Republic v Judicial Commission of Inquiry into

the Goldenberg Affair & another Ex parte

Wilfred Karuga Koinange & 3 others

High Court, at Nairobi September 19, 2003

Aluoch & Kariuki JJ

Miscellaneous Civil Application No 359 of 2003

Civil Practice and Procedure - service – service of Court order – where such service attracts considerable publicity–– whether the Court can take judicial notice of the service – whether such service can be proved unilaterally.

Contempt of Court - audience – request to deny audience to a party who is allegedly in contempt of Court – whether the request needs to be made through a formal application – whether the party alleged to be in contempt has the right of audience in determining such request.

Jurisdiction - High Court - supervisory jurisdiction – whether a Judicial Commission of Inquiry is subject to the supervisory jurisdiction of the High Court.

Commissions of Inquiry - status of such tribunal - whether Commission of Inquiry amenable to the supervisory jurisdiction of the High Court.

The 4th applicant in this case raised a preliminary objection at the beginning of the hearing of the judicial review proceedings. He contended that the respondents should not be heard as they were in contempt of Court. He referred the Court to an order requiring the 1st respondent to give the applicants an opportunity to ventilate their complaints. The 4th applicant argued that the Commission (the 1st respondent) had stated that the Court order was not capable of compliance. In his view, a party who disobeys a Court order loses the right to appear or be heard in that Court until he purges his contempt.

The 2nd and 3rd applicants supported the preliminary objection and emphasized that the Commission was inferior to the High Court and that it had to obey orders issued by that Court.

The respondents on their part argued that if there was contempt then it had to be proved through a formal application filed in the judicial review proceedings after leave was obtained. They urged the Court to dismiss the preliminary objection as it was in substance an application to deny the respondents audience on the ground that they had disobeyed a Court order.

Further, although service of the Court order attracted considerable publicity, it was not common ground that the 1st respondent was duly served.

Held:

1. Service of a Court order is not a matter in respect of which the Court can take judicial notice, notwithstanding the publicity of the matter.

2. In this case, service cannot be proved unilaterally because it is a matter that involves the respondents and if proved, elicits penal consequences.

3. A request to bar a party alleged to have disobeyed a Court order from being heard in circumstances such as those in this case requires a formal application.

4. Before an order to bar a party alleged to be in contempt is made, such party must first be heard.

5. The Court will not hesitate, in appropriate cases, to punish for contempt where an application is properly brought and proved. The power to punish for contempt is exercised for the benefit of the institution of the judiciary and the public.

6. The High Court has supervisory jurisdiction to check and control inferior tribunals and public bodies with statutory powers of a judicial or quasijudicial character whose decisions affect or are likely to affect the rights and freedoms of individuals.

7. The jurisdiction conferred on the High Court by sections 8 and 9 of the Law Reform Act (cap 26) is special. The Goldenberg Judicial Commission of Inquiry is subject to the supervisory role of the High Court and can be guilty of contempt of Court.

Preliminary objection overruled.

Cases

Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969]

EA 696

Statutes

Law Reform Act (cap 26) sections 8, 9

Advocates

Mr W Kilonzo for the 4th Applicant

Mr A Rebelo for the 2nd and 3rd Applicants

Dr K Kuria for the 1st Respondent

Mr H Okumu for the 2nd Respondent