UNIVERSITY OF NAIROBI
SCHOOL OF LAW
CONTEMPT OF COURT IN KENYA, A CRITICAL ANALYSIS OF THE CONTEMPT OF COURT ACT NO.46 OF 2016
BY BYARUHANGA McRONALD
REG NO : G62/81764/2015
SUPERVISOR: MR.SAMSON ALOSA
RESEARCH THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE MASTERS OF LAWS OF THE UNVIERSITY OF NAIROBI.
DECLARATION
This thesis is my original work except for relevant sources referred and appropriately acknowledged, and it has not been submitted to any University or institution for any award.
SIGNED ………………………………………….DATE……………………………………
BYARUHANGA McRONALD
REG NO : G62/81764/2015
SCHOOL OF LAW
UNIVERSITY OF NAIROBI
This Thesis has been submitted for examination for the award of Master of Laws Degree for which the candidate was registered with my approval as the University Supervisor.
SIGNED……………………………………..DATE………………………..
MR. SAMSON ALOSA
LECTURER
SCHOOL OF LAW
UNIVERSITY OF NAIROBI
i
DEDICATION This work is dedicated to my father Mr. Byamukama Wilfred and my late mother Mrs. Emily Byamukama for their love of education and the great lengths they went to see me get a decent education.
ii
ACKNOWLEDGEMENTS
I wish to thank my supervisor Mr.Samsom Alosa , who was more than generous with his time and expertise. I am also grateful to my family for their unwavering support.
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LIST OF ABBREVIATIONS
AD Anno Domini
AG Attorney General
DPP Director of Public Prosecutions
All ER All England Law Reports
Appl Application
CA Court of Appeal
CCR The County Court Rules
CPR Civil Procedure Rules
JSC Judicial Service Commission
KLR Kenya Law Reports
LLM Master of Laws
Misc Miscellaneous
RSC Rules of the Supreme Court
UK United Kingdom
USA United States of America
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TABLE OF CASES
1. Attorney General vs Times Newspapers Ltd [1974] A 273, 307.
2. Johnson Vs Grant (1923) SC 789 at 790
3. Attorney General v Times Newspapers Ltd [1974] A 273, 307.
4. Teachers Service of Commission .vs.Kenya National Union of Teachers & 2 others [2013] eKLR
5. Republic v Tony Gachoka & Another Cr. Appl. No. NAI 4 OF 1999 (UR).
6. Canadian Metal Company Ltd v Canadian Broadcasting Corporation (No. 2) [1975] 48 DLR (3rd) 641,669.
7. Husson v Husson [1962] 3 ALL ER cited in n 56, Para 65.
8. John Aaron v William G. Cooper 358 US 1 (1958
9. Abbeybarn Limited v Infinity Gemstones Ltd [2000] KLR 248.
10. Shah & Another v Shah [1989] KLR 220.
11. Justus Kariuki Mate & Anor v Martin Nyaga Wambora [2014] eKLR
12. Abdiwahab Ali v Governor, County Government of Garissa & Another [2013] eKLR.
13. John Mugo Gachuki v New Nyamkima Co. Ltd [2012] eKLR
14. Christine Wangari Gachege v Elizabeth Wanjiru Evans [2014]eKLR
15. Clerk v Chadburn [1084] 1.R.L.R 350, [1985] 1 ALL ER 211 cited in David Eady and A.T.H. SmithArlidge, Eady & Smith on Contempt (3rd edn, London Sweet & Maxwell, 205) 139.
16. Julius Wambua Waita v David Kimonyi Mwisa & Another [2014] eKLR
17. Refrigeration and Kitchen Utensils v Gulabchand and Popatlal Shah & Anor, Civil Appl. No. 39 of 1990 (UR)
18. Gurbaresh Singh & Sons Ltd- Misc. Civil Case No. 50 of 1983
19. Re Launder, Launder v Richards [1908] 98 L.T. 554.
20. Re Seal and Edgelow [1903] 1 Ch 87
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21. Churchman v Joint Shop Stewards Committee of the Workers of the Port of London [1972] 1 W.L.R. 1094 [1098].
