IN THE COURT OF APPEAL

AT NAIROBI

(Coram: Cockar, Omolo & Tunoi JJ A )

CRIMINAL APPLICATION NO. NAI 4 & 5 OF 1994 (CONSOLIDATED)

BETWEEN

REPUBLIC.........................................................................APPLICANT

AND

DAVID MAKALI & 3 OTHERS.................................RESPONDENTS

JUDGMENT

Cockar JA: My Lords, “The People” is a weekly newspaper and in its edition of 6-12 March, 1994, there appeared an article (hereafter referred to as the article) admittedly written by David Makali the 1st respondent in Criminal Application No NAI 4 of 1994 which the Attorney General, on behalf of the Republic, claimed in the Notice of Motion filed by him on 24th March, 1994, pursuant to the leave of the Court of Appeal granted on 18th March, 1994, contained several contempts of this Court. The 2nd respondent, Bedan Mbugua, who is the Managing Editor of the said newspaper is joined as the 2nd respondent. Independent Media Services Ltd is the publisher and proprietor of the said newspaper and it is joined as the 3rd respondent. The orders prayed for are committal to prison and/or any other just order.

Simultaneously, on 24th March, 1994, pursuant to the leave of the Court of Appeal granted on 23rd March, 1994, the Attorney General on behalf of the Republic filed a Notice of Motion in Criminal Application No NAI 5 of 1994, against George Benedict Kariuki, seeking an order for his committal to prison or any other just order for his contempt of this Court in causing the publication of a certain statement which was contained in the said article published in the said edition of the newspaper.

Accompanying each of the said applications is a statement of facts signed by Mrs Valerie Onyango, the Ag Deputy Chief Litigation Counsel, and a supporting affidavit sworn by the Acting Assistant Commissioner of Police, Stephen Mbugua Mbiyu. The contents of the two statements of facts and the affidavits are completely identical.

Following an application on 13th April, 1994, made on behalf of the Republic and strongly opposed by the learned advocates for the respondents in both the applications this Court on 14th April, 1994, in the afternoon ordered consolidation of the two applications. This order was made in view of the fact that in both the applications the article, the statements of facts, and the depositions in the two affidavits were identical and it was clearly far more convenient to consolidate the two files. It was ordered for all the proceedings thereafter to be recorded in Criminal Application No NAI 4/94 and Mr G B M Kariuki to be referred to as the 4th respondent.

The 1st, 2nd and 4th respondents have each filed a replying affidavit together with annextures thereto. Annexed to the 4th respondent’s affidavit is an article which he claimed he had written which will be referred to as the 4th respondent’s article. On 11th April, 1994, two separate notices of preliminary objection were filed on behalf of the 4th respondent seeking disqualification of the presiding judges and questioning the jurisdiction of the court. The objection seeking our disqualification was argued for about four days and on 20th April, 1994, in a short ruling, and while reserving our reasons to be delivered in the final judgment, we rejected the preliminary objection seeking for us to disqualify ourselves because there was no legal basis for us to do so and further that there was no question of any morals being actually involved in the matters. At the same time we declined to hear the preliminary objection on the question of jurisdiction at that stage because we had already, when granting leave, held that we had jurisdiction. But that holding having been made ex-parte we informed the advocates that they were at liberty to address us on the issue of jurisdiction during their submissions on the substantive issues of contempt.

I have had the privilege of perusing in draft form the judgment of my Lord Tunoi JA in which he has very ably dealt with the issues raised with regard to the consolidation of these proceedings and for this bench to disqualify itself particularly myself and my Lord Omolo JA. I am entirely in agreement with the reasons he has now given which impelled us to order consolidation of the proceedings and also to reject the preliminary objection to our hearing of these two applications seeking committal for contempt. I have nothing useful to add except to comment that it is quite

a normal practice for a judge to disqualify himself from hearing a case in which he has an interest or in which he thinks that parties may have a justifiable cause to fear prejudice. In these proceedings, none of the judges has any personal interest. The proceedings were not even initiated by this Court. The Attorney General in the interest of the public and to maintain the repute, dignity and respect of the Judiciary on his own initiative instituted these proceedings. Each of us felt satisfied that he had no interest in the matter because the article was directed against this Court and the Judiciary in general and not against any judge in particular. I had no hesitation at the earlier stage in concurring with my Lords Omolo & Tunoi JJ A in rejecting the preliminary objection seeking our disqualification.

As stated earlier we had indicated to the advocates that they were at liberty to address us on the issue of jurisdiction and we were, therefore, duly addressed at length on that issue during submissions on the substantive motions of contempt itself. I, therefore, propose first to deal with the question of jurisdiction. Mr Chunga for the Republic after referring to s 5 of the Judicature Act (cap 8 ) strongly urged that there was no conflict between the section and s 64 (1) of the Constitution. Instead they were complimentary. He drew attention to the English case of Regina vs Commissioner of Police of Metropolis Ex parte Blackburns No 2 [1968] 2 QB 150 and Re Lonrho Plc & others [1989] 2 All ER p1100. In the former the Court of Appeal and its dicta were vigorously criticized which in fact was a wrongful attribution of the Divisional Court to the Court of Appeal. The application for contempt proceedings was made to and heard by the Court of Appeal. In the Re Lonrho case an attempt to influence the House of Lords prompted contempt proceedings in the House of Lords itself. It, therefore, was quite proper for contempt proceedings to be started in the same Court concerning which the contempt was committed. Mr Chunga then proceeded to cite various local authorities, to which I may have occasion to refer from time to time, all of which had confirmed that the proper Court to deal with contempt proceedings was the one which had been subjected to the act of contempt.

Mr Khaminwa stressed that the Court of Appeal was a creature of statute whose jurisdiction was derived from and limited to the relevant statutory provisions. These were s 64 (1) of the Constitution and springing therefrom the Appeallate Jursidiction Act whereof s 3 had detailed the jurisdiction of the Court of Appeal. In both the sections it has been explicitly prescribed that the jurisdiction and powers of the Court of Appeal are confined only to appeals from the High Court as may be conferred on it by law. There was no mention of any original jurisdiction being conferred on it in respect of contempt proceedings. S 5 of the Judicature Act, continued

Mr Khaminwa, had merely made a procedural provision with regard to contempt of court proceedings. It was subordinate to the Constitution. Therefore, any part of it that violated the Constitution had to be rejected as being ultra vires.

Mr Khaminwa was clearly taken aback when his attention was drawn to the proviso to s 77(8) of the Constitution.

I quote below sub s (8) with the proviso:

“(8) No person shall be convicted of a criminal offence unless that offence is defined, and the penalty therefore is prescribed in a written law:

Provided that nothing in this sub-section shall prevent a Court from punishing a person for contempt notwithstanding that the act or omissions constituting the contempt is not defined in a written law and the penalty therefore is not so prescribed.”

Mr Khaminwa’s contention at first was that the term “Court” meant the High Court only. However, this is not the case. S 77 is a part of chapter V of the Constitution which contains provisions for protection of fundamental rights and freedoms of the individual. In fact s 77 has prescribed for a fair hearing within a reasonable time by an independent and impartial Court established by law to be afforded to a person charged with a criminal offence. S 86 (1), which is the last section of the chapter, has prescribed that in chapter V, except where the context otherwise requires, the term “Court” means any Court having jurisdiction in Kenya and that includes the Court of Appeal.

Another section in chapter V which has specifically given power to the Court of Appeal to punish for contempt is s 72 (1) (b) whereby it is authorized to deprive a person of his personal liberty which is protected under the section, subject of course to certain other exceptions detailed therein.

Finally, I do not agree with Mr Khaminwa’s contention that s 64 (1) of the Constitution under which the Court of Appeal has been established has not conferred any original jurisdiction on the Court of Appeal in respect of contempt matters. The commencing words of s 64(1) of the Constitution run as follows:

“There shall be a Court of Appeal which shall be a superior court of record, ....”

What is a Court of record? Mr Imanyara very kindly – though I cannot restrain myself from the unkind remark that he did so unwittingly, had referred us to the text book The English Legal System, 4th Edition by RJ Walker pp 153 – 168. This was chapter 9 “The Courts”. On p 154 a Court of record is described as follows:

“The essential characteristic of a Court of record is no longer that it maintains a record; it is that it has power to punish for contempt. Consequently any Court which has jurisdiction to punish contempt is a Court of record. The jurisdiction of inferior courts of record, such as the county courts, to punish contempt is generally limited to contempt committed in the face of the Court whereas superior courts of record have far wider powers to commit for contempt. Conduct which would amount to contempt if committed before a Court of record but which is committed before a Court which is not a Court of record, a Magistrates’ Court for example, may be punished by the High Court as a contempt.”

The contents of the above passage to my mind answer all the arguments and submissions made by Mr Khaminwa and Mr Imanyara which were spread over two and a half days questioning the original jurisdiction of the Court of Appeal in contempt proceedings mainly because being the final Court the respondents would be denied their right of appeal. However, I would still very briefly deal with the other issues raised by them. On the question of this being the final Court of Appeal and that, therefore, it was not proper for it to hear these criminal contempt proceedings, despite the fact that this Court had been made the subject of contempt, we have the case of Re Lonhro plc and Others [1989] 2 All ER p1100 in which the House of Lords, the final Court of Appeal in England, itself initiated the contempt proceedings unlike the contempt proceedings before us which were initiated by the Attorney General. Apart from establishing the fact that a superior court of record has the power to commence contempt proceedings, not necessarily in respect of contempt committed in face, it also establishes that its being the final Court of Appeal has no bearing on that power possessed by it.

Again on the issue of deprivation of the right of appeal which in fact was the main thrust of the submissions made by the learned advocates for the four respondents questioning the jurisdiction of the Court of Appeal, Mr Khaminwa drew attention to the United Nations Universal Declaration of Human Rights to which Kenya was a signatory and from which, he

claimed, the different sub-sections of s 77 of our Constitution dealing with the fundamental rights of a citizen were derived and to which they conformed. He particularly referred us to clause 8 of the said Universal Declaration which had provided for an accused person to be able to appeal to a higher tribunal if convicted of crime. He, therefore, argued that the hearing of the criminal proceedings by the Court of Appeal would deprive the respondents of their fundamental right of appeal ensured under s 77 of the Constitution.

Mr Khaminwa could not have been further from right in his assertion that s 77 of the Constitution had ensured a fundamental right which he termed was the right to appeal. It is interesting to note that this particular section which contains provisions for protection of fundamental rights and freedom of the individual makes no mention of a right of appeal having been conferred to any person charged with a criminal offence. Unable to find any such reference to a right of appeal in the section Mr Khaminwa submitted that this right was implicit in the words “....... for a fair hearing within a reasonable time by an independent and impartial Court .......” stressing the words “by an independent and impartial Court”. I do not agree with that interpretation of these words. The words “charged with a criminal offence” used at the commencement of the sub-section clearly show that what is meant by the words “an independent and impartial Court” referred to in the sub-section is a criminal trial court and not a Court of Appeal. I totally reject this submission.

With regard to the conferment of jurisdiction by s 5 of the Judicature Act, s 72 (1) (b) and the proviso to s 77 (8) of the Constitution to the Court of Appeal to deal with contempt matters the contention of both Mr Khaminwa and Mr Imanyara was that the jurisdiction that was conferred by these sections was in respect of contempt committed only in face of the Court of Appeal. This to my mind is not only an empty and fallacious argument, but also contradicts what has been their basic argument questioning this court’s jurisdiction founded on the deprivation of the right of the appeal. There is no mention of such limitation of Court of Appeal’s jurisdiction in any of these sections. And if the Court of Appeal has jurisdiction to hear and punish in respect of contempt committed in face of it then in that event to which Court will an appeal lie? And so is it logical to argue that whereas deprivation of a right of appeal is acceptable in case of a criminal contempt committed in face of the Court of Appeal it is not acceptable if the criminal contempt proceedings take the form of a trial as in the present case. I reject this submission also.

Before I dismiss this preliminary point questioning the jurisdiction of

the Court of Appeal, I would very briefly comment on Mr Imanyara’s completely irrelevant introduction of The European Court as the third Court of Appeal above the High Court of Justice in England. On p155 of the same text-book The English Legal System (supra) it is stated in the passage titled B The European Court for all those who really are interested in these topics, to see that the European Court’s jurisdiction does not extend to purely internal disputes between subjects of the same country so that in the vast majority of cases arising within the United Kingdom there is no question of the dispute going further than the House of Lords.

