THE MUDDIED LEGAL WATERS OF CONTEMPT OF COURT PROCEEDINGS IN KENYA.

It is an established position that if courts are to perform their duties and functions effectively and remain true to the spirit which they are sacredly entrusted with, the dignity and authority of the courts has to be respected and protected at all costs. Otherwise the very cornerstone of our constitutional scheme will give way and with it will disappear the Rule of Law and a civilized life in the society. It is for this purpose that courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside courts which tend to undermine their authority and bring them in disrepute and disrespect by scandalizing them and obstructing them from discharging their duties.

When the court exercises this power, it does so to uphold the majesty of the law and of the administration of justice. The foundation of judiciary is the trust and confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working the edifice of the judicial system gets eroded.

In Melius de Villiers The Roman and Roman-Dutch Law of Injuries (1899) page 166: ‘Contempt of court … may be adequately defined as an injury committed against a person or body occupying a public judicial office, by which injury the dignity and respect which is due to such office or its authority in the administration of justice is intentionally violated.’

There is also the formulation in S v Beyers 1968 (3) SA 70 (A) at 76E and 76F-G and the definitions in Jonathan Burchell Principles of Criminal Law (3ed, 2005) page 945 ‘Contempt of court consists in unlawfully and intentionally violating the dignity, repute or authority of a judicial body, or interfering in the administration of justice in a matter pending before it.

Section 5 of the Judicature Act provides as follows:-

(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.

 In the John Mugo Gachuki v New Nyamakima Co. Ltd civil case no 456 0f 2014  it was held:-

"It is unfortunate that nearly 50 years after independence our procedure, with respect to punishment for contempt in our Court is preferable to the procedure in High Court of Justice in England. It is saddening that the entities entrusted with updating and drafting our laws have not seen the urgency of enacting our own law relating to such an important aspect of the Rule of Law. That being the position, ours is not to enact the law but to interpret the law as enacted."

Therefore, the law that governs contempt of court proceedings in Kenya is the English law applicable in England at the time the alleged contempt is committed. Section 5 of the Judicature Act imposes a duty on the High Court, the Court of Appeal and law practitioners to ascertain the applicable law of contempt in the High Court of Justice in England, at the time the application is brought. This duty was noted by Platt J and Porter J in the matter of an application by Gurbaresh Singh &Sons Ltd as follows: -

The Court of Appeal In Christine Wangari Chege v Elizabeth Wanjiru Evans & Others went through the procedure of commencing contempt proceedings in England in detail and pointed out that an application under Rule 81.4 (breach of judgement, order or undertaking) now referred to as "application notice" is the relevant one. The Court of Appeal pointed out that leave, now called "permission"is not required where committal proceedings relate to a breach of a judgement, order, or undertaking.

The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fides. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe he/she is entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith.

To succeed in an application for contempt, an applicant must prove (i)the terms of the order, (ii) Knowledge of the terms by the Respondent, (iii). Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. A comprehensive exposition of elements of civil contempt is discussed in Contempt in Modern New Zealand as follows:-

"… The applicant must prove to the required standard …that:-

(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

 Lord Denning M.R, in Re Bramble Vale Ltd stated that “A contempt of Court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved to use the time-honored phrase; it must be proved beyond reasonable doubt.”

It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of courts is upheld at all times. The court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.

In the upshot, Court orders must be obeyed at all times in order to maintain the Rule of Law and good order. This of course means that the authority and dignity of our courts must be upheld at all times and this differentiates civilized societies from those applying the law of the jungle. It is the duty of the court not to condone deliberate disobedience of its orders nor waiver from its responsibility to deal decisively and firmly with contemnors. The court does not, and ought not be seen to make orders in vain; otherwise the court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.

G.K KILETYEN ASSOCIATE ADVOCATE SANG & SANG ADVOCATES LLP.

BIBLOGRAPHY

1.    Republic v Attorney General & another Exparte Mike Maina Kamau [2020] eKLR

2.    Melius de Villiers The Roman and Roman-Dutch Law of Injuries (1899) page 166:

3.     Christine Wangari Chege v Elizabeth Wanjiru Evans & Others Civil Application No. 233 of 2007, {2014}

4.    Section 5 of the Judicature Act.

5.    Ronald Goldfarb, The History of the Contempt Power, 1 WASH. U. L. Q. 1, 2 (1961.

6.    Lawrence N. Gray, Criminal and Civil Contempt: Some Sense of a Hodgepodge, 72 ST. JOHN’S L. REV. 337, 342 (1998).

7.    ip36.publications.lawcom.govt.nz.

8.    See Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim, J(as he then was)

9.    See Awadh vs. Marumbu (No 2) No. 53 of 2004 [2004] KLR 458,

10. See Ojwang, J (as he then was) in B vs. Attorney General [2004] 1 KLR 431