Whether the Preliminary Objection raises pure points of law.
14.I need to dispose of the preliminary objection first before considering the application on merit should it become necessary. In the case of Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 others (2014) eKLR, the Supreme Court stated as follows on preliminary objections:
15.In the case of Oraro v Mbaja 1KLR141, it was held that:
16.For a preliminary objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection should, if successful, dispose of the suit.
17.The 2nd Respondent impugns the capacity of the 1st Respondent herein who is said to be deceased. The legal capacity of a party in any legal proceeding is critical point of law that goes to the root of any suit. A party must have capacity to sue and or be sued. It is trite that Court proceedings cannot be sustained against a deceased Defendant and in the event of his demise, an Application for substitution must be done; if the cause of action survives him/her.
18.As already been stated, one of the preconditions for a valid preliminary objection is based on the assumption that the facts pleaded are correct and unopposed by the rival party. With regard to the 3rd Defendant’s Preliminary Objection dated the 23/01/2023, the ground is that the suit is devoid of merit on account that the Applicant is seeking to have the 3rd Party who was not a party to the suit in the Tribunal to be held to be in contempt of Court yet he was not a party to the proceedings at the Tribunal.
19.Now, in my view and with the greatest of respect, this objection calls upon this Court to inquire of the pleadings to ascertain whether or not the 3rd Defendant was a party or not in the Tribunal. Equally the Court will have to inquire into evidence to find out if he has an accrued right capable of protection by the Court.
20.Further the Preliminary Objection invites court to find that the orders of the Tribunal as issued were fully complied with and for this to be done court has to make reference to facts that are disputed by both parties. The court cannot from the face of the preliminary objection, conclude that the suit reveals no cause of action. There is need to consider factual evidence and court will exercise its judicial discretion. Once court steps out of the Preliminary objection, it ceases to be a point of law and cannot be sustained.
21.Given the foregoing, with regard to the Preliminary Objection, it is the finding of the Court that the same is unmerited and it is for rejection.
22.I shall now determine the Applicant’s Notice of Motion dated the 23/11/2022. The Applicant sought orders to have respondents cited for contempt for disobeying lawful court orders. evict the Respondents and the Interested Party.
23.I have considered the application, response thereto, submissions by counsel for the parties and the decisions cited. Parties have addressed numerous issues in this application that are not necessary at this stage. This is so because what is before court is an application to cite the respondent for contempt of court. The applicants’ case is that the 1st and 2nd respondents violated this Tribunal’s Order issued on 2/09/2022 and varied on 6/09/2022 directing the respondents not to unlawfully or interfere with the tenancy activities of the 1st Interested Party. The 2nd respondent was also restrained from selling the motor vehicle or goods pending the inter partes hearing.
24.The claimant/applicant has stated that the Business Premises Rent Tribunal issued orders on 2/09/2022 restraining the 2nd defendant from selling and or alienating motor vehicle registration number KBV 562E but also directing him to release the motor vehicle and all the other attached goods to the claimant/applicant, a copy of the court order marked “HG1” was attached. At the same time on 6/09/2022 the 1st and 2nd defendant moved the BPRT and obtained a variation of the orders of 2/09/2022 and the motor vehicle with the goods were to be preserved pending further orders of the Tribunal. The claimant/applicant further states that the 1st and 2nd defendant/respondents had knowledge of the Orders of 6/09/2022 having been issued following an application filed under their hands. As such they have sought to cite the respondents for contempt of court for disobedience of that order.
25.The respondents have also sued the 3rd defendant but no information about his action of disobedience of the same orders has been elaborated in the application.
26.The respondents including the 3rd defendant have denied violating the orders of the Tribunal as alleged. They have also stated that they were not served with the court order. The 3rd defendant claims to have been away in the United States between 22/09/2022 to 14/10/2022. The service upon the 3rd defendant has been disputed the claimant did not place any evidence before the court to suggest otherwise. The claim against the 3rd defendant of contempt is also not elaborated. In the absence of service upon him of the order or evidence that he was aware of the same, I am of the view that it would be unsafe to say that he defied the order in question. In the circumstances, even if I had made a finding that the 3rd Defendant had been served with the court order aforesaid, I would not have found him guilty of contempt of court in the absence of service of the application upon him.