Mr Imanyara for the 1st, 2nd and 3rd respondents in support of the European Court as the final Court of Appeal even for England and strongly criticized Mr Chunga’s reliance on the case Attorney General vs Times Newspapers Ltd [1973] 3 WLR p 298 in which an injunction to stop publication of an article which would have amounted to a contempt of court eventually ended up in the House of Lords who held that the injunction was rightly granted since publication of the article would amount to contempt of court. Mr Imanyara pointed out that the decision on the facts of the Times (supra) case was held by the European Court of Human Rights to breach the provisions of the European Convention on Human Rights. So what applied to publications ought in principle to apply to all contempts and the contempt proceedings before us should, therefore, follow the principles that emerged from the decision of the European Court. I do not agree with that contention. In the first place the facts which gave rise to the Times (supra) proceedings have an inter-European element in it. The sedative drug which had given rise to the issue of writs in England had been invented and used in Germany. The English company Distillers Co (Bio-Chemicals) Ltd, later made and marketed under licence the said drug containing thalidomide. That established the inter-European character and, therefore, the European Court under the Treaty was able to exercise its jurisdiction as the final Court. Finally in The Law of Contempt by Antony Arlidge & David Eady (1982) from which Mr Imanyara had quoted the views which I have summarized above, it is stated in para 4-07 on page 154 that as matters stood the decision in Times case (supra) was still good law and the actus reus must be taken to be any act which creates a real though small degree of prejudice. That, I must point out, has to be considered in light of the fact that proceedings were still pending before the Court.

I do not think that it would be out of place for me at this stage to make an observation obiter dictum that the Constitution has not specifically conferred a right of appeal in a criminal and, for that matter, even in a civil proceeding except from references and appeals on interpretation of Constitution – s 67(1). It has, however, made provisions whereby it has

been possible for statutes such as the Civil Procedure Act and the Criminal Procedure Code and other statutes including even the Judicature Act to prescribe remedies as well as limitations regarding appeals to higher tribunals. Such intention of the Constitution is embodied in the words “and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law” in s 60(1) of the Constitution and the supervisory jurisdiction bestowed on the High Court in s 65 (2) of the Constitution.

Coming now to the substantive motions I have had the privilege of perusing in draft form the judgment of my Lord Omolo, JA in which he has dealt with the evidence relating to contempt proceedings against the 1st, 2nd and 3rd respondents. I am in full agreement with his findings of fact and with his final decision in respect of each of these three respondents.

At this stage I also want to state that with regard to the sentiments expressed by my Lord Omolo, JA and also by my Lord Tunoi, JA on the role of the Law Society of Kenya in these proceedings, I whole-heartedly associate myself with those sentiments. One morning when this Court was in the middle of the contempt proceedings the Law Society of Kenya gate-crashed into the proceedings with an application filed on 31st March, 1994, seeking permission of the Court to act as amicus curiae and to address the Court. This was during court vacations. No leave of the court had been obtained. No certificate of urgency had been filed nor an order of a single judge certifying the matter as urgent was obtained. Mr Muturi Kigano, who was representing the Law Society of Kenya, suddenly shot up from a back row in the court room and attempted to address the Court as if he was addressing a villagers’ baraza and not the highest Court of the country, and being fully aware of the fact that his application was not listed for hearing and that the relevant file was not before the Court. Such behavior which amounts to lack of respect for the Court and for court procedure and can be easily understood as an attempt to create disorderliness or disturbance in a Court can lead to extremely dire consequences for the advocates concerned. We, however, allowed our proceedings to be so disturbed and gave Mr Kigano a full hearing on 6th April, 1994. But it is earnestly hoped that the Law Society of Kenya will take steps to give better or proper guidance to its members when appearing before any Court of law.

The Notice of Motion taken out against the 4th respondent seeks his committal to prison and/or such further orders as may seem just for his contempt to this Court in causing the publication of the words “Judicial Lynching & Blackmail tailored to meet the political expedience of the Executive” (hereafter referred to as the offensive words) in an article

(details of which are given) in issue No 56 of “The People” dated March 6 – 12, 1994. The Motion is supported by a statement and in para 3 thereof the 4th respondent’s contempt is referred to as “in publishing a statement” – the statement being the offensive words. The evidence relied upon is found in the accompanying affidavit of the Acting Assistant Commissioner of Police, Stephen Mbugua Mbiyu, (hereafter referred to as the police officer).

After referring to the Notices of Motion, the statement, the affidavits of the police officer and the replying affidavits of the respondents together with the annextures thereto Mr Chunga stressed the following facts:

1. The article itself and the offensive words in which the 4th respondent is claimed to have termed the decision of the 5 judge bench of the Court of Appeal in Don’s case. The University Don’s case was the Civil Application NAI 20 of 1994 (12/94 UR) in which five University lecturers had applied to the Court of Appeal to exercise their discretionary jurisdiction under rule 5(2) (b) of the Court of Appeal Rules to order a stay of execution of the refusal by the High Court to grant them an injunction to restrain the Nairobi University from evicting them from subsidized housing which the University of Nairobi provided them by virtue of their employment with them. The hearing of this application was concluded on 17th February, 1994, and the ruling was delivered on 1st March, 1994. It is to be noted from the article that on 25th February, 1994, His Excellency the President at Kerugoya Stadium for the second time ruled out the registration of UASU which the applicants were fighting for. The article had further stated that His Excellency, had promised ruthless action on the striking dons. The passage of the article referring to the 4th respondent runs as follows:

“Mr G B M Kariuki the lawyer who represented Mr Matiba in the bid to unseat Moi, terms the court’s ruling “judicial lynching and blackmail tailored to meet the political expedience of the Executive” – the offensive words.

2. Para 4 of the replying affidavit by the 4th respondent in which he has deponed to his belief that those words were extracted and edited out of context in (from) an

article he had written on Judiciary as the bulwark of liberty and the Rule of Law and which was not published by “The People” Newspaper. A copy of the said article is attached to the replying affidavit.

3. Mr Chunga pointed out that the offensive words were identical to the words used by the 4th respondent in 2nd para on page 4 of his article which I reproduce below:

“When the President at Kerugoya on 25th February, 1994 declared that the University dons shall not be allowed to register a union at a time when the matter was pending in the Court of Appeal for determination, Kenyans saw interference with the functioning of the Judiciary. The President should have been censured. The subsequent decision by the Court of Appeal on 1st March, 1994, refusing to grant stay to the University dons may have seemed to many to be judicial lynching and blackmail tailored to meet the political expedience of the Executive.”

4. Mr Chunga particularly referred to paras 13, 14 and 15 of the replying affidavit of Mr Makali, the first respondent. In paras 13 and 14 he had deponed to the effect that his article was based on his interviews, as a journalist, with a broad cross-section of public officials and lawyers, which he had conducted following the reactions aroused by the President’s speech. In para 15 he had deponed that he had also used words from a paragraph in Mr Kariuki’s article. The paragraph he reproduced in his affidavit is the same which has been reproduced in para 3 above.

5. The conduct of the 4th respondent following the publication was a telling factor.

Mr Chunga conceded that there was no direct evidence to show how the 4th respondent’s article had got into possession of the 1st respondent. But he said that irresistible inference could be drawn from the following facts to prove that the 4th respondent had caused or set in motion events that led to the 1st respondent getting possession of the 4th respondent’s article and then publishing part of it. The facts he pointed out were:

1. The 4th respondent had prepared his article.

2. The contents of his article showed that it was meant

for publication – oral or written.

3. The 4th respondent had used the offensive words in his article.

4. Apart from mentioning the names of two of the dons concerned in the Don’s case and of one Smokin Wanjala of the Faculty of Law the 1st respondent in paras 13 & 14 of his affidavit had not named any of the number of public officials and lawyers that he claimed he had interviewed. But in the case of the 4th respondent he named him and admitted that he had used from his article and had then reproduced the exact passage as it stood on page 4, 2nd para of the 4th respondent’s article. This is a very significant statement and I will have occasion to refer to it at a later stage. What Mr Chunga stressed was that the reproduction of the whole passage in the affidavit showed that those words were not extracted or quoted out of context.

5. The 4th respondent had admitted preparing his own article but strangely had not deemed it fit to disclose the purpose for which he had prepared it, such as if it was to be read out at a seminar or for publication.

6. The 4th respondent had chosen not to throw any light on the fact as to what had happened to his article apart from stating that the People had not published it.

In Mr Chunga’s view the facts in the last two paras No 5 and 6 were especially within the knowledge of the 4th respondent as envisaged by s 111 of The Evidence Act such as the purpose for which his article had been prepared and whether or not he had authorized its publication or any part of it. The facts as they stood after being proved by evidence contended Mr Chunga, led to the irresistible inference that the 4th respondent had set in motion events which had led to the publication of the offensive words.

With reference to s 111 of The Evidence Act Mr Chunga elaborated that the burden of proving facts which especially and peculiarly are solely within the knowledge of the 4th respondent lay on him, this burden being much lighter and to be tested on balance of probabilities. In his contention that stage had been reached because as far as the applicant’s case was concerned it had, on evidence placed before the Court, proved beyond reasonable doubt that the 4th respondent had caused publication of the offensive words.

Mr A R Kapila who had taken over the defence of the 4th respondent on

the publication itself commenced his assault on the applicant’s proceedings by first claiming that the charge was defective. Mr Kapila referred to the words used in the Notice of Motion which read “in causing the publication of a statement” which he said were different from the words used in para 3 of the statement where they read “in publishing a statement”. Finally the words used by the police officer in para 7 of his supporting affidavit which read “the statement attributed to the respondent” were entirely different from those used in either the Notice of Motion or the statement of facts. The 4th respondent was therefore facing a multiplicity of charges. He was confused as to whether the charge that he was facing was that of causing publication or in publishing the statement or was he facing the charge that he was facing because the statement that had been published was attributed to him. Mr Kapila pointed out the difference in the three expressions used in the three documents which was causing him prejudice in his defence. He added that the affidavit, that is the evidence, did not support the charge of causing publication and that was a fatal defect.

With regard to the different words used in the Notice of Motion, the statement and the affidavit in my view there is no confusion or prejudice caused to the 4th respondent thereby. In his replying affidavit in para 2 he denies that the statement attributed to him was his and in para 3 he depones to the effect that he did not cause the publication of the said words attributed to him. In fact in para 4 of his said affidavit he volunteers an explanation by way of his belief in those words having been extracted and edited out of context from an article he had written and copy of which he annexed to the replying affidavit. So the 4th respondent was fully aware of what the charge against him was. As no prejudice or embarrassment was caused to him I do not propose to go any further in the alleged different meanings, if any, in the words used in the three documents. In any case if there is any difference in the meanings the same is very far from being anywhere to what may be termed as a substantial difference and as no prejudice has been caused to the 4th respondent I reject this submission

On the issue of transmission Mr Kapila relied heavily on the High Court Misc Cr Application No 461 of 1990 R v P Nowrojee to demonstrate how vital was this issue. He contended that if there was a break in the transmission link that would be fatal.

The 1st respondent in para 15 of his affidavit had merely stated that he had used words from a paragraph in Mr Kariuki’s articles. He had then re-produced the para. He did not say that he got possession of it from the 4th respondent. So how did 4th respondent’s article get into his possession? There was a lacuna which it was the applicant’s duty to bridge with the

necessary information. That lacuna in Nowrojee’s case had proved fatal and must also prove fatal in the proceedings against the 4th respondent.

Mr Kapila continued that even if it was found that the offensive words used in the article were identical to the words used in the 4th respondent’s article then all that was established thereby was that the offensive words had been taken from the latter’s article. But that still did not prove how the 1st respondent got possession of the 4th respondent’s article. The mere similarity of the words was not enough to entitle the Court draw an irresistible inference. In fact there was a distortion of the 4th respondent’s article because the 1st respondent had replaced the words “may have seemed to many” which the 4th respondent had used at the commencement of the offensive words in his article by the words “Mr G B M Kariuki...... termed the Court’s ruling ......” The change in the words, contended Mr Kapila, had altered the meaning of the offensive words.

