Analsysis and determination
10.I have considered the parties’ submissions I respect of the positions they have adopted on the applicant’s motion.
10.One of the important features of contempt of court proceedings is that in order to convict for contempt of court it must be demonstrated to the satisfaction of court that the alleged contemnors were served with the order which they are accused to be in contempt of. In the instant application, an affidavit of service sworn on 9 February 2021 by one Mathew Mwanzia Paul, a court process server, states that on the material date, he received copies of a letter dated 3 February 2021 together with the court order dated 10 June 2019 issued in this cause and a decree dated 17 October 2013 issued in Milimani CMCC No. 6311 of 2008 from the firm of Mugo Githinji & Co. Advocates who instructed him to serve them upon the respondents.
11.Mwanzia has stated that he served the respondents in the following manner:
12.What has been stamped as having been received, is the letter dated 3 February 2021. Neither the order of mandamus nor the copy of the decree bear any stamp showing that they were received by any of the respondents. There is, therefore, reasonable doubt that the respondents were served with the pertinent order of mandamus.
13.I note that neither the two respondents has sworn an affidavit denying that he was served with the order. However, in contempt proceedings, it is incumbent upon the applicant to prove that the alleged contemnor or contemnors were effectively served. Once there is sufficient proof of service, the burden shifts to the contemnors to prove that they were not served as alleged.
14.But even if it was to be assumed that the order was served, it was not endorsed with a penal notice warning the contemnorsthat disobedience of the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets. An order without this endorsement is lacking in its material respects and cannot enforced in contempt of court proceedings.
15.On these two grounds, the applicant’s application is bound to fail.
16.The law on this subject of contempt has been discussed by this Honourable Court and the Court of Appeal in several decisions. One of the decisions in which I considered this issue was Judicial Review Application No. 67 of 2019 Vincent Malika Alushula versus Joseph Wairagu Irungu, Principal Secretary Ministry of Water and Sanitation & Attorney General.
17.Section 5 of the Judicature Act, cap. 8 remains the statutory basis upon which proceedings for contempt are taken. I note that the applicant has correctly invoked this particular provision in his application. But this provision of the law says nothing more than remind the courts that the law to be applied is that applied in England and that a committal order can only be appealed against as if it was a criminal conviction. It reads as follows:Contempt of court(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 such power shall extend to upholding the authority and dignity of subordinate courts.(2)An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.
18.In Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others  eKLR the Court of Appeal reiterated that the only statutory basis for contempt of court as far as the Court of Appeal and the High Court are concerned is this provision of the law. It was optimistic, however, that the Kenya Contempt of Court Bill, 2013 which was then pending for tabling before parliament would be passed into law that would finally extricate us from the English law and practice in contempt of court applications. The Bill was indeed debated and as a result the Contempt of Court Act No. 46 of 2016 was enacted. This piece of legislation was, however, short-lived because it was declared unconstitutional in November 2018 in Kenya Human Rights Commission v Attorney General & Another  Eklr. Apparently, it had been passed without public participation and was also held to be an affront to the independence of the judiciary. The result was that we reverted to Section 5 of the Judicature Act on matters contempt.
19.But as has been noted, a critical look of the provision of the law shows that there is nothing much in it in terms of substance and procedure other than the obligation placed upon these courts to ascertain, at any given time, the law applicable in England for punishment and, certainly, the procedure for committal for contempt. In discussing this point the Court of Appeal noted that it is up to the Court of Appeal (and I add, the High Court too) to ascertain the applicable law of contempt in the High Court of Justice in England, at the time an application (for contempt) is brought. To this end the court adopted the words of H.G. Platt, J. and D.C Porter, Ag. J. (as they then were) In the matter of an application by Gurbaresh Singh & Sons Ltd, Miscellaneous Civil Case No. 50 of 1983 where they noted as follows:
29.The court further interrogated what the “High Court of Justice of England” entails and noted that according to the court system in England, it is that level of the court that comprises three divisions; the Queen’s Bench, the Chancery and the Family Divisions. The court’s jurisdiction to punish for contempt of court is drawn from both the statute, which is the Contempt of Court Act, 1981 and the common law.
21.However, the procedure for contempt of court proceedings, including commencement, prosecution and punishment for contempt of court was, until 2012, encapsulated in Order 52 Rules 1 to 4 of the Rules of the Supreme Court (RSC); these Rules are made under the Supreme Court of Judicature Act, 1873, otherwise known as the Judicature Act, 1873. The Judicature Act, 1873 abolished a cluster of courts in England and Wales dating back to medieval periods, some with overlapping judicial powers, and in their place established the Court of Appeal, the High Court and the Crown Court all together to be known as the Supreme Court of Judicature. The court reminded us that the Supreme Court of Judicature shouldn’t be confused with the Supreme Court of the United Kingdom which was established only on 1st October, 2009 to assume the judicial functions of the House of Lords.
