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By: OOC
The Black’s Law dictionary[1] defines it in the following terms –
“Contempt is a disregard of, or disobedience to, the rules or orders of a legislative or judicial
body, or an inter-ruption of its proceedings by disorderly behavior or insolent language, in its
presence or so near thereto as to disturb the proceedings or to impair the respect due to such a
body.
A distinction has sought to be made between civil contempt and criminal contempt. Civil contempt is defined as follows by the Black’s Law dictionary –
The failure to obey a court order that was issued for another party’s benefit. •
A civil-contempt proceeding is coercive or remedial in nature. The usual sanction is to confine the contemnor until he or she complies with the court order. The act (or failure to act) complained of
must be within the defendant’s power to perform, and the contempt order must state how the contempt may be purged. Imprisonment for civil contempt is indefinite and for a term that lasts
until the defendant complies with the decree.
Criminal contempt on the other hand is defined as follows by the Black’s Law dictionary –
An act that obstructs justice or attacks the integrity of the court. • A criminal-contempt pro-ceeding is punitive in nature. The purpose of criminal-contempt
proceedings is to punish repeated or aggravated failure to comply with a court order. All the
protections of criminal law and procedure apply, and the commitment must be for a definite period.
Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public
wrong which is punishable by fine or imprisonment or both.
A distinction has also sought to be made between contempt in facie curiae or contempt committed on the face of the Court and contempt ex facie curiae or contempt committed outside the face of the Court.
The different distinctions will become more apparent as we go along.
Legal basis/ rationale for the courts’ power to punish for contempt
There are two differing schools of thought regarding the legal basis of the Court’s power to punish for contempt. The first school of thought appears to be that for Courts to punish for contempt of whatever nature, the same must be specifically provided for under the Law. See for instance the words of the Court of Appeal in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others [2014] eKLR[2]
“The former Constitution, unlike the current one, did in Section 72 (1) (b) recognize the power of the courts to punish for contempt of court in the following words:-
‘72. (1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases.
………………………..
(b) In execution of the order of the High Court or the Court of Appeal punishing him for
contempt of that court or of another court or tribunal…..’
Therefore, today the only statutory basis of contempt of court law in so far as the Court of Appeal and the High Court are concerned is Section 5 of the Judicature Act. In addition, Section 63 (c) of the Civil Procedure Act provides that a disobedience of an order of temporary injunction will attract punishment in the form of imprisonment or attachment and sale of the contemnor’s property. Section 28 (4) of the Supreme Court Act vests in that court the power to punish for contempt. Of relevance to the matter at hand is Section 5 (1) of the Judicature Act which provides as follows…”
From these words, the Court of Appeal appears to suggest that the substantive and procedural law for the Court’s power to punish for Contempt of Court must be specifically provided for under the statute books.
The second school of thought appears to be that the Court’s power to punish for contempt is inherent and does not need to be provided for by statute. This school of thought was propagated by the High Court in Kenya Human Rights Commission v Attorney General & another[3], the decision that struck down the Contempt of Court Act.[4] The Court reasoned that any legislation on contempt of Court wouldn’t be substantive law but procedural law meant to enhance the power and effectiveness of courts to punish for wilfull disobedience of its processes.
The High Court also reasoned that the Constitution[5] declares Kenya a democratic state founded on national values and principles of governance which include the rule of law and democracy. Disobedience and disregard of the authority of the courts violates national values and the constitution. In that regard therefore, courts need to have the power to punish for contempt in order to maintain their dignity, authority, the rule of law, democracy and administration of justice as foundational values in our constitution.
The constitution[6] recognizes the judicial authority of courts and tribunals established under the constitution. Courts and tribunals exercise this authority on behalf of the people. The decisions courts make are for and on behalf of the people[7] and for that reason, they must not only be respected and obeyed but must also be complied with in order to enhance public confidence in the judiciary which is vital for the preservation of our constitutional democracy.
The judiciary acts only in accordance with the constitution and the law (Article 160) and exercises its judicial authority through its judgments decrees orders and or directions to check government power, keep it within its constitutional stretch hold the legislature and executive to account thereby secure the rule of law, administration of justice and protection of human rights. For that reason, the authority of the courts and dignity of their processes are maintained when their court orders are obeyed and respected thus courts become effective in the discharge of their constitutional mandate.
