Martin Mutua & 6 others v St. Bakhita Schools Ltd & 3 others

BEING CHAIRPERSON, SECRETARY & TREASURER OF ST. BAKHITA SCHOOLS, PARENTS TEACHERS ASSOCIATION RULING 1. There are two (2) applications before the Court for determination, the one dated 15/11/2024 filed by St. Bakhita Schools Ltd, St. Bakhita Daycare & Kindergarten Ltd, St. Bakhita Junior Secondary School Ltd and St. Bakhita Holdings Ltd (hereafter the 1st, 2nd, 3rd & 4th Defendant/Defendants) and the other is dated 28/02/2024 filed by Martin Mutua, Daisy Gathoni, Nelson Muhia, Belinda Njeri, Mary Wanjiru, Judith Mulwa and Jairus Kutsuru (hereafter the Plaintiffs). 2. It is premised on Section 1A, 1B, 3A & 80 of the Civil Procedure Act (CPA) and Order 45 Rule 1 of the Civil Procedure Rules (CPR). The defendants seeks inter alia that: a. Spent. b. That the honorable Court be pleased to review the ruling dated 15/07/2024 orders issued on 26/07/2024 in the terms that -; “Order (d) directing that the Defendants fee structure for the period 2024-2025 prior to the impugned notice dated 28/03/2024 remain in place and in force pending the hearing and determination of the suit be reviewed and set aside. c. That each party bear its own costs of the application. 3. The motion is premised on grounds found at the supporting affidavit sworn by Felista Muthoki Mutinda dated 15/10/2024. The gist of her deposition is that this Court’s order (d) rendered on 15/07/2024 was pegged on the suit being heard and determined within a set period of time which has since lapsed whereas the order remains to be punitive and outside the scope of what the Plaintiffs sought. 4. The Applicant posited that should the motion not be allowed the Defendant Schools will not be able to sustain their operations in the upcoming academic year and thus will be constrained to take drastic measures to keep the schools as a going concern or close the schools altogether, adding that should the Court decline the order sought, and therefore it is in the interest of justice that the motion is allowed. 5. The Plaintiffs oppose the Defendants motion by way of a replying affidavit deposed by Daisy Gathoni Mbugua dated 13/03/2025. She begins by assailing the motion by stating that the orders as sought by the Defendants are not available to them by virtue of having filed an appeal against the orders of this Court issued on 15/07/2024 vide COACA No. E599 of 2024; the Memorandum of Appeal dated 9/08/2024. That the Defendants motion amount to an abuse of the Court process having opted to concurrently appeal and review this Court’s orders issued on 15/07/2024 in contravention of Section 80 of the CPA as read with Order 45 Rule (1)2 of the CPR. She states that in any event the Defendants motion does not meet the threshold to warrant the exercise of this Court’s discretion to review its orders issued on 15/07/2024. In summation, she deposes that review cannot be exercised on the ground that the decision was erroneous on its merits therefore the Defendants motion is vexatious and ought to be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10871/eng@2025-07-24 2

page 2 of 10

6. The Interested Parties on their part oppose the Defendants motion by way of a lengthy replying affidavit deposed by Charles Otiang’a Owiti advocate dated 04/04/2025. He confirms this Court having issued interlocutory injunctive orders on 15/07/2024 however asserts that the timeline within which to prosecute the suit as directed was not a hard deadline for the lifespan of the injunctive orders nor a condition upon which the injunction would lapse automatically. 7. He further states that the said orders were to last the lifetime of the suit and not merely 120 days within which the suit was to be expedited. He goes on to depose that the lapse of 120 days as justification to discharge the interlocutory injunction orders is misconceived, as the said directive was directory and not mandatory in nature, adding that the status quo of reasonable, pre-increment fees must be preserved until this Court can determine the legality of the fee hike after a full hearing. He states that the Defendants having opted to appeal this Court’s orders issued on 15/07/2024 the same materially contributed to the delay in hearing of the suit, to wit, the Defendants cannot now rely on the said delay they occasioned as a basis for review. 8. It is further urged that the defendants motion as presented does not meet the strict requirements of Order 45 Rule 1 of the CPR whereas their reliance on the grounds of any other sufficient reason due to the lapse of the 120 days to warrant review, cannot sustain. It is asserted that the Defendants having opted to pursue the appellate recourse, they cannot now simultaneously return to the trial court by way of review to achieve the same objective; and in conclusion, he states that notwithstanding the provisions of Order 40 Rule 6 of the CPR the same serve as a procedural tool to aid justice and is not a chain to constrain the Court from doing what is right therefore the Court ought to dismiss the Defendants motion. Plaintifis Motion dated 28/02/2025. 9. 10. On their part, the Plaintiff’s motion dated 28/02/2025 is brought pursuant to Section 63(e) of the CPA, Order 40 Rule 3 of the CPR and seeks inter alia: a. That the honorable Court do find and hold Ms. Felista Muthoki Mutinda, the director of the 1st, 2nd and 3rd Defendants in contempt of the orders issued by this honorable Court on 15/07/2024 directing that the fee structure for the period of 2024-2025 be maintained pending hearing and determination of the suit. b. That the said Ms. Felista Muthoki Mutinda, the Director of the 1st, 2nd and 3rd Defendants be committed to civil jail for a period the Court deems fit for willfully and deliberately disobeying the said Court orders by reviewing the school fees with effect from Term II of 2025. c. That the Defendants be fined or penalized in such manner as the honorable Court may deem fit for their contemptuous conduct. d. That this Honorable Court do issue any other orders necessary to uphold the dignity and authority of the Court. e. That the costs of the application be provided for. The motion is premised on grounds found in the supporting affidavit sworn by Daisy Gathoni Mbugua on even date. The gist of her deposition is that on 15/07/2024, this Court issued an order directing the Defendants to maintain the school fee structure for the period 2024-2025 pending the hearing and determination of the suit. The Defendants were present and also represented by counsel and thus aware of the existence of the order issued by this Court. She posits that despite the Court’s orders the 1st, 2nd & 3rd Defendant unlawfully issued notices dated 29/01/2025 effectively reviewing the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10871/eng@2025-07-24 3

page 3 of 10

school fees effective Term II of 2025 for the remainder of the year 2025, contrary to the directive of this Honorable Court. She goes on to state that despite demand to the Defendants to withdraw the notices in writing, they have failed to comply with the said demand. She concludes by stating that unless the order sought herein are granted the authority of this Court will be brought into disrepute and there will be risk of continued non-compliance with judicial order. 11. The Defendants oppose the Plaintiffs motion by way of a replying affidavit deposed by Felista Muthoki Mutinda dated 20/03/2025. She confirms issuance of this Court orders on 15/07/2024 however asserts that the said orders were conditional upon the suit being heard and concluded within 120 days which period lapsed on 12/11/2024. 12. The deponent further claim that the Defendants have violated this Court’s order is without basis whereas the fee adjustment does not breach this Court’s directive as it pertained only to future terms that was effective 1st of May 2025 and did not affect fees during the period covered. She states that the Defendants actions do not amount to contempt of Court as the orders ceased to have effect upon the lapse of the prescribed 120-day period. 13. The respect of the letter notice dated 29/01/2025 which was duly issued by the Defendants and served upon all parents explicitly clarified that the fees review applies only to parents who joined the school before 2025 and does not affect parents who joined in 2025. In summation she deposed that the Plaintiffs have failed to demonstrate any instance where the said fees review directly affected parents whose fees were frozen under the Court order. 14. Directions were taken on disposal of the both motions by way of written submissions. Only the Defendants complied. That said, this Court has duly considered the material canvassed in respect of the two (2) motions. ISSUES FOR DETERMINATION a. Whether this Court ought to review order (d) in respect of the ruling delivered on 15/07/2024? b. Whether the Court ought to find and hold Ms. Felista Muthoki Mutinda in contempt of the orders of this Court issued on 15/07/2024 concerning maintenance of the 1st, 2nd and 3rd Defendants fee structure for the period of 2024-2025 pending hearing and determination of the suit? c. Who ought to bear the costs of the respect motions? Whether this Court ought to review order (d) in respect of the ruling delivered on 15/07/2024? 15. The Defendants motion invokes among others Section 80 & 3A of the CPA, the latter which specifically reserves “the inherent power of the court “to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court”, to wit, this Court’s inherent powers was judiciously addressed by the Court of Appeal in Rose Njoki King’au & Another v Shaba Trustees Limited & Another [2018] eKLR and requires no restatement. The history leading hereto has been elaborately captured in the respective parties’ affidavit material, the Court does not purpose to restate the same. However, the key take-away from the said affidavits concerns whether this Court ought to review the order in question rendered in its ruling of 15/07/2024. 16. Before addressing the crux of the Defendants motion, the Court has been called upon to determine an issue in limine as can be garnered from the Plaintiffs and Interested Parties response. Jointly, the latter challenged the competency of the Defendants motion on grounds that the orders as sought are not available to the Defendants by virtue of having filed an appeal against the orders of this Court issued on 15/07/2024 vide COACA No. E599 of 2024. What I garner to be their contestation is the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10871/eng@2025-07-24 4

page 4 of 10

Defendants cannot concurrently pursue the option of review and an appeal of this Court’s order issued on 15/07/2024. No riposte was offered by the Defendants on the issue. 17. Here, Order 45 Rule 1 of the CPR provides that-; Any person who considers himself aggrieved— a. By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or b. by a decree or order from which no appeal is allowed by this Act, …………… may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. 18. At the heart of the Defendants, motion is the decision delivered by this Court of 15/07/2024 (Annexure FM3) and the resultant order extracted on 26/07/2024 (Annexure FM4). A perfunctory perusal of the record before this Court shows that upon delivery of the ruling on 15/07/2024, the Defendants on 19/07/2024 lodged a Notice of Appeal and later appear to have formerly filed an appeal before the Court of Appeal, vide COACA No. E599 of 2024 (Annexure DGM1). As is, it would seem that there is a live appeal before the Court of Appeal. Thereafter the Defendants subsequently lodged an application seeking to review the same decision that is the subject of an appeal before the Court of Appeal. Hence it is the Plaintiffs contestation that the Defendants cannot concomitantly pursue both avenues as against the decision of this Court. 19. While the review application as presented has yet to be determined, the immediate and succeeding action by the Defendants as against the decision of this Court rendered on 15/07/2024 was an appeal and later a motion for review. 20. In Prime Steel Mills Limited v Esquire Investment Limited & another [2024] KECA 308 (KLR), Gachoka JA, while addressing himself to an application wherein a party was seeking extension of time within which to lodge an appeal, observed that -; “ 8……………..That said, it is also not in dispute that a party cannot pursue an appeal and a review at the same time. In doing so, it might suffer the fate of the proverbial hyena, which on reaching a road junction and not sure which road that led to the place where the smell of meat was coming from, it decided to walk astride both roads. As it stretched the legs, it split into two and suffered a painful death. 9. In this application, the applicant filed a notice of appeal timeously but later opted to withdraw it. After lodging the application for review on 26th January, 2022, it now wants to abandon that route and challenge the judgment dated 17th January, 2022 on merits. Without saying much, this in my view, cannot be a good reason for me to extend time.” 21. Here, had the Defendants only lodged a Notice of Appeal, there would still be leeway for them to pursue the instant review application to its logical conclusion, as the latter document serves the purpose of an intention to lodge an appeal as against the decision of this Court. However, having proceeded to file a Memorandum of Appeal dated 9/08/2024 the same serves the purpose of actualization of the said intention, towards appealing the decision of this Court. 22. A cursory review of the Memorandum of Appeal (Annexure DGM1) shows that the Defendants are aggrieved by the totality of this Court’s ruling rendered on 15/07/2024 and seeks to have the same set aside in its totality. That review application before this Court seeks to review a facet of this Court’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10871/eng@2025-07-24 5

page 5 of 10

decision concerning sustained application of the Defendants fee structure for the period 2024-2025 pending the hearing and determination of this suit. The same issue has in part similarly been canvassed in the Memorandum of Appeal before the Court of Appeal. 23. To the foregoing end, by continuing to entertain the review motion as presented may in the end only serve to embarrass either Court and waste scarce judicial time. Thus, the Defendants cannot purport to concurrently or sequentially continue with the pursuit of both the review application and appeal. Consequently, the Plaintiffs objection towards this Court’s jurisdiction to entertain the instant motion is well taken. Accordingly the Defendants motion is struck out with costs. Whether the Court ought to find and hold Ms. Felista Muthoki Mutinda in contempt of the orders of this Court issued on 15/07/2024 concerning maintenance of the 1st, 2nd and 3rd Defendants fee structure for the period of 2024-2025 pending hearing and determination of the suit? 24. As concerns the question of contempt, the respective parties’ cases are quite resolute, of which I will address later in this ruling. However, as earlier noted alongside Order 40 Rule 3 of the CPR, the Plaintiffs have contemporaneously relied on Section 63(c) of the CPA in agitating their motion. The latter which provides that: ‘’In order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed— 25. 26. (a) …….. (b) …….. (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold; (d) ……. (e) ……. Arising from the declaration of unconstitutionality of the Contempt of Court Act, ordinarily applications for contempt are brought pursuant to Section 5 of the Judicature Act, which provides that; (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.” Black’s Law Dictionary (Ninth Edition), defines Contempt of Court as “conduct that defies the authority or dignity of a court.” The Court of Appeal in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others [2014] KECA 840 (KLR) held that in punishing contempt, the Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10871/eng@2025-07-24 6

page 6 of 10

exercises ordinary criminal jurisdiction. In Stewart Robertson v Her Majesty’s Advocate, 2007 HCAC 63 it was stated that: “ Contempt of Court is constituted by conduct that denotes willful defiance of or disrespect towards the Court or that willfully challenges or affronts the authority of the Court or the supremacy of the law, whether in civil or criminal proceedings.” 27. The Supreme Court of Kenya in Ahmad Abolfathi Mohammed Case explained the reason why Courts punish for contempt, is that contemnors demean the integrity and authority of Courts but also deride the rule of law, which must not be countenanced. The Court went on to explain the rationale for the high standard of proof of contempt as follows-; “ [28]….We are also conscious of the standard of proof in contempt matters. The standard of proof in cases of contempt of Court is well established. In the case of Mutitika v. Baharini Farm Limited [1985] KLR 229, 234 the Court of Appeal held that: “In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.” “[29] The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she willfully acted in a manner that flouted the Court Order. [30] The question that begs an answer, thus, is: did the applicant willfully disobey this Court’s Orders?” 28. The two related ingredients of willful disobedience and knowledge of the order are critical in a successful contempt proceeding. In the past, it was held by superior Courts that for an applicant to succeed in contempt proceedings, he must prove personal service of the subject order and the attendant penal notice upon the alleged contemnor. See the Court of Appeal decision in Nyamodi Ochieng Nyamogo & Another v Kenya Posts & Telecommunications Corporation [1994] KECA 114 (KLR). However, in recent years, superior Courts have stated that where the applicant is able to demonstrate awareness by such alleged contemnor of the subject orders and not necessarily personal service of the order upon the contemnor, such awareness is sufficient. See Kenya Tea Growers Association v Francis Atwoli & 5 others [2012] KEHC 2747 (KLR). 29. Notably, the Courts emphasize the high degree of proof required and reiterating the exhortations in Mutitika (supra), that;“ A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…. It must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10871/eng@2025-07-24 7

page 7 of 10

However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the party of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject…….. 30. In the instant matter there is no dispute that orders were issued on 15/07/2024 by this Court in respect Plaintiffs motion dated 18/04/2024 (Annexure FM3). It has not been disputed by the Defendants concerning knowledge of the order given that as at delivery of the ruling in question, the Defendants were ably represented by counsel. The Plaintiffs further caused the orders of this Court extracted on the backdrop of this Court’s ruling. Either way there appears to be no dispute as to knowledge of the order in question as such a pronouncement on the issue would appear moot in the circumstances. 31. As to whether there was willful disobedience of the said order, this Court on 15/07/2024 issued orders directed at the Defendants to maintain the school fees structure for the period 2024-2025 pending hearing and determination of this suit however 1st, 2nd & 3rd Defendants went on to issue notices dated 29/01/2025 effectively reviewing the school fees for Term II of 2025 and remainder of 2025. 32. On their part the Defendants retort is simple, that their actions do not amount to contempt of Court as the orders ceased to have effect upon the lapse of the prescribed 120-day period as captured in the ruling of this Court rendered on 15/07/2024. At the risk of repetition, the purport of the order in question is well within the knowledge of the respective parties. And in any event, it formed the essence of the Defendants motion earlier struck out in this ruling. The alleged contempt as argued by the Plaintiffs arose on the backdrop of the notices dated 29/01/2025. 33. Firstly, the Court is not convinced by the Defendants explanation that the interim injunctive orders were to subsist for 120 days on the backdrop of order (e) which captured that “court directs that this suit be fast tracked and be heard and concluded on priority basis due to its urgency, and in any event within 120 days from the date of this ruling.” The said order was only directional aimed at expeditiously disposing of the suit and not contingent on the subsistence of order (b), (c) and (d). 34. This Court had expressly directed in the latter orders respectively that the Newsletter/Notice dated 28/03/2024 issued by the 4th defendant captioned “Review of fees for the 2024-2025 Academic year is suspended pending hearing and determination of the suit; that the Invoices for term II of year 2024 issued by the 1st, 2nd and 3rd Defendants to the Plaintiffs on/or about 9/04/2024 are suspended pending hearing and determination of the suit; and that the Defendants fees structure for the period 2024-2025, prior to the impugned notice dated 28/03/2024 issued by the Defendants to the Plaintiffs shall remain in place and in force pending hearing and determination of the suit. The aforecaptioned orders were express and unambiguous. 35. Secondly, the 1st, 2nd & 3rd Defendants vide the impugned notices issued a review of their fees for the year 2025. The respective notices of the 1st, 2nd & 3rd Defendants issued by Ms. Felista Mutinda captured in part that-: “ After carefully assessing the financial realities affecting quality education and essential facilities, we inform you that school fees will be reviewed for Term II 2025, effective 1st May, 2025. This adjustment is necessary to sustain the high standards we promise, even as we navigate rising operational costs………. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10871/eng@2025-07-24 8

page 8 of 10

Parents seeking support in managing this adjustment are encouraged to visit the accounts office as soon as possible. Our staff will be available to discuss your financial circumstances and create a personalized payment plan. ….. To view the revised fee structure, please click on the link below:” (sic) 36. The twin deflection advanced by Ms. Felista Mutinda, that fees adjustment does not breach this Court’s directive as it pertained only to future terms that was effective 1st of May 2025 and did not affect fees during the period covered; and that the fees adjustment served upon all parents explicitly clarified that the fees review applies only to parents who joined the school before 2025 and does not affect parents who joined in 2025, in my view does not hold water in light of this Court’s express directive suspending review of fees for the period 2024-2025 Academic year and that the Defendants fees structure for the period 2024-2025, prior to the impugned notice dated 28/03/2024 issued by the Defendants to the Plaintiffs being sustained pending hearing and determination of the suit. 37. Penultimately, the orders of this Court were crafted in a precise manner, were not too wide and or obscured in their true intent. The purpose being that any fees related review for the years 2024 and 2025. Academic period was to be suspended pending hearing and determination of the suit. By proceeding to issue the notice dated 29/01/2025, the Defendants were clearly in breach of this Court’s directions. In my considered view Ms. Felista Mutinda, actions were willful, deliberate and constitute willful disobedience of the interim orders of the court. 38. In conclusion, I can do no better than echo the words of Ojwang, J (as he then was) in B vs. Attorney General [2004] 1 KLR 431 that: “ The Court does not, and ought not to be seen to make orders in vain; otherwise, the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.” 39. And as the Supreme Court cautioned in Ahmad Abolfathi’s Case (supra) citing the South African case of Burchell vs Burchell that;“ Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”… 40. In the result, the Court is persuaded that the Plaintiffs motion dated 28/02/2024 is merited. It is allowed by way of a finding that Ms. Felista Muthoki Mutinda, the Director of the 1st, 2nd and 3rd defendants is in contempt of this court orders dated 15/07/2024 and issued on 26/07/2024. 41. Consequently, a notice to show cause (NTSC) shall issue forthwith directing the contemnor, Felista Muthoki Mutinda to appear in person in open Court on 30/07/2025 at 12.00 to show cause why she should not be punished for contempt of court orders. 42. The contemnor will be at liberty to file a Replying Affidavit to the NTSC within 3 days of service of the NTSC and exchange. Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 24TH DAY OF JULY, 2025 ………………………. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10871/eng@2025-07-24 9

page 9 of 10

JANET MULWA. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10871/eng@2025-07-24 10

page 10 of 10