Kenya Law Weekly Issue 015/24-25

Held:

1. The petition was sufficiently pleaded and raised clear complaints regarding the alleged violations of the petitioners' constitutional rights. It met the threshold for filing a constitutional petition.
2. The petitioners' rights to health and non-discrimination under articles 27, 43, and 51 of the Constitution were not violated. The respondents demonstrated that the petitioners had been receiving regular medical treatment both at the prison's Comprehensive Care Clinic (CCC) and Kenyatta National Hospital (KNH), including over 100 documented visits. The petitioners failed to prove that they were denied treatment or that their health had deteriorated due to the actions of the prison authorities.
3. The existing laws and policies, including the Prisons Act, the Persons Deprived of Liberty Act, and internal prison healthcare procedures, were adequate to address the health needs of prisoners, including those living with HIV. The court dismissed the petitioners' call for new policies, noting that the current legal framework already provided sufficient protections.
4. The petitioners had not sufficiently proven that they were entitled to the reliefs sought, including declarations of rights violations and orders for the development of new healthcare policies. The petitioners abused the court process by filing a similar claim before the HIV and AIDS Tribunal, which had already been dismissed.

Petition dismissed. No order of costs were issued.

Relevant Provisions of the Law

Civil Procedure (Amendment No. 2) Rules, 2012 (Laws of England)

Rule 81. Enforcement of judgment, order or undertaking to do or abstain from doing an act

81.4 (1) If a person—

1. required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or
2. disobeys a judgment or order not to do an act, then, subject to the Debtors Acts 1869(5) and 1878(6) and to the provisions of these Rules, the judgment or order may be enforced by an order for committal.

(2) If the time fixed by the judgment or order for doing an act has been varied by a subsequent order or agreement of the parties under rule 2.11, then references in paragraph (1)(a) to the time fixed are references to the time fixed by that subsequent order or agreement.

(3) If the person referred to in paragraph (1) is a company or other corporation, the committal order may be made against any director or other officer of that company or corporation.

(4) So far as applicable, and with the necessary modifications, this Section applies to undertakings given by a party as it applies to judgments or orders.

(Rules 81.17(3) and (4) make provision for cases in which both this Section and Section 6 (Committal for making a false statement of truth or disclosure statement) may be relevant.)

(5) If a judgment or order requires a person to deliver goods or pay their value—

1. the judgment or order may not be enforced by a committal order under paragraph (1);
2. the person entitled to enforce the judgment or order may apply to the court for an order requiring that the goods be delivered within a specified time; and
3. where the court grants such an order, that order may be enforced under paragraph (1).

Requirement for service of a copy of the judgment or order and time for service

81.5 (1) Unless the court dispenses with service under rule 81.8, a judgment or order may not be enforced under rule 81.4 unless a copy of it has been served on the person required to do or not do the act in question, and in the case of a judgment or order requiring a person to do an act–

1. the copy has been served before the end of the time fixed for doing the act, together with a copy of any order fixing that time;
2. where the time for doing the act has been varied by a subsequent order or agreement under rule 2.11, a copy of that subsequent order or agreement has also been served; and
3. where the judgment or order was made under rule 81.4(5), or was made pursuant to an earlier judgment or order requiring the act to be done, a copy of the earlier judgment or order has also been served.

(2) Where the person referred to in paragraph (1) is a company or other corporation, a copy of the judgment or order must also be served on the respondent before the end of the time fixed for doing the act.

(3) Copies of the judgment or order and any orders or agreements fixing or varying the time for doing an act must be served in accordance with rule 81.6 or 81.7, or in accordance with an order for alternative service made under rule 81.8(2)(b).

Method of service – copies of judgments or orders

81.6 Subject to rules 81.7 and 81.8, copies of judgments or orders and any orders or agreements fixing or varying the time for doing an act must be served personally.

Dispensation with personal service

81.8 (1) In the case of a judgment or order requiring a person not to do an act, the court may dispense with service of a copy of the judgment or order in accordance with rules 81.5 to 81.7 if it is satisfied that the person has had notice of it—

1. by being present when the judgment or order was given or made; or
2. by being notified of its terms by telephone, email or otherwise.

(2) In the case of any judgment or order the court may—

1. dispense with service under rules 81.5 to 81.7 if the court thinks it just to do so; or
2. make an order in respect of service by an alternative method or at an alternative place.

Requirement for a penal notice on judgments and orders

81.9 (1) Subject to paragraph (2), a judgment or order to do or not do an act may not be enforced under rule 81.4 unless there is prominently displayed, on the front of the copy of the judgment or order served in accordance with this Section, a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.