The High Court went on to hold as follows –
“62. It is therefore clear that the importance of the judiciary in the maintenance of constitutional democracy cannot be overemphasized. In order to achieve this constitutional mandate, the judiciary requires the power to enforce its decisions and punish those who disobey, disrespect or violate its processes otherwise courts will have no other means of ensuring that the public benefit from the judgments they hand down and the orders and or directions made on their behalf. When stripped of this power courts will be unable to guarantee compliance with their processes and will certainly become ineffective in the discharge of their duties and performance of their functions with the ultimate result that the public, as trustees of the rule of law, will be the major victim.
The High Court relied on the following words by Nkabinde J. in the South African decision of Nthabiseng Pheko v Ekurhuleni Metropolitan Municipality & another[8] the Court’s power to punish for contempt is inherent and does not need to be donated by any law.
“The rule of law, a foundational value of the constitution, requires that the dignity and authority of the courts be upheld. This is crucial, as the capacity of courts to carry out their functions depends upon it. As the constitution commands, orders and decisions issued by a court bind all persons to whom and organs of state to which they apply, and no person or organ of state may interfere in any matter, with the functioning of the courts. It follows from this that disobedience towards courts orders or decisions risks rendering our courts impotent and judicial authority a mere mockery. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced.”
The need for a legal framework
Notwithstanding the High Court’s finding of the inherent nature of the Court’s power to punish for Contempt, there’s need for a clear and elaborate framework within which the power to punish for contempt in Kenya ought to be exercised for two reasons: Firstly, to prevent abuse and misuse by overzealous judicial officers and secondly to provide clarity on the procedure to be followed in order to enhance the power and effectiveness of courts and tribunals to punish for wilfull disobedience of their processes by providing clarity on the procedure to be followed.
Abuse/misuse by judicial officers
If found guilty of contempt, sentences can be severe in view of its criminal nature of the offence, which fact buttresses the need for the power to be exercised judiciously within certain legal strictures.
One of the famous cases in Kenya in which it was felt that the Court misused, abused or overreached on the power to punish for contempt was Jackson Kipkemboi Koskey & 7 others v Samuel Muriithi Njogu & 4 others [2007] eKLR.[9]
The matter had been filed in the High Court between two factions contesting leadership of the Full Gospel Churches of Kenya. There were numerous interlocutory applications filed and the matter had found itself before several judicial officers. It later found itself before Mugo J. as she then was.
One of the factions represented by Mr. Elisha Ongoya, Advocate, filed an application seeking for recusal of the Mugo J. from hearing the matter. In her Ruling on the application, she found Elisha Ongoya, Advocate and all his clients guilty of contempt for drafting the application in the manner they did and condemned them to serve one month in jail. The Ruling was later vacated by the Court of Appeal.
Clarity on procedure
To better address this issue, it is important to trace the legal framework on the law of contempt in Kenya until now.
Before it was struck down by the High Court on 9th November, 2018[10], the Contempt of Court Act sought to provide the legal framework for the Courts’ exercise of the power to punish for Contempt of Court.
The Constitution, 2010 establishes the systems of Courts in Kenya to include superior Courts and subordinate Courts.[11] The Superior Courts constitute the High Court, Court of Appeal and Supreme Court, while the subordinate Courts constitute Magistrate’s Courts, Kadhis’s Courts, Court martials and local tribunals.[12] Under the retired Constitution, the Court of Appeal was the apex Court.
Immediately prior to enactment of the Contempt of Court Act, the Magistrates Court Act[13] which came into operation on 2nd January, 2016 granted the Magistrate’s Courts unlimited jurisdiction to punish for contempt of Court.[14] This enactment was a game changer because previously, the jurisprudence was that only the High Court and Court of Appeal had unlimited power to punish for Contempt of Court pursuant to provisions of Section 5 of the Judicature Act[15] which provides as follows –
“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 the exercise of the ordinary original criminal jurisdiction of the High Court.
If anyone sought to pursue an application for contempt of Court that had been alleged to have been committed ex facie curiae against anyone and they sought to do so pursuant to Section 5 of the Judicature Act, such application had to be filed either at the High Court or Court of Appeal. Unlike now, then, the subordinate court’s power to punish for contempt was only limited to contempt in facie curiae. See the Court of Appeal decision in Ramadhan Salim v Evans M. Maabi T/A Murhy Auctioneers & another [2016] eKLR.[16]
Section 63 (c) of the Civil Procedure Act[17] (which has been in existence since 1948) recognized the need to punish for contempt as it provides that –
“63) In order to prevent the ends of justice from being defeated, the court may, if it is so prescribe’……….. c) Grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold”.