22.It then summarised the procedure for contempt of court proceedings under Order 52 of the Rules of the Supreme Court Judicature as follows:
23.On 1 October 2012, the Civil Procedure (Amendment No. 2) Rules, 2012 came into force and Part 81 thereof effectively replaced Order 52 of the Rules of the Supreme Court in its entirety. This particular part provides different procedures for different form of violations. For instance:
24.In a more recent decision in Woburn Estate Limited v Margaret Bashforth  eKLR, the same Court of Appeal suggested that courts in Kenya do not always have to keep tabs on the applicable law in England in order to punish for contempt. While discussing its decision in Christine Wangari Gachege versus Elizabeth Wanjiru Evans & 11 Others (supra), the Court stated as follows:
25.The High Court (Organization and Administration) Act which was passed in 2015 now expressly donates to the High Court the power to punish for the disobedience of its orders. It provides-“36. (1) A person who –a.assaults, threatens, intimidates or willfully insults a judge, judicial officer or a witness, involved in a case during a sitting or attendance in a court, or while the judge, judicial officer or witness is travelling to and from a court;b.willfully and without lawful excuse disobeys an order or directions of the court in the course of the hearing of a proceeding;c.within the premises in which any judicial proceeding is being heard or taken, or within the precincts of the same, shows disrespect, in speech or manner, to or with reference to such proceeding, or any person before whom such proceeding is being heard or taken;d.having been called upon to give evidence in a judicial proceeding, fails to attend, or having attended refuses to be sworn or to make an affirmation, or having been sworn or affirmed, refuses without lawful excuse to answer a question or to produce a document, or remains in the room in which such proceeding is being heard or taken after the witnesses have been ordered to leave such room;e.causes an obstruction or disturbance in the course of a judicial proceeding;f.while a judicial proceeding is pending, makes use of any speech or writing misrepresenting such proceeding or capable of prejudicing any person in favour of or against any parties to such proceeding, or calculated to lower the authority taken;g.publishes a report of the evidence taken in any judicial proceeding that has been directed to be held in private;h.attempts wrongfully to interfere with or influence a witness in a judicial proceeding, either before or after he or she has given evidence in connection with such evidence;i.dismisses a servant because he or she has given evidence on behalf of a party to a judicial proceeding; orj.commits any other act of intentional disrespect to any judicial proceedings, or to any person before whom such proceeding is heard or taken, commits an offence.(2)…….(3)A person who commits an offence under subsection (1) shall, on conviction be liable to imprisonment for a term not exceeding five days, or to a fine not exceeding one hundred thousand shillings, or to both.(4)In exercise of its powers under this section, the Court shall observe the principles of fair administration of justice set out in Article 47 of the Constitution.” (our emphasis)
26.Section 39 (2) (g) enjoins the Chief Justice to make Rules to provide for, among other things, the procedure relating to contempt of court. Purely as a matter of interest and comparison, section 35 of the Court of Appeal (Organization and Administration) Act, 2015, headed “Contempt of Court” stipulates that; -“35. (1) Subject to the provisions of any other law, the Court shall have power to punish for contempt.(2)A person who, in the face of the Court –(a)assaults, threatens, intimidates, or insults a judge of the Court, the Registrar of the Court, a Deputy Registrar or officer of the Court, or a witness, during a sitting or attendance in Court, or in going to or returning from the Court;(b)interrupts or obstructs the proceedings of the Court; or(c)without lawful excuse disobeys an order or direction of the Court in the course of the hearing of a proceeding, commits an offence.(3)In the case of civil proceedings, the willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court constitutes contempt of court.(4)In the case of criminal proceedings, the publication, whether by words, spoken or written, by signs, visible representation, or otherwise, of any matters or the doing of any other act which –(a)scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court;(b)prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or(c)interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice, constitutes contempt of court.(5)A police officer, with or without the assistance of any other person, may, by order of a judge of the Court, take into custody and detain a person who commits an offence under subsection (2) until the rising of the Court.(6)The Court may sentence a person who commits an offence under subsection (1) to imprisonment for a period not exceeding six months, or a fine not exceeding five hundred thousand shillings, or both.(7)A person may appeal against an order of the Court made by way of punishment for contempt of court as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the Court.” (our emphasis)
27.We have gone to this great length to demonstrate how, before the passage of these legislations the powers of the High Court and this Court to punish for contempt of court were dynamic and kept shifting depending on the prevailing laws in England. Today each level of court has been expressly clothed with jurisdiction to punish for contempt of court. The only missing link is the absence of the rules to be followed in commencing and prosecuting contempt of court applications. In order to completely emancipate ourselves from English law on contempt of court, the Chief Justice, as required under the aforesaid legislations ought to make rules for commencing and prosecuting applications for contempt of court.”
28.Thus, we need not keep our ears to the ground on the trends of the law of contempt as applied and practised in English courts. Instead, we have sufficient legislation of our own on this subject and the only missing link are the rules of procedure.
