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Revisiting the Koinange-Gachoka Case: Reflections on Contempt of Court Under the Constitution of Kenya, 2010

REVISITING THE KOINANGE-GACHOKA CASE: REFLECTIONS ON CONTEMPT OF COURT UNDER THE CONSTITUTION OF KENYA, 2010

Ochiel J Dudley*

1. Introduction

The purpose of this article is to review the current status of the law of contempt in Kenya. The essay explores the concept and origin of contempt of court and examines the doctrine under the Constitution of Kenya, 2010. The paper concludes by suggesting areas for legislative intervention to bring about the certainty, uniformity and predictability desired of any law.

 

2. Background to the Koinange-Gachoka Case

In the month of June 2015, the Chief Magistrates Court at Nairobi convicted Jeff Koinange (media personality) and Tony Gachoka (political activist) for contempt of court. The duo allegedly defied an interim injunction issued in a defamation case and held discussions on the ongoing case in the Jeff Koinange Live “JKLive” talk show hosted by Mr Koinange on 1 st April, 2015. For their trouble, the two were respectively convicted of the offence of contempt of court and sentenced to imprisonment or in the alternative to a fine of Shs 2 million.

 

The current conviction, which has been temporarily stayed by the High Court, is a deja vu of sorts for Mr Gachoka. In 1999 Mr Gachoka as editor and publisher of The Post on Sunday published an article “ Chesoni implicated in Goldenberg cover up: An expose of judicial corruption in Kenya” in which he made allegations of high level corruption in the Kenyan judiciary alleging that the then Chief Justice Zaccheus Chesoni had received a Shs 30 Million bribe to ensure that the courts ruled in favour of one of the litigants in a case concerning the ownership of the Kenya Duty Free shops.

The Attorney General instituted contempt of court proceedings against him and his publication on the grounds that the publications were sub judice and a scurrilous and unjustified attack upon the court which were calculated to bring the administration of justice in Kenya into disrepute and contempt. A seven-judge Court of Appeal bench found Mr Gachoka guilty of the charges in Republic v Gachoka[1] and sentenced him to the maximum six months imprisonment without the option of a fine. The “Post on Sunday” was fined Shs 1 Million, the payment of which allegedly pushed the magazine out of business. Mr Gachoka would later be awarded Shs 1 Million for the violation of his fundamental rights and freedoms while he was in prison serving the six month sentence.[2]

 

3. The Concept of Contempt of Court

Contempt of Court in general has been defined as any conduct that defies the authority or dignity of a court or interferes with administration of justice and is therefore punishable by fine or imprisonment.[3] Contempt in common parlance means an act of deliberate disobedience or disregard for the laws, regulations, or decorum of a public authority, including courts or legislative bodies. It has been said elsewhere that “contempt” as a legal terminology refers to any wilful disobedience to, or disregard of, a court order or any misconduct in the presence of a court that interferes with a judge’s ability to administer justice or other conduct that insults the dignity of the court.[4]

Lord Diplock thought of the term “Contempt of court”[5] as a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Elsewhere, the expression “contempt of court” has been said to refer to the body of rules, principles, procedures and practices enabling the courts to protect the administration of justice through the use of summary processes.[6] In the United States of America, “contempt of court” has been defined as a wilful act, omission, or statement that tends to impair the authority or impede the functioning of a court.”[7]

Despite the absence of a commonly accepted definition of contempt of court, there is consensus on the origins of the concept from the common law ideals of supremacy and independence of the judiciary.[8]The concept has become so widespread that it has been described as “the Proteus of the legal world, assuming an almost infinite diversity of forms.”[9]

The justification of the law on contempt of court is that, in democratic states like Kenya, citizens rely on the courts for the impartial decision of disputes as to legal rights and obligations. As a result, once a dispute has been submitted to a court of law, citizens should be able to rely on the ability of the court to decide it impartially, independently and according to the law.[10] Consequently, any activity which offends the dignity and authority of judicial tribunals affects the fair administration of justice and ought to be punished.[11]