(2) An undertaking to do or not do an act which is contained in a judgment or order may be enforced under rule 81.4 notwithstanding that the judgment or order does not contain the warning described in paragraph (1).

How to make the committal application

81.10 (1) A committal application is made by an application notice under Part 23 in the proceedings in which the judgment or order was made or the undertaking was given.

(2) Where the committal application is made against a person who is not an existing party to the proceedings, it is made against that person by an application notice under Part 23.

(3) The application notice must—

1. 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
2. be supported by one or more affidavits containing all the evidence relied upon.

(4) Subject to paragraph (5), the application notice and the evidence in support must be served personally on the respondent.

(5) The court may—

1. dispense with service under paragraph (4) if it considers it just to do so; or
2. make an order in respect of service by an alternative method or at an alternative place.

Held:

1. Section 5 of the Judicature Act remained the statutory basis upon which proceedings for contempt were taken. Section 5 provided that the law to be applied as that applied in England and that a committal order could only be appealed against as if it was a criminal conviction.
2. The Kenya Contempt of Court Act (annulled) was short-lived because it was declared unconstitutional in November 2018 in Kenya Human Rights Commission versus Attorney General & Another (2018) eKLR. Apparently, it had been passed without public participation and was also held to be an affront to the independence of the judiciary. Since the law that purported to repeal the was voided, the result was that Kenya reverted to section 5 of the Judicature Act on matters contempt. The net effect of annulling the Contempt of Court Act was that it was if the never existed. It was void ab initio and no action taken upon it, including the purported repealing of the Judicature Act could be said to be valid.
3. Section 5 of the Judicature Act had nothing much in it in terms of substance and procedure other than the obligation placed upon courts to ascertain, at any given time, the law applicable in England for punishment and, certainly, the procedure for committal for contempt.
4. The Contempt of Court Act 1981 of England and Order 52 of the Supreme Court Rules (Supreme Court of England) would apply to contempt of court proceedings in Kenya but they did so only on the authority of the Judicature Act. 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); those rules were 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 Supreme Court of Judicature shouldn’t be confused with the Supreme Court of the United Kingdom which was established only on October 1, 2009 to assume the judicial functions of the House of Lords.
5. The procedure for contempt of court proceedings under Order 52 of the Rules of the Supreme Court Judicature was as follows:
1. an application to the High Court of England for committal for contempt of court would not be granted unless leave to make such an application had been granted.
2. b. An application for leave must be made ex parte to a judge in chambers and be supported by a statement setting out the particulars of the applicant as well as those of the person sought to be committed and the grounds on which his committal was sought, and by an affidavit verifying the facts relied on.
3. The applicant must give notice of the application for leave not later than the preceding day to the Crown Office.
4. Where an application for leave was refused by a judge in chambers the applicant may apply afresh to a divisional court for leave within 8 days after the refusal by the Judge.
5. When leave had been granted, the substantive application by a motion would be made to a divisional court.
6. The motion must be entered within 14 days after the granting of leave; if not, leave shall lapse.
7. The motion together with the statement and affidavit must be served personally on the person sought to be committed, unless the court thought otherwise.
6. On October 1, 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. That particular part provided different procedures for different form of violations. For instance: Rules 81.4-committal for breach of a judgment, order or undertaking to do or abstain from doing an act; Rule 81.11- Committal for interference with the due administration of justice (applicable only in criminal proceedings); Rule 81.16 – Committal for contempt in the face of the court; and, Rule 81.17 - Committal for making false statement of truth or disclosure statement.
7. Rule 81.4 (breach of judgment, order or undertaking) was the relevant rule in the instant application. The application must be made in the proceedings in which the judgment or order was made or the undertaking given. As far as its form was concerned, the court said the application notice must set out fully the grounds on which the committal application was made and must identify separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon. Further the application notice and the affidavit or affidavits must be served personally on the respondent unless the court dispensed with service if it considered it just to do so, or the court authorized an alternative method or place of service.
8. The Civil Procedure (Amendment No. 2) Rules, 2012 had since been replaced by the Civil Procedure (Amendment No. 3) Rules, 2020 which, among other amendments, had amended Part 81 of the Civil Procedure Rules. Thus Kenya need not keep its ears to the ground on the trends of the law of contempt as applied and practised in English courts. Instead, Kenya had sufficient legislation of its own on the subject and the only missing link were the rules of procedure.