29.My humble view is that until such a time that we have our own locally made rules on procedure and prosecution of applications for contempt of court, we still have to rely on the latest rules applicable in England, of course with such modifications as are necessary and, at any rate, to the extent that they are applicable to our circumstances. It is worth bearing in mind that despite the introduction of various statutory provisions upon which contempt of court proceedings may be founded, Section 5 of the Judicature Act has neither been amended nor repealed. Section 38 of the Contempt of Court Act attempted to repeal it but, as earlier noted, that Act was declared unconstitutional and therefore section 5 of the Judicature Act remains intact; with its existence, this provision of the law remains a legitimate basis upon which courts embrace not only the substantive law applicable in England in contempt of court applications but also the procedures that would be adopted in such applications. This is so particularly in circumstances where our local legislation may be found to be lacking in some respect in which event there would be nothing wrong in resorting to the law and practice in the High Court of Justice in England.
30.On the particular question of enforcement of judgments and orders, besides Rule 81. 4 of the Civil Procedure (Amendment No. 2) Rules, 2012 which the Court of Appeal made reference to in Christine Wangari Gachege versus Elizabeth Wanjiru Evans & 11 Others (supra), other Rules (in the same Procedure Rules) which I find relevant where judgments or orders have been violated are Rules 8.5, 8.6, 8.8, 8.9 and 8.10. It is necessary that I reproduce this whole set of Rules verbatim for better understanding.Rule 81. states as follows:
31.Some of what one would regard as salient features of these Rules are, in a summary way, as follows:
1.Disobedience of a court order or judgment is a foundation for contempt of court proceedings against the contemnor.
2.Where the contemnor is a company or other corporation, the committal order may be made against any director or other officer of that company.
3.The judgment or order in question must be served on the person required to do or not to do the act in question unless the court expressly dispense with personal service.
4.Where the person required to do or not to do an act is a company or other corporation, a copy of the judgment or order must also be served on the alleged contemnor.
5.Judgments and orders must be served personally.
6.The court may, however, dispense with personal service if it is satisfied that the contemnor had notice of the judgment or order:a.By being present when the judgment or order was given or made; orb.By being notified of its terms by telephone, email or otherwise.
7.The court may also dispense with personal service if it thinks it is just to do so or may make an order in respect of service by an alternative method or an alternative place.
8.There shall be permanently displayed on the front copy of the judgment or order served a warning to the person required to do or not to do the act in question that disobedience to the order would be contempt of court punishable by imprisonment, a fine or sequestration of assets. Without this display the judgment or order may not be enforced unless it is an undertaking contained in a judgment or order.
9.The contempt of court application shall be made by an application notice in the same proceedings in which the judgment or order was made.
10.The application notice must set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and must also be supported by one or more affidavits containing all the evidence relied upon.
11.The application notice and the evidence in support must be served personally on the respondent although the court may dispense with service under paragraph (10) if it considers it just to do so; or may make an order in respect of service by an alternative method or at an alternative place.
32.Many of these requirements are nothing new; they are, by and large, a carryover of the Order 52 of the Rules of the Supreme Court and thus they have not only been existence prior to the commencement of the Civil Procedure (Amendment No. 2) Rules, 2012 but they have also been litigated upon from time to time. In the case of Nyamodi Ochieng Nyamogo & Another versus Kenya Posts & Telecommunications Corporation (1994) eKLR, for instance, the twin issues of the necessity for personal service of both the order and the application for contempt and the endorsement on the face of the order of what with what is popularly referred to as ‘the penal notice’ were discussed. As far as service is concerned the Court of Appeal noted as follows:
33.Service of the order alleged to have been violated in this case had been served on the alleged contemnors’ advocates; the court said of this service as follows:Keeping the importance of personal service of the order in mind we now take a look at the aforesaid two copies of the order both of which bear the stamp of Wetangula & Co Advocates, in acknowledgement of receipt of the said orders. Service on Wetangula & Co does not constitute personal service on any of the three officers. It is a personal service on each one of them that is required to be effected by law. Service of the two orders on Wetangula & Co, Advocates, on 25th October, 1993, and 1st November, 1993, therefore, is a wasted effort.”
34.The court described personal service as “an elementary but mandatory procedural rule which in contempt proceedings has (been) prescribed “personal service”.
35.And on the need for endorsement of the order with the requisite warning of penal consequences, the court stated as follows:
36.This Court in Court of Appeal Civil Appeal No 95/1988 Mwangi H C Wang’ondu v Nairobi City Commission (UR) confirmed the mandatory nature of the requirement of endorsement of notice of penal consequence on the order in the following words:
37.The court concluded its discussion on this point by stating as follows:
38.The applicant’s application must be considered from the foregoing perspective.
39.As far as service of the order is concerned, I am not satisfied that the respondents were personally served.
40.The second reason why I find the applicant’s application lacking is that there is no permanent display on the front copy of the order served a warning to the alleged contemnor that disobedience to the order would be contempt of court punishable by imprisonment, a fine or sequestration of assets.
41.For these reasons, I decline the applicant’s motion but I make no orders as to costs since the decree is yet to be fully settled. It is so ordered.