Mr Kapila next turned his attention to what the words “in causing the publication” meant and what evidence was expected to be produced in order to establish that. He submitted that the word “cause” involves a person, who has authority to do so, ordering or directing another person to use it – like a mandate that an owner has when he asks his chauffeur to drive his car to some place. It was the prosecution’s duty to bring positive evidence to show that the 4th respondent had asked the “People” newspaper or the 1st respondent to use the former’s articles or any part thereof in the latter’s article. To support his interpretation of the words “to cause”. Mr Kapila cited the following four English cases: Watkins vs Oshaughness [1939] V 1 All ER a Court of Appeal decision, Shave v Bosner [1954] V 2 All ER a decision of the Queen’s Bench Division, Mcleod (or Houston) v Buchman [1940] V 2 All ER: a House of Lords decision, and Lovelace v Director of Public Prosecutions [1954] V 3 All ER a decision of the Queen’s Bench Division. I have carefully perused these authorities. There is a common feature in all these cases cited to us which significantly is absent from the proceedings before us. All the four cited authorities concern criminal proceedings arising from a breach of a statutory duty which is not the case in the proceedings before us. The two cases of Watkins and McLeod (or Houston) concern a breach of Road Traffic Act 1930 (c 43), s 35 (1). The prosecution in the case of Shave v Rosner arose from a breach of Motor Vehicles (Construction and use) Regulations 1951. The case of Lovelace v DPP concerned a breach of the Theatres Act 1843 (C1 68), 515. The question which had occupied the minds of the learned judges in all these cases was the difference between the terms “to cause” and “ to permit”. Essentially these authorities are sound authorities where the issue is to distinguish between the two terms. That is not the issue before

us. And as I have stated earlier all these four cases, unlike the contempt proceedings before us, concern breach of a statutory duty. I would prefer not to draw any inspiration from these authorities. I accept Mr Chunga’s view that the use of the words “in causing” has no semblance to the use of these words in a statute. The words are used in the Notice of Motion simply to denote the role that the 4th respondent played in the publication. The applicant’s case is that the 4th respondent caused the flow of events which culminated in the publication of the offensive words.

Mr Kapila was strongly critical of what he termed the applicant’s attempt to seek help from s 111 of the Evidence Act (cap 80 L K) in trying to fill up the lacuna in the applicants’ evidence relating to the transmission. In his view the section was meant to come into play only when an accused has to prove the existence of circumstances within the exception or exemption from, or qualification to, the operation of the law creating the offence. That was not the position in the instant proceedings. Mr Kapila had to be reminded by Mr Chunga that he was relying only on the closing words of the section which read as follows:

“S 111 (1) When a person is accused of any offence, the burden of proving....... any fact especially within the knowledge of such person is upon him.”

Then follow the provisos and sub s 2 which are not relevant to the portion of sub s 1 which I have quoted above. I would also wish to point out that the part of the sub-section which I have omitted above and which is irrelevant to the present proceedings is the one which has prescribed in respect of proving the existence of circumstances bringing the case within any exceptions etc etc.

Continuing, Mr Kapila contended that the applicant was adopting the position that the fact that the 4th respondent transmitted his article to the People newspaper was a matter specifically within the knowledge of the 4th respondent who, therefore, was burdened with the duty to show by evidence that he had not done so. Mr Kapila cited three Privy Council decisions in cases from Ceylon to show that such an approach was wrong because it amounted to throwing the burden of proving his innocence on the accused. The section involved was s 106 of Ceylon Evidence Ordinance whose provisions are more or less similar to the portion of s 111(1) which I reproduced above. The cases cited were Seneviratne v R [1936] V 3 All ER 1936. Attygale v R [1936] V 2 All ER p 116 and Mary NG and the Queen [1958] 2 WLR p 1958. I have studied these authorities and with all due respect to the Privy Council I fully accept the views of the learned judges. In all these cases there was a clear misconception of the intention

of the section which resulted in putting the onus on the accused of proving his or her innocence. The sub-section refers to a burden of proof of a fact or facts and no more. The same issue arose in Mwaitige v R [1961] EA p 470 on appeal from the High Court of Tanganyika and this is what the Court of Appeal observed:

“Learned counsel has made a further submission, that the identity of the producer of the coffee and the district in which it had been grown would be facts peculiarly within the knowledge of the person selling it, and that the onus of proof therefore shifted to the accused. Reliance is presumably placed on s 105 of the Indian Evidence Act, as amended by s 8 (1) of the Indian Acts (Application) Ordinance of Tanganyika, but we do not think that it can be said to apply in the present circumstances. Their Lordships of the Privy Council have held on several occasions when considering similar provisions in the law of Ceylon and Singapore, that the obligation cast by s 105 on an accused person of proving any fact especially within his knowledge does not cast upon him the burden of proving that no crime was committed.”

The underlining is mine. The learned judges of the Court of Appeal had then given reference of the above mentioned three Privy Council decisions. With respect I entirely agree with the above views of the Court of Appeal.

In my view our subsection contemplates facts which, in their nature, are such as to be within the knowledge of the accused and of nobody else; it has no application to cases where the fact in question, having regard to its nature is such as to be capable of being known not only by the accused but also by others – if they happened to be present when it took place. I strongly stress that it cannot be invoked to make up for the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. And I wish again to stress that the burden of proving knowledge of fact, when such knowledge is an ingredient of the offence charged, is almost invariably on the prosecution and cannot be shifted to the accused merely on the ground that this is a fact within his knowledge. Ordinarily the burden of proving every ingredient of the offence, even though negative averments be involved therein, is on the prosecution. But it seems that, under this sub-section, the burden of proving a fact would be upon the accused person if the subject of the averment, whether affirmative or negative, is peculiarly within his knowledge. An accused person is

always entitled to say nothing, but where the only alternative theory to his guilt is a remote possibility, which, if correct, he is in a position to explain, it is for him to prove that alternative theory – on a balance of probability, and if he does not do so, the omission will be considered in determining whether the alternative theory should be disregarded or taken into account. Again it has firmly to be borne in mind that this sub-section is not a proviso to the rule that the burden of proving the guilt of the accused is upon the prosecution. It does not cast any burden on an accused person to prove that no crime was committed, by proving facts especially within his knowledge, nor does it warrant the conclusion that if anything is unexplained, which the Court thinks the accused could explain, he ought therefore be found guilty.

And at this stage I would also quote the following passage from our Court of Appeal decision in – Sharampal Singh s/o Pritam Singh v R [1960] EA p 762 – p776.

“............. it is the bounden duty of a judge in dealing with circumstantial evidence, to consider every possible set of circumstances, in the process of determining, as he must, whether the evidence is incapable of explanation upon any other reasonable hypothesis than that of the guilt of the prisoner. He must examine every other reasonable possibility and test it against the evidence – only if it is incompatible with the evidence may he discard it.”

Underlining is mine to stress the words reasonable hypothesis and reasonable possibility.

Before proceeding now to analyse the evidence I will state that in the 2nd para of his replying affidavit the 4th respondent has deponed that the statement attributed to him in the article as worded in the context it appeared was not his.

In the 3rd para the 4th respondent has deponed that he did not cause the publication of the offensive words in that issue of the “People” newspaper.

In the 4th para he has deponed his belief that the offensive words were extracted and edited out of context in an article he had written on the Judiciary which was not published by the People. He annexed a copy of the article to his replying affidavit.

With regard to Nowrojee’s case on which Mr Kapila had heavily relied in his claim that there was a lacuna in the act of transmission I must point out that the facts in Nowrojee’s case are very different from those in the instant proceedings. In Nowrojee’s case the letter containing the offending remarks was addressed to the Registrar of the High Court and was duly received by the registry, civil side. It was a complaint concerning undue delay in the delivery of a ruling by a judge in which a stay of traffic proceedings in a subordinate court was being sought. The letter was written by Mr Nowrojee who was acting for the applicant who was seeking the stay. It was not copied to any of the newspapers. It was meant for the Registrar, High Court, clearly to be placed before the judge concerned for his perusal and direction. The Republic had sought to prove transmission of the letter by its writer or his agent to the local newspapers from the fact of its publication in the newspaper more or less simultaneously with its receipt by the court registry. Because there was no direct evidence of such transmission by Mr Nowrojee, combined with the fact that there was evidence of possibilities of transmission through other independent sources, and I stress this element of existence of evidence, the Court found that the evidence before it left room for speculation and resolved the doubt in favour of the respondent therein – that is in favour of the alleged contemnor.

In the instant proceedings a perusal of the 4th respondent’s article will leave no doubt whatsoever that the article was not meant forever to remain out of sight inside the covers of a dusty office file. That article was meant for the consumption of the public either orally or through the press and there can be no doubt whatsoever on that being the purpose of this article. And that is where the basic difference lies between the two proceedings that is that whereas in Nowrojee’s case the publication of the letter was meant for the Registrar, the 4th respondent’s article was meant for publication for public consumption.

It would be appropriate at this stage to deal with para 4 of the 4th respondent’s replying affidavit in which he has deponed to the effect that he believed that the offence words had been extracted and edited from an article he had written on the Judiciary and I quote, “ and which was not published by “The People” newspaper”. A copy of the article was attached to the affidavit. What the quoted statement clearly means is that the 4th respondent had sought publication of the article in that newspaper but the newspaper had not published it. There is no other way that this statement can be interpreted. Otherwise why did the 4th respondent mention at all the fact of non-publication of the article by the particular newspaper in his affidavit? It had been made abundantly clear in the Notice of Motion, the statement and the police officer’s affidavit and the article from the People

annexed thereto that the 1st respondent was the author of the article and the 4th respondent’s contribution was confined only to the thirteen offensive words. I have no doubt in my mind that what is meant to be conveyed by the quoted statement is what I have stated earlier.

Now I will come to certain facts which emerge not only from the affidavits before us but also from the 4th respondent’s article which is a part of the evidence. The 4th respondent was not obliged to annex his article to his affidavit as an exhibit. But having done so he thereby rendered it a part of the total evidence before the Court. The facts that emerge are that the 4th respondent was Mr Matiba’s advocate in the latter’s election petition against His Excelleny The President. This election petition was struck off by the Court of Appeal. The article discloses that the 4th respondent was aggrieved – justiably or not is not an issue here. But his being aggrieved, and I want to emphasize this, would not be quite contrary to a natural re-action of an advocate. The significance, however, is that the newspaper “People” is, according to the affidavit of the 2nd respondent, closely linked and associated with the said Mr Matiba. The People newspaper was launched by the said Mr Matiba whose advocate the 4th respondent was. That is some evidence of close association between the 4th respondent and the People.

Keeping in mind the above facts and particularly that the 4th respondent’s article was intended to be published and that he had sought its publication in the People newspaper and the fact that the 1st respondent has deponed that he used words from a paragraph in the 4th respondent’s article and then reproduced the whole of the paragraph in question, I have no hesitation in coming to the conclusion that the 4th respondent sent or caused his article to be sent to the People newspaper for publication. The fact that the whole of the 4th respondent’s article was not published is not of any concern to the question of transmission. In Nowrojee’s case there was evidence and not mere speculative possibilities relating to other possible sources from which the newspaper could have obtained the contents of the letter. That fact negated the attempt of the prosecution to have an incriminating inference drawn from the publication in the newspapers simultaneously with the receipt of the letter at the civil registry. In the instant proceedings in view of what the 1st respondent has deponed in his affidavit, the knowledge about the actual transmission is confined to the two respondents only – the 1st respondent and to a much greater extent to the 4th respondent. It is not the duty of the prosecution to demolish all speculative possibilities. In a criminal case circumstantial evidence must exclude all reasonable possibilities save that of guilt. I am satisfied that it is an irresistible inference from proved facts before us that it was the 4th

respondent who had caused his article to be sent to the People newspaper and that it was his intention for it to be published.