The Supreme Court of Kenya has in the case of Board of Governors, Moi High School, Kabarak v Malcolm Bell[12] typified the power to punish for contempt as one of the inherent powers of a court which enables the Court to regulate its internal conduct, safeguard itself against contemptuous or disruptive intrusions from elsewhere, ensure that its mode of discharge of duty is conscionable, fair and just. These endowments therefore enable the court to remain standing, as a constitutional authority, and ensure the court’s internal mechanisms are functional. Without these powers, protection of citizens’ rights and freedoms would be virtually impossible as courts of law would be reduced to futile institutions spewing forth orders in vain.[13]

In this regard, the law of contempt is essentially concerned with the maintenance of public confidence in the administration of justice by courts of law. However, the law does not exist to protect the personal dignity of the judiciary or the private rights of parties or litigants – contempt challenges the fundamental supremacy of the law and not just the dignity of the court.[14] Obedience of court orders is therefore plays a primal part in the sustenance of judicial authority and dignity. Disobedience of court orders on the other hand not only undermines the very foundation of the rule of law,[15] but also erodes the dignity and authority of the courts.[16]

It is understood that justice itself is flouted by contempt of court, not the individual court or judge who is attempting to administer it.[17] Commenting on this issue, Ibrahim, J (as he then was) once said, “It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times”.[18]

As a result, obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not.[19] As Romer J held in Hadkinson v Hadkinson[20] there is a plain, unqualified and uncompromising obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey that order unless and until it is discharged. Consequently, court orders are obligatory unless they are discharged on application, appeal or review. The obligation extends to orders which may in the opinion of parties be void or irregular, improperly obtained or too wide in their terms.[21] It has been bluntly said that a court order is not a mere suggestion, opinion or point view, but is a directive issued after much thought and circumspection.[22]

Based on the foregoing, courts deal with applications for contempt of court seriously and urgently. More often, the court suspends all other proceedings in a matter until the question of contempt has been dealt with and if proven the contemnor has been punished or the contempt purged or both. As a general rule a contemnor has no right of audience in any court of law unless he is punished or purges the contempt.[23] For instance, an alleged contemnor will not be allowed to prosecute any application to set aside orders or take any other step until the application for contempt is heard. However, the position as to the right of a contemnor to have audience before the High Court is beginning to get obsfucated.

In a recent case, the High Court held that a contemnor or alleged contemnor is entitled to be heard in the proceedings as the right to be heard is a Constitutional right which should not be limited. That it is only by hearing the contemnor that the court can determine whether the contemnor deserves the prayers or orders sought in a subsequent application to discharge the injunction alleged to have been disobeyed.[24] It is not clear what the court meant by this ruling. Particularly, one cannot tell if the court was referring generally to the right to a fair hearing (under Article 50) which is not absolute and can therefore be limited under Article 24 on one hand, or if it was referring to the the right to a fair trial (of accused persons, under Article 50(2)) which is absolute and cannot be limited under Article 25(c).

4. The Troublesome Distinction Between “Civil” and “Criminal” Contempt

In common law jurisdictions, there are broadly two types of contempt: criminal or civil.[25] According to Halsbury’s Laws of England criminal contempt consists of words and acts which obstruct or tend to obstruct or interfere with the administration of justice. Contempt in procedure, otherwise known as civil contempt, consists of disobedience to the judgements, orders or other process of court and involving a private injury.[26] Contempt can also be categorised as direct or indirect or as facie curiae (in front of the court) or ex facie curiae (outside the court).

