Case ID:185053

Peterson Irungu Munye v Benson Mugua & another [2021] eKLR

Case Metadata

Case Number:

Civil Case 8 of 2019

Parties:

Peterson Irungu Munye v Benson Mugua & Equity Bank Limited

Date Delivered:

02 Nov 2021

Case Class:

Civil

Court:

High Court at Murang'a

Case Action:

Ruling

Judge(s):

Kanyi Kimondo

Citation:

Peterson Irungu Munye v Benson Mugua & another [2021] eKLR

Court Division:

Civil

Case Outcome:

Plaint 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 HIGH COURT OF KENYA AT MURANG’A

CIVIL CASE NO. 8 OF 2019

PETERSON IRUNGU MUNYE.................................................PLAINTIFF/APPLICANT

VERSUS

BENSON MUGUA........................................................1

ST

DEFENDANT/RESPONDENT

EQUITY BANK LIMITED.........................................2

ND

DEFENDANT/RESPONDENT

RULING

1. On 4

th

June 2019, the lower court issued an order requiring the 2

nd

defendant to remove the plaintiff’s name from the

Credit Reference Bureau

.

2. By a plaint filed at the High Court on 23

rd

August 2019, the plaintiff sought to compel the defendants to comply with the order at the peril of punishment for contempt.

3. The plaintiff has now presented a notice of motion dated 29

th

January 2019 to compel the respondents

“to obey the lawful court order dated 4

th

June 2019 in

Chief Magistrates Court at Murang’a Civil Case 1 of 2019

requiring them to withdraw the name of the plaintiff from the Credit Reference Bureau”.

4. The motion is supported by deposition sworn on even date. A copy of the order by the lower court is annexed.

5. The application is contested through the replying affidavit of the 1

st

respondent sworn on 9

th

June 2020.

6. On 12

th

October 2021, learned counsel for the disputants informed me that they would rely entirely on their written submissions. Those by the plaintiff were filed on 9

th

March 2021. There are further submissions filed on 4

th

August 2021 in reply to those by the respondent. The respondents’ submissions were lodged on 14

th

July 2021.

7. I take the following view of the matter. The main suit is still pending. I will as much as possible avoid making conclusive findings. Leave to bring proceedings for contempt was granted by the High Court on 24

th

July 2019. It is also common ground that the lower court issued the order dated 4

th

June 2019.

8. However, a close scrutiny shows that

none

of the defendants here were principal parties to the suit in lower court. The heading of the annexed order shows that the parties were:

Peterson Irungu Munye

(the plaintiff here) versus

Joseph Chege Kuria

as 1

st

defendant and

Equity Bank (K) Limited

(

as proposed

2

nd

Defendant).

9. Secondly, a further reading of the order reveals that it was a conditional order. It read:

That the bank be and is hereby directed to withdraw the name of the plaintiff from the credit reference bureau and consequently be restrained from enlisting him

as long as he has cleared the amount he was directed by this court to pay.

[Underlining added]

10. The evidence of payment of such sums or the satisfaction of the conditions does not appear in the supporting affidavit or materials supplied by the applicant at this stage. I say that very carefully and without making a finding.

11. The issue for determination is whether the respondent’s conduct is in

contempt

of the order; or, whether they should be

punished

for it. I agree with the general exposition on the law on contempt in

Samuel M. N. Mweru & others v National Land Commission & 2 others

, High Court, Nairobi, JR 443 of 2017 [2020] eKLR cited by learned counsel for the applicants.

12. The standard of proof in a matter of this nature is

slightly above

balance of probabilities. The reason is that the

personal liberty

of the subject would be at stake. I have stated that neither the 1

st

defendant nor the 2

nd

defendant were parties or

principal parties

in the lower court. It would be gain said that the resultant order could only bind the parties before that court or any other named party duly served. The applicant also required to prove

personal service

of the order and that the respondents flagrantly breached it.

Shimmers Plaza Limited v National Bank of Kenya Limited,

Nairobi Court of Appeal, Civil Appeal No. 33 of 2012, [2015] eKLR);

James H. Gitau Mwara v Attorney General & another

, Nairobi HCCC 2892 of 1993 [2018] eKLR.

13. I have also stated that the order of the lower court was, on the face of it,

conditional

and that the plaintiff’s name was to be withdrawn from the bureau “

as long as he has cleared the amount he was directed by this court to pay”

.

The applicant has not provided that crucial evidence at this juncture. I cannot then say, as urged by the applicant’s learned counsel,

Mr. Kiriba

, that the terms of the order were clear and binding on the respondents; or, that the failure to comply was deliberate.

14. It must follow as a corollary that the plaintiff has not proved contempt of the order of the lower court to the required standard.

15. For all those reasons, the plaintiff’s notice of motion dated 29

th

January 2019 is hereby

dismissed

with costs to the defendants.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 2ND DAY OF NOVEMBER 2021.

KANYI KIMONDO

JUDGE

RULING READ IN OPEN COURT IN THE PRESENCE OF:

NO APPEARANCE BY COUNSEL FOR THE PLAINTIFF AND THE DEFENDANTS.

MS. SUSAN WAIGANJO, COURT ASSISTANT.