City Star Shuttle Limited v Jovan H.Kariuki t/a Moran Auctioneers (Civil Appeal 571 of 2019)  KEHC 15913 (KLR) (Civ) (2 December 2022) (Judgment)
Neutral citation:  KEHC 15913 (KLR)
Republic of Kenya
Civil Appeal 571 of 2019
JK Sergon, J
December 2, 2022
City Star Shuttle Limited
Jovan H.Kariuki t/a Moran Auctioneers
(Being an appeal against the judgment of Hon. A.M Obura (Mrs.) SPM at the Chief Magistrates Court in Nairobi on 20th September 2019 in Civil Suit No.8589/2017)
1.At the onset, the appellant herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated 10th November, 2017 pursuant to instructions by the firm of Messrs Ngulu Mwangi Advocates, the respondent proclaimed, repossessed and attempted to auction motor vehicle registration number KCC 940E belonging to the appellant, and sought for reliefs against the respondent in the following manner:
2.The appellant pleaded in its plaint thatafter becoming aware of the aforementioned, it enjoined the court through objection proceedings at the Engineer Law Courts to object to the execution proceedings on the grounds stated therein. On or around 20th September, 2017 the court made a decision in favor of the objection proceedings, allowing the release of the subject motor vehicle to the appellant.
3.The appellant further pleaded in its plaint that the their advocate, Messrs. K. M. Mburu Associates, wrote a letter to the respondent demanding release of the said motor vehicle following the blatant refusal of the respondent's agents to release the motor vehicle, on or about 22nd September, 2017 the instructing attorneys, Messrs. Ngulu Mwangi Advocates, explicitly advised the respondent to release the subject motor vehicle to the appellant through his advocates.
4.It was also pleaded by the appellant in its plaint that given that the subject motor vehicle is a public transportation vehicle operating within the Nairobi County and was purchased using a loan facility from Unaitas Sacco Limited, it claims that it has continued to experience income loss. It also claims that it has been severely hurt in its said business and has been put through a great deal of trouble, inconvenience, and expense as a result, incurring loss and damage.
5.The respondent filed his statement of defence denying the entire claim by the appellant and contends that he was not party to the Engineer Civil Suit No.143 of 2015 and further states that the subject vehicle was stored in a third party storage facility as he had no storage facility of his own.
6.The respondent stated in its defence that the third party charged storage fee on daily basis since the appellant failed to pay the accrued storage charges demanded by the third party, the subject vehicle could not be released.
7.The appellant being aggrieved preferred this appeal and put forward the following grounds:
8.The appeal was canvassed by way of written submissions which were filed and exchanged between the parties. The appellant's submissions were filed by K.M Mburu & Associates while those for the respondent were so filed by Kinyanjui, Kirimi & Advocates.
9.I have also considered the rival written submissions. The issues for determination put forward by both parties revolve around the following issues:
10.On the first issue, the appellant submitted that, it was expressly clear from the proceedings and the judgment, that the respondent admitted notification of a valid court order having been notified by its principal but deliberately declined to comply.
11.The appellant further submitted that the respondent’s confession of non-compliance with a valid court order falls within the ambit of definition the contempt of lawful court orders as the respondent acted maliciously and ought to be punished. However, the learned magistrate digressed from the issue of contempt despite the admission by assigning the blame to a third party who was not party to this suit.
12.On this the appellant relied on the Court of Appeal at Kisumu, Ken Odondi & 2 Others v James Okoth Omburah T/A Okoth Omburah & Company advocates (2013) eKLR, the three judge bench relied on the finding of the English Court of Appeal decision in the case of John v MG Ltd (1996) 1ALL E.R 35 where the court held:
13.It is the appellant’s submission that the prayer for aggravated and exemplary damages footed on the loss incurred as a result of the contempt should have been awarded.
14.On the other hand the respondent submitted that the appellant failed to meet the threshold for civil contempt proceedings and relied on the case of Ochino and Another v Okombo and 4 Others (1989) eKLR that was cited in the case of Sam Nyamweya & 3 Others v Kenya Premier League Limited & 2 Others (2015) eKLR where the Court of Appeal R Gachuchi Masime and Kwach JJA held inter alia that:
15.The respondent further submitted that in its submissions, the appellant erroneously urged the lower court to find that the respondent had disobeyed court orders; however, the suit did not constitute contempt proceedings, and the appellant did not deem it appropriate to bring any legal action against the respondent. The appellant also did not return to the court in Engineer to bring legal action for contempt.
16.The respondent also relied on the case of Wambui Kiragu (Suing as administrator of the estate of the late Samuel Kiragu Michuki v Governor Nairobi City County & Another (2018) eKLR which comprehensively discussed the concept of contempt and buttressed the elements that must be proved to meet the threshold for civil contempt proceedings .The court stated as follows;
17.The respondent therefore contends that it was incumbent for the appellant to address the above ingredients and in particular, it was necessary to demonstrate the refusal was deliberate.
18.It is the respondent’s submission that the issue was that the said motor vehicle could only be released subject to the payment of storage charges of a third party who had custody of the subject vehicle. The appellant did not dispute that storage charges were payable and that he knew exactly where the vehicle was, so he did not act in violation of the terms of the orders.