9. Until such a time that Kenya had its own locally made rules on procedure and prosecution of applications for contempt of court, Kenya still had to rely on the latest rules applicable in England, with such modifications as were necessary and, at any rate, to the extent that they were applicable to Kenyan circumstances.
10. Section 5 of the Judicature Act remained the legitimate basis upon which courts embraced not only the substantive law applicable in England in contempt of court applications but also the procedures that would be adopted in such applications.
11. The requirements to serve the order or judgment personally and the need for indorsement of a penal notice on the order or judgment were not new, among other requirements in a contempt of court application. As a general rule, no order of court requiring a person to do or abstain from doing any act may be enforced unless a copy of the order had been served personally on the person required to do or abstain from doing the act in question. Personal service was an elementary but mandatory procedural rule which in contempt proceedings had prescribed as “personal service”.
12. Order 52 of the Rules of Supreme Court of England applied until 2012. On October 1, 2012, the Civil Procedure (Amendment No. 2) Rules, 2012 (England) (the Rules) came into force and Part 81 thereof effectively replaced Order 52 of the Rules of the Supreme Court in its entirety. Part 81 had subsequently also been amended by Civil Procedure (Amendment No. 3) Rules, 2020. The decision in Republic v County Council of Nakuru Ex-Parte Edward Alera t/a Genesis Reliable Equipment & 2 Others (Judicial Review 74 of 2010; [2011] KEHC 1516 (KLR) was made before those changes and, therefore, it was of little help to the respondent. Since Part 81 of the Rules replaced Order 52, both part 81 and order 52 could not be said to apply at the same time.
13. In the latest rules, it was not in every application that leave would be required in order for an applicant to file an application for contempt. According to Rule 81.3 (5) of the Rules, it was only in select cases that one had to seek leave. This rule provided that permission to make a contempt application was required where the application was made in relation to interference with the due administration of justice, except in relation to existing High Court or county court proceedings; an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement. The applicant’s application did not fall into any of the category of cases. It was not necessary for the applicant to seek leave before filing the instant application.
14. According to Rule 81.4 (2) (c) and 81.5 (1) of the Rules, personal service was mandatory unless the court dispensed with the need for service if circumstances stipulated in section obtain. The decree and the penal notice stamped with the stamps of the Ministry for Devolution and ASALS State Department for Devolution and the Attorney General showing that the documents were received in the respective offices on March 19, 2021. The respondent did not swear any affidavit denying having received any of these documents and, in the absence of any evidence to the contrary, the court was entitled to take the applicant at his word and proceed on the assumption that what he had stated was true.
15. The application was served on May 23, 2022. Apart from service of the application, there were also affidavits of service sworn by a court process server, showing that the hearing notices in respect of the contempt application were served on the respondents. The order for mandamus was not only brought to the attention of the respondent but he was also aware of the instant application.
16. Sections 43 and 45 of the Interpretation and General Provisions Act implied that the officers should be identified by their offices. Section 43 was on powers and duties of the holder of an office. It stated that where a written law conferred a power or imposed a duty on the holder of an office as such, then, unless a contrary intention appeared, the power may be exercised and the duty shall be performed by the person for the time being holding that office.
17. It was the holder of the office, at any particular time, that counted such that if in an application such as the instant one, the holder was to be identified by his own personal name it would be impossible to arrest or punish him or subject him to any other process necessary in contempt of court proceedings if at the time such process was taken a different officer was in occupation of that office. The officer who may have been named in the application by his personal identification but who had, for one reason or another, left that office may not be in a position to purge his contempt for the simple reason that he was no longer disposed to discharge the duties and functions of that office.
18. Section 45 of the Interpretation and General Provisions Act made that point clear. It stated that a reference to a person holding an office shall include a reference to any person for the time being lawfully discharging the functions of that office.
19. So, it was the person lawfully discharging the functions of an office at the time material to the application that mattered. It was futile to name any particular individual by his name in contempt of court proceedings. To accept the respondent’s argument would mean that as long as the application for contempt was pending for determination a fresh application with all the attendant procedures had to be taken every time there was a change in the office of the accounting officer. That would be an absurdity.
20. Section 63 of the Civil Procedure Act did not applly to the instant proceedings. Section 21 (4) of the Government Proceedings Act was not subject to the provision of the law. Even then, section 63 of the Civil Procedure Act was not the law upon which the applicant’s application turned and therefore the fact that it did not apply was of no consequence in determination of the applicant’s application.

Application allowed, applicant awarded costs.