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|Case Number:||Misc Application Judicial Review 596 of 2008|
|Parties:||Kenya Union of Savings and Credit Cooperatives (KUSCCO) Limited v Nairobi City Council(now Nairobi City County, County Secretary of Nairobi City County & Chief Licencing Officer Nairobi City County|
|Date Delivered:||10 Nov 2015|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||George Vincent Odunga|
|Citation:||Kenya Union of Savings and Credit Cooperatives (KUSCCO) Limited v Nairobi City Council(now Nairobi City County & 2 others eKLR|
|Advocates:||Miss Said for the Respondent Mr Okindo for Mrs Oloo for the Applicant|
|Court Division:||Judicial Review|
|Advocates:||Miss Said for the Respondent Mr Okindo for Mrs Oloo for the Applicant|
|History Advocates:||Both Parties Represented|
|Case Outcome:||Notice of Motion dated 3rd April, 2014 dismissed with no order as to costs|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. APPLICATION JR NO. 596 OF 2008
IN THE MATTER OF APPLICATION FOR LEAVE TO FILE CONTEMPT PROCEEDINGS AGAINST THE COUNTY SECRETARY AND THE CHIEF LICENCING OFFICER OF NAIROBI CITY COUNTY
IN THE MATTER OF AN APPLICATION BY KENYA UNION OF SAVINGS AND CREDIT COOPERATIVES (KUSCCO) LIMITED FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION
IN THE MATTER OF LOCAL GOVERNMENT ACT CAP 265 (now repealed) AND SUCCEEDED BY THE COUNTY GOVERNMENTS ACT, 2013) CITY GOVERNMENT BY LAWS AND IN THE MATTER OF SINGLE BUSINESS PERMIT, AND THE COOPERATIVE SOCIETIES ACT CAP 490 OF 1997
KENYA UNION OF SAVINGS AND CREDIT
COOPERATIVES (KUSCCO) LIMITED……............….………...APPLICANT
NAIROBI CITY COUNCIL (NOW
NAIROBI CITY COUNTY)…………..…….……............…….1ST RESPONDENT
THE COUNTY SECRETARY OF NAIROBI
CITY COUNTY………………….………………….……….....2ND RESPONDENT
THE CHIEF LICENCING OFFICER
NAIROBI CITY COUNTY……………...……….…….............3RD RESPONDENT
1. That this application be certified urgent deserving priority hearing.
2. The contemnor, the County Secretary of Nairobi City County and the Chief Licensing officer or any other to be found to be the contemnor be and is hereby ordered to appear in court at the inter parties hearing of this application and they continue appearing until the determination of this application.
3. That the contemnor the County Secretary of Nairobi City County and the Chief Licensing Officer or the Officer serving in equal capacity or the officer found to be the contemnor be cited for contempt for the willful disobedience of the order of this honourable court issued on 28th July 2009 approved by their counsel M/S Erick Abwao on 1st October 2009 and subsequently served upon the said counsel, following which the then acts complained of ceased
4. That this honourable court be pleased to commit the aforesaid officers to civil jail for a period to be determined by this honourable court.
5. That meanwhile, and of priority, the officers of the City County of Nairobi be directed once more to fully obey orders issued by this honourable court on 28th July 2009.
6. Costs of this application to be provided for.
The Applicant’s Case
1. That leave to institute contempt of court proceedings against the Respondents was duly granted by this honourable court.
2. That by way of judicial review, this honourable court by an order of 28th July 2009 quashed orders requiring single business permit fee to be paid for the KUSCCO Members (Co-operatives) to Nairobi City Council on 28th July 2009.
3. That in the same order the City Council of Nairobi as it was prohibited from demanding single business permit fee from KUSCCO and its members and indeed they ceased since then.
4. That with the coming in force of the new constitution and the Nairobi City County replacing the City Council of Nairobi in running the functions of the City of Nairobi demands for singe business permit fees started being made upon KUSCCO members.
5. That upon advise of the existing orders, Nairobi City County officers ignored and persisted with the said demands and some members have paid while others are living under threats of being arraigned in court.
