Burka Ahmed Salim & another v Stephen C. Ngala

High Court, at Mombasa

October 29, 2002

Onyancha J

Civil Appeal No 58 of 1998

Contempt of Court - revision of punishment - power of the court to revise the punishment meted out to a contemnor - basis and source of such power - how the power is exercised - manner in which the court can vary the punishment - Judicature Act (cap 8) section 5.

The applicant sought that the court review and vacate its orders releasing and discharging the contemnor from a contempt prison sentence of two months. The applicant raised the issue as to whether or not the court had authority or jurisdiction to release or discharge a contemnor once condemned to serve a prison sentence.

Held:

1. The law that governs contempt of court proceedings in Kenya is the English law applicable in England at the time the contempt was committed.

2. In England a contemnor may, in suitable circumstances proved to court, be discharged whether it arose from criminal or civil proceedings. The issue is therefore left to the discretion of the court which shall be exercised judicially.

3. The contemor may be released if it is clear that further imprisonment will not secure compliance provided that he has been sufficiently punished for his disobedience.

4. The application to discharge a contemnor takes presidency over all other applications in the relevant file at a given time.

5. The power of the court to revise the punishment meted out against the contemnor where it is satisfied that his conduct has been genuinely reformed is donated under the English Order 52(8)(1) of the Supreme Court Rules and imported to Kenya by section 5 of the Judicature Act.

6. The exercise of such jurisdiction and discretion is not intended to reverse the contempt order on the ground that the order was wrong or contrary to law. Rather the court discharges the contemnor on the basis that his conduct which threatened the integrity, honour and authority of the court has been purged to the Court’s satisfaction and that he has satisfactorily undertaken not to repeat such conduct.

7. The court would even have the authority to take a course other than discharging the contemnor, for instance in a suitable case, by substituting the imprisonment term with a fine or the taking of security for good future conduct or even grant an injunction against a repetition of the act of contempt.

Application allowed

Cases

1. Barrell Enterprises, Re [1972] 3 All ER 631; [1973] 1 WLR 19

2. Yager v Musa [1961] 2QB 214; [1961] 2 All ER 561; [1961] 3 WLR 170

Statutes

1. Judicature Act (cap 8) section 5

2. Rules of the Supreme Court [UK] order LII rule 8(1)

3. Civil Procedure Rules (cap 21 Sub Leg) order XLI

Advocates

Mr Khaminwa for the Applicant.

Mr Asige for the Respondent