Pursuant to Section 63 (c) aforesaid, it is provided in Order 40 Rule 3(1) of the Civil Procedure Rules, 2010 that: –
“3(1) In case of disobedience, or breach of any such terms, the court granting an injunction may order the property of the person guilty of such 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”.
In the Ramadhan Salim decision (supra) the Court affirmed that the power to punish for contempt as contemplated under the Civil Procedure Act and the rules thereunder was reserved solely for the High Court and Court of Appeal in terms of the provisions of Section 5 of the Judicature Act except only where such contempt was committed in facie curiae.
It is also unequivocal that, pursuant to Section 63 (c) of the Civil Procedure Act, Order 40 Rule 3 (1) of the Civil Procedure Rules used to only apply where the breach related to orders of an injunction, which has had the effect of limiting the jurisdiction of the Court to punish for contempt, because an argument would arise that if the statute contemplated that the Court had blanket powers to punish for contempt, there would not be any need for this provision in other words, limit the power to disobedience of injunctive orders only.
The Supreme Court Act[18] which was enacted to assist operationalize the Supreme Court also provides for its power to punish for Contempt but only in facie curiae.[19] The power is therefore highly circumscribed.
As for Tribunals, certain creature statutes appear to clothe some of the tribunals with power to punish for Contempt. For instance, the Cooperative Societies Act[20] gives the Cooperative tribunal power to punish for contempt. Similarly, the Political Parties Act[21] gives the Political Parties Disputes Tribunal Powers to punish for contempt in the same manner as the High Court.[22]
As stated previously however, the jurisprudence prior to the enactments alluded to hereinbefore was that only the High Court and the Court of Appeal could punish for contempt of Court pursuant to section 5 of the Judicature Act. The power of the High Court and Court of Appeal must be as is for the time being possessed by the High Court of Justice in England.
What is the law currently?
The jurisdiction of the Magistrates Courts to punish for contempt (both ex facie and in facie) is adequately provided for in the Magistrates Courts Act as has been stated hereinabove.
It is worth noting that the Contempt of Court Act had repealed Section 5 of the Judicature Act in its entirety. However since the Act was struck down in its entirety, the implication is that Section 5 of the Judicature Act was restored to our statute books and is still alive and kicking. The jurisdiction of the High Court and Court of Appeal therefore to punish for contempt is as provided for under Section 5 of the Judicature Act.
As long as this provision is still present in the statute books, a duty has been imposed on the High Court, Court of Appeal and law practitioners to ascertain the applicable law of contempt in the High Court of Justice in England, at the time an application for contempt is brought.
This duty was noted by H.G. Platt J. and D.C. Porter, Ag J. (as they then were) In the Matter of an Application by Gurbaresh Singh & Sons Ltd Misc. Civil Case No. 50 of 1983, where they said:-
“The second aspect concerns the words of Section 5 – “for the time being”, which appear to mean that this Court should endeavour to ascertain the law in England at the time of the trial, or application being made. Sometimes it is not known, or may not be known exactly, what powers the court may have. It seems clear that the Contempt of Court Act 1981 of England is the prevailing law and that the procedure is still that set out in order 52 of the Supreme Court Rules.
The High Court of Justice in England is the level of the Court system in England comprising 3 divisions: the Queen’s Bench, the Chancery and the Family Division. The Court derives its jurisdiction to punish for contempt from both the common law and statute, that is the Contempt of Court Act, 1981.
The procedure for commencing, prosecuting and punishing for contempt of court has not been static. Until 2012, the procedure was as provided for by Order 52 Rules 1 to 4 of the Rules of the Supreme Court RSC, made under the Supreme Court of the Judicature Act, 1873. Following the implementation of the famous Lord Woolf’s “Access to Justice Report, 1996”, The Rules of the Supreme Court of England are gradually being replaced with the Civil Procedure Rule, 1999 and which are now contained in the Second Supplement to the 2012 White Book.
This is significant because there were aspects of the RSC which have been done away with progressively but which substantially affected the way in which contempt proceedings were handled in Kenya. For example the requirements for seeking leave before bringing contempt proceedings, the requirement to serve the Attorney General Office with a notice prior to bringing contempt proceedings, the requirement to include a notice of penal consequences in documents, the requirement for personal service etc.
