Kenya National Chamber of Commerce & Industry v Registrar of Companies, Kiprono Kittony & Laban Onditi Rao v Ex parte Stephen Mbugua & Edward Kings Onyancha [2016] KEHC 5342 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  251    OF 2012

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA

AND

IN THE MATTER OF THE COMPANIES ACT CAP 486 LAWS OF KENYA

BETWEEN

KENYA NATIONAL CHAMBER OF COMMERCE & INDUSTRY......APPLICANT

VERSUS

1. THE REGISTRAR OF COMPANIES}

2. KIPRONO KITTONY}

3. LABAN ONDITI RAO}..............ALLEGED CONTEMNORS/RESPONDENTS

EXPARTE

STEPHEN MBUGUA.....................................................THE SUBJECT APPLYING

EDWARD KINGS ONYANCHA.............27TH INTERESTED PARTY/APPLICANT

JUDGMENT ON CONTEMPT OF COURT

1. This judgment determines the application for contempt of court dated 29th May 2014 filed by Edward Kings Onyancha Maina the 27th interested party/applicant.  The application is supported by 16 grounds on the face of the application and an affidavit sworn by the applicant on 30th May 2014 by the applicant.  It is also supported by several annextures.

2. The subject application is anchored   on the provisions of Section 3(1), 5(5) and 6 of the Judicature Act Cap 8, Sections 1A, 1B, 3, 3A and 81 of the Civil Procedure Act and all mandatory provisions of enabling statutes.

3. The main prayers in the application seek that;

1. This court do grant  and issue orders to cite  and punish the contemnors  for contempt  of court  orders dated /issued on         19th June 2012,

2. The nullification of the registration of directors on C 40/73 on 27th March 2013 by the 1st respondent.

3. the contemnors   expunge (sic) their contempt  forthwith and  restore  forthwith the  directors registered  ante  27th March 2013  and or ante 18th June 2012  in c40/73  into management of the affairs of the applicant alias  Kenya National Chamber of Commerce  and Industry.

4. the court do grant  and issue orders  restituting the directors registered  ante  18th July 2012 and (or ante  on 27th March  2013  in file C 40/73  maintained  by the Registrar of Companies.

5. this court do  issue and grant orders punishing the contempt of the court orders issued/dated 19th June 2012 by the contemnors jointly and severally.

6. And finally that costs be paid by the contemnors.

4. The Grounds upon which the application for contempt herein are predicated are that: The contemnors are in naked and contumacious  (sic) contempt  and or disobedience  with impunity  of the  court orders  dated/issued  on     19th June 2012  which orders have neither  been varied nor set aside nor discharged at all so far; that the  contemnors  are privy  to the court   proceedings  genesis of  the grant/issue of the same orders on 19th June 2012; That the interested parties have never appealed against leave and stay granted on 19th June 2012; That  the contemnors  are in contempt  for  registration of the directors of  the applicant Kenya National Chamber  of Commerce and Industry (KNCCI) on 27th March  2013 into file  C4073  by the Registrar  of Companies as disclosed by the  press release  on 30th May  2014  in the Star Newspaper  and the Standard  Newspaper  depicting Kittony intercession(sic)  over Machakos  County Branch Chairman  and Machakos County Governor  wrangles; a letter signed by Dr Samuel Thinguri  Waruathe dated 27th may 2014  in Limuru Sub branch leadership status; the Star Newspaper on Tuesday  May 6  2014; notice of withdrawal under order XXIV of the Civil Procedure  Rules dated            5th April 2013 attaching  copy of resolution passed  on 3rd April  2013  signed by Kiprono Kittony and Laban Onditi Rao; and the letter dated  27th March 2013 in C40/73  Notice of change  of  advocates  from Ms S.N. Gikeria & Associates   to Ms Kihara Njuguna  & Company Advocates for the applicant; disclosures in the Daily Business  dated  25th April 2014  to 2ndMay 2014 RE: “ The man driving Kenya’s  Commercial diplomacy………Kiprono Kitonny…..;March 2014 Mombasa County  Branch  exhibiting  Kiprono Kitonny  Chamber  National Chairman and Ndungu  Mureu  Mombasa County Chairman; affidavit sworn on 6th July 2012 by  Laban Onditi Rao and filed into  court  and its annextures and exhibits, Star  Newspaper on Friday 22nd June 2012  RE: “ No  end to chamber of commerce  wars” voted Laban Onditi Rao receives his certificate from Bishop Gerishon Njoroge  after he was elected  Kenya National Chamber of Commerce and Industry  vice chairman on Monday; The Stat Newspaper  on Tuesday  June  2012 Re:  Kittony is new Chamber of Commerce Chairman; and many  more other disclosures stated by  the applicant  to demonstrate   the alleged contempt  of court  orders.