6. That the orders are still in place and Nairobi City County is the successor of Nairobi City Council and ought to obey all existing orders binding the predecessor. However, the Nairobi City Government officers have refused and/or neglected to obey the said orders under the authority of the cited officers.
1. Nairobi City County, County Secretary, Nairobi City County and Chief Licensing officer, Nairobi City County (the alleged contemnors) were never party to proceedings in Nairobi HC JR No, 596 of 2008, as by dint of the provisions of Section 18 of the Sixth Schedule to the Constitution of Kenya as read together with the provisions of Section 134(1) of the County Governments Act No. 17 of 2012, the alleged contemnors only came into existence after 4th day of March 2013;
2. Nowhere in the application herein is it alleged and proved that the Applicant herein notified or brought to the attention of the Nairobi City County, County Secretary, Nairobi City County and Chief licensing Officer, Nairobi City County, the existence of a judgment and or order in Nairobi HC JR No. 596 of 2008, thus it is inconceivable how the alleged contemnors could disobey a court order whose existence they did not know of:
3. It is trite law as variously stated, including in cases of Gatonye Victor Kariuki & 2 Others versus John Guto & 2 Others, Milimani HCCC No. 336 of 201; and John Kenneth Mugambi versus City Council of Nairobi, Milimani HCCC No. 622 of 2008 that contempt proceedings, being quasi criminal in nature, cannot be vicariously imputed on third parties. A party alleging disobedience of a court order has the onus to strictly prove the criminal intent of the alleged contemnor, thus alleged actions of one Erick Abwao cannot be a basis to impute contempt on the part of Nairobi City County, County Secretary, Nairobi City County and Chief Licensing officer, Nairobi City County;
4. The so called Erick Abwao is neither an employee nor an agent of Nairobi City County, County Secretary, Nairobi City County and Chief Licensing Officer, Nairobi City County;
5. The judgment delivered and order issued in Nairobi HC JR No. 596 of 2008 was apparently so delivered and issued pursuant to the provisions of Trade Licensing Act (Cap 497) Laws of Kenya, whose Second Schedule exempted only professionals from payment of single Business Permits. Members of the Applicant were and still are not professionals capable of exemption from payment of single business permits as can be vividly discerned from the Circular No. 2401/TY/26 dated 28th September 2009 from the Ministry of Local Government to the Town Clerk, City Council of Nairobi which identified exempted professionals as only being:
a. Architects and Quantity Surveyors;
c. Doctors & Dentists;
f. Veterinary Surgeons;
j. Estate Agents;
k. Certified Pubic Secretaries; and
6. In any event, the Trade Licensing Act (Cap 497) Laws of Kenya pursuant to which judgment and order in Nairobi HC JR No. 596 of 2008 was apparently delivered and issued, was repealed by the Licensing Laws (Repeals and Amendment) Act No. 17 of 2006, at Section 112 thereof, thus is no longer part of Kenyan law, and therefore, the substratum of the judgment and order in Nairobi HC JR No. 596 of 2008 no longer exists as part of Kenyan law;
7. All laws, including judge made law delivered in Nairobi HC JR No. 596 of 2008 prior to the effective date of the Constitution of Kenya must be construed in consonance with the provisions of Section 7 of the Sixth Schedule to the Constitution of Kenya, which enjoins this honourable court to construe all law (including judgment in Nairobi HC JR No. 596 of 2008) that was in force immediately before the effective date of the Constitution with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution;
8. Paragraph 7 (b), part 2 of the Fourth Schedule to the Constitution of Kenya expressly mandates counties, including Nairobi City County to undertake “Trade Development and regulation, including – trade licenses (excluding regulating of professions),” thus members of the Applicant are by the Constitution of Kenya 2010 obliged to pay single business permits to Nairobi City County;
9. Trade licensing, including licensing of members of the Applicant, is a service function that Nairobi City County offers to, inter alia, the Applicant and for which under Articles 209(4) and 185(2) of the Constitution of Kenya, Nairobi City County is entitled to impose and recover, pursuant to the County legislation, payment of single business permits by the Applicant and its members;
10. Nairobi City County duly enacted and published the Nairobi City County Finance Act, 2013, which under the provisions of paragraph 2.6 thereof, entitles the County to impose and recover single business permits against, inter alia, SACCOs and Co-operative Societies, including the Applicant herein.
