Case ID:114099

Republic v Ahmad Abolfathi Mohammed & another [2018] eKLR

Case Metadata

Case Number:

Criminal Application 2 of 2018

Parties:

Republic v Ahmad Abolfathi Mohammed & Sayeed Mansour Mousavi

Date Delivered:

23 Apr 2018

Case Class:

Criminal

Court:

Supreme Court of Kenya

Case Action:

Ruling

Judge(s):

David Kenani Maraga, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Smokin Charles Wanjala, Njoki Susanna Ndungu

Citation:

Republic v Ahmad Abolfathi Mohammed & another [2018] eKLR

Court Division:

Criminal

County:

Nairobi

Case Summary:

Holding of the Applicants at an Anti-Terrorism Police Unit establishment by the Police, after a court had ordered them to ensure the continued presence of the Applicants within Kenya, does not amount to contempt of court.

Republic v Ahmad Abolfathi Mohammed & another [2018] eKLR

Criminal Application No. 2 of 2018

Supreme Court of Kenya

D.K. Maraga, CJ; M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala, & N.S. Ndungu, SCJJ

April 23, 2018.

Reported by Kakai Toili

Evidence Law

– standard of proof –standard of proof in contempt of court cases - higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt - what was the rationale for the set standard of proof in contempt of court cases

Civil Practice and Procedure

- contempt of court - definition of contempt of court - failure to comply with court orders - conduct that would amount to contempt of court - whether holding the Applicants at an Anti-Terrorism Police Unit establishment after a court had ordered the Respondent to ensure the continued presence of the Applicants within Kenya amounted to contempt of court -

Contempt of Court Act, section 4; Supreme Court Act, section 28 (1) (b)

Brief Facts:

The Court in February 2018 issued an order that pending the hearing of the Application seeking to review the Court of Appeal decision acquitting the Applicants, arrangements be made by the Respondent to ensure the continued presence of the Applicants within the jurisdiction of Kenya without infringing on their liberties as guaranteed by the Constitution.

After the said order the Applicants continued being held in police custody at the Anti-Terrorism Police Unit in Nairobi Area. Aggrieved by the actions of the police, the Applicants filed the instant Application seeking various orders including that a stay of the hearing of the Respondent’s Application be granted, that the Inspector General of the National Police Service be cited for contempt of the Court’s Order issued in February 2018 and that he be committed to civil jail for a term not exceeding six months.

Issues:

What was the standard of proof in contempt of court cases?

What was the rationale for the standard of proof in contempt of court cases?

Whether holding the Applicants at an Anti-Terrorism Police Unit establishment, after a court had ordered the Respondent to ensure the continued presence of the Applicants within Kenya, amounted to contempt of Court.

Held:

According to section 4 of the Contempt of Court Act, contempt included civil contempt which meant willful disobedience of any judgment, decree, direction, order or other process of a court or willful breach of an undertaking given to a court. Section 28 (1) (b) of the Supreme Court Act also made it an offence for a person to willfully and without lawful excuse, to disobey an order of the Court, that section allowed the Court to punish for contempt. It was therefore evident that the willful disobedience of a judgment, decree or order properly constituted contempt of court.

It was evident that not only did contemnors demean the integrity and authority of courts, but they also derided the rule of law. That had to not be allowed to happen. The standard of proof in cases of contempt of court was well established. The standard of proof had to 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 have been left where it belonged, to wit, in criminal cases. It was not safe to extend it to an offence which could be said to be

quasi

-criminal in nature.

The rationale for the standard of proof in contempt cases was that if cited for contempt and the prayer sought was for committal to jail, the liberty of the contemnor would be affected. As such, the standard of proof was higher than the standard in civil cases. That power to commit a person to jail had to be exercised with utmost care and exercised only as a last resort. It was of utmost importance for the Applicants 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.

Whichever way the Court’s Order was interpreted, it did not allow the release of the Applicants. It would therefore render the proceedings otiose and utterly nugatory if the Applicants were set free. Courts do not act in vain. The Court did not order that the Applicants be released but rather that their rights not to be infringed, indeed the Applicants were not in prison but in a situation more elevated than that of prisoners.