On 1st October, 2012 new rules[23] came into force and part 81 thereof effectively replaced Order 52 RSC in its entirety. Part 81 (Applications and Proceedings in Relation to Contempt of Court) provides different procedures for four different forms of violations.
Rules 81.4 relates to committal for “breach of a judgment, order or undertaking to do or abstain from doing an act.”
Rule 81.11- Committal for “interference with the due administration of justice” (applicable only in criminal proceedings).
Rule 81.16 – Committal for contempt “in the face of the court”, and
Rule 81.17 – Committal for “making false statement of truth or disclosure statement.”
The most common applications are as provided under Rule 81.4. An application under Rule 81.4 (breach of judgment, order or undertaking) now referred to as “application notice” (as opposed to a notice of motion) is 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(s) 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.
It is clear from this summary that unlike previously, leave, now called “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 – committal “for interference with the due administration of justice” and 81.17 – Committal “for making a false statement of Truth or disclosure statement” where, in the former it is expressly provided that:-
“The application for permission to make a committal application must be made by a part 8 claim form………..” And in the case of the latter,
“A committal application in relation to a false statement of truth or disclosure statement in connection with proceedings in the High Court, a Divisional Court or the Court of Appeal, may be made only;
a) with the permission of the Court dealing with the proceedings in which the false statement or disclosure statement was made………”
There are strict procedural requirements that need to be met in pursuing an application for contempt as follows –
In order to be enforced by committal, a judgment or order is required to be served upon the person upon whom it is directed unless the court dispenses with such service.[24]The service must be personal.[25]
As regards undertakings, it is the court to which an undertaking has been given, that is now required to serve the document recording the undertaking upon the person giving the undertaking.[26] Such service may be by post to the person giving the undertaking or to his solicitor.[27] However, if the court does not affect such service, the person for whose benefit the undertaking is given is required to effect service of the same personally upon the person giving the undertaking.[28]
One major improvement on the rule on service is the provision which allows the court to dispense with service where it is satisfied that the person, against whom the order or judgment is directed at, has had notice of the order or judgment requiring him to do or not to do an act. Such notice may be by his being present in court at the time of the making of the order or judgment; or being notified of the terms of the order either through telephone, email or otherwise.[29] The court may also order an alternative mode or place of service.[30] This is a major departure from the previous practice under the RSC on service which were strict on personal service. With this amendment, contemnors will find it difficult to avoid sanction on the basis of non-personal service of an order.
An order or judgment may not be enforced by way of committal unless a notice of penal consequences is prominently displayed on the front of the copy of such order or judgment.[31]Such notice should contain a warning to the person to whom the order or judgment is directed that disobedience would be contempt of court punishable by imprisonment, a fine or sequestration of assets.
However, in an undertaking contained in a judgment or order, there is no requirement for the penal notice being endorsed upon the order.[32]This is based on the notion that the giver of the undertaking is aware that failure to satisfy the undertaking has sanctions and/consequences. The giver of the undertaking is expected to take seriously his/her undertaking to court.
Before commencing contempt of court proceedings, one has to seek permission to do so. An application for permission is to be made by a part 8 claim form accompanied by a detailed statement of the applicant’s grounds for bringing the committal application and an affidavit setting out all the facts and exhibiting all documents relied upon.[33] As already stated hereinabove, this however applies only to applications under Section 3 of Part 81. It does not apply to judgments and orders.
The claim form and all the documents accompanying the same must be served personally upon the respondent who should file an acknowledgment of service within 14 days of service. The Respondent is also entitled to file any evidence he wishes to rely on.[34] The application for leave is to be considered by the court at an oral hearing unless the court considers that a hearing is not appropriate.[35] The Respondent may appear at the permission hearing if he so wishes upon giving 7 days’ notice of such intention.[36]
This is a departure from the previous procedure where the application for leave was heard or considered ex parte. There is also no requirement to serve the crown (Attorney General) before lodging the application for leave as was formerly the case. By doing away with ex parte applications for leave and insisting on inter parties, the likelihood of those undeserving committal proceedings ending up in court is greatly diminished thereby saving precious judicial time.