11. The application herein is grossly frivolous, misguided and an abuse of the court process.
“Local authorities cannot be equated to County Governments as the structure and design of the Constitution has given County Governments an elevated position as one of the organs to which sovereignty of the people of Kenya is delegated under Article 1 of the Constitution.”
“Contempt is a disregard of, disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behaviour 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.”
“It is a civil contempt of court to refuse or neglect to do an act required by a Judgment or order of the court within the time specified in the judgment or order…A judgment or order against a corporate body may be enforced by an order of committal against the directors or other officers of the corporation.”
“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt.”
“Coercive orders made by the courts should be obeyed and undertakings formally given to the courts should be honoured unless and until they are set aside. Furthermore it is generally no answer to an action for contempt that the order disobeyed or the undertaking broken should not have been made or accepted in the first place. The proper course if it is sought to challenge the order or undertaking is to apply to have it set aside.”
“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void”.
“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a Court of competent jurisdiction to obey it until that order was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt. A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it…It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed…If there is a misapprehension in the minds of the defendants as to the reasonable meaning of the order, then the expectation of them is that they would have made an application to the court for the resolution of any misunderstanding and this would have been the lawful course…In cases of alleged contempt, the breach for which the alleged contemnor is cited must not only be precisely defined but also proved to the standard which is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt…The inherent social limitations afflicting most people in a developing country such as Kenya have the tendency to restrict access to the modern institutions of governance, and more particularly to the judiciary which is professionally run, on the basis of complex procedures and rules of law. Yet, this same Judiciary is generally viewed as the impartial purveyor of justice, and the guarantor of an even playing ground for all, a perception which ought to be strengthened, through genuine respect for the courts of justice, and through compliance with their orders. Consistent obedience to court orders is required, and parties should not take it upon themselves to decide on their own which court orders are to be obeyed and which ones overlooked, in the supposition that this oversight will not impede the process of justice…Justice dictates even-handedness between the claims of parties; and if it the case that the plaintiff/applicant has not been accorded a level playing ground for the realisation of its economic activities, a matter that of course can only be established through evidence in the main suit, then the court ought to provide relief, by applying the established principles of law, one of these being the law of contempt…An ex parte order by the court is a valid order like any other and to obey orders of the court is to obey orders made both ex parte and inter partes since the Court by section 60 of the Constitution is the repository of unlimited first instance jurisdiction, and in this capacity it may make ex parte orders where, after a careful and impartial consideration, it is convinced that issuance of such an order is just and equitable. There is nothing potentially oppressive in an ex parte order, since such an order stands open to be set aside by simple application, before the very same court…Where a party considers an ex parte order to cause him undue hardship, simple application will create an opportunity for an appropriate variation to be effected thereto; and therefore there will be no excuse for a party to disobey a court order merely on the grounds that it had been made ex parte and this argument will not avail either the first or the second defendant”.
“It must be remembered that court orders must be obeyed at all times in order to maintain the rule of law and good order. This of course means that the authority and dignity of our courts must be upheld at all times and this differentiates civilised societies from those applying the law of the jungle at times referred to as banana republics. It is the duty of the Court not to condone deliberate disobedience of its orders nor waiver from its responsibility to deal decisively and firmly with the approved contemnors.”
“It is quite clear on the authorities that anyone who, knowing of an injunction, or an order of stay, wilfully does something, or causes others to do something, to break the injunction or interfere with the stay, is liable to be committed for contempt… The reason is that by doing so he (or she) has conducted himself (or herself) so as to obstruct the course of justice and so has attempted to set the order of the court at naught.”