Mr Chunga, in his submissions, had, to my mind, made a very persuasive reference to the conduct of the 4th respondent following the publication. He termed the conduct of the 4th respondent as a telling factor. Mr Kapila on the other hand dismissed this factor on the ground that it would supply corroboration only if there was evidence to show that the 4th respondent had caused the transmission. To my mind the 4th respondent’s conduct following the publication is very pertinent. As to the evidence relating to 4th respondent’s involvement in the transmission of his article to the newspaper I have already found that there is an irresistible inference of his having caused the transmission and the publication. I have also referred to the close association between the 4th respondent and the People newspaper. The 4th respondent I am satisfied knew before or immediately after the publication of the said edition of the People, of the appearance of the offensive words that he had used in his own article. There is no evidence that after the publication of the newspaper the 4th respondent took any step to ask the newspaper or either of the other two respondents Nos 1 and 2 for an explanation, or that he took any step to dissociate himself from what had been attributed to him in the article. A senior advocate like the 4th respondent must have appreciated that that publication of the offensive words and their being attributed to him had exposed him to a grave danger. To think otherwise would not only be unreasonable but extremely naive. To my mind this conduct of the 4th respondent is a corroboration of the fact that the publication had been authorized by him or at least had his approval. In fact, apart from the irresistible inference that has already been drawn from the evidence before the Court, this conduct of the 4th respondent, alone and by itself, totally demolishes the truthfulness of the facts that he has deponed to in paras 2 and 3 of his replying affidavit.

And that brings me finally to s 111 of the Evidence Act. I am satisfied that the applicant has proved beyond reasonable doubt the offence of contempt against the 4th respondent as stated in the Notice of Motion. But as I stated earlier an accused person has a right to say nothing and leave it totally on the prosecution to prove the charge against him beyond reasonable doubt. But now where the only alternative theory to his guilt was remote possibility, which, if correct, the 4th respondent was in a position to explain, it was for him to prove that alternative theory. Perhaps he had sent a note or a message when he sent the article for publication forbidding extraction and publication of any portion or passage from it without his explicit authority. But he has not done so and that omission has been considered and discarded. In fact as I said his conduct, alone

and by itself, had demolished what the 4th respondent had by way of his defence deponed to in paras 2 and 3 of his replying affidavit.

I now come to the statement attributed to the 4th respondent consisting of the offensive words. Mr Kapila very rightly contended that it was for the applicant to establish intention to commit contempt. He, however agreed that mens rea, in such cases, was often to be inferred from the words that were used. It was not an objective but a subjective test. If a reasonable doubt was created that the intention was not to scandalize but perhaps it disclosed a concern in respect of a wider interest in which such a discussion was acceptable, then however offensive a particular word or phrase might be the word or the phrase was not to be looked at in isolation when construing the meaning or the intention. The 4th respondent’s article was a discussion of that nature he added. However strong or offensive the word or phrase was it did not establish contempt. The thirteen words used in the offensive sentence might be close to but did not amount to contempt if looked at, not in isolation but in the proper context. Mr Kapila, however, in the same breath added that the 4th respondent’s article was not under consideration for contempt and yet he urged the 13 offensive words were not to be looked at in isolation but in their context.

In the first place have these thirteen offensive words been taken and reproduced out of context? The 1st respondent said that he had also used words from a paragraph in Mr Kariuki’s article and he then reproduced the said paragraph in para 15 of his replying affidavit. The paragraph in actual fact is the 2nd paragraph on page 4 of the 4th respondent’s article in which he had referred to His Excellency’s speech at Kerugoya on 25th February, 1994, in which he had been critical of the dons at a time when their matter was pending in the Court of Appeal. After terming it as being seen by Kenyans as interference with the functioning of the Judiciary he added that the subsequent decision of the Court of Appeal on 1st March, 1994, refusing to grant stay to the University dons seemed to many to be judicial lynching and blackmail tailored to meet the political expedience of the Executive. The 1st respondent in his article has not only produced the 13 offensive words but also given the gist of events as highlighted in the said paragraph in the preceeding 4th column of his article. He has mentioned His Excellency’s speech at Kerugoya crucial of the Don’s actions in the 3rd para of the 4th column. His Excellency’s announcement being criticized as an interference with independence of Judiciary is mentioned in the last para of the 4th column. And then in the top para of the next column which is the 5th column the 1st respondent has mentioned the name of the 4th respondent as having termed the court’s ruling (in the Dons’ matter) “ Judicial lynching and blackmail tailored to meet the

political expedience of the Executive”.

It will be observed from the above analysis and the manner in which the 2nd para from page 4 of the 4th respondent’s article has been reproduced by the 1st respondent that the 13 offensive words have not strictly been extracted and edited out of context. In any case and in any context these thirteen words by themselves have clearly imputed an evil motive to the Court of Appeal for its decision. The evil motive is that the Court of Appeal involved itself in lynching and blackmailing the dons so as to suit the Executive, that the Judiciary has lost its independence and has become sub-servient to the Executive. This is a scurrilous attack on the Judiciary and is calculated to bring it into disrepute in the eyes of the public. I find the 4th respondent guilty of contempt of the Court of Appeal and I convict him accordingly. As to the punishment that should be awarded to the 4th respondent and to the 1st, 2nd and the 3rd respondents, I have perused the same as proposed by my Lord Omolo, JA and I entirely agree with it.

Omolo JA. My Lords, as far as I am aware, no judge ever feels confortable when called upon to adjudicate on the vexing and at times emotive issue of contempt of court. We are more at ease when adjudicating upon issues which everybody knows we could entertain no conceivable personal interest in the outcome of the dispute before us. The position is different in contempt of court matters as people perhaps, only too naturally, tend to view such disputes as being between the Courts and the person or persons alleged to be in contempt. Lord Denning, MR put it this way in the case of Regina v Commissioner of Police of the Metropolis Ex parte Blackburn (No 2) [1968] 2 QB 150 at pg 154 & 155:-

“This is the first case so far as I know, where this Court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise more particularly as we ourselves have an interest in the matter.”

And in her short but ill-fated appearance in these proceedings, Ms Martha Karua, in asking two of us to disqualify ourselves, bluntly told us that we were the accusers of the persons appearing before us and that we should not be sent to sit in judgment on a matter in which we are the accusers. While I do not agree with her on these points, yet they go a long way in showing the manner in which people view contempt proceedings, namely, them, ie the Courts, versus those alleged to be in contempt. Lord Denning’s observation “we ourselves have an interest in the matter” only goes to show how serious the position is. We accordingly must tread warily because a

reckless and unchecked inclination on the part of the Courts to punish for contempt, could easily end up on achieving the very opposite result which such proceedings are intended to achieve, namely, the protection of the public confidence in the administration of justice by the Courts.

But having said that, I do not for one moment believe that this Court does not have jurisdiction to punish for contempt. The strongest point which was urged in this behalf was that as we are the final Court in the land if the Court punishes anyone for contempt against itself, such person would have nowhere to appeal to and would accordingly not have been accorded a fair hearing within the meaning and spirit of the provisions of section 77 of our Constitution. The proviso to section 77 (8) of the Constitution, however, expressly reserves the power of “a Court” to punish for contempt and I can find no basis, either in that section or any other section, that in respect of the Court of Appeal, that power is limited to punishing only for contempt committed on the face of the Court. In any case if lack of jurisdiction by this Court is based on the question of there being no other Court to appeal to, then it is illogical to assert that in the event of a contempt on its face the Court of Appeal is entitled to punish such contempt. Even persons who are convicted and punished for contempt on the face of the Court would be equally entitled to appeal if they could do it to another Court. On the issue of jurisdiction, I entirely agree with what has been said by my Lord Cockar and I would also reject the assertion that the Court of Appeal has no jurisdiction to punish for contempt against itself. I also agree with my Lord Tunoi that there was no legal basis for asking us to disqualify ourselves from presiding over these proceedings. The power to punish for contempt is not and has never been a secret weapon of the Courts. It is known or ought to be known by the public that Courts do possess that power and in appropriate and necessary circumstances will exercise it. That power resides in the Court and any judge of the Court can exercise it, unless a particular judge or judges of that Court has or have done something which makes him or them unsuitable to act on the matter, like being involved in efforts to bring a prosecution, drafting and approving the charges as was the case with the Law Lords who found it necessary to disqualify themselves in the Re Lonrho PLC and others [1989] 2 All ER 1100.

My Lords, the necessary background facts of this case have been amply stated in the judgment of my Lord Cockar and I need not repeat them. It is enough to say that on 1st March, 1994 a five judge bench division of this Court delivered its ruling in what has now become known as the Dons case. That case was a dispute between five lecturers of the University of Nairobi, on the one hand and the University administration, on the other

hand. My Lord Cockar and I sat on the Dons case as well. In the Dons case the five of us refused to follow and apply another recent decision of another three judge bench division on the Court. The decision which we refused to follow and apply has become known as the Nyamogo case. It is not necessary for me to state in this judgment the principles involved in the two cases. The hearing of the Dons case opened before us on 14th February, 1994 and was concluded on the 17th of the same month. We reserved our ruling to the 1st of March. The Court was then due to hold its sittings in Nakuru from Monday, the 21st of February. The 17th of February on which we concluded the hearing of the Dons case was a Thursday. My Lords Gachuhi, Cockar and myself who were on the Dons case were included on the Nakuru list. So on Friday the 18th February, the five of us who sat on the Dons case met in the chambers of the Chief Justice who was presiding. For some two or so hours, we deliberated over the matter and reached a consensus on what our judgment was to be.

The task of drafting the judgment so agreed upon fell upon the shoulders of the Chief Justice. Those of us who went to Nakuru resumed our Nairobi duties on 28th February. The draft judgment by the Chief Justice was ready on the desk of each one of us. Each one of us read and approved the draft. As is our usual practice each one of us signed the final judgment in Court just before it was delivered. I have found it necessary to set out these minor details regarding the Dons case because of what I propose to outline next.

On the 25th February, 1994 when our judgment was still pending, His Excellency the President addressed a political rally at Kerugoya in Kirinyaga district. He was reported by the local press to have declared that the Government would not allow the registration of a body called UASU which was and still remains a proposed trade union for University lecturers in Kenya. I agree with Mr Chunga for the applicant, the Hon The Attorney – General, that the registration of UASU was not a matter directly in issue in the Dons case but I think Dr Khaminwa and Mr Imanyara have a point in their contention that the registration of UASU was so intertwined with the issues in the dispute before us during the Dons case that ordinary people who are not lawyers might have found it very difficult to see where the distinction lay. So when we delivered our ruling in the Dons case on 1st March, a weekly publication called “The People” took it up in its issue No 56 dated the 6th – 12th March, 1994. It is clear from the article which was titled

“Court of Appeal Ruling on Dons Case Reeked of State Inteference”

that “The People” did not agree with our ruling. That is its undoubted right and no Court of law is entitled to expect that all people should agree with its decision any more than it would be entitled to compel people to be in agreement with its decisions. Of course when it comes to enforcing its decision, when it is irrelevant whether or not the person against whom it is to be enforced agrees with the decision. But the right to disagree and to criticise decisions of all our Courts is a constitutional right of every citizen of this Republic so judges in this country must be ready and prepared to accept such criticism, however vigorous, however robust and however critical. That was accepted by the High Court of Kenya as long ago as 1981 when that Court decided the case of the Republic v Wangari Muta Mathai and two others Criminal Application No 53 of 1981. Dealing with the right to disagree the judges in the case said:-

“.... Looking at the matter broadly for a moment, to use the professor’s own words people are entitled to hold their view, even mistaken views. We agree with her entirely. She is entitled to hold her own views, and express her criticism. But two results follow from that position. She must allow the others the same right to disagree with her, including a Court; and accordingly her criticism must be couched in reasonable terms. She must not vilify those who disagree with her. A moment’s reflection will show that the professor is not being asked to believe and accept anything impossible or unpalatable to her, but simply to conduct her dissent in sensible terms, as indeed all parties and witnesses who lose a legal battle are required to do, for the sake of the continuing process of the administration of justice...”

The point being stressed in this passage is that people have a right to disagree and to express their disagreement either in writing or verbally but at the same time they must also accept the right of other people, including the judges, to disagree with whatever position they may take on a particular litigation. So long as each side expresses its disagreement in sensible terms, no problem arises and the old adage still applies to this day:

“I may not agree with what you say but I shall defend to the death your right to say it.”