5. The applicant urged this court to stand up in defence of its image integrity and protection of court process by punishing the alleged contemnors who are named as the Registrar of Companies, Kiprono Kittony and Laban Onditi Rao.

6. The supporting affidavit reiterated sworn by the applicant reproduced what  is contained  in the 16 grounds on the  face of the Notice of Motion, some of which I have  reproduced  above, while  annexing among  others, the orders of  18th June  2012  issued on 19th June  2012  and  evidence of  what the applicant   listed in his grounds and supporting affidavit  as disclosures which, according to him are evidence  of contempt  of the said court  orders made on 18th June 2012   by Honourable Lady Justice Githua.

7. On 5th June 2014  the applicant  filed a supplementary affidavit annexing  ruling in HCC 253/2009 Nairobi David Githere & 15 Others  vs Honourable  Walter Nyambati  &  3 Others; directions in the same matter, orders  of 20th April  2012 in  HCC 306/2011 made by Honourable  Justice Waweru; order by Honourable  Mwera J (as he then was) dated  21st March 2011; charge sheet  in criminal case No. 1207/2011  wherein Onditi  Rao, Simeon Ondiba Nyamanya  and others  were charged in court in relation to the KNCCI  matters  and another charge  sheet  in criminal 20130/09 all of Nairobi; letter of Registrar of Companies  dated  2nd July 2012; notification  of change of directors and secretaries  for Kenya National Chamber   of Commerce and 1ndustry among  other annextures  intended  to demonstrate  that the alleged  contemnors were in  contempt of court orders  made on  18th June 2012  and that  the elections  of officials   of Kenya National Chamber of Commerce and Industry   and change of  registration of officials  by the  Registrar of Companies  was  in utter  disobedience  of the orders  of this  court hence  custodial committal  to civil jail  will  serve as a  wakeup call to the  contemnors  to respect   the rule of law  and the court  and cease taking it in a  perpetual vicious cycle.

8. On 9th March 2016 the alleged 2nd and 3rd contemnors/respondents  filed a replying affidavit sworn by  Kiprono Kittony and Laban  Onditi  Rao jointly on  8th March  2016  annexing among others, proceedings in this  matter and  vehemently denying  that they or at all  disobeyed the court order  made  on 18th June  2014. They also annexed judgment by Hon Korir J in JR 169 of 2013 wherein an interested party, one Mr Stephen Mbugua sought for Judicial Review Orders to quash the decision of the Registrar of Companies who is the 1st respondent to this application, for registering the 2nd and 3rd respondents herein as officials of the KNCCI on 27th March, 2013 and for an Order of Mandamus compelling the Registrar of Companies to convene an annual General meeting of the KNCCI.

9. In the respondent’s  view, the  orders  in question as made on 18th June, 2012 and issued on 19th June, 2012 were to  remain in force  only  up to 9th July 2012  and  that when   the matter was mentioned  in court on 19th March  2013  the applicant  did not seek  for their extension  therefore  they automatically lapsed.  Further, that  as per the typed  proceedings in this case, on  28th March 2013  the applicant without  notice to  other parties  to the suit herein caused the  matter  to be mentioned  before Honourable Korir J with a view to  extending  the said impugned orders and that the applicant  informed  the court on the said mentioned date that the orders of 18th June,2012 were not  extended  by Ougo J which is an acknowledgment that  the orders  in issue  were never  in place as at  that time.  That vide  JR 169/2013  Mr Stephen  Mbugua sought to quash the decision of the  Registrar  of Companies on 27th March 2013 in registering  any Directors of Kenya National Chamber of Commerce and Industry and that in the  judgment  rendered  on  12th February 2014, Honourable Korir  J held inter alia:

“ The applicant, however  does  not deny the fact that there  was  no order barring the  respondent  from doing what she  did since  the stay orders had lapsed…………the applicant  herein is aware  that  the orders  were not  extended  and therefore  there  are no orders  to disobey.”