“…the law has changed and so as it stands today, knowledge supersedes personal service and for good reason…where a party clearly acts and shows that he has knowledge of a court order, the strict requirement that personal service must be proved is rendered unnecessary.”
“Article 159(2) (d) of the Constitution requires the court to administer justice without undue regard to procedural technicalities. Article 10 of the Constitution stipulates various national values and principles of governance which bind all state organs, state officers, public officers and all persons whenever any of them applies or interprets the constitution or any law or implements public policy decisions. The values include the rule of law, good governance, integrity, transparency and accountability. The rule of law is vital in the stability of any nation and its institutions. In this new constitutional dispensation, it would be a mockery of justice for a respondent in contempt proceedings to come to court and say that even though he was aware of the terms of a prohibitory order, the order was not properly served upon him or that he considered the same to have some procedural defect, for example, lack of indorsement thereon, and therefore he ought not to be punished for contempt of court.”
“An injunction in prohibitory form operates from the time it is pronounced, not from the date when the order is drawn up and completed. Consequently the party against whom it is made will be guilty of contempt if he commits a breach of the injunction after he has received notice of it, even though the order has not been drawn up...Where an order requires a person to abstain from doing an act, it may be enforced, notwithstanding that service, of a duly endorsed copy of the order has not been served, if the Court is satisfied that pending such service, the person against whom enforcement is sought has had notice of the terms of the order either by being present when the order is made or being notified of the terms of the order whether by telephone, telegram or otherwise...It is of high importance that orders of the Court should be obeyed. Wilful disobedience to an order of the Court is punishable as a contempt of court and such disobedience may properly be described as being illegal...Those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.”
“Where an order requires a person to abstain from doing an act, it may be enforced notwithstanding that service of a duly indorsed copy of the order has not been served, if the court is satisfied that, pending such service, the person against whom enforcement is sought has had notice of the terms of the order either by being present when the order was made or being notified of the terms of the order, whether by telephone, telegraph or otherwise.”
55. All rights, assets and liabilities accrued in respect of the properties vested in the local authorities established under the Local Government Act (Cap. 265) which shall stand repealed after the first election under the Constitution shall be dealt with as provided by law.
56. All directions, resolutions, orders and authorizations given by by-laws made, and licenses or permits issued by the local authorities established, under the Local Government Act and subsisting or valid immediately before the commencement of this Act shall be deemed to have been given, issued or made by the boards established pursuant to this Act, as the case may be, until their expiry, amendment or repeal.
57. (1) Every person who, immediately before the commencement of this Act was an officer, agent or member of staff appointed, seconded or otherwise employed by a local authority shall, on the commencement of this Act be seconded or otherwise deployed as may be provided by law.
58. (1) Any act, matter or thing lawfully done by any local authority before the commencement of this Act and any contract, arrangement, agreement, settlement, trust, bequest, transfer, division, distribution or succession affecting any service delivery, trade of any form, sale or dealings on land or any other matter affecting assets, liabilities or property belonging to any local authority whether moveable, immoveable or intellectual property shall, unless and until affected by the operation of this Act, continue in force and be vested in a body established by law.
59. Any legal right accrued, cause of action commenced in any court of law or tribunal established under any written law in force, or any defence, appeal, or reference howsoever filed by or against any local authority shall continue to be sustained in the same manner in which they were prior to the commencement of this Act against a body established by law.”
“Due to the foregoing, it is clear that there are no transitional provisions in the County Governments Act dealing with actions and legal proceedings that were pending as at the date of the repeal of the Local Government Act. The reason for this obvious omission in drafting is not clear but I am of the opinion that it may be due to the fact that, an Act that was enacted earlier before the County Governments Act, namely, the Urban Areas and Cities Act, No. 13 of 2011 (“Urban Areas and Cities Act”) had transitional provisions dealing with rights and interests that had accrued prior to the repeal of the Local Government Act including pending actions and legal proceedings. Section 59 of the Urban Areas and Cities Act to which both parties herein referred to in their submissions although to support conflicting positions provides as follows; “Any legal right accrued, cause of action commenced in any court of law or tribunal established under any written law in force, or any defence, appeal, or reference howsoever filed by or against any local authority shall continue to be sustained in the same manner in which they were prior to the commencement of this Act against a body established by law”. This section vests the power to proceed with and to defend actions and legal proceedings pending against the defunct local authorities upon “a body established by law”. This “body” is neither defined nor constituted under this Act. This section therefore attempts to provide a solution to the transitional question under consideration but one which is vague and not totally helpful.”