22. Benabo v William Jay & Partners [1940] 4 ALL ER 196
23. Tricon International Ltd v Giro Commercial Bank Ltd [2012] eKLR.
24. Africa Management Communication International Ltd v Joseph Mathenge Mugo[2013] eKLR.
25. Joseph Schilling Bingo (K) Ltd v Star Dust Investments Ltd, CA No. 134 of 1997 (UR).
26. Republic v County Council of Nakuru ex-parte Edward Alera T/a Genesis Reliable Equipment & 2 Others[2011] eKLR.
27. Ochieng Nyamongo & Another v Kenya Posts and Telecommunications Corporation[1994] KLR 1. 28. Mutitika v Baharini Farm Ltd 1985] KLR 229.
29. Andalo & another v James Gleen Ruseel Ltd[1990] KLR 54.
30. M.v.S [2008] KLR 271
31. Republic v The Attorney General Ex parte Birdi A. Gadhia Kisumu H.C. Misc. Appl. No. 124 of 1990 (UR
32. Jane Nduta Maina v Muthoni wa Monica NRB HC Misc. Appl. No.324 of 2012 (UR).
33. Republic v County Council of Nakuru ex-parte Edward Alera2011] eKLR . 34. Republic v Attorney General and 5 others ex-parte Peter Nyamu & Anor, NRB H.C. Misc C.A No. 405 of 2007 (UR).
35. Republic v The Attorney General E-parte Birdi A Gadhia, Kisumu H.C. Misc. Appl. No. 124 of 1990 (UR).
36. Andalo & Another v James Gleen Ruseel Ltd 1990] KLR 54.
37. Clerk v Chadburn [1084] 1.R.L.R 350, [1985] 1 ALL ER 211
38. Julius Wambua Waita v David Kimonyi Mwisa & Another [2014] eKLR
39. Augustine Marete Rukunga v Agnes Njeri Ndungire & Anor[2001] 254
40. Akber Abdullah Kassam Ismail v Equip Agencies Ltd & 4 others[2014] eKLR 41. Nyamodi Ochieng Nyamogo and another-vs-Kenya Posts and Telecommunications Corporation, Civil application number Nairobi 264 of 1993,[1990-1994]
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42. Titus Munyoki Nzioki v John Kimathi Maingi & another [2013] eKLR.
43. John Mbugua Kimari v John Njoroge Kimari2014] eKLR.
44. Quick Handling Aviation Ltd v Adan Noor Adan[2015] eKLR.
45. North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi(2016) eKLR
46. Mutitika v Baharini Farm Ltd[1985] KLR 229.
47. Secretary General & another- vs- Salah Yakub Farah[2017] eKLR
48. Robert Pukose v Alwin Chepyagan Sasia & 2 others[2017] eKLR
49. Lawises Juma Otete v Orange Democratic Movement, [2017] eKLR
50. Charity Mpano Ntiyione v China Communications Construction Company Limited & National Environment Management Authority[2017] eKLR
51. Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex parte Stanley Mutur[i2017] eKLR
52. Republic v University of Nairobi & another Ex-Parte Nabiswa Wakenya Moses[2017] eKLR
53. Miguna Miguna v Director of Public Prosecutions & 2 others[2018] eKLR
54. Miguna Miguna v Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 7 others[2018] eKLR
55. Macharia Waiguru v Attorney General & 2 others [2017] eKLR
56. Attorney General-vs-BBC[1981]A.C.303
57. McKeown –vs-The Queen(1971)16D.L.R(3d)390
58. A.G-vs-Sport Newspapers Ltd(1991)1WLR 1194 at 1225G
59. R-vs-Powell(1993)98 Cr.App.R.224
60. R v Callum Iain McLeod 20.12.200? TLR)
61. R-vs-Griffin(1989)88 Cr.App.R.63
62. Attorney-General v Guardian Newspaper Ltd(1992)1W.L.R 874,(1992)3ALL E.R 38
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63. Attorney-General v MGN Ltd1 [1977] 1 All ER 456.
64. Allason.vs.Random (UK)Ltd [2002]EWHC 1030,[200] All E.R.158
65. Official Receiver v. Brown [2017] AER (D) 97 (Nov)
66. R.v. Montogomery (1995)2ALL E.R.28
67. Universal Business Team PTY Ltd v Lawrence Moffitt(December 2017)
68. Patel v Patel and others[2017] EWHC 3229 (Ch)
69. R.v.Aston(1948)W.N.522
70. Chadwick v. Janecka3d Cir.2002
71. Michaelson v. United States266 U.S. 42 (1924).
72. Young v. United States ex rel. Vuitton,481 U.S. 787, 793–801 (1987
73. United States v. Providence Journal Co.485 U.S. 693 (1988)
74. Spallone v. United States493 U.S. 265 (1990).
75. Ex parte Terry,128 U.S. 289 (1888).
76. Cooke v. United States, 267 U.S. 517 (1925).
77. Sacher v. United States, 343 U.S. 1 (1952).
78. Taylor v. Hayes418 U.S. 488 (1974).
79. Harris v. United States,382 U.S.162(1965)
80. Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918).