10. The respondents further  deposed  that on 22nd May 2014  the applicant herein sought for orders  to restrain the  registration of the respondents as  Directors  of Kenya National Chamber of Commerce and Industry  and that  a similar application dated 26th May 2014  was placed  before Honourable  Hatari Waweru J who  directed  service upon the respondents.  That the aggrieved parties filed an appeal vide CA (App) No.  Nairobi 129/2014 which is still pending before the Court of Appeal undetermined.  The respondents maintained that  there are no orders on record  capable of disobedience  hence the  application for contempt  is misconceived  and that  the said application  is a blatant   abuse of  the court process  hence it should  be dismissed with costs.

11. The 1st respondent Registrar of Companies did not file any replying affidavit opposing the application for contempt.

12. The parties argued the application for contempt of court orally in court on 15th March 2016 with the applicant representing himself   whereas Mr Munawa advocate represented the 2nd and 3rd alleged contemnors/respondents.

13. According to the applicant, relying  on his replying affidavit   and supplementary  affidavit and all  the annextures, the order breached  was made on 18th June  2012  by Honourable  Githua J and that  there  has never been any appeal  or setting aside  of that order.  He maintained that the  said orders  were breached  because  the 2nd  and 3rd contemnors  continue to hold themselves  as Chairman and Vice  Chairman  of the KNCCI and that they have even conceded that fact in  their joint replying affidavit filed on 9th March 2016.  He also submitted that his supplementary affidavit of 4th June 2015 bears that evidence of contempt of court order.  He stated that none of the contemnors have purged their contempt and that Section 8(5) of the Law Reform Act has not been invoked by the contemnors.

14. On case law, the applicant cited the case of R V GM Holdings Ltd where it   was held that a Judge cannot vary terms of stay but an aggrieved party has to appeal to a higher tribunal (sic).  In this case the applicant contended that there was no appeal.  Reliance    was also placed on the case of Cleverhun Ltd V British   Tutorial College where it   was held that failure to file a defence is an admission except as to damage.  The applicant  also relied on a Court of Appeal decision  whose citation  was not given  where it   was allegedly  held  that no court  could wish away the  rules of court ignobly(sic).  He also relied on Hudginson V Hudginsonwhere Lord Denning stated that the only means to enforce the order is to punish for contempt.

15. On jurisdiction of the court, the applicant relied on Owners of Motor Vessel Lilian “S” V Caltex Oil (K) Ltd and submitted that this court has no jurisdiction to vary the orders given.  He also relied on Section 3(1) (5) and 6 of the Judicature Act, Article 2(5)  of the Constitution and Order 52 of the Rules of  the Supreme Court of England  on the court’s authority to punish  for contempt.

16. The applicant trashed the respondent’s replying affidavit as being an abuse of court process and that in any event it confirmed the contempt   by challenging the court to enforce   the rule of law. The applicant urged the court to invoke Section 6 of the Judicative Act to act in good faith in the interest of justice and grant the orders sought.

17. In opposing the application for contempt of court on behalf of the 2nd and 3rd alleged contemnors, Mr Munawa counsel for the alleged contemnors submitted, relying on his clients’ sworn replying affidavit.  Mr Munawa  maintained that there   were no orders   in place capable of being  disobeyed  and that the  orders made on 18th June  2012  were to last  until 9th July 2012  as shown by order No. 4  on the face of the order.  That he had annexed court  proceedings which  reveal that  the orders  were extended  severally  but that  on  19th March 2013  when the matter  came up, the orders  were  never extended  as the appellant  was not  in court.  That  again the matter came up on 28th march  2013 and the applicant  acknowledged that Ougo J had  not extended  them and that  he was referred  to Waweru J for  10th April  2013.  Further that the judgment in JR 169/2013 by Honourable Korir J confirms that indeed there were no orders in place.  That albeit the applicant sought for reinstatement of those orders, they were never reinstated even after he filed an appeal to the Court of Appeal which is still pending.  Mr Munawa urged the court  to adopt  Lenaola J’s holding in HCCA  8/98  Francis Gitonga Macharia v Muiruri Waithaka that  litigation must come to an end and urged this court  to find that this application for contempt  is an abuse of the court process and dismiss it  with costs.