As is clear from the Mathai case, supra, that has always been the stand taken by these Courts and I dare say it is the stand which we in these Courts must continue to take. So long as the criticism is not meant or intended to vilify us, so long as the criticism is directed at the subject in issue in a given litigation and not to the person of the judge deciding the

matter, so long as no improper motives are imputed to the judge deciding the matter, then the Courts must accept that their judgments, being public documents, are and must be subject to public criticism, however robust, however vigorous, and I may add however discourteous. After all judges who occupy the benches in these Courts are not and must not be weak-kneed men and women who need to be shielded from all manner of scrutiny and criticism by the public. Ordinarily we perform our judicial duties in the public view and our judgments must, likewise, be open to the gaze and glare of the public. That is the position taken by our Constitution and I did not understand Mr Chunga in any way to dissent from that position. For my part, I would assert that it is the only tenable position we must adopt in such matters. Accordingly “the People” was perfectly within its right to disagree with our ruling in the Dons case and to publicly express its disagreement in its columns for its readers to see and take whatever position each one of them was inclined to.

The agreed facts are that “The People” is owned by a company called Independent Media Services Ltd, the 3rd respondent. David Makali Baraza, the 1st respondent, is employed as a journalist by the 3rd respondent.

Bedan Mbugua the 2nd respondent is a director of the 3rd respondent and he is also the Chief Editor of “The People” the 1st respondent agrees he wrote the article appearing in “the People” and which the applicant alleges is contemptuous of this Court. The 2nd respondent on his own behalf and on behalf of the 3rd respondent admits that they published the article. The 1st respondent does not claim that the 2nd and 3rd respondents published the article without his authority. He (1st respondent) obviously wrote the article for publication. The applicant says the article is contemptuous of the Court and as these proceedings are of a criminal nature the burden of proving the contemptuous nature of the article lies squarely on the applicant and the standard of proof is one beyond any reasonable doubt. The law applicable in Kenya is one beyond any reasonable doubt. The law applicable in Kenya in matters of contempt is the law for the time being applied by the High Court of Justice in England – section 5(1) Judicature Act. In England, they have a head of contempt known as “Scandalising the Court”. This is defined in Halsbury’s Laws of England, Vol 9, 4th Ed at pg 21 paragraph 27 as

“any act done or writing published which is calculated to bring a Court or a judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court. Thus scurrilous abuse of a judge or Court, or attacks on the personal character of judge, are punishable as contempt....”

It seems that once an act is done, or a writing is published with any of the intentions stated, then it is irrelevant whether it be done when the judicial proceedings are still in progress or after the proceedings have been terminated. In the Queen v Gray [1900] 2 QB 36 it was held that

“The punishment is inflicted, not for the purpose of protecting either the Court as a whole or the individual judges of the Court from a repetition of the attack, but of protecting the public, and especially, those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from mischief they will incur if the authority of the tribunal is undermined or impaired. In consequence, the Court has regarded with particular seriousness allegations of partiality or bias on the part of a judge or Court.”

Thus in our own jurisdiction Professor Mathai was punished not for the purpose of protecting either Mr Justice Chesoni, as he then was, whom she called corrupt or incompetent, or the High Court of which the judge was a member, from a repetition of her attack but to protect the administration of justice. If the public were to be made to believe that judges were corrupt and incompetent, then their confidence in the administration of justice would be greatly undermined or impaired and those who come to Courts or are compelled to come to the Courts will have little or no faith at all that they could ever get justice from the system. The result would be each man for himself and God for us all.

Now, why does the applicant say the article in “The people” is contemptuous of this Court? The applicant first points to the heading of the article which, as I set out earlier, is that

“Court of Appeal Ruling on Dons Case Reeked of State Interference.”

Mr Chunga for the applicant submitted that in determining whether or not the article is contemptuous the article as a whole must be looked at and words employed by the writer given their plain and ordinary meaning. For this proposition Mr Chunga relied on theTrinidadian case of Andre Paul Terence Ambard v The Attorney General of Trinidad and Tobago [1936] All ER 704 in which the Privy Council held, inter alia, that

“to justify a committal for contempt of court, there must be evidence in the article that the publisher has acted with untruth or malice, or that he imputed improper motives to those taking part in the administration of

justice.”

Mr Chunga particularly relied on the latter aspect of imputing improper motives to those taking part in the administration of justice. The article itself was produced before us. The correctness of the heading is not in issue. It is common ground that a decision of this Court or of any other Court in our Republic ought not to “reek” of either State interference or any other form of interference at all. The word “reek” is defined in “The Concise Oxford, Dictionary of Current English, 7th Edition” as

“foul or stale smell (the reek of tobacco); fetid atmosphere (amid reek and squalor); smoke; vapour; visible exhalation;

“reek: v t smell unpleasantly (of garlic, tobacco, blood)....”

so that when the word “reek” is given its ordinary English meaning and in the context in which it was used in the heading of the article what the 1st respondent who wrote the article must have meant was that this Court’s decision in the Dons case smelt unpleasantly of State interference, ie, that the State had interfered with our decision and that interference was, as it were, oozing out of the decision like unpleasant vapour or smoke. I have pointed out that the decisions of this Court are not supposed to “reek” of any interference from any source. If this Court is unable to resist interference from the State or anyone else then it is not worth being called a Court and it does not deserve any sort of confidence from the people of Kenya. If the Court succumbs to interference by the State, then it becomes subservient to the State and forfeits its role as a protector of the weak against the mighty. My Lords, unless the person making such a claim is prepared to justify it or to put forward some other acceptable defence such as fair comment on a matter of general public interest, such a person would clearly be in contempt of the Court.

Again Mr Chunga pointed out a paragraph in the article where the 1st respondent writes, and I quote him:

“It is curious that the judges did not each give an individual ruling. And while the Court principally declined to grant the injunction, it still went ahead to award a semi-injunction, which legal experts say has no legal basis and argue was a sign of indecision and dishonesty.”

Perhaps this is now an appropriate stage for me to briefly explain that the University lecturers in the Dons case had asked us to grant to them

an interlocutory injunction to restrain the University from evicting them from their University-provided accommodation until the hearing and determination of a suit they had filed against the University challenging the termination of their employment with the University. We refused to grant to them the injunction they sought but ordered that they could remain in the university premises until the 31st March, 1994 when they must be evicted if they failed to reach an accommodation with the University over their dispute. That must be what is referred to in the paragraph I have set out above as being “a sign of indecision and dishonesty by the Court.”

It is true the 1st respondent says that it is some unnamed legal experts who were of the view that the Court showed “a sign of indecision and dishonesty” but my Lords if the matter was to be held to be contemptuous of the Court, I do not think it can be a defence to the 1st respondent to say that he was merely stating the opinions of others, even if he had named those others. If in his article the 1st respondent had stopped at the word “indecision” I for one would have been very reluctant to find anything worth quarreling with in the article. But he continued to add that the Court was being dishonest in its final order in the Dons case. And what is the ordinary English meaning of the word “dishonesty”? Once again, I turn to the “Concise Oxford Dictionary, 7th Edition and there the word “dishonesty” is defined as

“lack of honesty; deceitfulness, fraud.”

So that in plain ordinary language the 1st respondent was saying that the Court was involved in lack of honesty, deceitfulness or fraud. My Lords, who would have any confidence in a Court which practices these vices?

Of course, I agree that the article is to be read as a whole and that it is the context of the article which must give these words their meaning. But even if that is done, I for my part cannot help arriving at the conclusion that what the 1st respondent set out to do in his article was to juxtapose the decision of the Court alongside the speech of the President at Kerugoya and then to infer from the two that the Court was merely doing what the President had said in his speech. That, in my view, is the logical way in which the heading of the article “Court of Appeal Ruling on the Dons case Reeked of State Interference” can be explained. That must also be the basis for allegation of indecision and dishonesty on the part of the Court because the 1st respondent was obviously thinking that though the Court, left on its own, might have granted an injunction yet the President had in effect directed it not to grant an injunction and hence the Court was being dishonest in putting forward reasons for not granting the injunction. My Lords, from the article itself, the 1st respondent was clearly imputing

improper motives to the judges who sat on the Dons case and unless there can be some acceptable defence the article is clearly contemptuous of the Court.

And what do the 1st, 2nd and 3rd respondents say about the matter? They of course denied that the article is contemptuous.

Mr Imanyara referred us to our Constitution which guarantees the freedom of the press and the freedom of expression generally and he submitted that we ought not to unduly interfere with those freedoms by use of the law of contempt of court. Mr Imanyara submitted that in this connection, he would rather we adopted the approach of the Courts of the United States of America which no longer recognize offences like “Scandalising the Court” on a judicial matter which was terminated, and is no longer a live issue. It appears that unlike in the United Kingdom, the Courts only apply the law of contempt to punish when judicial proceedings are still pending. Mr Imanyara contended that since we in Kenya have a written Constitution as is the case in the USA, and which is not the case in the United Kingdom, we should prefer the decisions of the Courts of the USA over those of the English Courts. He gave cases such as Harry Bridges v State of California [1914] 314 US 251, where the Supreme Court of the USA held, inter alia, that

“The English common law is inapplicable in this country on questions concerning liberty of speech and press.”

Mr Imanyara referred us to certain passages in the judgment of Mr Justice Black particularly at page 207 where that learned judge is recorded as saying:

“The assumption that respect for Judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind , although not always with perfect good taste, on all public institutions. An enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”

We were next referred to a passage in the judgment of Mr Justice Frankfurter at page 216 where he is recorded as saying:-

“As in the exercise of all power, it [the power of the

Courts to punish for contempt of court] was abused. Some English Judges extended their authority for checking interferences with judicial business actually in hand, to “lay by the heel” those responsible for “scandalizing the Court,” that is, bringing it into general disrepute. Such foolishness has long since been disavowed in England and has never found lodgment here....”

If the offence of scandalizing the Court be a “foolishness” then I am afraid it is a “foolishness” which has not been disavowed in England as Mr Justice Frankfurter appeared to think in 1914 for as late as in 1968 the English Court of Appeal was asked to “lay by the heel” Mr Quintin Hogg for publishing an article which was alleged to scandalize the Court after it had given its judgment in some case concerning gaming in that country. Mr Hogg was acquitted of the charge not because England had disavowed the foolishness of “laying by the heel” those thought to have scandalized its Courts but because the article in question was found not to be contemptuous of the Court. So the “foolishness” still goes on unabated in England and by section 5(1) of our Judicature Act and even by section 3 (1) of the same Act, the Courts here in Kenya are still bound to administer as best they can “the foolishness” of the English Courts, of course with a proviso that we modify such English “foolishness” to suit the circumstances of our own home-grown “foolishness”. Nor can reliance on the fact that we, like the USA, have a written Constitution carry the matter any further. The Constitution of the USA has no limitations or “derogations”, to use Mr Chunga’s word, as ours does, except such limitations or derogations as the Supreme Court of the USA may choose to place upon it. Otherwise it is absolute in its provisions and countenances no limitations. Our own Constitution, on the other hand is replete with limitations and, in the case of contempt of court, expressly provides that nothing shall prevent a Court from punishing for contempt against it. If we were to adopt the America approach, then these respondents would clearly be entitled to an acquittal because the American system of justice does not recognize a head of contempt known as “scandalizing the Court”. Our system of justice still does and we cannot jettison our own laws and apply those of the USA unless Parliament were to authorize us to do so.

Next, Mr Imanyara argued on behalf of the 1st, 2nd and 3rd respondents that even if the matter was to be found to be contemptous we must nevertheless acquit the respondents because the article constituted a fair comment on a matter of general public interest. I hope I got Mr Imanyara right on this point. Of course one can straightaway say that if an article be a fair

comment on a matter of general public interest then it cannot amount to a contempt. Mr Imanyara referred us to the speech of the President at Kerugoya which speech was made while the decision on the Dons case was still pending before us. Mr Imanyara also pointed out to us the difficulty I highlighted earlier in this judgment, namely the difficulty of the ordinary people in understanding whether the President was speaking on the Dons case which was then before us or some other issue unconnected with that case. Mr Imanyara then argues from this point that ordinary people such as the 1st, 2nd and 3rd respondents who are not lawyers were entitled to assume that the President was speaking about the case pending before the Court, and when the decision was eventually given and the decision itself agreed with the stand taken by the President who in any case is the Chancellor of all the four public universities, the respondents were entitled to infer that the Courts had been interfered with by the State and accordingly our decision in the case reeked of State interference.

