Analysis and Determination
6.I have considered the pleadings filed herein and the parties’ respective submissions. The main issue for determination is whether the Applicant has made out a case for the granting of orders for contempt of court.
7.It was not disputed that this Court (differently constituted) rendered a judgment on 4th April 2022 in which it directed the Respondents to supply the Applicant with the 17 documents listed at paragraph 13 of the Petition dated 16th August 2021. It was also not disputed that the Respondents supplied the Applicant with the said document except documents listed as No. 6, 7, 12 and 13 of the said list. The documents that were not supplied were receipts from a bank agent (Metamaywa –Keroka), M-Pesa transaction paybill phone of the school (School Lipa Karo na M-Pesa statements for 2015), board minutes advertising the post of a bursar in 2015 and board minutes approving the Applicant’s employment.
8.Black’s Law Dictionary 9th Edition defines contempt of court as follows:-
10.In Republic v Kajiado County & 2 Others ex parte Kilimanjaro Safari Club Limited  eKLR Nyamweya J (as she then was) discussed the applicability of Section 5 of the Judicature Act and held that: –
11.The purpose of contempt of court proceedings is to uphold the dignity of the court and to ensure strict adherence to court orders/decrees in the furtherance of the rule of law. The Supreme Court of India aptly stated this in Re: Vinay Chandra Mishra [(1995) 2 SCC584], thus: -
12.The power of the courts to punish contempt of court is discretionary but must be exercised sparingly and carefully upon consideration of all relevant facts of the case. In Carey v Laiken, 2015 SCC 17 (16th April 2015) the Supreme Court of Canada outlined the three elements to be considered in determining whether or not a party is guilty of contempt of court as follows: -
13.In the present case, the Applicant contended that the Respondents were aware of the court order in question which Order was clear and unambiguous but wilfully and blatantly ignored to comply with the said order.
14.I have perused the Judgment of 4th April 2022 and I note that the court directed the Respondents to supply the Applicant with the documents listed under paragraph 13 of the Petition. The Respondents have, in their respective Replying affidavits conceded that they were aware of the said order and the documents that they were required to supply to the Applicant. I therefore find that the first two elements of contempt have been established.
15.Regarding the third element of wilful failure to comply with the said orders, I have considered the Respondent’s Replying affidavits and submissions. The 3rd Respondent stated that items No. 6 and 7 were generalized and were not clear while item No. 7 was not in his custody because the end user was Kenya Commercial Bank. He added that the said bank had already provided statements that were issued to the Applicant. Regarding items 12 and 13, the 3rd Respondent explained that the same were not available because the Board was not fully constituted at the time the school advertised and offered the Applicant employment as a school bursar on a temporary basis. It was the 3rd Respondent’s case that the Applicant could not demand to be supplied with a copy of an acceptance letter which she did not have and which was not written for reasons that were made known to her.
16.On her part, the Applicant averred that the 3rd Respondent informed her that some of the documents she had asked for were still in the possession of the auditors.
17.I have considered the parties’ rival arguments and the fact that the Respondents had supplied the Applicant with all the documents that she had requested for except 4 whose non-availability they explained in their respective replying affidavits. I find that Applicant has not demonstrated that there was bad faith, on the part of the Respondents, in failing to avail the said documents. I find the Respondents’ explanation over their inability to supply the said documents reasonable and persuasive.
18.I am guided by the decision by Mativo J. (as he then was) in Samuel M. N. Mweru & Others v National Land Commission & 2 others  eKLR where he explained the element of bad faith in considering the third ingredient in contempt and held thus: -
19.I have also considered the rights of an accused person as provided for under Article 50 (2) of the Constitution which stipulates as follows: -(2)Every accused person has the right to a fair trial, which includes the right—(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
20.The Respondents argued that some of the documents that the Appellant requested form did not form part of the documentary evidence that the Prosecution will be relying on during the trial. My finding is that in line with the provisions of Article 50 (2) of the Constitution, the prosecution is only under an obligation to supply an accused person with the evidence that it will rely on during the trial and not documents that may not be in their custody as was stated in this case. I find that the Applicant’s insistence on being supplied with documents that may not be in the Respondents’ possession could be a gimmick aimed at stalling the progress of the criminal trial before the Chief Magistrate’s Court. My finding is bolstered by the fact that the Applicant declined to receive all the other documents that had been availed to her, which is a clear demonstration that she is not keen on proceeding with the criminal trial.
21.I find that the Respondents provided a reasonable explanation for their inability to supply the Applicant with the four documents that are the subject of these contempt proceedings. I also find that even though some of the ingredients of contempt were proved, there was no evidence of bad faith on the part of the Respondents.
22.In sum, I find that this Application lacks merit and I therefore dismiss it. The Applicant is directed to collect all the other documents that the Prosecution intends to rely on at the trial.