National Environmental Management Authority v Rumba Kinuthia & Attorney General; M/S Anfield Auctioneers Ltd (Interested Party/2nd Contemnor) [2021] KEHC 1119 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. APPLICATION NO. 749’B’ OF 2019

NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY...............................................APPLICANT

-VERSUS-

RUMBA KINUTHIA.......................................................................................RESPONDENT/1ST CONTEMNOR

M/S ANFIELD AUCTIONEERS LTD.............................................INTERESTED PARTY/2ND CONTEMNOR

AS CONSOLIDATED WITH

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 058 OF 2021

NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY................................................APPELLANT

-VERSUS-

RUMBA KINUTHIA....................................................................................................................1ST RESPONDENT

THE ATTORNEY GENERAL....................................................................................................2ND RESPONDENT

RULING

1.   The applicant in Misc. Application No. 749’B’ of 2019; who isalso the appellant in High Court Civil Appeal No. E058 of 2021; has lodged the Notice of Motion dated 9thMarch, 2021. The Motion is supported by both the grounds laid out on the body thereof and the facts stated in the sworn affidavit of Esther Chege. The applicant sought for the orders hereunder:

a. Spent.

b. Spent.

c. THAT the respondent and the interested party be jointly and severally declared guilty of contempt of court of wilful and unlawful disobedience of the stay order of the court dated 28th January, 2021 and punished with a fine not exceeding Kshs.200,000/ or a custodial sentence of up to 6 months or both such fine and imprisonment.

d. THAT an order do issue compelling the respondent and the interested party to abide by the order of stay of execution of the court dated the 28th of January, 2021 pending the hearing and determination of Civil Appeal HCCA EO58 of 2021 already lodged.

e. THAT the respondent be ordered to personally meet the costs of the unlawful and illegal attachment conducted on 8th March, 2021.

f.  THAT the costs of the application be met by the respondent.

2. The application stands opposed by way of the replying affidavitsworn by the respondent/1stcontemnor on 5thApril, 2021, to which the applicant rejoined with the supplementary affidavit sworn by Mamo B. Mamo on 16thApril, 2021 followed by the further replying affidavit sworn by the respondent on 7thMay, 2021.

3. The parties were directed to file written submissions on theinstant Motion. The record shows that neither the interestedparty nor the 2ndrespondent participated in these proceedings.

4. I have considered the grounds laid out on the face of theMotion; the facts deponed in the affidavits in support of and in opposition thereto; and the submissions on record plus the authorities cited therein.

5.  From my study of the instant Motion, it is clear that the orderssought are two-fold in nature. I will begin with the order touching on whether the respondent and the interested party are in contempt of the court orders issued on 28thJanuary, 2021.

6.  On the part of the applicant, it is stated and submitted thatdespite the existence of the stay of execution order issued by the High Court on 28thJanuary, 2021 and compliance with the conditions thereof by the applicant, the respondent engaged the services of the interested party to seize and impound one of the applicant’s motor vehicles namely the motor vehicle registration number KCT 396Y (“the subject motor vehicle”) on 8thMarch, 2021 and in the absence of fresh warrants of attachments and sale in total disregard of the aforementioned stay order, thereby making the attachment and sale thereof unlawful/illegal.

7.  It is also stated and submitted on behalf of the applicant thatthe aforementioned actions by the respondent are criminal in nature and have been aided by the interested party, and hence both parties ought to be held liable for being in contempt of the court order issued.

8.  On his part, the respondent denied being in contempt of thecourt order and states that it is the applicant who failed to comply with the conditions given by the court in its ruling on the stay of execution.

9.  The respondent further states that the proclamation of thesubject motor vehicle is lawful since the interested party had sought for and obtained a 45-day extension dated 4thMarch, 2021 on the proclamation notice; to which the applicant through its deponent Mamo B. Mamo rejoined with the assertion that the applicant fully complied with the conditions set by the court and even communicated such compliance to the respondent.

10. The applicant also states and submits that notwithstanding theabove and the existence of a court order for the release of the subject motor vehicle to the applicant, the respondent has continued to defy the court orders in place while the subject motor vehicle continues to waste away in the custody of the interested party.

11. Section 5 of the Judicature Act, Cap. 8 Laws of Kenya is theparamount substantive law granting superior courts the powerto punish for contempt. The section stipulates the following:

“(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.

…”

12. The term ‘contempt’ is defined in the Black’s Law Dictionary asfollows:

“a disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body.”