27.I have considered the Affidavits on record, the submissions of counsel and authorities relied on. Therefore, the issue I need to address is whether the respondents were in contempt of court and if yes is the applicant entitled to recover the special damages claimed for non-compliance of the Court Order by the contemnors?
28.The Black’s Law Dictionary (Ninth Edition) defines contempt of court as:-
29.The power to deal with contempt of Court is provided for under Section 5 of the Judicature Act (Cap 8). Section 5 of the Judicature Act provides: -
30.“5.(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.”
32.Properly put, contempt is conduct that impairs the fair and efficient administration of justice. Section 5 of the Judicature Act confers jurisdiction on the superior courts to punish for contempt.
33.This an application is brought under Rule 81.4 (breach of judgement, order or undertaking) now referred to as "application notice" (as opposed to a notice of motion) which correct rule and for this the application notice must set out fully the grounds on which the committal application is made and must identify separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon.
34.Whereas the respondents have submitted that the applicant needed to seek leave to bring this application, in Christine Wangari Gacheche vs Elizabeth Wanjira Evans & Others Civil Appeal 221 of 2007 the Court of Appeal correctly pointed out that leave, now called "permission" is not required where committal proceedings relate to a breach of a judgement, order, or undertaking.
35.The Court of Appeal after evaluating the Rules, concluded that "we find that on the basis of the new Civil Procedure Rules (of England) contained in the Second Supplement to the 2012 White Book, no leave is required before bringing an application, like the one before us, for committal for contempt relating to breach of this court's order..." On that basis, I find that it was not necessary for the applicant to seek leave before filing this application, hence this application is properly before the court.
36.The reason why courts punish for contempt is to uphold the dignity and authority of the court, ensure compliance with directions of the court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by courts. Without sanctions for contempt, there would be a serious threat to the rule of law and administration of justice. For a party to be cited for contempt, he must have violated and or disobeyed an order that was directed at him.
37.The contempt power (both in its civil and criminal form) is so innate in the concept of jurisdictional authority that a court that could not secure compliance with its own judgments and orders is a contradiction in terms, an “oxymoron.”. Ronald Goldfarb made the following observation about contempt power in his book, The History of the Contempt Power, 1 Wash. U. L. Q. 1, 2 (1961): “is inherent in courts, and automatically exists by its very nature.”
38.The application before court seeks to have the respondents cited for contempt of the BPRT’s order of 2/09/2022 and varied on 6/09/2022 and to be committed him to civil jail and or fined as the court may deem fit. The applicants further pray that the respondent be directed to purge their contempt by complying with that court order.
39.Justice Ibrahim J., (as he then was) dealing with the question of contempt in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another  KLR 828, underscored the importance of obeying court orders, stating:
40.In T. N. Gadavarman Thiru Mulpad v Ashok Khot And Anor  5 SCC, the Supreme Court of India also emphasized on the dangers of disobeying Court orders, thus:
41.Contempt of Court is in the nature of criminal proceedings and, therefore, proof of a case against a contemnor is higher than that of balance of probability. This is because liberty of the subject is usually at stake and the applicant must prove willful and deliberate disobedience of the court order, if he were to succeed. This was aptly stated in Gatharia K. Mutikika v Baharini Farm Limited  KLR 227, that:
42.Due to the gravity of consequences that ordinarily flow from contempt proceedings, it is proper that the order be served and the person cited for contempt should have had personal knowledge of that order.
43.The claimant/applicant deposed that the order made on 6/09/2022 was issued following an application filed by the 2nd respondent. I have perused the application dated 23/11/2022 and the affidavit in support. I have noted that the Order made on 2/09/2022 was served upon the 1st and 2nd respondents and an affidavit of service dated on even date is attached and marked as “HG3”. It is therefore clear that the 1st and 2nd respondent were served with the court order; and they were aware of its terms and that as a result they moved to court to have the order varied as per the application dated 5/09/2022. This is evidence placed before this court that the 1st and 2nd defendants willfully and deliberately disobeyed the court order that was served upon them.