For my part, I must honestly admit that, there is a lot of force in this argument and if anything this case shows the necessity for restraint by all as regards matters pending before this Court or any other Court. But the argument, in my view misses the substance of complaint. I think that in the nature of things polititicans in particular would be inclined to interfere in all matters, even those which are outside their province. That is not a phenomenon unique or peculiar to Kenya. But the complaint is not that the President could have interfered with our decision. The complaint is that even if the President were to be inclined to interfere, this Court should not be able to resist him. The complaint is about the allegation of spinelessness on the part of the Court which was unable to withstand the alleged interference and which in the end gave a judgment described as reeking with State interference. I doubt very much if the applicant would have bothered much if the article had merely complained that the President had interfered with the Court and ended at that; even if the applicant had bothered and brought such a complaint to the Court we would most likely have thrown it out of Court, because in my view there would be nothing contemptuous about the mere allegation that the President or anybody else had interfered. The contempt of court comes not because of the allegations of interference but because of the inability of the Court to defy such interference. That is what I understood Mr Chunga to say when he submitted that the article complained of alleged that the highest Court in the land had subordinated itself to the wishes of the State.

Elsewhere in this judgment I have set out in minute details what I remember to have happened before we delivered the ruling in the Dons case. The purpose for my doing so was to show that long before the President’s

speech at Kerugoya on the 25th February, we had made a decision on what was to be done about the Dons case and what still remained was to reduce the decision to pen and paper for our signature. During the hearing of this case, I specifically asked Mr Imanyara what we were supposed to do about the President’s speech. It is agreed or at any rate there can be no doubt that under section 14 (1) and (2) of our Constitution, this Court or any other Court in this country does not have jurisdiction to summon His Excellency the President to appear before it, except in cases where the validity of his election as the President is in issue. When the Minister for Local Government Mr Ole Ntimama was recently reported in the local press to have made an order which was seen to amount to an interference with the process of the High Court, he was roundly condemned, and in my view rightly too. But to his credit, when the Minister realized his error, he promptly withdrew the offending order. The point I am making, however, is that if the Minister had persisted in his order, one or all the parties to the dispute who felt aggrieved by his order could have applied to the High Court to summon the Minister and punish him for his alleged interference. The High Court for its part would have been entitled to summon the Minister and if it was satisfied that the Minister had interfered with its process the Court would have been entitled to “lay him by the heel”. In the case of His Excellency the President, such a procedure is not available. My question to Mr Imanyara on the issue of what we were supposed to do about the reported speech of the President elicited several answers, one of which was that we should express our displeasure in these proceedings by discharging the respondents, irrespective of whether their article amounts to a contempt. If this argument was to be pursued to its logical conclusion it would mean that even in the Dons case, we ought to have reconvened after hearing the President’s speech and expressed our displeasure at it by changing our decision and giving the judgment to the dons. My Lords, Courts of justice cannot operate in that fashion. We do not decide issues on emotion or caprice but purely on what we believe to be right, of course guided by what we understand the law to be. This of course, does not and cannot mean that we are necessarily right. Unlike the Popes of ancient days, we in these Courts have never laid any claims to infallibility on our part. But when we make a decision on any particular matter we genuinely and honestly believe in the correctness of that decision, and that, I think, is all that the litigants who appear before us can legitimately expect of us. To insist that whenever we make a decision which agrees with the perceived stand of the Government of the day on any particular issue, then we are merely carrying out the orders of the Government sounds to me perilously similar to the argument of the Government during the debate on whether or not Kenya should go multi-party that its opponents were merely mouthing the dictates of their foreign masters. Lawyers ought to be above that kind of argument. How I wish that lawyers in particular will understand and appreciate that they very seriously hurt the feelings of judges by painting us as men and women of no conscience, men and women who know no law or morals and who are always waiting to hear what His Excellency the President has to say on any matter pending in the Courts before we can make up our minds on what decision to come to. If we were to keep on changing our decisions depending on utterances made by persons over whom we have no control, I would not see any difference between us and the persons whom Mr Imanyara and his colleagues accuse of exercising their constitutional powers capriciously and on no settled principles. We in these Courts must reject that kind of temptation, however attractive it may be in the short run.

My Lords, but even if the matter be viewed in the wider context of what happens in other jurisdictions, it will be seen that we (ie the judges) in Kenya are not doing anything which is taboo in those jurisdictions. As long ago as 1941, that great jurist of English Law Lord Atkin in his famous dissenting judgment in Liversidge v Anderson and another [1941] 3 All ER 338 is recorded as chiding his recalcitrant colleagues in the following words:-

“I view with apprehension the attitude of judges who, on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the Executive. Their function is to give words their natural meaning, not, perhaps, in war time, leaning towards liberty, but following the diction of Pollock, C B in Bowidtch v Balchin, cited with approval by Lord Wright in Banard v Gorman, at p 55 Pollock C B said:

“In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute”

“In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by Executive, alert to see that any coercive action is justified in law. In this case, I have listened to arguments which might have been addressed acceptably

to the Court of Kings Bench in the time of Charles I”

It is obvious from this famous passage that Lord Atkin was of the view that his colleagues who disagreed with him were adopting an interpretation of the war-time regulations which was unduly lenient to the Executive. But neither he, nor anyone else, as far as I am aware, ever suggested that those judges who disagreed with Lord Atkin were simply carrying out the orders of the Executive.

Again, suppose for one moment that the faulty convictions recorded by the English Courts in respect of the alleged IRA terrorists such as the Birmingham Six, the Mcquire Brothers, etc had been recorded by the Kenyan Courts. Those convictions, as we all know, were based on alleged confessions made by the accused persons to the police. I myself have no doubt that if those convictions had been recorded by Kenyan Courts, the question of our making honest mistakes would not have arisen. The obvious conclusion would be that the Courts convicted them because of pressure from the Executive arm of the Government.

And what happens in the Supreme Court of the Unites States of America?

In 1973, that Court, led by Mr Justice Blackmun legalized abortion in the case of Jane Roe v Wade – see Landmark Decisions of the United States, Supreme Court, Beverly Hills: Execellent Books, C1991. The Court was obviously dominated by “liberal” judges such as Chief Justice Warren Burger and Justices William Douglas and Potter Stewart. “Conservative” judges such as Justices Rehnquist and White dissented from the majority decision. By 1992 Mr Justice Rehnquist was the Chief Justice of the Supreme Court and joined by other “conservative” judges like Justices Scalia, White and Thomas, Wade narrowly escaped being over-ruled – see Planned Parenthood of Southeastern Pennsylvania, et al v Robert Casey et el and others, the Supreme Court Yearbook, 1991-1992 at pg 159. A consideration of the issue of whether Mr Justice Clarence Thomas would not help tilt the Supreme Court in favour of the conservatives must have been part of the controversy surrounding the confirmation hearing of the judge by the Senate of the United States and it is not to be forgotten that Mr Justice Thomas was to replace that great liberal of all times, the late Mr Justice Thurgood Marshall. The undoubted fact, however, is that there are these great swings in the mood of the Supreme Court and the swings appear to depend on whether there has been a liberal or conservative occupant of the White House who has had an opportunity to recommend to the Senate the name or names of judges whom he thinks shares his philosophical

attitude to life. But like in the United Kingdom no one in his right senses has or would ever suggest that the judges of the Supreme Court are merely carrying out the dictates of the Government of the day.

We in Kenya, however, live in a third world country and whenever our decision on any issue happens to conform with the perceived stand of the Government of the day, then the only explanation for such conformity must be that we are poodles of the Executive. My Lords, it is my hope, probably a vain one but nevertheless a hope, that lawyers in particular must discard such unfounded notions and assist Kenyan people in understanding that even if they disagree with decisions of the Courts, those decisions are nevertheless made in good faith and with the best of intentions. Neither the lawyers at the bar nor those on the bench stand to gain anything by fostering in the mind of the public the belief that no justice can be got in our Courts, except such as may be granted to them by the Executive arm of the State. If that campaign were to be carried on to its logical end, then it might well result in the very destruction of the Judiciary and in the absence of the Judiciary, I cannot see that there would be any need for the legal profession itself. It is in this light that I personally view with utter disapproval and I deprecate in the strongest terms possible, the abortive attempts of the Law Society of Kenya to intercede in these proceedings, obviously on the side of the respondents, on the spurious ground that the Society is interested in safeguarding the freedom of speech guaranteed to Kenyans by the Constitution. Whatever may be the political circumstances under which we operate, it is, in my view, the duty of the Law Society of Kenya to ensure that its members adhere to the accepted ethics of the profession and among such ethics is a proper respect for the Courts. The attempted but unsuccessful intervention of the Society in these proceedings left me with the clear impression that the Society itself was treating this Court as an enemy of itself and its members which must be fought and subdued, irrespective of the merits of the complaint against the respondents. It is a matter of serious regret that it was the Society’s counsel, Mr Muturi Kigano, who brazenly told the Court that law is politics and that he was entitled to bring politics in the case. It may well serve the short-term interest of the Society to take that kind of stand in this case, but the long term consequence, if the Court were to accede to it, must be the destruction of the system of administering justice according to law, not whims and caprices of the moment. In my view, the defence of fair comment on a matter of general public interest fails. A comment cannot be fair when it wrongly accuses the Court of dishonesty and kowtowing to the Executive.

The other contention which was raised by Mr Imanyara on behalf of all

the respondents is that the applicant did not act in good faith in making this application to the Court. Broadly, the respondents allege in their replying affidavits that they are either members of the opposition or that they are closely associated with opposition politics in Kenya and that it is that fact which motivated the applicant in bringing the prosecution. It is submitted that other persons such as Dr Omari Onyango and Mr Smokin Wanjala whose names appear in the article complained of are also reported in the same article to have said equally uncomplimentary things about the Court’s decision in the Dons case and yet those two were not joined with them in this prosecution. This, it is submitted, amounts to a discriminatory treatment of the respondents by the applicant and is accordingly a violation of the resondents’ constitutional right guaranteed to them by section 82(2) of the Constitution. I believe the respondents asked us to discharge them if we found that they are being treated in a discriminatory manner. Before I deal with these submissions, there is a matter which I must dispose of first. Mr Imanyara submitted that in spite of the absolute discretion conferred on the Attorney – General by section 26 of the Constitution in respect of matters pertaining to criminal prosecutions, and in spite of what section 82(9) says about the exercise of discretion regarding the institution, conduct and discontinuance of civil or criminal proceedings in a Court, yet under section 123(8) of the same Constitution the Courts are entitled to investigate the manner in which the Attorney-General has exercised his powers or discretion conferred on him by the Constitution. With this contention of Mr Imanyara I readily agree. Despite the provisions in sections 26, and 82 (9) if the High Court or this Court were to be satisfied that the exercise of the power or discretion by the Attorney-General amounted to an abuse of the process of the court, there could be no other way of dealing with the matter, except to throw out such proceedings, if and when an appropriate application is made. That is exactly what the High Court did in Stanley Munga Githunguri v Republic Criminal Application No 271 of 1985 (unreported). Mr Chunga admitted that the Court is entitled to examine the manner in which the Attorney-General has exercised his power or discretion.

On the question of discrimination, I asked Mr Imanyara the political party or parties to which Dr Onyango and Mr Wanjala belong and the answer I received was that the respondents were not required to discharge any burden, ie that they are not required to prove their innocence. That is basically correct but the issue is not really one of proving innocence. It is the respondents who are alleging that the applicant is treating them in a discriminatory manner and since they are the ones making the allegation, the evidential burden, as opposed to burden of proof, is upon them to show that Onyango and Wanjala are members of a political party

which the applicant approves of as opposed to them (respondents) who are members of a party the applicant disapproves of. In either case the respondents would also have to adduce some evidence to show that the applicant approves of one political party and does not approve of the other. Apparently Mr Imanyara and his colleagues are unaware, or if they are aware, do not attach any importance to the distinction between the burden of proving a criminal charge, which is always and invariably on the prosecutor, and to be discharged beyond any reasonable doubt, and evidential burden which even in a criminal case keeps shifting from one side to the other and which, when it shifts to the side of an accused, is to be discharged upon a balance of probabilities. Sloganeering may do very well in politics, but it has not and I hope will never find lodgment in court proceedings. There is absolutely no evidence before us from which anyone could draw an inference that the applicant is treating these respondents in a discriminatory manner. But even if there were to be such evidence, I do not think that it would have been of any avail to these respondents if A and B commit an offence together and only A is prosecuted it cannot be a defence to A to plead that since B has not been prosecuted of the same offence, A must, ipso facto, be acquitted.

In his affidavit, the 2nd respondent raises matters to the effect that the applicant is vindictive towards him because on the 21st August, 1993, he wrote a letter to the Secretary General of the United Nations Organisation protesting the nomination of the applicant to the War Crimes Tribunal on former Yugoslavia. My Lords this complaint and others in similar vein are too petty to warrant your Lordships dignifying them with any comment.

I think I have said more than enough in this judgment to show that I have no doubt whatever in my mind that the article complained of by the applicant clearly constitutes a contempt of this Court and the matters raised by the 1st, 2nd and 3rd respondents cannot constitute a valid defence to that contempt. Their malice or mens rea is to be found in the words used by them within the article itself. No one can be heard to call the decision of a Court dishonest or allege that the Court is being dictated to by the Executive or by anyone else and still claim that he had no mens rea or malice, unless of course he can justify the accusation. For my part, I am fully satisfied that the applicant has proved beyond any reasonable doubt that the 1st, 2nd and 3rd respondents are guilty of contempt of this Court. I have also read the judgment of my Lord Cockar regarding the contempt of court alleged against the 4th respondent Mr G B M Kariuki and I am in entire agreement with the reasoning and conclusion reached in that judgment. The 4th respondent is equally guilty of contempt of this court. I also agree with my Lord Tunoi on the twin issues of disqualifying

ourselves from hearing these proceedings and consolidation of the two applications over which we had reserved our reasons. I can find nothing to add to what he has said on those issues.

My Lords, the contempt remains wholly unpurged and unmitigated. If anything the attack upon the Court was renewed during the proceedings and in the end we were forced to point out to Mr Imanyara that if we were to find the respondents guilty of contempt, we would be bound to take this into account when assessing the appropriate punishment to impose. Mr Imanyara’s parting words to us were that we had consistently showed hostility towards them and their clients. He or they are entitled to whatever view best recommends itself to them, but they must also allow us to express the view that right from the word go, they adopted towards us a confrontational attitude and the impression they left us with was that they regarded us as the villains of the piece and their clients mere innocent victims or our villany. We were entitled to resent this and we made our resentment perfectly obvious to them by expelling Ms Karua from the proceedings. In respect of Ms Karua we reserved her matter to the end of these proceedings and we have long agonized over the issue. We thought we would prefer against her before the Advocates Complaints Commission on a charge of falsifying our records with a view to obtaining the disqualification of Mr Justice Tunoi, JA. In the end I would propose to my Lords that we have sufficiently punished her by expelling her from the proceedings and that we take no further action over her matter. In respect of the 1st, 2nd, 3rd and 4th respondent, I propose the following final orders:-

1. For its contempt of this Court of which we have found it guilty, the 3rd respondent, Independent Media Services Ltd, shall forthwith pay a fine of Shs 500,000/- and unless and until that fine shall have been paid, the 3rd respondent must forthwith cease publication and sale of its weekly newspaper “The People”.

2. The 4th respondent G B M Kariuki is a lawyer and an officer of this Court. It is his duty to treat the Court with proper respect even if he may be in disagreement with a decision of the Court. He ought to have known better than the other respondents. Accordingly, for his contempt of this court, he shall be committed to prison for six (6) months, but the committal warrant will lie with the registrar of the Court for seven (7) days during which he shall comply with the following conditions:

(a) Pay a fine of Shs 500,000/-.

(b) Make a written apology to this Court in

terms acceptable to it, and at his expense, publish the same in all the three national newspapers, namely “The Daily Nation”, “The Standard” and “ The Kenya Times” and also in the “The People”.

If both of these conditions are met within the stated period, the order of committal to prison shall stand discharged without any further order of the court.

3. The 2nd respondent Bedan Mbugua is not only a director, but is also the Chief Editor of “The People”. He is accordingly responsible for what is published in that paper and his role is not that of a mere spectator. Indeed as he says in paragraphs 8(c) and (d) of his affidavit, he actively encourages his journalists and writers to write with an aim to provoking debate and discussion of public issues that touch any of the three arms of Government and that in so far as the Judiciary is concerned, he encourages his reporters and writers to perform their duties in a manner that will help in exposing judicial decisions to public scrutiny, believing that this makes it necessary for judges to feel accountable to the public for their decisions. The contempt of this court was clearly committed with his encouragement and support. For that contempt, he shall be committed to prison for five (5) months but like in the case of the 4th respondent, the committal warrant will lie with the Registrar for seven (7) days during which period he must comply with the following conditions:-

(a) Pay a fine of Shs 400,000/-;

(b) Make a written apology to the Court in terms acceptable to it, and at his expense, publish the same in all the three national newspapers, namely “The Daily Nation”, “The Standard” and “The Kenya Times” and also in “The People”.

If both conditions are complied with the stated seven days, the order of committal to prison shall stand discharged without any further order of the Court.

4. The 1st respondent David Makali Baraza was the

writer of the article but unlike the 4th respondent, he is not a lawyer and unlike the 2nd respondent, he is not in control of what is printed in “The People” or its editorial policy. He is merely a cog in the wheel. Nevertheless, he wrote the article and he must take responsibility for it. For this contempt of the Court, he shall be committed to prison for 4 (four) months but as in the case of the other two, the committal warrant shall lie with the Registrar for seven (7) days during which he must comply with the following conditions:-

(a) Pay a fine of Shs 300,000/;

(b) Make a written apology to the Court in terms acceptable to it and at his expense, publish the same in all the three national newspaper, namely “The Daily Nation”, “The Standard” and “The Kenya Times” and also in “The People”.

If he complies with both conditions within the stated period, then his committal to prison shall stand discharged without any further order of the court.

My Lords agree and these shall be the final orders of the court. We appreciate that these are heavy sentences but after hearing all the submissions we had no difficulty in concluding that these were simple and straightforward proceedings which tied up the Court for five full weeks, which in our view was wholly unnecessary. We think the sentences are deserved.

We make no order as to the costs of the application.

Tunoi JA. The facts and the events leading to these proceedings are fully set out in the judgments of my Lords Cockar, and Omolo, JJ A which I have had the advantage of reading in draft and I consider it unnecessary to restate them here.

On April 14, 1994 we held that these proceedings are criminal in nature and that the interests of justice and hence the interests of all the parties can best be served by consolidating the two applications – namely NAI 4 of 1994 and NAI 5 of 1994 – as no prejudice, embarrassment or injustice would be caused to any of the parties in the two applications and we accordingly ordered them consolidated. We then reserved our reasons which we now relate.

It is the applicant’s averment that the article published or attributed to the respondents in the issue number 56 of ‘The People” dated March 6-12, 1994 under the heading:

“Court of Appeal Ruling on Dons Reeked of State Interference”

is a scurrilous and unjustified attack upon this Court and is calculated to bring into disrepute and contempt the administration of justice in Kenya. My Lord Cockar, JA has already dealt on the issue of jurisdiction and I concur with him that this Court has jurisdiction to entertain these proceedings for contempt. In this regard, I would like to comment on some case law and the relevant sections of our Constitution. In Regina vs Commissioner of Police Ex Parte Blackburn [1968] 2 All ER 150, the English Court of Appeal held that the Court of Appeal has jurisdiction to consider an allegation of contempt of itself. Such jurisdictional question, it appears, was put on firm basis by legislation in this country by the enactment of section 5(1) of the Judicature Act which in no uncertain language provided that:

“The High Court and the Court of Appeal shall have the same power to punish for contempt as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.”

Indeed as is seen in the said above quoted section the cumulative effect of the English law and our section 5(1) establishes clearly that the Court of Appeal of Kenya has power to consider, conduct a trial and make judgment on an allegation of contempt of itself.

The respondents have invariably invoked the right of freedom of speech which is guaranteed by sections 70 and 79 of the Constitution as a defence of legitimate freedom of expression which ought not to be punished as contempt. The Court’s power to punish for contempt is firmly engrained in section 79(2)(b) of the Constitution which provides that a law making provision for the maintenance of “the authority and independence of the Courts” is not inconsistent with the freedom of expression. Obvsiously, the law contemplated by the Constitution is none other than the Judicature Act. Faced with this double-edged situation whereby the Court has to uphold the protection of freedom of expression and to punish for contempt, the Court has to act cautiously and set to punish only when it is clear that comment or criticism against the Court or a judge has gone overboard and beyond what would be deemed reasonable and fair in the circumstances. I

find in this context the speech of Lord Justice Salmon in the case quoted above relevant. He stated:

“It is the inalienable right of everyone to comment fairly upon any matter of public importance. This right is one of the pillars of individual liberty – freedom of speech, which our Courts have always unfailingly upheld.

It follows that no criticism of a judgment however vigorous can amount to contempt of court provided it keeps within the limits of reasonable courtesy and good faith.”

Both parties in these proceedings extensively referred us to the well-known case of Ambard vs The Attorney General of Trinidad and Tobago [1936] 1 All ER 704 at p709, which the Privy Council laid a surer foundation of the right of an individual to criticize the judgment of a Court and the limitation of the right. It said:

“But whether the authority and position of an individual judge, or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing in good faith in private or public act done in the seat of justice. The path of criticism is a public way; the wrong headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful even through outspoken comments of ordinary men.”

Both Dr Khaminwa and Mr Imanyara, learned counsel for the respondents, made detailed and persuasive submissions on the interpretation of sections 70 and 79 of the Constitution. They led us through several authorities including American case law and the European Convention on Human Rights. They urged us to approach philosophically the question of interpretation of freedom of expression from the American view point since freedom of expression, they argued, is essential in the search for democracy and self-fulfillment of the human person and that it is not upon the Courts to frustrate any of these purposes.

In this country the protection of the Fundamental Rights and Freedoms of

the individual provided for by section 70 of our Constitution by section 79(1) expressly guarantees what the marginal notes to that section defines as “protection of freedom of expression”. A close reading of it shows that it then states in very wide terms what that concept entails. But, it would seem that like the common law enunciation of the freedom of expression, it sets down certain limits. Sub section 2 of that section provides certain exceptions to the apparently wide conferment of freedom of expression. It is codified in that subsection as (a) (b) and (c) in the following words;-

‘That is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons, or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the Courts...”

I think that the American case law is of little relevance in these proceedings and is of least persuasive authority save, probably, the case of Pennekamp v Florida 328 US 331 (1946) where the speech of Mr Justice Frankfurter is as follows:

“without free press there can be no free society. Freedom of the press, however, is not an end in itself but a means to the end of a free society. The scope and nature of the constitutional protection of freedom of speech must be viewed in that light and in that light applied. ........ A free press is vital to a democratic society because its freedom gives it power. Power in a democracy implies responsibility in its exercise. No institution in a democracy, either Governmental, or private, can have absolute power.”

In my view, an absolute power for the press does not exist. Though its freedom is constitutionally guaranteed the press must above all act responsibly in all its publications. To abuse or scandalize any person or institution is irresponsible and is outside the constitutional protection of freedom of speech.

Following an application on April, 13, 1994, by Mr Chunga the learned Deputy Public Prosecutor we ordered that the two applications herein be consolidated and that all the proceedings thereafter be recorded in Criminal Application No Nai 4/94 and Mr G B M Kariuki to be referred to as the 4th respondent. Mr Chunga had submitted that the complainant in both applications was one and the same as well as were the affidavits in support of them; and, further that the reliefs and prayers sought were

common. The article and the statement of facts, he added, were not only similar but were the same and that the difference arose only in that the applications were filed on different dates. The application for consolidation was strongly opposed by the learned counsel for the respondents on the grounds mainly, that there might arise a conflict of interest among the respondents and that such a move would be embarrassing to them.

Two or more accused persons or respondents (as the case may be) may only be joined in one charge or information and tried together in the circumstances set out in section 136 of the Criminal Procedure Code; of these circumstances, only those set out in paragraph (a) are relevant, that is, where the persons “are accused of the same offence committed in the course of the same transaction.” The joinder of trial envisaged is permissive, not mandatory. The question whether there should be a separate reason to be delivered in the final judgment. We held that there was no legal basis for us to do so; and, also that there was no question of any morals being actually involved in the matter.

Dr Khaminwa submitted that since my Lords Cockar and Omolo, JJ A had formed part of the bench that heard and determined the Dons case, they should disqualify themselves from hearing these proceedings, for if they do not do so the minds of reasonable persons will not see that justice had been done in the matter as they were incapable, in the light of the article complained of, of conducting an impartial hearing. The respondents, he averred, see a likelihood of bias in the minds of the aforementioned judges. He referred ut to the case of Tumaini v R [1972] EA 441 in which Mwakasendo, J held:-

“... in considering the possibility of bias, it is not the mind of the judge which is considered but the impression given to reasonable persons.”

Dr Khaminwa surmised that the resultant effect of this bench continuing with these proceedings would be the erosion of its confidence and dignity in the eyes of the public. He placed much reliance in the principles articulated by Lord Denning MR in Metropolitan Properties v Lannon [1969] 1 QB 577, where at p 599 he paraphrases the authorities on this subject in the following words:

“In considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would or did, in fact, favour one side at the

expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough. There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

The English Court then invalidated the decision of a rent assessment committee on the ground of bias by its chairman holding that it was sufficient that there was a reasonable suspicion of bias.

In the case of R vs Huggins [1895] 1 QB 563 a pilot was disqualified from hearing a summons by reason of his membership of the class in whose interest the proceedings were taken though he had no personal interest in the matter. We were also addressed at length in the cases of:

R vs Justices of Queen County [1908] 2 IR 285

R vs Sussex Justices Exparte Macarthy [1924] 1 KB 256

R vs Nailsworth Licencing Justices Exparte Bird [1953] 2 All ER 653, and

R vs Camborne Justices Exparte Pearce [1955] 1 QB 41

The principle enunciated by these English authorities is that holders of judicial offices right from the highest Court on the land downwards, including administrative and domestic tribunals exercising judicial or quasi-judicial functions, are subject to the common law rule of natural justice whereby any pecuniary interest or a real likelihood of bias invalidates a judicial decision. It would appear that the rule applies no matter how small the interest or how exalted the tribunal may be.

The Australian cases of The Queen v Watson Ex Parte Armstrong (1976)

13b CLR 248 and Raybos Australia Property Ltd & another v Tectram Corporation Property Ltd & others 6 NSWLR 272 have also been cited to us by counsel for the respondents. These authorities formulated the appropriate test to be applied –that is that there must be circumstances upon which a reasonable man would think it likely or probable that a Court or tribunal did or would favour one side unfairly at the expense of the other and that it is the actuality of bias or the existence of grounds for reasonable apprehension of it which requires the disqualification of a judge from presiding in certain cases.

These principles have found favour in the local cases of In The Application by M S Patel (1913 – 1914) 5 KLR 66, R v Hashimu [1968] EA 658, John Brown Shilenje v R 1980 [KLR] 132 and Charles Koigi Wamwere & 2 Others v R Criminal Appeal No 29 of 1991 (unreported). We were also referred to article 226 of The Constitution of India which expresses the principle that – “A person must not be a judge in his own cause” or “the prosecutor shall not also be the judge.” In that country as well as in this country pecuniary interest, however small, would wholly disqualify a person from acting as a judge. Even where there is no pecuniary interest, a judge should not preside over a case where he has a personal bias towards a party owing to a relationship and the like or may be personally hostile to a party as a result of events happening either before or during the trial. See the case of A P S R T C v S Transport A 1965 S C 1303 which considered several Indian authorities.

That being the position as I see it, when the Courts in this country are faced with such proceedings as these, it is necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the public at large a reasonable doubt about the fairness of the administration of justice. The test is objective and the facts constituting bias must be specifically alleged and established. It is my view that where any such allegation is made, the Court must carefully scrutinize the affidavits on either side, remembering that when some litigants lose their cases before a Court or quasi – judicial tribunal, they are unable or unwilling to see the correctness of the verdict and are apt to attribute that verdict to a bias in the mind of the judge, magistrate or tribunal.

Mr Imanyara, for the first, second and third respondents advanced the following grounds upon which he sought our disqualification. Firstly, he submitted, that we had held that the respondents had evaded service of the motions without according them the opportunity to explain their non-service; secondly, that we did not avail the respondents their rights

as provided for by order 52 of the SCR; thirdly; that in every application presented before us in these proceedings we had shown outright prejudice against the respondents and favoured the applicant; and finally, that as this was the highest Court in the land we should not preside over these trials since in the event of conviction the respondents would have no recourse to an appeal. He averred that in these circumstances, this Court’s hearing of the trial as constituted is a mere formality before conviction since it had made up its mind. He reiterated that the respondents’ fears in this regard were well founded. He, therefore, sought an outright disqualification or a differently constituted bench. We were urged to be persuaded by the case of Re Lonrho PLC and others [1989] 2 All ER 110.

Mr Chunga vehemently opposed the move to disqualify this bench from hearing these proceedings. He asserted that there was no dispute about the principles of natural justice and the test to be employed when bias is suggested in a trial. As can be seen, the bias alleged in these proceedings is the participation by my two brothers in the trial and the delivery of the judgment in the Dons case, the subject matter of criticism in the article complained of. No other allegations have been made against them.

We agree with Mr Chunga, that this Court did not initiate these proceedings. It would therefore be absurd for the respondents to opine that the three of us have any personal interest in the matter. Neither have we got any pecuniary interest in it. It is also a misconception to allege that this Court is protecting itself or its individual members.

Scurrilous abuse of a judge or Court, or attacks on the personal character of a judge, are punishable contempts. The punishment is inflicted, not for the purpose of protecting either the Court as a whole or the individual judges of the Court from a repetition of the attack, but of protecting the public, and especially those who either voluntaliry or by compulsion are subject to the jurisdiction of the court, from the mischief they will incur if the authority of the Court or tribunal is undermined or impaired. See Halsbury’s Laws of England 4th Ed p 21.

The Attorney – General as the complainant initiated these contempt proceedings for and on behalf of the general public and not for this Court. He has a right to do so. It is a constitutional right. Lord Reid had this to say in the case of A – G vs Times Newspapers Ltd [1973] 3 WLR p 303:

“I agree with your Lordships that the Attorney – General has a right to bring before the Court any matter which he considers should in the public interest be brought before the Court.”

It is obvious beyond doubt that the respondents have failed to establish specific facts constituting the alleged bias by the members of this Court. The affidavits filed in these proceedings are deficient in substance, I thought so, after scrutiny of them. Neither have the respondents shown that there were reasonable grounds to suggest bias on our side.

It is common knowledge that applications to disqualify judges from trials are indeed very rare and have been made only in exceptional circumstances and usually they have been treated carefully with the seriousness they deserve. The normal practice is that a judge who discerns or perceives an allegation of bias being raised against him readily disqualifies himself from sitting. This is normally done informally. Again, if the circumstances warranting his disqualification become known to him upon the opening or later in the course of the hearing he would disqualify himself at this point. How should judges treat the subject of disqualification when raised before them?

In the case of Raybos Australian Property Ltd & Another vs Tectran Corporation Property Ltd (supra) It was held that:-

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

This same bench had this to say in the case of Nyamodi Ochieng – Nyamogo & Another vs Kenya Posts & Telecommunications Corporation Civil Application No Nai 264 of 1993:

“In the end we agree with Mr Lakha that all Dr Khaminwa attempted to put before us was that the applicants would have preferred that their application should be heard by the same bench which made the orders they are not alleging to have been breached by the Corporation and its officers. For our part, we dare say that most litigants would much prefer that they be allowed to shop around for the judges that would hear their cases. That, however, is a luxury which is not yet available under our law to litigants and these applicants cannot have it. The preliminary point taken by Dr

Khaminwa on behalf of the applicants accordingly fails.”

In my opinion, the members of this bench have no good reasons for disqualifying themselves from hearing these proceedings, even if they were to concede the respondent’s request because of the wider interests of justice. On the other hand the respondents have not advanced any valid reasons for our disqualification.

The two respondent’s counsel have urged that these proceedings should be referred to a differently constituted bench of this Court as was done in the Re Lonrho case. In that case the respondent company had mounted a sustained campaign to reverse the successful take-over of a well-known London department store by a rival company. The matter eventually landed in the House of Lords by way of appeal by the respondent. Prior to the hearing of the appeal some documentary report was obtained by the respondent company from the inspectors appointed under the Companies Act. The respondent company passed it to the editor of the newspaper it owned which in turn published a special edition containing extracts from the report. The Secretary of State obtained an injunction preventing distribution of the special edition as soon as he became aware of its existence but some 200,000 copies were sold before the injunction was obtained. In addition 2,000 to 3,000 copies were supplied to the respondent which, as part of its campaign against the rival company’s take-over, sent them by post to persons on a mailing list of persons to whom the respondent has been sending literature in the course of its campaign. The mailing list included four of the five Law Lords who were listed to hear the respondents appeal in judicial review proceedings. They received a copy of the special edition of the newspaper. The question arose whether the respondent and those associated with it responsible for mailing the special edition of the newspaper to the Law Lords had committed a contempt.

It was argued on behalf of the respondent company that since the contempt proceedings had been initiated by those who were proposing to hear and adjudicate upon them, an objective observer might think their Lordships were predisposed to decide against Lonrho and that infact Lonrho did think so. Their Lordships held that the circumstances urged by Lonrho would not in fact have influenced their Lordships in considering and deciding this issue but that “their Lordships were reluctant to leave Lonrho with a sense of grievance, however misguided, by insisting on hearing the proceedings themselves”. Accordingly, the House was advised to reconstitute the committee. This decision is a firm authority that if there were contempt proceedings ex facia in the highest Court in the land, as in

these proceedings, the proper forum is that same Court, and that the lack of appeal is not fatal as regards jurisdiction. However, what distinguishes that case from this one is that the House of Lords itself initiated the contempt proceedings allegedly committed against itself. It directed and approved the charges. In this case the complainant is the Attorney – General; and, as we have said, this Court never initiated the proceedings

To answer Mr Imanyara’s submissions it suffices to say that the conduct of the first, second and third respondents as exhibited by the return of service can be nothing else but an attempt to evade service. No affidavits were filed by them to explain why they were keeping house. In each and every application presented before this Court a written ruling encompassing the reasons was delivered. It is quite unfortunate, to say the least, for an advocate to allege outright bias and prejudice against his client without firm and substantiated reasons.

It is my opinion that the application for disqualification was maliciously made and arrogantly canvassed before us. It has no merit whatsoever and is accordingly rejected.

The longest proceedings ever conducted in this Court have ended and I would like to make some observations. Though I make no serious criticism of the manner in which the advocates for the respondents presented their submissions before this Court, I must confess that the said advocates in their conduct deliberately ignored the most elementary ethics of the legal profession. I think this very unfortunate. The members of the legal profession by their calling are to aid and not impede the due administration of justice in the country. In this regard the law school has since its inception been teaching that the Court ought always to be treated courteously, and with deference; and that this applies equally to a bench of magistrates as to the highest Court in the land. This cardinal rule of professional ethics has not, I believe, ceased to have any meaning and it must be strictly observed. Litigants, of course, are entitled to insist on their strict legal rights – be it substantive or procedural law – but this must be in accordance with the long established transition of our legal system – courtesy and respect. It is a matter of regret that there were clear instances of contempt in facia, committed before us by the respondents’ advocates without any feeling of remorse on their part whatsoever. They better heed my Lord Cockar JA’s advice.

I concur with the orders proposed by Omolo JA.

Dated and Delivered at Nairobi this 2nd day of June 1994.

A.M.COCKAR

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JUDGE OF APPEAL

R.S.C.OMOLO

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JUDGE OF APPEAL

P.K.TUNOI

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JUDGE OF APPEAL

I certify that this is a true copy of

the original.

DEPUTY REGISTRAR