81. Craig v. Hecht, 263 U.S. 255 (1923).
82. Nye v. United States, 313 U.S. 33, 47–53 (1941).
83. Bridges v. California, 314 U.S. 252, 260 (1941).
84. Wood v. Georgia,370 U.S. 375 (1962)
85. Sheppard v. Maxwell, 384 U.S. 333, 363 (1966).
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86. Cheff v. Schnackenberg 384 U.S. 373 (1966).
87. United States –vs-Barnett,376 U.S 681
88. Cooke v. United States,267 U.S. 517, 539 (1925)
89. Sacher v. United States,348 U.S. 11 (1954).
90. Offutt v. United States400 U.S. 455 (1971)
91. Mayberry v .Pennsylvania400 U.S. at 463
92. United States v. United Mine Workers330 U.S. 258 (1947).
TABLE OF KENYAN STATUTES AND STATUTORY INSTRUMENTS
1. Constitution of Kenya 2010 2. Civil Procedure Act, Cap. 21 3. Civil Procedure Rules 2010 4. Contempt of Court Act No.46 of 2016 5. Judicature Act 6. Magistrate of Courts Act No. 26 of 2015
TABLE OF FOREIGN STATUTES AND STATUTORY INSTRUMENTS
1. Contempt of Court Act UK,1981 2. Supreme Court Rules, UK 3. Criminal Procedure and Investigations Act 1996,UK 4. Civil Procedure Rules, UK 5. Supreme Court Act, UK 6. Industrial Tribunals Act 1996,UK 7. Employment Tribunals Act 1996,UK 8. Employment Rights (Dispute Resolution)Act 1998,UK 9. Federal Rules of Criminal Procedure, USA 10. Judiciary Act of 1789 .USA
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TABLE OF CONTENTS
Contents Page No. DECLARATION ...... i DEDICATION ...... ii ACKNOWLEDGEMENTS ...... 1 LIST OF ABBREVIATIONS ...... 2 TABLE OF CASES ...... 3 TABLE OF KENYAN STATUTES AND STATUTORY INSTRUMENTS ...... 7 TABLE OF FOREIGN STATUTES AND STATUTORY INSTRUMENTS ...... 7 TABLE OF CONTENTS ...... 8 CHAPTER ONE ...... 10 1:2. Statement of the Problem ...... 12 1:4. Objectives of the Research...... 12 1.5. Research Questions ...... 12 1.7. Conceptual and Theoretical Framework ...... 12 1:8. Literature Review ...... 16 1:9. Research Methodology ...... 23 CHAPTER BREAK DOWN ...... 23 1:10:1 Chapter 1: Introduction and background of the Study ...... 23 1:10:2 Chapter 2: Analysis of the Laws on Contempt of court in Kenya prior to enactment of the Contempt of Court Act No.46 of 2016 ...... 23 1:10:3 Chapter 3: A critical analysis of Contempt of Court Act No.46 of 2016 ...... 24 1:10:4 Chapter 4: Comparative Analysis of contempt of court ...... 24 1:10:5 Chapter 5: Recommendations ...... 24 CHAPTER TWO ...... 26 ANALYSIS OF THE LAWS ON CONTEMPT IN KENYA PRIOR TO THE ENACTMENT OF THE CONTEMPT OF COURT ACT NO.46 OF 2016 ...... 26 2.0: INTRODUCTION ...... 26 2.1: Justification for the Law of Contempt of Court...... 26 2.2: Applicable law in contempt cases ...... 27 2.4 The law of contempt prior to the 2012 amendments in England ...... 31
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2.6: Inadequacy of the old contempt of court laws ...... 36 Conclusion ...... 41 CHAPTER THREE ...... 42 3. THE CONTEMPT OF COURT ACT NO.46 OF 2016 ...... 42 3.2: Jurisdiction ...... 43 3.5. Strict liability Rule and limitation ...... 51 3.6. Source protection ...... 53 3.7. Publication ...... 54 3.8. Procedure ...... 54 3.13. Punishment ...... 61 CHAPTER FOUR ...... 66 COMPARATIVE ANALYSIS OF THE LAW OF CONTEMPT OF COURT ...... 66 4.0: INTRODUCTION ...... 66 4.1. The United Kingdom: ...... 66 4.1.1. Constructive' or indirect contempt ...... 67 4.1.4. Juror contempt ...... 69 4.1.6. Contempt "in the face of the court ...... 70 4.1.11. Specific Orders ...... 74 4.2. United States of America ...... 78 5.0 CHAPTER FIVE………………..…………………………………………………………...95 5.1. Conclusion…………………………………………………………………………………..95 5.2. Recommendations………………………….………………………………………………95
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CHAPTER ONE 1.0 INTRODUCTION
A strong judiciary is the bedrock of the rule of law and administration of justice. It is when the public has confidence in an effective judiciary that disputes and cases are adjudicated. One of the most important aspects for maintaining confidence in the judiciary is the ability of that institution to uphold its authority thereby upholding the rule of law and administration of justice. According to Bryan A. Garner, the application of the Law of Contempt of court is one of the various ways of maintaining judicial authority1.The Law of contempt of Court is applied not only to uphold the dignity and authority of the court but more so to uphold the very rule of law and administration of justice.