The application for committal is made by way of Application Notice under Part 23 in the proceeding in which the judgment or order or undertaking was given.[37] The application notice must set out the grounds on which the committal application is made identifying separately each alleged act of contempt including, if known, the date of each of the alleged act. The application must be supported by an affidavit or affidavits containing all the evidence to be relied on.[38]
The application notice and the evidence in support must be served personally upon the respondent although the court has discretion to dispense with such service or mode of service.[39]
Rule 81.28 makes detailed provisions on how the application for committal or sequestration is to be heard. At the hearing, an applicant cannot rely on any other ground save for those grounds set out in the claim form or application notice or statement under Rule 81.14 (1) (a).[40]
The Respondent is permitted to give oral evidence at the hearing whether or not he has filed or served written evidence and may be cross-examined. He may also call witnesses to give oral evidence with the permission of court.[41]
The Court has the power to require or permit any person other than the Respondent to give oral evidence at the hearing. If any witness has given evidence, the court may require his attendance for cross-examination.[42]
All these are a departure from the previous practice where committal proceedings were determined through Affidavit evidence only. The likelihood of an innocent Respondent or alleged contemnor ending up in jail is considerably diminished as there is wider latitude for one to defend himself. Further, the likelihood of the court being misled as to the innocence of a contemnor through untested affidavit evidence is diminished.
Standard of Proof
Due to the penal consequences that are attendant to contempt proceedings, the standard of proof is ordinarily higher than that required in ordinary civil proceedings. Some Courts have held that the standard of proof in contempt proceedings must be higher than that of proof on a balance of probabilities almost but not exactly beyond reasonable doubt. However, sometimes the courts have insisted that the proof of contempt should be beyond reasonable doubt whereby deserving committal proceedings have been dismissed.
In the cases of Titus Munyoki Nzioki v John Kimathi Maingi & another[43] and John Mbugua Kimari v John Njoroge Kimari[44], the courts held that the standard of proof in contempt proceedings should be beyond reasonable doubt and consequently dismissed the contempt proceedings before them for not having been proved beyond reasonable doubt. However, in Quick Handling Aviation Ltd v Adan Noor Adan[45] the court held that the standard of proof in contempt proceedings is higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt.
In the case of North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi[46] where Justice Mativo stated that: ‘ writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand have authoritatively stated as follows: –
“there are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases – (a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; (b) the defendant had knowledge of or proper notice of the terms of the order; (c) the defendant has acted in breach of the terms of the order; and (d) the defendant’s conduct was deliberate.”
Equally ,in the case of Mutitika v Baharini Farm Ltd[47],the Court of Appeal of Kenya laid the rule that the standard of proof in contempt of court should be higher than proof on a balance of probabilities and almost but not exactly beyond reasonable doubt. In that case, the court declined to allow an application citing the alleged contemnors for contempt on the ground that the order alleged to have been disobeyed was imprecise in its terms and therefore contempt had not been proved to the required standard.
[1] 8th edition, 2004.
[2] CIVIL APPLICATION NO. 233 OF 2007 (UR 144/2007)
[3] [2018] eKLR
[4] No. 46 of 2016
[5] Article 4(2)
[6] Article 159
[7] Article 1 of the Constitution
[8] CCT 19/11(75/2015)
[9] Civil Appli 311 of 2006 (UR 174/06)
[10] See Kenya Human Rights Commission v Attorney General & another [2018] eKLR
[11] Article 162
[12] Article 169
[13] No. 26 of 2015
[14] Section 10
[15] Cap. 8 of the Laws of Kenya
[16] CIVIL APPEAL NO. 69 OF 2015
[17] Cap. 21 of the Laws of Kenya
[18] No. 7 of 2011
[19] See Section 28
[20] No. 12 of 1997
[21] No. 11 of 2011
[22] See section 41(3)
[23] Civil Procedure (Amendment No. 2) Rules, 2012
[24] Rule 81.5(1)
[25] Rule 81.6
[26] Rule 81.7
[27] Ibid sub rule 1(c)
[28] Ibid sub rule 2
[29] Rule 81.8 (1)
[30] Ibid sub rule (2)
[31] Rule 81.9 (1)
[32] Ibid sub rule 2
[33] Rule 81.14(1)
[34] Ibid sub rule 2 and 3
[35] Ibid sub rule 4
[36] Ibid sub rule 5
[37] Rule 81.10 (1)
[38] Ibid sub rule 2
[39] Ibid sub rule 4 and 5
[40] Rule 81.28 (1)
[41] Ibid sub rule 2
[42] Ibid sub rules 3 and 4
[43] [2013] eKLR
[44] [2014] eKLR
[45] [2015]eKLR
[46] [2016]eKLR
[47] 1985 [KLR] 229.