Holding the Applicants at the Anti-Terrorism Police Unit establishment was not willful or deliberate disobedience to Court Orders. It was a well-considered course of action for balancing between Applicants security and compliance with the Court’s Order.

The allegations of contempt of Court had not been proved to the required standard, the Respondent was not in contempt of Court.

Application dismissed, no orders as to costs.

Extract:

East Africa

Cases

East Africa

1.

AB & another v RB

Civil Application No 4 of 2016 (Cited)

2.

B v Attorney General

[2004] 1 KLR 431 – (Explained)

3.

Econet Wireless Kenya Ltd v. Minister for Information & Communication of Kenya & another

[2005] 1 KLR 828 – (Mentioned)

4.

Gulabchand Popatlal Shah & another

Civil Application No 39 of 1990 – (Explained)

5.

Jihan Freighters v Hardware & General Stores Limited

Civil Appeal 11 of 2015 – (Mentioned)

6.

Kabuthu, Amos Mathenge v Simon Peter Mwangi

Civil Appeal No 335 of 2015 - (Mentioned)

7.

Mutitika v Baharini Farm Limited

[1985] KLR 229, 234 – (Followed)

South Africa

1.

Burchell v Burchell

[2005] ZAECHC 35– (Explained)

United Kingdom

1.

Attorney General v Times Newspapers Ltd

[1974] AC 273; [1973] 3 All ER 54; [1973] 3 WLR 298 – (Explained)

Statutes

1. Costitution of Kenya, 2010 articles 27, 29, 32, 36, 39; 242 (2) (b); 245 (2) (b) –(Interpreted)

2. Contempt of Court Act,2016 (No 46 of 2016) section 30 (2)- (Interpreted)

3. National Police Service Act, 2011 (No 11A of 2011) section 10 – (Interpreted)

4. Supreme Court Act,2011(Act No 7 of 2011) section 28 (1) (b) – (Interpreted)

Advocates

1.

Mr Ahmednasir SC for the Respondents

2. Mr Gatonye SC for the Applicant

Case Outcome:

Notice of motion dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(

Coram:

Maraga: CJ & President;

Ibrahim, Ojwang, Wanjala, & Njoki, SCJJ

)

CRIMINAL APPLICATION NO. 2 OF 2018

BETWEEN

REPUBLIC………………………………….…………………….….APPLICANT

AND

1. AHMAD ABOLFATHI MOHAMMED……….………….1

ST

RESPONDENT

2. SAYEED MANSOUR MOUSAVI……………..…………2

ND

RESPONDENT

(

Being an application for a finding of contempt under Section 28 (1) (c) of the Supreme Court Act, Article 160 of the Constitution, and all other enabling provisions of the law)

RULING

A. INTRODUCTION

[1]

This Ruling arises from the Notice of Motion application dated 1

st

March, 2018 and filed on 2

nd

March 2018, by the respondents in the main matter before the Court. The application (No. 2 of 2018) is supported by an affidavit sworn on 1

st

March, 2018 by Ahmad Abolfathi Mohammed (1

st

respondent/applicant). It is a contempt application, seeking the following Orders:

(a) that, pending the hearing and determination of this application, this Court be pleased to issue a stay of the hearing of the applicant’s Notice of Motion dated 19

th

February 2018;

(b) that the Court be pleased to cite Mr. Joseph K. Boinett, Inspector General of the National Police Service, for contempt of this Court’s Order issued on 23

rd

February 2018, and further to order that he be committed to civil jail for a term not exceeding six months;

(c) that this Court be pleased to grant any other or further Orders, for the purpose of protecting the dignity and authority of the Court;

(d) that the costs of this application be provided for.

[2]

The application is set around an earlier Order of this Court, of 23

rd

February 2018, in the following terms:

“ii. Pending the hearing of the aforesaid and in view of the fact that the respondents have been acquitted of all criminal charges that were preferred against them by an Order of a Court of competent jurisdiction (the Court of Appeal in Criminal Appeal No. 135 of 2016), and further taking into account the fact that the determination of the present Motion is dependent on the continued presence of the respondents within the jurisdiction of Kenya, we hereby direct that arrangements be made by the applicant to ensure the continued presence of the respondents within the jurisdiction of Kenya without infringing on their liberties as guaranteed by the Constitution.”