18. In a brief rejoinder, the applicant submitted that the Case law cited by Mr Munawa   advocate were irrelevant.  Further that Civil Appeal No, 129/2013 and the judgment of Korir J in JR 169/2013 cannot act as appeals against the ruling of Githua J.  Further, that parties cannot purport   to give jurisdiction to the court and that the court can only act under Section 8 of the Law Reform Act.  He urged the court to strike out the submissions by Mr Munawa advocate for being an abuse of court process.

DETERMINATION

19. I have carefully considered the applicant’s application for contempt of court which is basically a quasi-criminal charge against the respondent’s, grounds and supporting as well as supplementary affidavits and the annextures thereto.  I have given equal measure of consideration to the serious opposition to the application as contained in the alleged contemnor’s replying affidavit.   And the oral submissions made by the applicant in person and Mr. Munawa for the 2nd and 3rd alleged contemnors and the case law cited in support of their rival positions.

20. I must mention that the alleged contemnors did file a  preliminary objection dated 14th May 2015 to this application which   preliminary objection  was disposed of  by this court  vide its ruling delivered on 17th December 2015 paving way for this application for contempt of court to proceed to hearing on merit.

21. The power of the High Court to punish for contempt of court is not in doubt.  The court draws its jurisdiction from the provisions of Section 5 of the Judicative Act Cap 8 Laws of Kenya which provides that:

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 of England  and that power shall extend  to upholding  the authority and dignity of the  subordinate  court.”

22. The procedure for seeking committal of the contemnor  for contempt  of  a court  order is as  was spelt  out in the case of  Christine  Wangari Gachege V Elizabeth  Wanjiru Evans  and 11 Others  (2014) e KLRwhere  the Court of Appeal made it clear inter alia , that:

“……..the new Civil Procedure  Rules (of England) which are  now contained  in the second supplement  to the 2012  white book that no lease is required  before bringing an application, like the one before  us, for committed  for contempt  relating  to breach of  this court’s order….”

23. In other words, it does not require leave of court to be obtained to institute contempt proceedings where the contempt related to a breach of  a court order.

24. The application before me  claims that this honourable  court’s orders of  18th June 2012  issued on 19th June 2012   were breached  by the alleged  contemnors   in that despite  the orders  restraining  the registration of the 2nd  and 3rd alleged  contemnors  as officials of Kenya National Chamber of Commerce and Industry, the 1st respondent/alleged contemnor  who is the Registrar of Companies  proceeded  and registered  the 2nd and 3rd alleged contemnors  as Chairman and Vice Chairman  of the Kenya National Chamber of Commerce and Industry when the injunctive  orders of 18th June 2012  were still  in force  and that  neither  had the  said orders  been varied, discharged  or appealed against.

25. The applicant  contends that  the alleged  contemnors  were aware  of the  said orders  of injunction, they  were  served with the  said  orders and that  the said  orders were  in force as at  the time they were  allegedly  disobeyed.

26. On the other  hand, the  alleged contemnors do admit that  orders  were issued  on  19th June 2012  as made on 18th June 2012  by Honourable Githua J.  However, that despite the said orders  being extended severally, they lapsed on 19th March, 2013 and that therefore there was no order capable of being disobeyed as at the time the Registrar of Companies effected registration of the 2nd and 3rd respondents/alleged contemnors as officials of the KNCCI on 27th March, 2013.  That  more evidence  of the lapsed  orders is  found in the judgment of  Honourable Korir  J in JR 169/2013 and the fact  that the applicant even filed  an appeal before  the Court of Appeal after the court herein  declined to reinstate  the lapsed  orders, which appeal is said to be pending.

27. The issue for determination is  whether  there  was any order  of this court  in force as at 27th March, 2013 capable of being  disobeyed by the alleged  contemnors  and if so  what orders  should this court make?

28. The issuance of the injunctive order of 18th June 2012 is not in dispute.  It is also not in dispute  that the order restrained  the alleged contemnors  from registering/being registered  as officials  of the Kenya National Chamber of Commerce and Industry by the Registrar  of Companies( alleged  1st contemnor). What is in dispute is whether  the  order of    18th June 2012  was in force  as at  the time of the said registration of the 2nd  and 3rd  alleged  contemnors  as Chairman and Vice Chairman of the Kenya National Chamber of Commerce and Industry by the Registrar of  Companies  ( the alleged  1st contemnor).  This court has the power to punish for contempt of court in order to uphold the authority and dignity of the court, applying the procedure used by the High Court of Justice in England.