Black’s Law Dictionary defines contempt of court as:-
“Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice, it is punishable, usually by fine or imprisonment”.
Contempt of court is a term that denotes conduct that relates to proceedings in a court of law which tend to undermine that system of administration of justice, or to inhibit citizens from availing themselves to that system for the settlement of their disputes. This position was well summed up by Lord Diplock2 when he held that for citizens to live together in peaceful association with one another, it was necessary for the provision of a system for the administration of justice by courts of law; and the maintenance of public confidence in such a system.
In Johnson Vs Grant3 Clyde L J noted:-
“The phrase ‘contempt of court’ does not in the least describe the true nature of the class of offence with which we are here concerned.... The offence consists in interfering with the administration of the law; in impending and perverting the course of justice...... it is not the dignity of court which is offended – a petty and misleading view of the issues involved…. It is the fundamental supremacy of the law which is challenged.”
Closer home, in the case of TEACHERS SERVICE COMMISSION v KENYA NATIONAL UNION OF TEACHERS & 2 others4 Ndolo J observed that:-
“The reason why courts will punish for contempt of court then is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it
1 Bryan A.Garner, Blacks Law Dictionary (9th Edition ,Thompson Reuters 2009) 361 2Attorney General vs Times Newspapers Ltd [1974] A 273, 307. 3 (1923) SC 789 at 790 4 [2013] eKLR
10 about placating the applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law.
As early as 1778, Chief Justice McKean of the United States, when dealing with a case of a party in Civil litigation who refused to answer interrogatories is noted to have stated:-
“Since however, the question seems to resolve itself into this, whether you shall bend to the law, or the law shall bend to you, it is our duty to determine that the former shall be the case.”5
The law of contempt in Kenya has evolved over time in order to maintain the supremacy of the law and the respect for law and order. As it was in the time of Chief Justice McKean in 1778, so it is today that courts have a duty to ensure that citizens bend to the law and not vice versa. Indeed, if respect for law and order never existed, life in society would be Hobbesian - short, brutish and nasty. It is the supremacy of the law that is usually under threat when contempt of court is committed. This is so because, a party who obtains an order from Court must be certain that the order will be obeyed by those to whom it is directed. As such, the obedience of a court order is fundamental to the administration of justice and rule of law. A court order once issued binds all and sundry, the mighty and the lowly, equally, without exception. An order is meant to be obeyed and not otherwise disregarded or outright disobeyed.
Successive governments in Kenya have circumvented the prescriptions of law when they found them to be a hindrance to the attainment of their short-term political interests. The result has been a self-destructive culture of impunity and lawlessness, as the law has ceased to be authoritative6.
The law on Contempt of court is one of those vestiges of the laws Kenya adopted from our colonisers, which quite fortunately has recently been amended with a view to bringing it in tandem with the constitution of Kenya 2010. This and any other such statutes needed a total overhaul to align them to our endogenous current constitution.
Previously the Court sought leverage in Section 5 of the Judicature Act. This provision subjected the proceedings of contempt of court in Kenya to the current law governing the High Court of Justice in England. The law governing the justices in England previously was subject to common law and Order 52 of the Supreme Court Rules. However, England enacted the Contempt of Court Act of 1981 which supplements its common law contempt of court offences. The prevailing law of contempt in England is now found in the Contempt of Court Act of 1981 and Part 81 of the procedure in the Civil Procedure (Amendment No. 2) Rules, 2012 that replaced Order 52 of the Supreme Court Rules for contempt proceedings in the Supreme Court of England. Consequently a careful consideration must be had to the provisions of the Contempt of Court Act No.46 of 2016 of Kenya with regard to contempt proceedings. The Contempt of Court Act of No.46 of 2016 of Kenya is described as:
"An Act to amend the law relating to contempt of court and related matters.’