“It follows therefore that until the body referred to in section 59 of Urban Areas and Cities Act is established, legal actions that were pending by and against the defunct local authorities can be sustained or pursued against County Governments under whose jurisdiction such local authorities were situated. To hold as argued by the respondents herein that such legal proceedings should remain suspended until such a time that the said body is set up would result in an absurd and a manifestly unjust situation for the hundreds of litigants who have pending suits against the defunct local authorities. Such holding would also put courts in very awkward position as they would not know what to do with matters involving the defunct local authorities which are pending rulings and judgments before them. In conclusion, it is my finding that this application is sustainable and until the body referred to in section 59 of Urban Areas and Cities Act is set up or established, it shall be sustained against Kisii County Government which will also be bound by any orders that may be issued herein in place of the 1st and 2nd respondents in the application.”
“The current devolution provisions in Chapter 11 of the new Constitution are a major shift from the fiscal and administrative decentralisation initiatives that preceded it. It encompasses elements of political, administrative and fiscal devolution. There is a vertical and horizontal dispersal of power that puts the exercise of State power in check... Devolution is the core promise of the new Constitution. It reverses the system of control and authority established by the colonial powers and continued by successive Presidents. The large panoply of institutions that play a role in devolution-matters, evidences the central place of devolution in the deconstruction-reconstruction of the Kenyan state...”
“Given Kenya’s history, which shows the central government to have previously starved decentralized units of resources, the extent to which the Constitution endeavours to guarantee a financial lifeline for the devolved units is a reflection of this experience and, more specifically, an insurance against recurrence. Indeed, in practically all its eighteen Chapters, only in Chapter Twelve (on public finance with respect to devolution) does the Constitution express itself in the most precise mathematical language. This is not in vain. It affirms the “constitutional commitment to protect”; and it acknowledges an inherent need to assure sufficient resources for the devolved units... Article 96 of the Constitution represents the raison d'être of the Senate as “to protect” devolution. Therefore, when there is even a scintilla of a threat to devolution, and the Senate approaches the Court to exercise its advisory jurisdiction under Article 163 (6) of the Constitution, the Court has a duty to ward off the threat. The Court’s inclination would not be any different if some other State organ approached it. Thus, if the process of devolution is threatened, whether by Parliamentary or other institutional acts, a basis emerges for remedial action by the Courts in general, and by the Supreme Court in particular... It is relevant to consider the range of responsibilities shouldered by these nascent county governments. The Bill of Rights (Chapter 4 of the Constitution) is one of the most progressive and most modern in the world. It not only contains political and civil rights, but also expands the canvas of rights to include cultural, social, and economic rights. Significantly, some of these second-generation rights, such as food, health, environment, and education, fall under the mandate of the county governments, and will thus have to be realized at that level. This means that county governments will require substantial resources, to enable them to deliver on these rights, and fulfil their own constitutional responsibilities…..National values and principles are important anchors of interpretive frameworks of the Constitution, under Article 259 (a). Devolution is a fundamental principle of the Constitution. It is pivotal to the facilitation of Kenya’s social, economic and political growth, as the historical account clearly indicates. In my view, the constitutional duty imposed on the Supreme Court to promote devolution is not in doubt. The basis of developing rich jurisprudence on devolution could not have been more clearly reflected than in the provisions of the Constitution and the Supreme Court Act.”
All laws in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.
Dated at Nairobi this 10th day November, 2015
G V ODUNGA
Delivered in the presence of:
Miss Said for the Respondent
Mr Okindo for Mrs Oloo for the Applicant