29. The standard  of proving that indeed there has been contempt of court orders  is much higher  than that  of proof  on a balance of  probabilities, and  almost but not  exactly  beyond reasonable  doubt since contempt  of court is  a quasi  criminal proceeding. The burden of proving that there was contempt of court orders lies on the person alleging that there has been such disobedience of court orders and in this case, it is upon the applicant to prove contempt of court orders of 18th June, 2012 by the respondents/alleged contemnors.

30. In Ochiro & Others V Okombo & Others [1989] KLR 165 the Court of Appeal at page 167 stated that:

“  The power to deal with contempt  of court is provided  for  under  Section 5 of the Judicative Act Cap 8 and Order  39 Rules 2 (3) of the Civil Procedure Rules……the  standard   of proof  in contempt  proceedings must  be higher  than proof  on a balance  of probabilities, almost but not  exactly beyond reasonable  doubt.  Another  fundamental process  in the contempt  of court application is that the  applicant must prove  that the  order  in question  was either  served  personally  on the alleged contemnors  or that  the alleged  contemnors   had knowledge  of the order  and that despite  such  service or knowledge, the party sought  to be cited  and committed has  disobeyed  the order.  This requirement finds support in the case of Basil Criticos V AG & Others (2012) e KLR where he court stated that:

“……..the law has  changed and  as it  stands  today knowledge  super cedes  personal service……where a party  clearly  acts and  shows that  he  had knowledge  of  a court  order, the  strict  requirement  that personal service  must be  proved is  rendered  unnecessary.”

31. In the instant case, the respondents do not deny being served with the order of injunction.  They also  do not  deny being  aware of  the order made  on 18th June  2012  hence I shall not belabour  that point.  However, they  contend that although the order existed for a while and was  extended  several times, there was no breach  of the said  order  and that  at the time  the 2nd and 3rd alleged contemnors/respondents were registered  as officials of Kenya National Chamber of Commerce and Industry by the  1st respondent Registrar of Companies, the order  of 18th June, 2012 had lapsed and that  the said lapse had been  acknowledged  by several  judges in their subsequent decisions whenever this matter or related matter  was being considered post 19th March, 2013 as is detailed  in this judgment.

32. I must  therefore  determine whether  indeed  the order  of 18th June 2012  had lapsed  and therefore  incapable of being breached  as at the time it is alleged to  have been breached. I can only do so by meticulously examining the court record herein.

33. When the impugned orders were made on 18th June 2012, the court made it clear that the orders were to remain in force until 9th July 2012 when the case would be mentioned for directions.

34. The said orders were later extended on 9th July 2012 to 25th July 2012.  On 25th July 2012, the orders were extended to 3rd October 2012.  On 3rd October 2012 the orders were extended to 30th October 2012.  On 30 October 2012 the orders were extended to 20th November 2012.  On 20th November 2012 the orders were extended to 21st November 2012 the following day.  On 21st November 2012 the orders were extended to 23rd November 2012.  On 23rd November 2012  the orders  were extended  to  14th December  2012 on 14th December  2012  the said  orders  were extended  to 19th December 2012.  On the latter date, the orders were extended to the following day on the 20th December 2012.  On   20th December 2012 the orders were extended to 17th January 2013 by Honourable Waweru J.  On 17th January 2013 the orders were extended until 12th March 2013. On 12th March 2013  the matter  came up  before Honourable  Ougo J who extended  the orders  to 19th March  2013.  On 19th March, 2013, Hon Ougo J directed that the matter be mentioned before justice Waweru on         10th April 2013 for directions. This was after the applicant herein urged that the matter be handled by H. Waweru J for consistency since he was handling two other similar matters.  There is no mention of those interim orders being extended.  Then on 28th march 2013 the applicant herein Mr Edward Kings Maina appeared  before Honourable Korir J and submitted that the orders  were not  extended  by Ougo J.  The applicant sought  the court’s directions and   Honourable Korir  J directed that the  applicant who   was the 28th interested party do appear  before HPG Waweru J on  10th April 2013  for directions.