[3]

It is contended that, despite the foregoing Order being made in the presence of counsel for the applicant, the respondents continue being held in police custody at the Anti-Terrorism Police Unit in Nairobi Area, in disregard of the Order, and that this amounts to contempt of Court.

B. BACKGROUND

[4]

This application emanates from the Notice of Motion of 19

th

February, 2018, filed by the Republic, seeking review of the Court of Appeal’s decision of 16

th

February 2018, in which leave had been denied for an appeal to this Court, on the basis that the case did not entail a matter of general public importance.

[5]

The State was aggrieved by the denial of leave, and approached this Court seeking a review of the Appellate Court’s decision, as well as an Order staying the decision acquitting the respondents, by Judgment

(Kariuki, M’inoti & Murgor, JJA)

of 26

th

January 2018. Filed under certificate of urgency, the matter was placed before a single Judge

(Ojwang, SCJ)

on 20

th

February, 2018, who duly certified it as urgent,

with Orders that the respondents remain within the jurisdiction of the Supreme Court, pending hearing and determination.

The motion was fixed for

inter partes

hearing on 23

rd

February, 2018.

[6]

On 23

rd

March, 2018, Mr. Ahmednasir, SC appearing for the respondents, sought an adjournment of the hearing, on the ground that there was pending before this Court Application No. 21 of 2016,

Goldenline International Ltd. v. Blue Sea Shopping Mall Ltd. & 3 Others,

the determination of which would also dispose of the main question in the present Motion before the Court. Counsel also applied for the discharge of the Orders made by

Ojwang, SCJ

on 20

th

February 2018. The consequence of granting the discharge as was sought, would have been the

immediate release of the respondents from the State’s safekeeping.

[7]

The Court declined to grant the application for adjournment of the hearing of the substantive Application No. 2 of 2018 until the earlier Application No. 21 of 2016,

Goldenline International Ltd. v. Blue Sea Shopping Mall Ltd. & 3 Others

was heard. The application for review was set for hearing on its merits on 13

th

March, 2018; but in the meantime, the Court made the Order set out in paragraph 2 above — which is the subject of the instant application.

[8]

On 13

th

March 2018, learned Senior Counsel, Mr. Gatonye came on record, and sought adjournment, on the basis that he had just been appointed to lead the applicant’s case, so he needed time to review all the relevant documentation. His application was contested by Mr. Ahmednasir, who also notified the Court that the respondents had filed a contempt application, as

“the applicant had disobeyed the Court’s Order of 23

rd

February, 2018”.

The Court allowed Mr. Gatonye’s application for adjournment, and set the hearing date for the respondents’ contempt application for 28

th

March, 2018.

C. SUBMISSIONS

[9]

At the hearing of the contempt application on 28

th

March, 2018, Mr. Ahmednasir submitted that the Inspector-General, despite being aware of the Court Order, had failed to comply with it. He submitted that the respondents were being held in police custody at the Anti-Terrorism Police Unit, and that in this respect, their

constitutional rights

, notably those contained in Articles 27, 29, 32, 36 and 39, were being infringed.

[10]

Mr. Ahmednasir submitted that this Court had two options: either to allow the application for contempt as filed, and commit the Inspector-General to civil jail for a term not exceeding six months, or to dismiss the application—which, in his view, would be a dereliction of the Court’s duty.

[11]

On the law, Mr. Ahmednasir submitted that the statutes governing contempt were the

Supreme Court Act,

and the

Contempt of Court Act

(No. 46 of 2016),

and that these statutes empower the Supreme Court to imprison a person convicted of contempt for upto 6 months, or/and impose a fine of upto Ksh. 200,000.

[12]

Learned Counsel, Mr. Gatonye urged that Article 245 (2) (b) of the Constitution, and section 10 of the National Police Service Act (No. 11A of 2011) left no doubt that the Inspector-General is the “accounting officer” of the Police Service; and that, by section 30 (2) of the Contempt of Court Act, it was required that notice be served upon an accounting officer, to show cause why contempt proceedings should not be commenced against him. The applicant contended that as such notice was not served, the application before the Court was defective.

