REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.454 OF 2019

MWIKI PSV SACCO SOCIETY LIMITED......................CLAIMANT

VERSUS

PETER MAINA........................................................1^ST RESPONDENT

WILSON GITAU.....................................................2^ND RESPONDENT

MARGARET MWANGI........................................3^RD RESPONDENT

SIMON KARANGU..............................................4^TH RESPONDENT

 RULING

Vide the Application dated 5.2.2020, the Claimant has moved this Tribunal seeking for Orders inter alia:

1. This matter be certified urgent heard at the first instance;

2. That the Honourable Tribunal be pleased to issue summonses to attend court to the 1^st , 2^nd 3^rd and 4^th Respondents respectively to show cause why they should not be committed to prison for disobedience of the Tribunal orders given on the 2^nd day of August, 2019 requiring the Respondents to pay daily operation fees like all other members of the Claimant do;

3. That the Respondents to bear the costs of this Application.

The Application is supported by the grounds on its face and the following Affidavits:

a. Supporting Affidavit sworn by Joshua Githinji on 5.2.2020; and

b. Further Replying Affidavit sworn by the said Joshua Githinji on 4.9.2019.

The Respondents has opposed the Application vide the Replying Affidavit sworn by the 1^st Respondent on 20.2.2021.

Vide the directions given on 21.10.2020, the Application was canvassed by way of written submissions. The Claimant filed its written submissions on 5.11.2020 while the Respondent did so on 20.11.2020.

Claimant’s Case

Vide the instant Application, the Claimant contend that the Respondents have disobeyed the orders issued on 2.8.2019 requiring them to pay daily operation fees of Kshs. 500 per vehicle. That the said act of disobedience constitute contempt of the orders of the Tribunal. That the Respondents moved to the High Court vide JR.NO. 267/19 seeking to set aside the said orders to no avail.

Respondent’s case

Vide their response, the Respondents have denied ever being served with the order referred to by the Claimant in this Application. That they only became aware of this claim when through hired Mungiki adherence, goons some of their vehicle, plying Mwiki route were clamped.

That in any event, they were not served with the Application which gave rise to the impugned orders. That upon knowing the existence of the orders, they have moved to the High Court to have them set aside. That they are not aware of any member of the Claimant who pays Kshs.500 daily per vehicle and that neither has such a resolution been passed by members of the Claimant.

That personal service of a court order is mandatory and that contempt proceedings cannot be commenced without proof of personal service. That the alleged orders have not even been enclosed or annexed to the Application.

That the Application for contempt is designed to muddy other matters before the Tribunal and delay expeditious disposal of the main suit.

Claimant’s further or Replying Affidavit

Vide the further Affidavit sworn on 4.9.2019 the Claimant’s chairman, Joshua Githinji has refuted the averments made by the 1^st Claimant vide his Replying Affidavit sworn on 20.2.2021 and stated as follows:

That he knows that the Respondents have deliberately refused to obey the said orders and have on various occasions told him as such.

Issues for determination

The Claimant’s Application has presented the following issues for determination:

a. Whether the Respondents were served or aware about the orders issued on 2.8.2019;

b. If the answer in (a) above is in the affirmative, whether they have disobeyed the said orders;

c. If the answer in (b) is in the affirmative, whether the Respondents should be held in contempt of the said orders.

Service of Order of 2.8.2019

The Respondents have put a spirited fight that they were never served personally with the orders sought to be enforced as is required by law. The Claimant has refuted this contention and insisted that it did serve the said orders. Further, it has argued that besides, the Respondents knew about the said orders and that is why they have moved to the High Court vide JR. NO. 267/19 to challenge them. They have cited the case of R-vs- Minister of Medical Services MISC. Civil Appeal No. 36 of 2010 to buttress this arguments. On their part, the Respondents have relied on the decisions of the court in the cases of Jacob Nyairo Maera - vs- Joseph Nyakundi Momanyi [2017] eKLR an Registered Trustees of sheikh Zayeed Bin Sultan and Nanya –vs- Pelican Engineering & Constructions Company Limited & 4 others [2018]eKLR.

It is trite law that a person who desires the court to punish a party for disobeying its orders must personally serve that person with the said orders and endorsing a Notice of penal consequences. This position was restated by the court in the case of R-vs- Principal Secretary, Ministry of Defence Ex parte, George Kariuki Waithaka [2019]eKLR. In the pertinent part, the court held:

“ This court notes that Kenyan courts have also held that personal service of Orders and a penal Notice is a requirement in a contempt of court proceedings”.

Courts have also taken the view that knowledge of court orders constitute personal serve of the said orders. The court in the foregoing case it said as much at paragraph 41 as follows:

“ It is also the position, and it has been in several judicial decisions that if personal awareness of the court orders by the alleged contemnors is demonstrated, they will be found culpable of contempt even though they had not been personally served with the orders and penal Notice”.

We have perused the instant Application and the annexture thereto. We cannot sight any material signatory personal service of the orders issued by the Tribunal on 2.8.2019. We are thus unable to ascertain whether or not they were personally served with the Respondent.

However, we note, and it is not in dispute that upon the grant of the said orders, the Respondents moved to the High court to challenge them vide JR. NO. 267/19. The Respondents have not controverted this fact. This therefore means that they were aware about the existence of the said orders. They cannot therefore be heard to be contesting service.

Having established that the Respondents were aware about the said orders, a question abound us to whether they have obeyed the same. Before we do so, we hasten to remind parties that court orders are not made and is issued in vain. They are meant to be obeyed whether favorable or not. The court in the persuasive decision of Canadian Metal Company Limited – vs Canadian Broadcasting Corporation (No.2)[1975]48 DLR (30), (cited in Kenya Human Rights Commission - vs- Attorney General & Another [2018] eKLR reiterated this point in the following terms:

“ To allow court orders to be disobeyed would be to tread the road towards anarchy. If orders of the court can be treated with disrespect, the whole administration of justice s thrown into scum... if the remedies that the courts grant to correct.....wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the courts will quickly result into destruction of our society...”

We cannot agree more. What is manifest in the present Application is that this court made orders on 2.8.2019. The Respondents became aware of them and sought to challenge them in the High Court. There is no indication that they made any attempt to obey them. Rather, they have conveniently chosen to obey them and have sought to seek refuge on the procedural and technical aspects of the law. We cannot allow this to happen. We put our foot down and warn parties against blatantly disobeying orders made by the Tribunal. In simple terms, we are saying that we find merit in the Claimant’s Application dated 5.2.2020 and hereby allow it in terms of prayers 2 and 3. Orders accordingly. Costs in the cause.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 25^TH DAY OF MARCH, 2021.

Hon. B. Kimemia Chairperson Signed 25.3.2021

Hon. J. Mwatsama Deputy Chairperson Signed 25.3.2021

Akusala Member Signed 25.3.2021

Chimei advocate for Claimant

Hon. B. Kimemia Chairperson Signed 25.3.2021