Wendano Matuu Co Ltd, Stephen Ndambuki Muli & Onesmus Muisyo Kimatu v Joshua Kimeu Kioko, James Kioko Kivuvo, John Bosco Ndinga, Samuel Mwanza Nzioka, Juvenalis Musyoki Kavita, Mangu Ngolo & Rose Ndanu Mutua [2020] KEHC 2351 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: D. K. Kemei- J

CIVIL CASE NO. 2 OF 2014

WENDANO MATUU CO LTD.................................................1ST  PLAINTIFF

STEPHEN NDAMBUKI MULI..............................................2ND  PLAINTIFF

ONESMUS MUISYO KIMATU.............................................3RD  PLAINTIFF

VERSUS

JOSHUA KIMEU KIOKO....................................................1ST  DEFENDANT

JAMES KIOKO KIVUVO....................................................2ND  DEFENDANT

JOHN BOSCO NDINGA.......................................................3RD  DEFENDANT

SAMUEL MWANZA NZIOKA............................................4TH  DEFENDANT

JUVENALIS MUSYOKI KAVITA.......................................5TH  DEFENDANT

MANGU NGOLO...................................................................6TH  DEFENDANT

ROSE NDANU MUTUA.........................................................7TH DEFENDANT

RULING

1. Following the finding of this court on the 21st January, 2019 that the 1st to 7th defendants are in contempt of the orders of this court, the said defendants were directed to appear before this court for mitigation and sentencing.  On 10. 9.2020, the 1st, 2nd, 5th and 7th Defendants appeared before this court. The 4th and 6th defendants were stated to be deceased whereas the 3rd defendant was absent altogether. Mr. Kitonga was present for the plaintiffs while Mrs Nzei was present for the defendants. Mrs Nzei however indicated that she had not seen the 3rd defendant and further that the said defendant had not been attending her offices in the past.

2. The mitigation hearing was canvassed orally. Mrs Nzei learned counsel for the defendants submitted that the contemnors had pegged their default on the failure of their advocate to communicate the order to them until 30. 4.2014 when they visited their advocates’ offices. It was submitted that the contemnors ought not to be made to suffer for the mistakes of their advocates. It was pointed out that after the contempt proceedings were initiated the defendants withdrew instructions from their former advocates hence in placing reliance on Order 41 of the Civil Procedure Rules which according to counsel gives the court a discretion to pass a 6 month imprisonment term on the defendants, the court was urged to censure the defendants and forgive them. It was submitted that none of the defendants are below 65 years old; that the 1st defendant is 67 years, suffers from age related ailments; that the 2nd defendant is the Vice Chairman and aged 75 years and who supports himself with a cane; that the 5th defendant is aged 68 years old and suffers from a heart condition; that the 7th defendant is aged 68 years. It was submitted that the defendants are retirees and they got into this mess while serving the public and not for their own benefit. It was further argued that the defendants are low income earners and that the fine that is to be considered ought to be one within their reach and that they be given up to seven (7) days to pay up. It was submitted that the defendants are not capable of serving a jail term; that the defendants have been obedient to the court during the contempt proceedings.

3. Mr Kitonga learned counsel for the plaintiffs in response submitted that the defendants are not remorseful and that their attempt to blame the previous counsel is not convincing as per the record. It was pointed out that the defendants disobeyed the court orders deliberately; that they had received money from the sale of the properties and have not accounted for the same or refunded the same. Counsel took issue with the averment of ill health of the defendants as there was no documentation to prove the same. It was submitted that the defendants are not remorseful and also had not accounted for the money that they received hence invited court to mete a six (6) month sentence on the defendants and that the fine ought to be commensurate with the value of the land sold. It was submitted that as a way of purging the contempt, the defendants ought to deposit the money in court.

4. In rejoinder, Mrs Nzei submitted that the defendants are remorseful and seek mercy. It was pointed out that the proceeds of the sale of the land were paid to the company and there was no evidence that the defendants received the same. Counsel also revealed to the court that the 3rd defendant had written a letter of resignation to the board of directors and that she was not aware of his whereabouts.

5. The court pointed out that resignation notwithstanding, the 3rd defendant was not absolved from the instant proceedings and further noted that the mitigation had been done on his behalf by his counsel. The court also took note that the 4th and 6th defendants were reported deceased.

6. The court is required to make a call on the appropriate sentence to make. Following the declaration of unconstitutionality of the Contempt of Court Act in the case of Kenya Human Rights Commission v Attorney General & another [2018] eKLR, the Judicature Act Chapter 8 of the Laws of Kenya is the operative law. Section 3 of the Act is to the effect that the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date are applicable.

7. In this regard the procedural law in the exercise of power to punish for contempt of court was expressed in Order 52 of the Rules of the Supreme Court of England. Therefore, that is the law applicable to this court in the exercise of its power to punish for contempt of court. The explanatory note to Order 52 under rule 1 sub-rule 2 of the Rules of the Supreme Court of England(the White Book) statesthus:

‘The term 'contempt of Court' is of ancient origin having been used in England certainly since the thirteenth century and probably earlier. It is based not on any exaggerated notion of the dignity of individuals be they judges, witnesses or others but on the duty of preventing any attempt to interfere with the administration of justice."