[13]

It was the applicant’s case that the holding of the respondents at the Anti-Terrorism Police Unit was done in execution of the Inspector-General’s duties, and in good faith. The applicant submitted that, pursuant to section 30 (6) of the Contempt of Court Act, the Inspector-General cannot be convicted for contempt of Court, if he executed his duties

in good faith

. It was also submitted that the Court’s Order was a balancing Order, not requiring the release of the respondents.

[14]

The applicant urged that there was no willful defiance of the Court Order, and that, for a charge of culpability to be tenable, the relevant court Order must be clear and unambiguous.

[15]

It was the applicant’s case that the

particulars of contempt

were not specified by the respondents, making it unclear how the Order had been breached, and rendering the applicant incapable of answering with certainty the allegations of contempt. The applicant urged that the respondents had not met the standard of proof for contempt, which is close to the

criminal standard of proof-beyond-reasonable-doubt.

[16]

The applicant submitted that there had been due compliance with the Court Order,

ensuring that the respondents remained in the country,

and that their security and liberties were duly safeguarded.

[17]

The applicant submitted that the respondents, while at the Anti-Terrorism Police Unit, were provided with a room with comfortable bedding; were allowed to walk around in the compound; receive medical attention whenever necessary; could make telephone calls, receive counsel/visitors, and have a well-balanced diet. The applicant urged that he and his officers did their best in the circumstances, to comply with the Order of the Court.

D. ISSUES FOR DETERMINATION

[18]

Two issues for determination arise in this application:

(a)

Whether the application before the Court is fatally defective;

(b)

Whether the applicant is in contempt of this Court’s Order.

E. ANALYSIS

[19]

The applicant/respondent urged the Court to dismiss this application, for being in contravention of the mandatory provisions of the Contempt of Court Act. The statutory provisions referred to by the applicant are contained in section 30 of the Contempt of Court Act, which provides as follows:

“(1) Where a State organ, government department, ministry or corporation is guilty of contempt of court in respect of any undertaking given to a court by the State organ, government department, ministry or corporation, the court shall serve a notice of not less than thirty days on the accounting officer, requiring the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer.

“(2) No contempt of court proceedings shall be commenced against the accounting officer of a State organ, government department, ministry or corporation, unless the court has issued a notice of

not less than thirty days

to the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer.

“(3) A notice issued under subsection (1) shall be served on the accounting officer and the Attorney-General.

“(4) If the accounting officer does not respond to the notice to show cause issued under subsection (1) within thirty days of the receipt of the notice, the court shall proceed and commence contempt of court proceedings against the accounting officer.

“(5) Where the contempt of court is committed by a State organ, government department, ministry or corporation, and it is proved to the satisfaction of the court that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of any accounting officer, such accounting officer shall be deemed to be guilty of the contempt and may with the leave of the court be liable to a fine not exceeding two hundred thousand shillings.

“(6) No State officer or public officer shall be convicted of contempt of court for the execution of his duties in good faith.”

[20]

While the respondent disputed the contention that the Inspector-General is the

“accounting officer”

of the National Police Service, the applicant urged the contrary. The applicant invoked the provisions of Article 242 (2) (b) of the Constitution, under which the Inspector-General commands the National Police Service, and also section 10 of the National Police Service Act, which outlines the powers and functions of the Inspector-General. We have, however, considered only the more pertinent of the several arguments raised by learned counsel.

[21]

The meaning and import of contempt of Court is clear enough, for both sides. What remains a subject of contest, is whether the Order was

willfully disobeyed.

Further, learned counsel for the applicant, Mr. Gatonye, has hinted that the Court Order was

ambiguous

. He relied on two authorities:

Amos Mathenge Kabuthu v. Simon Peter Mwangi

[2015] eKLR, and

Jihan Freighters v. Hardware & General Stores Limited

[2015] eKLR—to advance his contention that to cite the applicant for contempt, the Court must be satisfied that the impugned Order is

clear and unambiguous

.

[22]

According to Section 4 of the Contempt of Court Act, contempt includes

civil contempt

, which means willful disobedience of any Judgment, decree, direction, Order, or other process of a Court, or willful breach of an undertaking given to a Court. Section 28 (1) (b) of the Supreme Court Act also makes it an offence for a person to willfully and without lawful excuse, to disobey an Order of the Court. This section allows this Court to punish for contempt. It is, therefore, evident that the

willful disobedience

of a Judgment, decree or Order properly constitutes contempt of Court.

