Case Metadata |
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| Case Number: | Criminal Appeal 250 of 1993 |
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| Parties: | John Mwobobia v Children Officer Meru |
| Date Delivered: | 28 Apr 1995 |
| Case Class: | Criminal |
| Court: | High Court at Meru |
| Case Action: | Judgment |
| Judge(s): | C.O Ong'udi |
| Citation: | John Mwobobia v Children Officer Meru [1995] eKLR |
| Case History: | (From the original conviction and sentence in P&D No 7 of 1992 of DM II’s Court at Meru) |
| Court Division: | Criminal |
| Parties Profile: | Individual v Government |
| County: | Meru |
| Case Summary: | John Mwobobia v Children Officer Meru High Court, at Meru April 28, 1995 Ong’udi J Criminal Appeal No 250 of 1993 (From the original conviction and sentence in P&D No 7 of 1992 of DM II’s Court at Meru) Criminal Law – contempt of court – where one is convicted for contempt of court for failing to comply with court order – where there was no court to comply with – whether conviction for contempt of court is procedural. On 21st October 1992 the court below ordered that the children do remain in custody of the mother and the appellant was to provide for all their basic needs and necessary requirements agreed between herself and District Children Officer. The matter was stood over on 4th November 1992 to record agreement reached between parties. No such mention took place on 4th November 1992 however. Instead on 12th November 1992 the children officer appeared before trial magistrate and applied for an order to attach 30% of the appellant’s salary. When the appellant appeared on 24th September 1993 the prosecutor made oral application that the appellant be convicted for contempt of court because he had failed to pay school fees for his children. Held:
Appeal allowed.
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| Case Outcome: | Appeal allowed. |
| 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 MERU
CRIMINAL APPEAL NO 250 OF 1993
JOHN MWOBOBIA ……...........................…..APPELLANT
VERSUS
CHILDREN OFFICER MERU……............…..RESPONDENT
(From the original conviction and sentence in P&D No 7 of 1992 of DM II’s Court at Meru)
JUDGMENT
On 21st October 1992 the court below ordered that the children do remain in the custody of the mother and the appellant was to provide for all their basic and necessary requirements as to be agreed in between herself and the District Children’s officer. The matter was stood over to 4th November 1992 to record the agreement reached between the parties.
No such mention took place on 4th November 1992. Instead of 12th November 1992 the Children’s officer appeared before the trial magistrate and applied for an order to attach 30% of the appellant’s salary arguing that he had failed to cater for his children. Summons was issued to the appellant to appear before the said court. The trial magistrate did not enquire why the parties had not appeared before her on 4th November 1992 to record their settlement as previously ordered.
When the appellant did appear on 24th September 1993 the prosecutor made an oral application that he should be convicted for contempt of court because he had failed to pay school fees for his children. The appellant told the trial magistrate that he had gone to the children’s office as was ordered but nothing was done. The fault, he said, was with that office.
The trial magistrate found the appellant in contempt and fined him Shs 10,000/- in default 6 months imprisonment.
The ruling of the court below dated 21st October, 1992 was not definite. It was not conclusive. It was subject to a further mention on 4th November 1992. When that mention did not materialise and no agreement was recorded, there was no order binding on the appellant. In convicting, him of contempt the trial magistrate assumed there was a valid order of the court dated 21st October 1992, when there was none.
The oral application made by the children’s officer, without any affidavit in support denied the appellant an opportunity of challenging the whole proceedings. The procedure adopted was wrong. The court below could only have dealt with the appellant summarily if any acts of contempt had been committed before the court. In any other case an application had to be made supported by an affidavit. The conviction of the appellant was unprocedural and most unsafe and cannot be allowed to stand.
For the above reasons I allow the appeal, quash the conviction and side aside the sentence.
Dated and delivered at Meru this 28th day of April, 1995
C.O Ong’udi
JUDGE
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