8. When meting a sentence, this court ought to take a balanced consideration of the interests of the society together with the interests of the offender as well the crime itself (a ‘triad’ approach). In the South African case of Sawule v The State [2014] ZAGPPHC 534, RATSHIBVUMO AJ said:

“The art of applying the proper guidelines in imposing a sentence is achieved by a consideration, and an appropriate balancing, of what the well-known case of S v Zinn 1969 (2) SA 537 (A), at 540G-H described as a ‘triad consisting of the crime, the offender and the interests of society.’ Although these interests may be conflicting in nature, it is expected of a sentencing court to keep a fine balance between them, and it must endeavour not to over or to under emphasize anyone of them – seeS v Moodley (SS42/05) [2005] ZAGPHC 78 (4 August 2005).Overemphasizing some interests over others is misdirection”.

9. The South African ‘triad’ approach to sentencing would persuade my decision as the Judiciary Sentencing Policy Guidelines are silent on sentencing in contempt of court matters. However in paragraph 4. 1 of the said policy, it is to the effect that a balanced sentence strives to attain the reformative, preventative, deterrent, denunciative, community protection and retributive objectives of punishment.  In the difficult search for an appropriate and balanced sentence, the factors may not have equal weight but the weight attached to each factor must be appropriate and then on a balance of all the factors in mitigation and aggravation, the court must determine whether the defendants can adequately be sentenced with a non-custodial sentence, payment of a fine, or forgiveness of the defendants.

10. In considering the sanction which must be imposed upon the contemnors, I have first considered the aggravating circumstances. These are; the lofty manner with which the contemnors conducted themselves as revealed by the action of selling the suit property notwithstanding the fact that there was an injunction. The defendants were adequately represented by capable lawyers, as is indeed revealed by the court record during the hearing of the application in which the orders that were said to be disobeyed were issued. The other aggravating factor is the lack of remorse or repentance on the part of the contemnors as displayed by their conduct that was calculated at ridiculing the court, derailing the proceedings and administration of justice. The same made the plaintiffs rush to court for the application dated 24. 6.2014 that led to a lengthy process that was finally determined on 21. 1.2019 when this court found the defendants guilty of contempt. All this while, the defendants were sitting pretty and made no attempt to purge the contempt from 2014 all the way to 2019. The defendants have always held on a position that they are the bonafide directors of the 1st plaintiff and this might explain their recalcitrant behavior of not seeing the need to purge their contempt until the court found them guilty.

11. The contemnors must be punished for causing this court to sit on hearing the contempt application when they knew or ought to have known that what was pronounced as a judgment of the court on the grant of the injunction was final and ought to have been respected. The mitigating factor appears to be the age of the contemnors.

12. Due to the non-legislation of provisions of the law to limit this court’s powers in passing a sentence as a result of of the situation presented by the non-application of the Contempt of Court Act following the declaration of its unconstitutionality is that this court is at large to prescribe a term of imprisonment that this court finds reasonable and also to exercise discretion and consider a fine and not an imprisonment term. See The Law of Contempt of Court by Anthony Arlige and David Eachy.

13. What is important is justice to the parties and The Right Honourable Sir Alfred Thomson Denning in his 1953 article “The Road to Justice” published by Stevens and Sons Limited London-it is stated that ‘the law is not an end in itself but justice is. Laws may be well crafted but just law must be respected.The nearest we can get to defining justice is to say that it is what the right-minded members of the community-those who have the right spirit within them-believe to be fair”

14. It can be elicited that money was received by the contemnors; that the gravamen of the plaintiffs had a monetary undertone and therefore a monetary sanction would be fair so as to send a strong message to anyone out there who intends to or has already interfered with the administration of justice by disobeying court orders. In addition, counsel for the defendants was not averse to payment of a fine. In the case of Republic v David Makali & 3 others [1994] eKLR a fine of Kshs 500,000/- was given for “scandalizing the court”. In the case of Republic v Tony Gachoka & Another [1999] eKLR, a fine of Kshs 1m/- was issued for articles that were written that were stated to be vilifying the court.

15. I have considered the fact that all the Defendants are elderly.  I note that they are still energetic and still serving as they maintain that they are directors of the 1st plaintiff. It has been claimed that the 3rd Defendant has tendered his resignation from the board of directors but which has not been shown to the court and hence they are believed to be still in service. The offence committed is serious as it had the effect of lowering the reputation and dignity of the court in the eyes of the public who look to the courts for their adjudication of their cases. Consequently, I order each of the 1st, 2nd, 3rd, 5th, and 7th defendants to pay a fine of One Hundred Thousand Shillings (Kshs 100, 000/) within the next seven (7) days or in default to serve one-month imprisonment.

Orders accordingly.

Dated and delivered at Machakos this 21st day of October, 2020.

D. K. Kemei

Judge