5 (The History of contempt of Court (1927) P 47 6 Kenya Justice Sector and the Rule of Law by Patricia Kameri Mbote and Migai Akech
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Therefore, there is need to analyse the Contempt of Court Act No.46 of 2016 whether it achieves the desired goal or leaves much to be desired. The Courts and practitioners had always complained about the inadequacy of the previous legislations to curb the rampant cases of contempt.
1:2. Statement of the Problem
Before the enactment of the Contempt of Court Act No.46 of 2016, there existed two legal regimes regarding punishment for contempt of court. This was to be found in Section 5 of the Judicature Act and Section 63 of the Civil Procedure Act. Section 5 of the Judicature Act subjected the proceedings of contempt of court in Kenya to the current law governing the High Court of Justice in England. The previous regimes were characterised by a lot of procedural technicalities, there wasn’t uniformity in the punishment as the penalties weren’t prescribed by law and it was open to abuse by the Judges and Magistrates. Because of the said grey nature of the law Judges, legal scholars and legal practitioners decried the need to have a codified and comprehensive law relating to the exercise of contempt jurisdiction of the courts in Kenya. The problem that arises is whether the enacted Contempt of Court Act No.46 of 2016 adequately addresses the cited loopholes and grey areas that existed in the previous legal regimes.
1.3. Justification of the study
The study is justified on the basis that although there exists a wealth of literature on contempt of Court, there is apparent scarcity regarding the critical analysis of the Contempt of Court Act no.46 of 2016 Kenya that this thesis seeks to address.
1:4. Objectives of the Research
The General objective of this thesis is to discuss the Law of Contempt of Court. The specific objective of this thesis is to discuss and critically analyze the Contempt of Court Act No.46 of 2016 and suggest appropriate legal reforms to the Act to achieve the desired goal and intention.
1.5. Research Questions
The study will seek to answer the following legal questions. 1. What were the procedural technicalities and grey arears that characterised the previous legal regimes on contempt of Court in Kenya? 2. Whether the Contempt of Court Act, No.46 of 2016 has addressed the said procedural technicalities that existed in the previous legal regimes on contempt of Court in Kenya? 3. Whether there are any reforms necessary to the Contempt of Court Act No.46 of 2016?
1.6. Hypothesis
This research proceeds on the presumption that the Contempt of Court Act No.46 2016 has not addressed the grey arears that existed in the previous legal regimes like procedural technicalities, the punishments are not deterrent, is open to abuse and leaves a lot to be desired.
1.7. Conceptual and Theoretical Framework
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1.7.1. Concepts
This study is informed by the concept of the Rule of Law. Rule of law has been defined to mean a legal principle of general application, sanctioned by the recognition of authorities and usually expressed in the form of a maxim or logical proposition.
The essence of the rule of law ideal is that ‘people ought to be governed by law’.
For this goal of government by law, not by men to be realized, the Rule of Law ideal requires the establishment of laws that meet a number of criteria.7
1. First, law must be universal or general, in the sense that its prescriptions must be addressed to all citizens, and not to particular individuals. 2. Second, law must be promulgated to its subjects, whose conduct it can only guide if they know of its existence. 3. Thirdly, law must prescribe modes of behaviour prospectively and not retroactively. 4. Fourth, the prescriptions of law must be clear so that its subjects understand how they are required to behave. 5. Fifth, the prescriptions of law must not be contradictory. 6. Sixth, the prescriptions of law must not require conduct that is impossible for the subjects to perform. 7. Seventh, the prescriptions of law must be stable over time. That is, while changes in the law are a good thing, such changes must not be too frequent since many of the actions that law seeks to regulate ‘require advance planning, preparations and a certain level of guaranteed expectations about the future normative environment. 8. Eighth, the prescriptions of law must be applied consistently, in the sense that there must be considerable congruence between the rules promulgated and their actual application to specific cases.