19.The respondent contends that the appellant failed to discharge the requisite standard of proof and that the law required him to prove a balance of probabilities but lower than the beyond reasonable doubt standard that indeed the respondent was in contempt of the court orders.
20.The respondent relied on the case of Daniel Odhiambo Okaka v Samuel Udali Mtange & Another 2018 eKLR that cited the case of Gatharia K Mutikika v Baharini Farm Ltd  KLR 227 which laid out the principle as follows;Contempt proceedings are quasi-criminal in nature and since the liberty of a person is at stake, the standard of proof is higher than in civil cases. This principle was reiterated in the case of Gatharia K. Mutikika vs Baharini Farm Ltd, where it was held as follows:
21.The respondent submitted that there is no contention that he wasn't a party to the Engineer court case; the appellant here served as the objector. However, he didn't sue the parties in that suit because the cause of action would have directly affected them since they were responsible for the vehicle's attachment, and since the auctioneer is merely acting as the court's agent, he shouldn't be blamed for carrying out a valid court order.
22.The contempt of court proceedings must be satisfied that the court order alleged to have been disobeyed was clear and unequivocal in its terms. It must not be ambiguous or susceptible to multiple interpretations to a reasonable person. In the case of Ochino & Another v Okombo & 4 Others (supra) the Court of Appeal quoted the following passage from the case of Mwangi Mang’ondu v Nairobi City Commission, Civil Appeal No. 95 of 1998:
23.The Court of Appeal principles were enunciated (Ochino vs. Okombo suppra) in Sam Nyamweya & 3 Others vs. Kenya Premiere League & 2 Others  eKLR:
24.I am also guided by the holding in the case of Mutitika v Baharini Farm Limited  KLR 229 where the Court held that the standard of proof in contempt proceedings must be higher than proof on a balance of probabilities.
25.Since it is undeniable that the respondent was carrying out legal court orders to sell the subject vehicle before the sale was halted by the objection proceedings, I find that he was acting as an agent for a party to the lawsuit rather than being a party to the lawsuit at the Engineer Law Courts.
26.The respondent does admit that he was served the ruling but gave an explanation that the subject vehicle was in custody of a third party who demanded storage charges and the fact that said charges were payable has not been disputed by the appellant .
27.The communication in a letter from Ngulu & Company Advocates to the respondent dated February 2, 2018 in which the respondent is informed of the successful meeting between the said Pangani Auction Centre and the issue of the charges, confirms that the only issue at hand was that neither the appellant nor the respondent were required to pay them.
28.The only issue was that the said motor vehicle could only be released after payment of storage charges of a third party who was in custody of the subject vehicle, and the appellant did not object to the fact that the storage charges were payable and he knew exactly where the vehicle was. Therefore, it is clear that the respondent did not willfully disobey the court orders and did not act in violation of the terms of the orders since he stopped the intended sale.
29.Based on the evidence before me, I am of the view that the appellant failed to discharge the burden of proof required. In Woburn Estate Ltd Vs Margaret Bashforth (2016) eKLR the Court of Appeal Makhandia, Ouko, M’noti JJA while addressing the issue of service stated:-
30.On the second issue, the appellant submitted that it pleaded in specific terms a prayer for loss of income and further produced documents i.e way bills, copy of Motor vehicle, court ruling and advocate’s instructions in a bundle of documents dated 5th December 2017 demonstrating the actual loss of income. The appellant relied on the case Eldoret Civil Appeal No. 255 of 2013 being an appeal from the decision of the High Court of Kenya at Eldoret ,observed:
31.The respondent on the other submittedthat no clear values were noted or rather particularized, the appellant erred in directing the court to rely on the evidence in court, and the alleged special damages totaling Kshs.2,085,000/= should fail because they were never pleaded. Additionally, the appellant erred in instructing the court to rely on the evidence in court when it did not specifically plead for the special damages.
32.The respondent relied on the case of Nancy Wanja Gatabaki v Jacaranda Holding Property Limited & Another (2019) eKLR where Hon.Justice Kasango stated that:
33.The respondent contends that the lower court was correct in dismissing the claim for loss of income since the appellant never pleaded the alleged special damages, let alone proving them. Even if their exhibits had attempted to prove the same, which they did not, they would still be bound by their pleadings.
34.On this argument the respondent relied on the case of Christine Mwigina Akonya v Samuel Kairu Chege (2017) eKLR the court was of the view that
35.In Cecilia W. Mwangi and Another vs Ruth W. Mwangi NYR CA Civil Appeal No. 251 of 1996  eKLR, the Court of Appeal held that:
36.Similarly, in the case of Douglas Kalafa Ombeva v David Ngama  eKLR, the Court of Appeal held that:
37.From the above cited authorities, loss of income and/or future earnings must be pleaded and proved as they are in the nature of special damages. That being the case, I note from the record and more specifically the plaint, that the appellant never pleaded the alleged special damages let alone proving the same. The exhibits that the appellant tried to produce in court tried to but they were still bound by their pleadings.
38.Suffice it to quote from the decision of the Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983  KLR 716, at P. 717, and 721 where the Learned Judges of Appeal - Kneller, Nyarangi JJA, and Chesoni Ag. J.A. - held:
39.For the foregoing reasons, the appellant’s appeal is without merit. The same is with costs to the respondent.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 2ND DAY OF DECEMBER, 2022.J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent