Republic v Nairobi Metropolitan Services & 5 Others

affidavit, to set out material that the court could consider, in assessing sentence, which request I acceded to. 3. The contemnor swore an affidavit, on 4th May 2026, and lodged it herein. The said affidavit largely gives a historical background to the matter, and presents arguments around the validity of the process and the order, which I need not discuss here, as the conviction order is still valid and in force. He acknowledges that he was the Managing Director and Chief Executive Officer of the interested party at the material time, before he resigned in January 2023. He acknowledges that he was aware of the order, as an extract thereof was served on him. He acknowledges that court orders are for obedience, but asserts that he did not wilfully disobey the order in question. He, nevertheless, apologises for any unfortunate circumstances or incidents that led to his conviction. 4. On 5th May 2026, the contemnor appeared in court, and Mr. Tugee, his Advocate, mitigated on his behalf. He based the mitigation on the averments in the affidavit by the contemnor, which, in certain respects tended towards submitting that there was no contempt of court. He urged the court to dismiss the contemnor with a warning, or, if it has to punish him, to consider imposing a fine. He invited the court to consider the decisions in Miguna Miguna vs. Dr. Fred Matiang’i & 8 others [2018] eKLR (Odunga, J), Yatani vs. Raso [2024] KEHC 3513 (KLR) (Meoli, J) and UAP Insurance Company Limited vs. Mungai [2024] KEHC 9760 (KLR) (Meoli, J), where fines were considered, according to him, for more egregious acts of contempt of court. 5. Mr. Ndegwa, for the interested party, submitted in support of the mitigation offered by the contemnor, more or less along the same lines as Mr. Tugee. 6. Mr. Kinyanjui, for the ex parte applicant, pointed out that the contemnor did not appear to appreciate that he had already been convicted, for he was still challenging the contempt proceedings. He argued that the contemnor was not expressing remorse, going by the 2

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averments in his affidavit, and the mitigation statement made by his Advocate. Going by that, and the fact that no attempt was made to purge the contempt, he submitted that the contemnor was a deliberate contemnor, who did not merit exercise of leniency. He submitted that a warning would not suffice, given the lack of candour in his mitigation statement. 7. The jurisdiction, to punish for contempt of court, stems from section 5 of the Judicature Act, Cap. 8, Laws of Kenya, which refers to the law in England, and the principal object is to uphold the authority and dignity of the court, and, by extension, the rule of law. There is no penalty prescribed for contempt of court, leaving it to the discretion of the court, which has to be exercised judiciously and cautiously, depending on the circumstances of each case. 8. The forms of punishment or sanctions, for contempt of court, in practice, range from warning, fine to imprisonment. Where imprisonment is considered, it would usually be up to 6 months, given that these are cases of civil contempt. 9. As noted above, the contemnor is not named as a party to these proceedings, for he is neither a respondent nor an interested party. He was an employee of the interested party herein, although holding a significant position in that entity. I also note that there is no evidence that the contemnor had any personal interest in the commercial dispute between the ex parte applicant and the interested party, besides his position as employee of the interested party. I further note that the principal parties, in Judicial Review proceedings, are the applicant and the respondent, with the interested party being a largely peripheral party. The stay order, to prohibit or stop some activity, would usually be directed at the principal party, the respondent, whose decision would be the subject of the proceedings, and the foundation for the activity sought to be stayed.. 10. In view of what I have discussed above, it would be improper to consider imprisonment. The contemnor left the employment of the 3

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interested party in January 2023, roughly 2 or 3 months after the making of the order. As he is no longer in the picture, a warning would serve no purpose. That should leave the fine as the most appropriate penal measure. 11. The quantum of the fine ought to be at the discretion of the court, taking into account the circumstances of the case, which would include the nature and seriousness of the breach, the role and authority of the contemnor, evidence of wilful conduct, and the remedial or punitive purpose of the sanction. The Judicial review cause herein targets acts of the respondents, as should be the case, and not the interested party, for no judicial review order can lie against an interested party, hence there ought to be very little liability, in judicial review proceedings, against an interested party, for judicial review proceedings are not in the nature of an ordinary civil suit. 12. After considering all the relevant matters, I do hereby impose a fine of Kshs. 35,000.00, against the contemnor, as punishment for the contempt of court. That fine shall be paid within 90 days, of this order, in default of which a warrant of arrest shall issue, for the arrest of the contemnor, to be committed to civil jail for 1 month, with the ex parte applicant paying for his upkeep. The arrest and committal warrants, in that event, shall be executed by the Deputy Registrar. 13. There is need to move this matter, which has been pending since 2022, forward. I think that undue focus has been given to the contempt proceedings, at the expense of the main Motion. I note, from the record, that the substantive Motion was filed on 1st September 2022, dated 31st August 2022. There is an affidavit of service, sworn on 7th September 2022, by a Mr. Duncan Wafula Oduor, evidencing service of that substantive Motion. There are also written submissions, by the ex parte applicant, dated 23rd September 2022 and 6th December 2022. There is also a supplementary affidavit, sworn on 6th December 2022, by a Mr. Duncan Muruga Mwaura, from the ex parte applicant. 4

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14. I see, on the record, a reply to that substantive Motion, by the interested party, through an affidavit that Mr. Omurwa swore on 5 th October 2022. The interested party also filed written submissions, which are undated, on a date which I am not able to establish from the record before me. The respondents came on record, vide a notice of appointment of Advocates, of their lawyers, dated 20 th September 2022. Except for that notice of appointment, the respondents have not reacted to the substantive Motion, nor filed written submissions on it. 15. In view of the above, and considering the time that has lapsed since the pleadings closed, I hereby give directions that I shall deliver judgement on the substantive Motion on 25th June 2026. 16. Orders accordingly. DELIVERED, DATED AND SIGNED IN OPEN COURT, AT MILIMANI, NAIROBI, THIS 15TH DAY OF MAY 2026. W MUSYOKA JUDGE Mr. Brian, Court Assistant. Advocates Mr. Kinyanjui, instructed by J. Harrison Kinyanjui & Company, the Advocates for the ex parte applicant. Mr. Ndegwa, instructed by Rapando & Odunga, Advocates for the interested party. Mr. Tugee, instructed by Munyao Muthama & Kashindi, Advocates for Mr. Rosana Oscar Omurwa. 5

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