35. From that date of 10th April 2013, it  was not until  15th May 2014 one year and one day that the matter  came up  next before  the registry to fix  the matter for mention on 22nd May  2014  and on   22nd May 2014 Honourable  Korir J directed that  the application dated 21st May 2014  be placed  before  the Duty Judge  the same day and the duty  judge who  was Honourable  Ougo J  certified the application dated 21st May  2014  as urgent, declined to make any exparte orders and directed  the applicant to take dates  for the interpartes hearing of the said application in the registry. It is worth mentioning that the application dated 21st May 2014 sought for orders for stay of the registration of officials of Kenya National Chamber of Commerce and Industry among others, and  2nd and 3rd respondents hereto.

36. The court record shows that after  the events  of  19th March, 2013, there  is absolutely  no evidence  that the  orders  of 18th June 2012  were ever extended.  This is further fortified by the applicant’s efforts of 21st May 2014 wherein the applicant frantically sought to stay registration of the 2nd and 3rd alleged contemnors as official of the KNCCI. That being the case, those orders of 18th June, 2012 had no doubt lapsed and that is why the applicant was making efforts to have them reinstated lapsed.  However, on 30th May 2014  the applicant herein filed  this  application for contempt  of court  against the  respondents alleging  that they  had breached the orders  of 18th June 2012.

37. A perusal  of the record shows that on 5th July 2012, which was after the issuance of the orders of 18th June, 2012  the Assistant Registrar  of Companies Mr Wilson Rading  wrote to Bishop Gerishon   Njoroge  the Vice Chairman  of the Independent  Electoral Board  for the election of  Directors   of  Kenya National Chamber of Commerce and Industry informing the Registrar that since  there  was an order dated   18th June  2012 restraining   the Registrar  from acting  on the  ‘attached  returns,’ the Registrar  would await the determination  of the matter  to enable  them proceed.  To my mind,  that cannot  be the kind  of Registrar who  would  have  disobeyed  the orders of this court, had the said  orders  been in force  at the time  the registration  of the  2nd and  3rd  respondents  as  officials  of the Kenya National Chamber of Commerce and Industry  was affected  by the 1st respondent  Registrar. In other words, there is no evidence of an attempt or intention by the Registrar of Companies to flout the orders of this Court made on 18th June, 2012.

38. The  applicant herein, it is noted, though not a party to JR 169 of  2013  challenging  the  registration  of the officials   of  Kenya National Chamber of Commerce and Industry  by the  Registrar of Companies, That case  was which was determined  on 21st February 2014  by Hon Mr Korir J and in that  judgment  the  learned  judge correctly  found that  the question would be whether  the applicant therein  who was also affected by the orders of 18th June, 2012 had directed his  firepower at the  treatment he was  given by the respondent in that JR matter.  The learned  judge made a  conclusive  finding  that the  applicant   Stephen Mbugua a fellow member of KNCCI as per the minutes of 2. 5.2012 attached to the initial application for prohibitory orders giving rise to the orders of 18th June, 2012, never denied  that  there  was no order  barring  the respondent  from doing what  she did since  the stay orders had  lapsed.  The learned Korir J also found that the applicant appeared to be blaming Justice Ougo for ‘inadvertently’ failing   to extend the  stay orders.  The learned  Judge  concluded that there  was nothing irrational  or illegal in the action taken by the Registrar of  Companies  in registering  the elected officials of Kenya National Chamber of Commerce and Industry  as per the returns  filed  by the  Elections  Board   and  moreso, since  it was not disputed, there  was  no order  barring her (the  Registrar  from doing  so at  the time she  registered  the officials  of the chamber.

39. This court  from the  judgment  in HC JR 169/2013  rendered  on  21st February  2014  has discovered  although Mr Mbugua was challenging the registration of the alleged contemnors herein as officials of the Chamber, in essence, he was complaining that there were orders of 18th June 2012 in place when the registration took place therefore that registration of 27/3/2013 should be quashed.

40. In my humble view, therefore, there was aclear nexus between the JR 169/2013 and this case which was pending when the JR matter was filed and the initiator of JR 169/2013 was a member of KNCCI  just like the applicant herein.

41. I have  taken the liberty to provide  a chronology of the events in this  matter  and from the  court record, the matter  came up on 28th March 2013 before Honourable Korir J  who stated  that “ the orders  were not  extended  by Ougo J .  Thus, as at that date of 28th March 2013, the registration or alleged contempt had been committed on 27th March 2013, the previous day.  The matter had been  before Ougo J on 19th March 2013 when  no orders  were extended.  The  interim  orders  which had  been  extended  on   12th March 2013  until 19th March  2013  therefore lapsed on 19th March  2013 since they were never  extended.