[23]

Authorities on the necessity to punish for contempt are legion. We have considered those provided by the respondent, and also cite the following, in affirmation of the principle.

[24]

In

Econet Wireless Kenya Ltd v. Minister for Information & Communication of Kenya & Another

[2005] 1 KLR 828

Ibrahim J

(as he then was) relied on the Court of Appeal decision in

Gulabchand Popatlal Shah & Another

Civil Application No. 39 of 1990 (unreported), where the Court of Appeal stated as follows:

“It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors... In HADKINSON v. HADKINSON

(1952)

2 All E.R. 567

,

it was held that:

It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.”

[25]

In

Att-Gen. v. Times Newspapers Ltd.

[1974] A.C. 273,

Lord Diplock

stated:

“…..

There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity

.”

[26]

The Court of Appeal in

A.B. & Another v R.B.,

Civil Application No. 4 of 2016 [2016] eKLR cited with approval the Constitutional Court of South Africa’s decision in

Burchell v. Burchell

, Case No.364 of 2005 where it was held:

“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the court and requires other organs of the state to assist and protect the court. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively have 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.”

[27]

Ojwang, J

(as he then was) in

B. v. 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.”

[28]

It is, therefore, evident that not only do contemnors demean the integrity and authority of Courts, but they also deride the rule of law. This must not be allowed to happen. 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? The applicant showed the steps it took towards compliance with the Court Order. The deposition of Nyale Munga reveals the applicant’s effort in complying with the Court Order. He avers that as the respondents were

foreign nationals,

only the National Police Service could ensure their

security and protection.

It was deposed that the applicant had a special responsibility: to ensure the security of the respondents, which could only be guaranteed by the Kenyan Government through the

National Police Servic

e, at the Anti-Terrorism Police Unit, until their eventual removal from the country, as there was

no extradition treaty

between Kenya and Iran.

[31]

The applicant was quite categorical, that if the respondents were not held,

they would leave the country for good,

something not in accordance with the Court’s Order. The Court also noted the submissions of Senior Counsel Amednasir for the respondents, in this regard. He submitted that it would be exemplary for the rule of law, for the respondents to be

set free, leave the country

and not return,

rather than continue being held in custody. First we would reiterate that, whichever way it is interpreted, this Court’s Order

did not

allow the

release

of the respondents. It would therefore render these proceedings otiose, and utterly nugatory, if the respondents were set free. Courts do not act in vain.

[32]

The applicant deponed that the State had to ensure the security of the respondents, whilst at the same time assuring that the respondents’ liberties, as guaranteed in the Constitution, were not infringed. This Court did not order that the respondents be released, but rather, that their rights be not infringed; we note that, indeed, they are

not in prison,

but in a situation more elevated than that of prisoners.

[33]

Mr. Munga deponed that, while they considered other options, holding the respondents at the Anti-Terrorism Police Unit establishment was found to be the best option. We would not perceive such a line of action as a willful, or deliberate disobedience to Court Orders. It was a well-considered course of action, for

balancing between respondents’ security, and compliance with Court Order.

[34]

Further, we are unconvinced that the allegations of contempt of Court have been

proved to the required standard.

In as much as the respondents are convinced that their liberties, as contained in Articles 27, 29, 32, 36 and 39 of the Constitution, are being infringed, and they impute willfulness and bad faith on the part of the applicant, such inferences have been rebutted, by demonstrating that the applicant did what was sincerely believed to be in accordance with the Court Order.

[35]

It is our finding that the applicant is not in contempt of Court; and we dismiss the motion dated 1

st

March, 2018 with no orders as to costs. We are disinclined to issue stay of hearing for the applicant’s Notice of Motion of 19

th

February, 2018.

DATED

and

DELIVERED

at

NAIROBI

this 23

rd

d

ay of April, 2018.

………………………………………….. .…….……………………………………

D. K. MARAGA M. K. IBRAHIM

CHIEF JUSTICE & PRESIDENT JUSTICE OF THE SUPREME COURT

OF THE SUPREME COURT

…………………………………………………. …..…….…………………………...............

J. B. OJWANG S. C. WANJALA

JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

…………………………………………......

N. S. NDUNGU

JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR

SUPREME COURT OF KENYA