13. The guiding principles in determining whether there has beencontempt of court orders, as expressed inPinnacle (K) Travel and Safaris Limited v Omar Faruk Osman & 5 others [2017] eKLRand echoed in the case ofSamuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLRare:

a. That the order was clear, unambiguous and binding on the defendant.

b. That the defendant had knowledge of or proper service of the terms of the order.

c. That the defendant acted in breach of the terms of the order.

d. That the defendant’s conduct was deliberate.

14. On the first principle above, it is not contested that the HighCourt vide the ruling delivered on 28thJanuary, 2021 granted the applicant an order for a stay of execution of the judgment delivered by the lower court on 7thOctober, 2019 on the condition that the applicant deposits the decretal sum either in a joint interest earning account or in court within 30 days from the date thereof. The High Court also ordered the applicant to file the appeal within 14 days therefrom.

15. Concerning the second principle, upon my study of the record,it is apparent that the respondent was at all material times aware of the terms of the aforementioned ruling and order since it was delivered in the presence of counsel for the respondent.

16. In respect to the third and fourth principles, upon my study ofthe record, I observed that the applicant brought credible evidence to show that it complied with the conditions for a stay of execution by depositing the decretal sum of Kshs.5,000,000/= in court on 26thFebruary, 2021 and notified the respondent of such deposit.

17. I also observed that it is not in dispute that the respondentthereafter moved to execute the decree by instructing the interested party to attach and impound the subject motor vehicle, notwithstanding the compliance by the applicant and the existing stay order. It is therefore clear that the question on whether the proclamation notice is valid or not is not of concern here. It is clear that in the presence of an existing order of a stay of execution, any execution by the respondent and the interested party would be invalid.

18. Further to the foregoing, the record shows that when the partiesattended court on 12thApril, 2021 in respect to the instant Motion, the court ordered that the subject motor vehicle be released in the public interest provided that the applicant deposits the sum of Kshs.300,000/= within 14 days from that date. A consequent order was issued to that effect on 22ndApril, 2021.

19. The record further shows that the applicant complied with theabove condition and yet there is nothing to indicate that the respondent and the interested party have ensured the release of the subject motor vehicle to the applicant.

20. Consequently, and for the foregoing reasons, the only reasonableconclusion for me to arrive at is that the defiance on the part of both the respondent and the interested party of the ruling of 28thJanuary, 2021 and consequently, the ruling delivered on 12thApril, 2021 are deliberate acts of total disregard of the court orders and therefore amount to contempt of court.

21. The second order concerns itself with whether the respondentand the interested party ought to be compelled to comply withthe order issued on 28thJanuary, 2021.

22. Upon my study of the record and as earlier indicated, the orderfor a stay of execution was conditionally issued. Moreover, I have established that the applicant has complied with the conditions set by the court.

23. In the absence of anything to indicate that the order for a stay ofexecution has been varied or set aside, and upon my finding in respect to the contempt of both the stay order and the order issued on 22ndApril, 2021 I find it to be fair and in the interest of justice to find in favour of the applicant in this instance.

24. Consequently, the Motion dated 9th March, 2021 is allowed thusgiving rise to issuance the following orders:

i.  The respondent and the interested party herein are found to be in contempt of the ruling delivered on 28th January, 2021 and subsequently, the ruling delivered on 12th April, 2021.

ii. The respondent and the interested party are granted a final opportunity to abide by the order for stay of execution issued by the court on 28th of January, 2021 and subsequently, the ruling delivered on 12th April, 2021 by ensuring the release of the motor vehicle registration number KCT 396Y to the applicant forthwith failing which the applicant shall be at liberty to move the court for issuance of notices to show cause as to why the respondent and the interested party should not be punished accordingly for being in contempt of the aforementioned court orders.

iii.  The respondent be and is hereby ordered to personally meet the costs of the unlawful and illegal attachment conducted on 8th March, 2021.

iv.  The appellant/applicant shall have the costs of the instant Motion to be borne by the respondent.

v. The aforementioned orders shall apply to Civil Appeal HCCA EO58 of 2021 accordingly.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF DECEMBER, 2021.

............................

J. K.  SERGON

JUDGE

In the presence of:

……………………….……. for the Appellant/Applicant

………………………...................… for the Respondent

…………………….............…… for the Interested Party

…………………….………. for the Appellant/Applicant

…………………..............……… for the 1st Respondent

………………............………… for the 2nd Respondent