1.The application before this Court is dated 19th May, 2023 brought pursuant to Section 5(1) of the Judicature Act wherein the Applicants seek orders that Hon. Nixon Korir, the 1st Respondent herein, be cited for contempt of court and committed to civil jail for a period of six months or as the court deems fit for disobedience of orders issued by this Honourable Court on 20th May, 2011 and for costs of this Application.
2.The Application is premised on grounds on its face and supported by an Affidavit of the Applicant sworn on the even date.
3.In a nutshell, the Applicants averred that on 23rd October,1995 they obtained Orders of Certiorari and prohibition against the Commissioner of Lands, Town Clerk and Municipal council of Nakuru together with interest in Nakuru High Court Misc. Civil Application No.102 of 1995.
4.That the costs were subsequently assessed and a certificate of costs dated 14th February,2005 for a sum of Ksh. 486,515/= issued.
5.It was their case that the Respondents did not comply with the orders issued which prompted them to institute the current judicial review proceedings and that as at 18th May, 2010 when the judicial review leave application was being filed, the above mentioned sum had attracted interest totalling to Kshs. 1,307,460/=.
6.It was their deposition that upon the judicial review proceedings being fully conducted, this Honourable Court issued an order dated 20th May,2010 wherein an order of mandamus was issued compelling the permanent secretary ministry of lands and settlement to pay them costs awarded in Nakuru High Court Misc. Civil Application No. 102 of 1995 assessed at Ksh. 486,515/= together with interest now standing at Ksh. 1,307,760/=.
7.They averred that despite this Honourable court issuing the order, the 1st respondent herein is still in contempt.
8.They stated that the interest accrued from 3rd August,1995 till date now stands at Ksh. 1,731,182.14/= and the total sum the 1st Respondent now owes them is Ksh. 2,217,697.14/=
9.That the 1st respondent has been served with the order and is aware of the existence of the order and its flagrant disobedience of the same offends the court integrity.
10.They further stated that the 1st respondent has been served with several notices to comply with the orders of this Honourable Court but he has adamantly ignored the notices and/or neglected to comply.
11.The Application is unopposed and the same was canvassed though written submissions.
12.Only the Applicants’ submissions are on record
13.The Applicants submitted that the Respondents are in flagrant disobedience of the court orders directing them to pay the decretal sum, costs and interest of the suit to them. The Applicants thus prayed that this Honourable court holds them in contempt of the said orders.
14.In support of their submissions, the Applicants referred this court to the following cases:i.Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government vs Miguna Miguna & 4 others  eKLRii.Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & another  eKLRiii.Mutitika vs Baharini Farm Limited  KLR 229 cited in the case of Sheila Cassatt Issenberg & another vs Antony Machatha Kinyanjui  eKLRiv.Re: Vinay Chandra Mishra [(1995) 2 SCC584]
15.On the issue of costs, the Applicants made reference to Judicial Hints on Civil Procedure,2nd Edition (Nairobi) Law Africa 2011 at page 101 where Justice Kuloba authoritatively stated inter alia that;
16.In light of the above, the Applicants prayed to be awarded costs.
Analysis & Determination
17.The only issue for determination is whether the 1st respondent should be cited for contempt of court.
18.Black’s Law Dictionary 9th Edition, defines contempt as:
19.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 vs Baharini Farm Limited  KLR 227, that:
20.Contempt is the wilful disobedience of judgment, decree order or direction of a court. Everyone, without exception, has a duty to obey court orders, unless they are set aside or varied. The court in Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government vs Miguna Miguna & 4 others (supra) stated as follows: -
21.Similarly, in Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & another  (supra) the court underscored the importance of obeying court order when it stated: -
22.Contempt of court is a very serious indictment and attracts severe consequences, because it tends to interfere with the administration of justice. In the case of Kalyaneshwari vs Union of India & others (No 260 of 2004, Swatanker Kumar J, of the Supreme Court of India stated: -
23.The application before court seeks to have the 1st respondent cited for contempt of this court’s order issued on 6th May, 2011 and to be committed to civil jail for a period of six months.
24.In that order, the court ordered as follows: -
25.It is clear therefore that the order was specifically directed at the 1st respondent herein. 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. Knowledge is a question of fact. There must be a proof therefore that the 1st Respondent knew what the order specifically required him to do but he wilfully and deliberately disobeyed it.
26.The Applicant deponed at paragraph 10 of their affidavit that the said order was served upon the 1st respondent.
27.I have looked at the Affidavit of Service filed in court on 7th June 2011. The process server deponed that he duly served the order of the court on the respondent, through the head of the Legal Unit one Mr. J.M. Kimemia. The order was duly stamped as received.
28.The court record also shows that on various occasions, the Respondent has been summoned to appear in court to show cause why it has not complied with the orders of the court. The Attorney General has appeared in the matter on several occasions so it has to be presumed that they are fully aware of the matter at hand.
29.The Supreme Court of India in Mahinderjit Singh Bitta vs Union of India & Others 1 A NO. 10 of 2010 (13th October, 2011):
30.In Katsuri Limited vs Kapurchand Depor Shah  eKLR, citing Kristen Carla Burchell vs Barry Grant Burchell (Eastern Cape Division Case No 364 of 2005), it was stated that;
31.The Cromwell J, writing for the Supreme of Canada in Carey vs Laiken, 2015 SCC 17 (16th April 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus:
32.To me the Applicants herein have therefore sufficiently demonstrated that the 1st Respondent, despite the change in its description has been fully aware of the orders of the court and has wilfully and deliberately disobeyed them, for several years now.
33.The Indian Supreme Court again stated in Re: Vinay Chandra Mishra (Supra), that:
34.In light of the foregoing, I am satisfied that the applicants have proved their case to the required standard. Consequently, the application dated 19th May, 2023 is allowed.
35.I therefore direct that a notice shall issue to the respondent to appear in court, on a date that I shall give shortly, to show cause why he should not be punished for contempt of court.