6. The application was canvassed by way of written submissions. The Applicant filed written submissions dated 29th October,2021 while the Respondent filed submissions dated 28th January,2022.

7. Learned counsel for the Applicants submitted that the standard proof in a Citation for Contempt of court is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt. To buttress this argument counsel cited the cases of Mutitika vs. Baharini Farm Limited and Republic v. Ahamad Abolfathi Mohammed; Criminal Appeal No.2 of 2018.

8. It was also submitted that to prove contempt 4 elements must be established as follows; that the order must be clear, unambiguous and binding on the Defendant or Respondent, that the Respondent has knowledge of or proper notice of the Terms of the Order, that the Respondent has acted in breach of the order, and finally that the Respondent’s conduct is deliberate. To support this argument counsel cited the cases of Wang’ondu v. Nairobi City Commission Civil Appeal No.95 of 1988 and Republicv. Ahamad Abolfathi Mohammedsupra.

9. In conclusion, it was submitted that section 2 (3) of the Government Proceedings Act imposes a duty to pay and settle claims and it does not stipulate any conditions on payment such as budgetary allocation. The Applicants submitted that the Respondent ought to pay the global sum of Kshs. 44,102,399 together with Kshs. 3,175,3737 being interest with effect from 24th March,2021 to 29th October,2021.

10. Learned counsel for the Respondent on the other hand submitted that as the Principal Secretary has shown willingness to settle the decretal sum by factoring it in the budgetary proposal there is nothing to be compelled to pay. Further, that an officer in charge of fulfilling a payment can only be held liable if the public body has funds and he has deliberately failed to pay. In support of this argument counsel cited the case of Republic v. Town Clerk, Kisumu Municipality Ex parte East African Engineering Consultants [2007] eKLR.

11. It was the Respondent’s case that delay does not warrant for orders of contempt of court to issue. Further, that as the said proceedings are of a quasi-criminal nature every effort should be made to uphold the Principal Secretary’s constitutional liberties. Counsel also submitted that section 21 (4) of the Government Proceedings Act provides that no person shall be individually liable for payment by Government of any money or costs.

12. In conclusion, counsel submitted that the Applicants have failed to establish the requisite elements and as such this Honourable court ought to disallow the said Application.

ANALYSIS AND DETERMINATION

13. Having considered the facts of the case and the rival arguments proffered, the only issue for determination before this Court is whether the Respondent is liable for contempt of court.

14. A look at the pleadings filed before this court clearly indicates that in the Respondent’s own deposition he confirms that he is aware of the order that is the subject of these proceedings and therefore the submission that he cannot be cited for contempt of an order that he was not served upon personally is not sustainable.

15. I also note that there is no evidence to suggest that the decrees issued on behalf of each of the Applicants herein pursuant to the Judgment of Lenaola J (as he then was) dated 7th October,2016 have been set aside or varied either by this Honourable Court or by the Court of Appeal to which an appeal has been preferred. Additionally, the order of mandamus to which reference has already been made which arose from the said proceedings to enforce settlement of the decrees is yet to be stayed or set aside or even appealed against.

16. It is common knowledge that any person against whom, or in respect of whom a court of competent jurisdiction has issued an order must obey it until such an order is discharged. This was the holding in the English case of Hadkinson v Hadkinson [1952] 2 All ER 567.

17. In the foregoing I have noted, that no satisfactory reason, has been given by the Respondent as to why he has failed to comply with this Honourable Court’s order of 14th May, 2020. The Respondent’s allegations that there is no provision for payment of the Applicants’ claims in the Ministry’s budget does not hold any water as no reasons have been given as to why no provision has been made in the subsequent years long after the award was made by Lenaola J (as he then was).

18. As a result, I am inclined to find that the Respondent is in contempt of court. Accordingly, I order the Respondent to appear in person in open court on 11th of May 2022 to show cause why he should not be committed to civil jail. The applicant will have the costs of the application.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF MARCH, 2022.

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A. K. NDUNG'U

JUDGE