44.The Order dated 6/09/2022 stayed the execution of Order No. 3 of the Order dated 2/09/2022 which read as follows:
45.In his pronouncement the chairman stayed the execution of order No. 3 pending hearing of the application inter partes and he also stated “The Auctioneer is further ordered.”(emphasis mine) ordered not to dispose of the motor vehicle….” The Black’s Law Dictionary defines “Further Instructions” additional instructions that are given. It follows that the Order of 5/09/2022 gave additional instructions. That the court stayed execution of Order No. 3 of the Order dated 2/09/2022 and additionally stopped the auctioneer from disposing of the vehicle.
46.The 3rd respondent’s claim that he was not personally served with the court order 2/09/2022 cannot stand as put by Lenaola J in Basil Criticos v Attorney-General and 8 Others  eKLR it was held: -
47.It is now trite law therefore that service of the judgment or order alleged to have been breached and the penal notice served upon the advocate representing the person being charged with the contempt of court is sufficient service unless it can be proved that the advocate did not notify the client. The Court of Appeal had the following to say on this subject in the case of Shimmers Plaza Limited v National Bank of Kenya Limited Civil Appeal No. 33 of 2012: -
48.When the above ingredients are applied to the scenario herein, the court is satisfied that there is violation because:-i.The respondents invoked the due process of the court, and when a second order was issued by the Tribunal under their own instigation, they chose to partially obey the said orders caused the sale of the attached goods of the applicant.ii.Their indifference in the wake of the clear orders of court amount to nothing but impunity and flagrant disobedience and flouting of the law and disrespect to the dignity of the court.
49.On the remedies available, in addition to case law cited by the parties, the court has had occasion to also consider some decisions made in relation to the subject matter. In the case of Elite Studios Limited And Another Versus Intercontinental Hotels Corporation Ltd. Nairobi Hcc No. 483 Of 2005., the court referred to the case of Satish Kumar Versus Samuel Magua Nariboi, Hccc No. 188 Of 1994 Olekeiwa J. (as he then was) made the following observations:-
50.In the same case the court referred to the reasoning of Musinga J, (as he then was) in the case of P. N. Njoroge J. M. Wambie And Another, The Registered Trustees, New Testament Church Of God Versus Reverend Musa Njuguna T/A Charismatic Revival Network, The Registered Trustees And Musa Njuguna Ministries Nakuru Hcc No. 247 “A” Of 2004 where he stated as follows: -
51.Further, in the case of Refrigerator and Kitchen Utensils Ltd. Versus Sulab Charnd Popat T/A Shah And Others, Nairobi, CA Nairobi 39 Of 1997, the court stated as follows:
52.The court went on to stated that:
53.For the reasons given and in the circumstances, it is true that the respondents were aware of orders of stay notwithstanding other orders for release of motor vehicle. By proceeding with the sale of the attached goods, the 1st and 2nd respondents were in contempt of the Tribunal’s orders and I find them so and cite them for contempt accordingly. Therefore, the final orders of this court on the applicant’s/claimant’s application dated 23/11/2022 are as follows: -I.That I cite Barbara Wambui Koinange; and Harison Kihara t/a Hariki for willful disobedience of the Orders of the Business Rent Tribunal issued on 2nd September 2022 and varied on 6th September 2022.II.That Barbara Wambui Koinange; and Harison Kihara t/a Hariki Auctioneers; condemned to purge the contempt by paying the Claimant the sum of Kesh 462,530.00 in lieu of the sold goods.III.That that each of the persons named in one above is fined Kshs.100,000.00 each in default each to serve 6 months imprisonment in jail.IV.The fines in number 2 above to be paid within 30 days from the date of the making of this order.V.In default of number 3 above each of the persons named in number 1 above to be arrested immediately and then committed to jail to serve the 6 months’ jail ordered.VI.Each party will bear its own costs.