42. To the dismay of this court, Mr Stephen Mburu who was also an interested party in this matter and member of the KNCCI and who was equally aggrieved by the no extension of the orders of 18th June, 20`12 did on  20th May  2013, file a  Judicial Review  case No. 169/2013  challenging the registration  of the respondents  as directors/officials  of Kenya National Chamber of Commerce and Industry  which  had taken place on  27th March  2013.

43. And while those JR 169/2013 proceedings were pending, the applicant herein went quiet. He never complained   that the respondents   were in contempt of court.   He  waited until  after Honourable  Korir  J had  delivered  his judgment  in JR  169/2013  on    21st February  2014   is when the applicant  by his application dated 29th May 2013  filed this  application for contempt.  In other words, the applicant was approaching this court from all angles not only as an individual but through proxy. In my view, the applicant cannot persuade this court and he has not attempted to persuade me that he was not aware of the JR 169/2013 proceedings. Mr Stephen Mbugua who filed that JR matter is a party to this matter with the same interests as those of the applicant herein. Those JR proceedings  and the proceedings in this matter  were seeking  to achieve only  one result  that is, to vacate  the registration  of the 2nd and 3rd respondents as Chairman and Vice Chairman of KNCCI which registration took place on 27th March 2013 after the orders of 18th June, 2012 had lapsed on 19th march, 2013.

44. In the view of this court, the applicant has blatantly abused the process of this court.  The matter of registration of officials of Kenya National Chamber of Commerce and Industry was conclusively dealt with by Honourable Korir J in JR 169/2013 and the applicant herein, assuming he was not aware of those proceedings since he was not a party thereto, had the opportunity of reading that judgment which is annexed to the replying affidavit of the 2nd and 3rd Respondents to this application/contempt proceedings.  The Learned Judge made  a finding  which has  not been  challenged, that  there  was no  dispute that there  was no order  of  18th June  2012  in place  when the  registration of 27th March  2013  took  place and that  therefore  there  was no illegality or irrationality  proved on the part of the Registrar of  Companies.  How then would  the applicant  after a receiving  such a judgment  insist on proceeding with this contempt proceeding against the Alleged contemnors and claim that  the orders  of  18th June  2012  were  brazenly  breached  by the  respondents  and expect a  favourable finding?

45. This court notes that this matter was placed before me after the judges who handled it initially quietly and politely declined to entertain it.  I have examined  the record  very meticulously  and  I can do no more than  sympathize with the applicant  who acts  in person without  the benefit  of legal counsel.  I believe   that is the reason why he sees and hears no evil in doing what he is doing- to himself- being a litigant forever and thereby abusing the court process.  I can only attribute that problem to lack of legal advice and legal representation and counsel.  The applicant appears to be spending so much of his time and resources in this matter.  In my view, he is literally walking in darkness hoping   to find light at the end of the tunnel.  If there was light, I would not hesitate to accord him appropriate orders.  However, I have not found any evidence to show that the respondents have been in contempt of orders of this court made on 18th June 2016.  I would therefore have no jurisdiction to cite and punish innocent human beings for that would be an abuse of the powers and authority of the people of Kenya conferred on me under Article 159 of the Constitution.  No court of law ought to do an injustice. Courts exist only to do justice to the parties.  That power to render justice   is derived from the People of Kenya.  To do an injustice would be acting in violation of the Constitution.

46. In the end, I find that  there  was no order of 18th June  2012  in place as at 27th March  2013 when the 2nd and  3rd respondents   were registered  by the  1st respondent Registrar of Companies. I find that there was no order  capable  of  being  disobeyed  since  it had  lapsed  on 19th March  2013.  Therefore, the respondents /alleged contemnors are not in contempt of any court order.  They are all hereby found not guilty of any contempt and are acquitted of the charges   of contempt of court leveled against them.

47. Accordingly, I dismiss the applicant’s application dated 29th May 2014 with costs to the respondents.

Dated, signed and delivered in open court at Nairobi this 28th day of April 2016.

R.E. ABURILI

JUDGE

In the presence of

Mr Edward Kings Maina Applicant in person

Mr Munawa advocate for the 2nd and 3rd respondents contemnors

CA: Henry