Criminal contempt occurs when the contemnor actually interferes with the ability of the court to function properly. Examples include being rude, yelling at the judge, threatening a judge or witness, causing a disturbance in the courtroom and disrespect to the decorum of the court. Criminal contempt proceedings, are prosecuted to preserve the power and vindicate the dignity of the court. Civil proceedings on the other hand are remedial in nature and are applied to enforce the rights of private parties by motivating an accused contemnor into doing what he is required to do by the court order.[27] Sometimes, the same act or failure to act by a party can justify either civil or criminal contempt proceedings. Similarly, the distinction between civil and criminal contempt can be confusing because it has nothing to do with whether the proceedings are criminal or civil.[28]

5. Contempt of Court Under the Constitution of Kenya, 2010

Though the Constitution of Kenya, 2010 has no express provision on the matter, the power to punish for contempt can be readily discerned from its provisions. To the contrary, section 72(1) of the repealed Constitution recognised that a person could be deprived of personal liberty as authorized by law in execution of the order of the High Court or the Court of Appeal in punishment for contempt of that court, another court or tribunal. Under the previous dispensation, therefore, the power to punish for contempt of court was expressed as a limitation to the right to personal liberty.

Presently, however, the power to punish for contempt is an expression of the sovereignty of the people. The preamble to the Constitution of Kenya, 2010 recognizes the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law. The rule of law, which is further recognised as a National Value and Principle of Governance under Article 10, is the core value sought to be protected by the concept of contempt of court through the ordered functioning of the court.

Article 1 accordingly recognizes that all sovereign power belongs to the people of Kenya, and is delegated to the Judiciary and independent tribunals, and shall be exercised at the national and county levels only in accordance with the Constitution. Article 159(1) confirms that judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution.

Despite the constitutional underpinning of the power to punish for contempt deriving from the elevation of the rule of law to a national value and a principle of governance as well as the recognition of judicial authority as the expression of the sovereign power of the people of Kenya, contempt of court in Kenya largely retains its common law ancestry.

Before the promulgation of the Constitution in 2010, section 5(1) of the Judicature Act, Cap 8 was mainly the substantive law on contempt of court. The Section provides:

“5.(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court 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.”

(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in exercise of the original criminal jurisdiction of the High Court.” (Emphasis supplied).

In fact there is a school of thought that insists that only the High Court and Court of Appeal have the power to punish for contempt.[29]

For instance, in Mohamed Saleh Mahdi v B.M. Ekhubi, the Resident Magistrate Mombasa[30]Odero J sitting in the High Court held that Section 5 made it clear that the power to punish for contempt rests exclusively with the High Court and the Court of Appeal. The judge attributed error to the subordinate court’s reliance on Order 40 rule 3 of the Civil Procedure Rules to punish for contempt and faulted the trial magistrate’s finding that the Judicature Act and the Civil Procedure Act both being Acts of Parliament conferred concurrent authority. To the learned judge, the correct position was that Order 40 Rule 3 is derived from the Civil Procedure Rules and not the main Act, which Rules were subsidiary to the Judicature Act. As a result, the court held that the magistrate did not have jurisdiction to punish for contempt and thus quashed  his orders committing the applicant to civil jail for one (1) month.

This cannot be true as section 5 of the Judicature Act, Cap 8 is only conclusive to the power of the High Court and Court of Appeal to punish for contempt. In reality, other courts, including the Supreme Court, the specialist courts and subordinate courts exercising civil jurisdiction, can punish for contempt as well.

To begin with, section 63 of the Civil Procedure Act, Cap 21 provides that:

“63. In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed:

(c) Grant a temporary injunction and in case of disobedience convict the person guilty thereof to prison and order that his property be attached and sold”

The legislative prescription foreseen in the introductory phrase to  Section 63 has been made through Order 40 Rule 3, of the Civil Procedure Rules, 2010. The Rule provides that in cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release. All applications under the Order 40 Rule 3 are to be made by notice of motion within the suit.

It is instructive to note that “court” is defined to mean the High Court or a subordinate court, exercising its civil jurisdiction. It emerges therefore, that a subordinate court exercising its civil jurisdiction can punish disobedience contempt flowing from temporary injunctions. Accordingly, the High Court decision in Mohamed Saleh Mahdi  that subordinate courts did not have the power to convict for civil contempt arising from the disobedience of temporary injunctions was per incuriam. The court can convict the contemnor to prison or order the sale of their property. This, it seems, was the kind of power the court exercised in convicting Koinange and Gachoka. It can be said the subordinate court was rightly within its jurisdiction in convicting the duo for contempt of court.

What is not clear from the law is whether the option of a fine was available to the court. There is no express indication of the power of the court to order the payment of a fine. Nevertheless, the discretionary phrase “unless in the meantime the court directs his release” ought to be interpreted to give the court the power to attach conditions to the release of the contemnor. The option of a fine is one possible condition.

However, any contempt arising from contempt of a subordinate court exercising its criminal jurisdiction, as well as other contempt arising from circumstances other than the disobedience of a temporary injunction issued by a subordinate courts can only be punished by the High Court. This interpretation is consistent with the provisions of section 5 of the Judicature Act, Cap 21 in which the power of to punish for contempt is extended to upholding the authority and dignity of subordinate courts.

Aside of these two statutes, the Constitution establishes, and other laws consequently provide for the punishment of contempt by, other courts. Section 28(4) of the Supreme Court Act, 2011 gives the Supreme Court the power to punish contempt. Additionally, Article 162(2) provides for the establishment of specialist courts with the status of the High Court to hear and determine disputes relating to employment and labour relations on one hand and on the other hand the environment, use, occupation and title to land. It is however a point for discussion, whether these specialist courts established under the Constitution, and which are of the “same status” as the High Court, have similar powers to punish contempt.

Indeed, in Teachers Service Commission v Kenya National Union of Teachers[31]the Employment and Labour Relations Court ruled suo moto on its power to punish for contempt. The court, held that the similarity of status between it and the High Court signified a similarity of powers in all matters arising out of employment and labour relations. As a result, the term “High Court” in Section 5(1) of the Judicature Act, Cap 8 included references to the Employment and Labour Relations Court and the Environment and Land Court. It is therefore apparent that the specialist courts have the similar powers as the High Court to punish for contempt, and that the power extends to upholding the dignity and authority of subordinate courts in employment and labour relations as well as environment and land cases. Similarly, the legislation establishing the courts establishes diverse offences on the contempt of proceedings of those courts.

Section 20 of the Industrial Court Act, 2012 provides that the court may for the purpose of dealing with any matter before it, order in writing require any person to: furnish such particulars in relation to such matters as it may require; attend before it; give evidence on oath or otherwise; and produce any relevant documents. The section further provides that a person who without reasonable cause fails to comply with an order duly given or who knowingly or negligently makes any statement or furnishes any information which is false or misleading in material particular, commits an offence. The penalty on conviction is a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding six months or to both.

On its part, Section 29 Environment and Land Court Act, 2011 provides that any person who refuses, fails or neglects to obey an order or direction of the Court given under the Act, commits an offence. The penalty on conviction is a fine not exceeding twenty million shillings or  imprisonment for a term not exceeding two years, or to both.

One can easily perceive that there is no express provision on the procedure for the prosecution of these misdemeanours relating to the contempt of the specialist courts. There are at least three possibilities on the procedure for the prosecution of the offences arising from contempt of the specialist courts.

The first and most plausible scenario is that the task of prosecuting the statutory offences falls to the Director of Public Prosecution (DPP). Under Article 157 of the Constitution, all state powers of prosecution are bestowed upon the DPP. Specifically, the DPP has powers under Article 157(6) to (a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed. If these offences are to be prosecuted by the DPP, the cases would ironically end up at the magistrates courts in the first instance. It’s an interesting detail of law that the specialist courts though bearing the status of the High Court would rely on the subordinate courts to uphold their authority and dignity.

The second but less likely scenario is that the High Court’s jurisdiction under Section 5 of the Judicature Act, Cap 8 extends to the prosecution of the offences of contempt of the specialist courts. This argument is however difficult to accept as the specialist courts are of the same status as the High and are not subordinate courts. The power of the High Court to punish contempt under the section is expressed to extend to upholding the authority and dignity of subordinate courts. In fact, the High Court and the specialist courts are of the same status.

The third scenario which involves the specialist court presiding over prosecution of the statutory offences is the most improbable. While the specialist hold the same status as the High Court and should therefore logically have similar powers to the High Court, it should be noted that the powers exercised by the High Court under section 5 are derived from the common law and is dependent on a summary procedure. To the contrary, the offences of contempt of the specialist courts are statutory offences whose prosecution must be subjected to a full criminal trial and accorded a fair trial.

It emerges therefore that the misdemeanors comprising contempt of the specialist court are prosecutable by the Director of Public Prosecution and are subject to the procedure outlined in the Criminal Procedure Court and the provision of the Bill of Rights on fair hearing and fair trial respectively.

6. The Procedure of Contempt Law in Kenya

Section 5(1) of the Judicature Act, Cap 8 subjects the proceedings of contempt of court in Kenya to the powers for the time being possessed by the High Court of Justice in England. The law governing the justices in England previously was subject to the common law and Order 52 of the Supreme Court Rules. However, England has enacted the Contempt of Court Act, 1981 which supplements its common law contempt of court offences. The Contempt of Court Act, 1981 and in Part 81 of the Civil Procedure (Amendment No. 2) Rules, 2012 are the prevailing law on contempt of court in England.

The Kenyan High Court and Court of Appeal have accordingly interpreted and applied the prevailing law of contempt in England law in several recent decisions.[32] In Christine Wangari Gachege v Elizabeth Wanjiru Evans [2014] eKLR the Court of Appeal affirmed Section 5 of the Judicature Act and Section 63(c) of the Civil Procedure Act as the statutory basis of contempt of court in so far as the Court of Appeal and the High Court are concerned. The court interpreted Section 5 to hold that the applicable law in contempt proceedings in Kenya is the law applicable in the High Court of Justice in England at the time an application for contempt is filed.[33]

It merits clarification, however, that the Court of Appeal’s obiter dictum in Christine Wangari Gachege[34] to the extentthat Section 5 of the Judicature Act is the only statutory basis of contempt of court law in so far as the Court of Appeal and the High Court are concerned’, is erroneous. In reality, the High Court has additional powers to punish disobedience of temporary injunctions in the form of imprisonment or attachment and sale of the contemnor’s property under Section 63 (c) of the Civil Procedure Act, Cap 21.

Nevertheless, Part 81 of the Rules provides for proceedings for four different forms of violations: “breach of a judgment, order or undertaking to do or abstain from doing an act”; “interference with the due administration of justice” (in criminal proceedings); contempt “in the face of the court”; and “making false statement of truth or disclosure statement.”.

The Rules also outline the procedure for all contempt proceedings. For instance, Rule 81.9 provides that no contempt proceedings may be undertaken in committal for “breach of a judgment, order or undertaking to do or abstain from doing an act” unless an order endorsed with a penal notice has been served on the person required to do or not do the act in question. While this is the only category of committal that requires service of an order endorsed with a penal notice, the requirement for service can be dispensed with. Additionally, as a general rule under Rule 81.6, the mode of service must be personal service but the court has discretion to dispense with the requirement for personal service.

Rule 81.8 outlines the situations in which the court may dispense with personal service. First, in the case of a prohibitory judgment or order, the court may dispense with service of a copy of the judgment or order if it is satisfied that the person has had notice of it by being present when the judgment or order was given or made; or by being notified of its terms by telephone, email or otherwise. Second, in the case of any (not necessarily prohibitory) judgment or order, the court may if it thinks it just to do so either dispense with service or make an order in respect of service by an alternative method or at an alternative place.

In Justus Kariuki Mate v Martin Nyaga Wambora[35]the Court of Appeal acknowledged the move from the position that an order endorsed with a penal notice must be personally served on a person before contempt can be proved. Lenaola J in the case of Basil Criticos v Attorney General[36] perceived an additional ground for dispensation with the requirement for personal service; “…where a party clearly acts and shows that he had knowledge of a court order, the strict requirement that personal service must be proved is rendered unnecessary”. Similarly, the requirement of notice of the prohibitory judgement or order would also be satisfied where a party is represented counsel who was present in court when the orders were made.[37]

Therefore, knowledge of the judgment or order by an alleged contemnor’s advocate suffices for contempt proceedings. There is a presumption that when an advocate appears in court on instructions of a party, it behoves him to report back to the client all that transpired in court that has a bearing on the client’s case.[38] This presumption is in line with the dicta of the Canadian Supreme Court in the case of Bhatnager v Canada (Minister of Employment and Immigration,[39] where it was held that a finding of knowledge on the part of the client may be inferred from the fact that the solicitor was informed. Similarly, in the United States case of United States v Revie[40] it was held that a defendant had adequate notice of a show cause order because his attorney was on notice.

The other problematic issue is the question of the applicable standard of proof of service or knowledge in contempt cases. While there is consensus that the threshold is quite high as contempt proceedings are of a criminal nature and involve, if proved, loss of liberty,[41] there are conflicting decisions especially from the Court of Appeal on the exact standard of proof applicable to contempt proceedings. In Mutitika v Baharini Farm Limited[42] the Court of Appeal held that the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. That the standard of proof beyond reasonable doubt ought to be left where it belongs in criminal cases and that it was not safe to extend it to an offence which could be said to be quasi-criminal in nature.” Contrarily, in a more recent case the Court of Appeal held that the standard of proving the facts relied is beyond reasonable doubt.[43]

The Rules also outline the other details for committal proceedings including the requirement for leave. Under Rule 81.4 in proceedings for breach of judgment, order or undertaking the Application Notice should be made in the proceedings in which the judgment or order was made or the undertaking given. The Application Notice must set out fully the grounds on which the committal application is made and must identify separately and numerically, each alleged act of contempt and be supported by affidavit containing all the evidence relied upon. The application notice and the affidavit or affidavits must be served personally on the respondent unless the court dispenses with service if it considers it just to do so, or the court authorizes an alternative method or place of service. Leave of court or permission is not required where committal proceedings relate to a breach of a judgment, order or undertaking.

That position must be contrasted with the requirement in Rules 81.12 on committal “for interference with the due administration of justice” and 81.17 on committal “for making a false statement of Truth or disclosure statement” where leave is required. There is no indication as to the applicable procedure for committal for contempt in the face of the court, in criminal cases.

7.Contempt of Court, the Common Law and Transformative Constitutionalism

It has been said that the law on Contempt of court is one of those vestiges of the laws which Kenya adopted from its colonisers, which quite unfortunately has yet to be amended with a view to bring it in tandem with the Constitution of Kenya, 2010.[44] Additionally, the over-reliance on the common law in a jurisdiction with a trasformative constitution can be problematic. Kwasi Prempeh has noted that the application of common law’s doctrinal traditions, philosophic underpinnings, and styles of reasoning and interpretation carries with it elements and tendencies that do not accord with the transformative vision reflected in modern bills of rights.[45]

The incompatibility of the common law with transformative constitutionalism has also been the concern of Davis and Klare in Transformative Constitutionalism and the Common and Customary Law[46]. The authors express the apprehension that a jurisdiction with a transitional constitution cannot progress to social justice with a legal system that rigs a transformative constitutional superstructure onto a common law base inherited from the past.[47] They therefore propose a “transformative methodology” informed by the Bill of Rights and specifically by the constitutional aspiration to lay the legal foundation of a just, democratic and egalitarian social order and which takes a context-sensitive view of the case from the perspective of all pertinent ethical and socio-economic considerations[48].

The circumspection to the application of the common law in the toolbox of a Judiciary charged with interpreting a transformative constitution has been echoed by the Mutunga CJ of the Supreme Court in Communications Commission of Kenya v Royal Media Services Limited[49] where he expressed the caution that unthinking deference to cannons of interpreting rules of common law, statutes, and foreign cases can subvert the theory of interpreting the constitution.

As this paper has demonstrated, the continued existence of Section 5(1) in our statute books has generated confusion and imposed an unwieldy burden on our courts. The High Court, the Court of Appeal and legal practitioners have the unenviable duty of ascertaining the applicable law of contempt in the High Court of Justice in England, at the time an application is brought.[50] It has been said that the unacceptable status that courts in Kenya must make reference to the laws of England in dealing with matters of contempt of court has led to the unsatisfactory state of the law of contempt of court.[51] Similarly, there is a need to align contempt of court to the constitution and the Bill of Rights .

At the same time, the courts have been criticised for using the power to punish for contempt to squelch legitimate public criticism of judicial conduct.[52]The case of Rev Jackson Kipkemboi v Samuel Muriithi Njogu[53] will forever remain a will forever remain as a shameful stain on the reputation of Kenya’s judiciary. In that case the Plaintiff’s through their advocate one Zebedee Elisha Ongoya made an application for the presiding Mugo, J. to disqualify herself from the case on the ground that they would not be accorded a fair hearing, based on the judge’s previous conduct in the proceedings.

This routine application for recusal was not taken lightly by the learned Judge who not only declined to recuse herself, but also proceeded to commit the plaintiff and his advocate to one month imprisonment. According to the judge, the conviction was meant to be a clear warning to other beneficiaries of the justice system who (sic) had made it their ambition to tarnish the names of judicial officers and pervert the course of justice. There’s no need to say more than that Articles 1 and 159(1) confirm that judicial authority is derived from the people and must be exercised by the courts in accordance with the Constitution. The protection of the private reputations of judicial officers cannot the highest reason for the delegation of sovereign power by the people of Kenya under the Constitution.

Consequently, the judiciary should always remind itself, whether acting on application or suo moto, that contempt proceedings have nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. It should also be understood by all parties that the proceedings are not about placating an applicant who moves the court by taking out contempt proceedings. Rather, contempt of court proceedings are an expression of the sovereignty of the people of Kenya and serve to preserve and safeguard the rule of law, which is a national value and principle of governance.

8. Conclusion

To resolve the issues raised in this article, we recommend the speedy conclusion of the pending Contempt of Court Bill, 2013 to provide a legal framework for contempt of court proceedings in this jurisdiction. The Bill should provide a clear statement of the definition of “contempt of court” and the procedure for dealing with contempts in specific situations. The procedures should include the appropriate burden and standard of proof as well as sufficient safeguards to limit the potential for abuse. To uphold the freedom of expression and the media, and to minimise the kind of criticism generated by the Koinange-Gachoka cases, the Bill should outline clear guidelines to guide the media to understand what publication may constitute contempt. Similarly, the Bill should impose clear limits on the penalties which may be imposed for contempt of court as well as sufficient rules as to who may commence and discontinue contempt proceedings. We expect that the Bill include a statement on contempt of court as a justifiable limitation of fundamental freedoms and rights under Article 24 of the Constitution.

*The writer is an Advocate of the High Court of Kenya and a Legal Researcher at Kenya Law

 

[1] Criminal Application No. Nai 2 of 1999

[2]Tony Gachoka v Attorney General [2013]eKLR

[3] Bryan A Garner, Black’s Law Dictionary (9th edn, West Publishing Company: St Paul 2009) 31

[4] Miller C.J., Contempt of Court, 2nd edition, Clarendon Press, Oxford, 1989, p. 3

[5]Dicta of Lord Diplock A-G v Times Newspapers Ltd [1974] A.C. 273 at 307

[6] A T H Smith, “Reforming the New Zealand Law of Contempt of Court”, An Issues/Discussion Paper, University of Wellington

[7] In re Contempt of Robertson (Davilla v Fischer Corp), 209 Mich. App. 433, 436 (1995).

[8] Mriganka Shekhar Dutta & Amba Uttara Kak, Contempt of Court Finding the Limit, 2 NUJS L. Rev. (2009) at 56

[9] J. Moskovitz, ‘Contempt of Injunctions, Civil and Criminal’ (1943) 43 Col. LR 780.

[10]Shah v Shah [1989] KLR 220

[11]Times Newspaper ibid

[12] [2013] eKLR

[13] Akber Abdullah Kassam Esmail v Equip Agencies Ltd [2014] eKLR

[14] Johnson v Grant [1923] SC 789 at 790

[15] Abbeybarn Limited v Infinity Gemstones Ltd [2000] KLR 248.

[16] Commercial Bank of Africa Limited v Ndirangu [1992] KLR 30

[17]See Teachers Service Commission v Kenya National Union of Teachers [2013] eKLR; Also see African Management Communication International Limited v Joseph Mathenge Thuo [2013] eKLR.

[18] Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya [2005] 1 KLR 828

[19] Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR

[20] [1952] ALL ER 567

[21] Wildlife Lodges Ltd v County Council of Narok [2005] EA 344; Shah & Another t/a Lento Agencies v National Industrial Credit Bank Ltd [2005] 1KLR 300; Kenya Tea Growers Association v Francis Atwoli [2012] eKLR

[22] TSC v KNUT supra note 13

[23] Econet Wireless Ltd v Minister For Information and Communication [2005] eKLR

[24] John Njoroge Gichora v Gideon Numa [2015] eKLR

[25] International Seminar on Promoting Freedom of Expression With the Three Specialised International Mandates, Background Paper on Freedom of Expression and Contempt of Court

[26] Halsbury’s Laws of England (4th edn, 1974) Vol 9, para 2.

[27] Laura Thornton, Fines, Imprisonment or Both: Civil v Criminal Contempt, Virginia Lawyers Magazine, February 2001

[28] Nijjar, Manjit Singh, “An Appraisal of the Law of Contempt in India”, PhD Thesis, Punjabi University, Patiala, 2010

[29] See Odero J’s judgment in Mohamed Saleh Mahdi v B.M. Ekhubi, the Resident Magistrate Mombasa [2014] eKLR

[30] [2014] eKLR

[31] Ibid

[32] Christine Wangari Gachege v Elizabeth Wanjiru Evans [2014] eKLR; Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR

[33] Ibid at

[34] Ibid

[35][2014] eKLR

[36][2012] eKLR

[37] Shimmers Plaza Limitedsupra note 25

[38] Ibid

[39] [1990] 2 SCR 217

[40] 834 F.2d 1198, 1203 (5th Cir. 1987)

[41] Sam Nyamweya v Kenya Premier League Limited [2015] eKLR; citing Ex Parte Lengely [1879] 13 Ch D/10 (CA)

[42] [1985] KLR 229 at 234

[43] Shimmers Plaza Limited ibid

[44] Shimmers Plaza supra note 25

[45] Prempeh H K , The Common Law in a Constitutional Era, in Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa, Vol. 80:1 Tulane Law Review 2006 at pp 72

[46] (2010) 26 SAJHR at 405

[47] Ibid at 411

[48] Ibid at 412

[49] [2014] eKLR at 357-358

[50]Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others [2014] eKLR; In the Matter of an Application by Gurbaresh Singh & Sons Ltd [1983] eKLR

[51] Republic v County Council of Nakuru ex parte Edward Alera t/a Genesis Reliable Equipment & 3 others [2011] eKLR

[52]Patricia Kameri Mbote and Migai Akech, Kenya Justice Sector and the Rule of Law, 2011 Discussion Paper Open Society Initiative for Eastern Africa at pp. 8

[53] HCCC No 1237 of 1999

  1. June 19, 2015

    Thank you very much. It’s an informative piece and everything one needs to know about contempt.

  2. June 29, 2015

    NICE PIECE OF ARTICLE CONTEMPT OF COURT IS A SERIOUS ISSUES AND ONE THAT NEEDS URGENT ATTENTION. THIS IS BECAUSE THE COURTS BEING VIEWED AS THE BASTION OF JUSTICE IF THEY CAN’T UPHOLD IT. WHAT RECOURSE HAS THE ORDINARY CITIZEN BUT RESOLVE TO TAKE LAW UNTO HIMSELF

  3. September 9, 2015

    Articulate article and on point

  4. November 7, 2015

    Thanks Dudley for this enlightening piece on the law and practice of contempt of court in Kenya. I recommend that you enhance the article for journal peer review and publication.

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