The Court orders must be obeyed least we generate into a state of anarchy. O’Leary J, in the case of Canadian Metal Company Ltd v Canadian Broadcasting Corporation once observed that8:-
“To allow court orders to be disobeyed would be to tread the road towards anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn.... if the remedies that the courts grant to correct ... wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of confidence in the courts will quickly result in the destruction of our society”.
For the rule of law to be realised, there must be suitable ‘application mechanisms’, including an independent and professional judiciary, easy access to litigation and reliable enforcement agencies.
7 Marmor (2003: 2). 8 (No. 2) [1975] 48 DLR (3rd) 641,669.
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This concept of the rule of law has been codified in the constitution of Kenya, 20109 as one of the national values and principles of governance. The enactment of the constitution of Kenya, 2010 was hastened after the near catastrophic events of the 2007/2008 post-election chaos. This concept of the rule of law underpins this study.
1.7.2. Theories on contempt of court
Among other theories of law, this paper is centered on the positivist approach, and is concerned with analysing the Law on contempt in Kenya. The reason for adopting the positivist approach to the exclusion of natural law lies in the fact that this research paper is focused on the codified law of contempt of Court. This paper is focused upon looking at the written law as it is and is not concerned with the morality of the actions that parties take to justify the reason for contempt of court. Hence, the natural law school will not be considered by this paper. This paper is more concerned with whether or not the law that has been formulated is being faithfully followed and enforced. Furthermore, this paper focuses on positive law as opposed to natural law also because positive law is a law that is procedural in character. We are living in an era that has moved away from morality and ethical objectivism into the era of regulating the conduct of parties. It is about the law, and its interpretation, that this paper is concerned.
This paper will also take into consideration the realist approach as a method of looking at the existing law on contempt of Court. This approach will help explain why states agencies, the Executive and many powerful personalities disregard Court Orders yet there is an existing Law on contempt of Court. The realist approach will, furthermore, assist in revealing that the Contempt of Court Act isn’t that deterrent and makes it easy for contemnors to disregard and disobey Court Orders.
The concepts of separation of powers and the rule of law underpinning this study are to be viewed in three broad theories of public interest, private interest and constitutionalism.
Public interest has been defined as something in which the public or community at large, has pecuniary interest or some other interest by which their legal rights or liabilities are affected.10 It can therefore be said to constitute an interest that is shared by citizens in State affairs. Among the earliest proponents of this theory is Plato who posited that public interest promotes social peace in an environment of co-operation and friendship and amongst different social groups, each benefiting and adding to the common good.11
Public interest helps to maintain public confidence without which the democratization process and the tenets of the rule of law would be undermined.
This theory has been preferred in that it is in the public interest that court orders be obeyed and enforced, and that administration of justice is not interfered with.
9 The Constitution of Kenya, article 10. 10 Bryan A Garner, A Dictionary of Modern Legal Usage (2nd edn, Oxford University Press 2000) 209. 11 Okoth Ogendo “The Quest for Constitutional Government” in Young Crawford (eds) The African Colonial States in Comparative Perspective (Yale university Press, London (1994)) 35-36.
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All citizens are governed by the same laws, it is in their shared interest that once the courts interpret or lay down the law through their decisions, then all citizens, especially those in positions of public leadership, must abide by them. Civil contempt of court is thus against public interest. Public interest has now been codified in the Constitution of Kenya, 2010; it provides that sovereign power belongs to the people of Kenya12.
Rule of law basically means that the public and private officials must act under the law and no one deserves to be above the law. The exercise of public power by the State and its officials is done strictly within legal limits. The State as well as private individuals must obey the law.
According to Aristotle13 ‘it is preferable that that law should rule rather than any single one of its citizens’. Whereas under the rule of men, men are likely to act in an irrational and in a vindictive manner, under the rule of law, citizens are governed by Law. The Law governs the action of public and private individuals. Thus do the courts play a central role in upholding the rule of law and this can only be achieved when there is independence of The Judiciary.
Although the rule of law does not have one meaning, its key component is constitutionalism, namely, the government’s action must be subject to limitation in order to avoid an abuse of power.14
Similarly, Lord Steyn15 also asserts that the rule of law’s central power lies in its ability to constrain the abuse of power. It is about protecting ‘the citizen’s right to legal certainty in respect of interference with their liberties. It guarantees access to justice. It ensures procedural fairness over much of the range of administrative decision-making by officials’. This in essence means that the public officials be subjected to the law and can therefore be restrained by the courts from taking decisions that are likely to interfere with the liberties of the citizens. It is in this context that obeying court orders are important is demonstrating the effectiveness of the rule of law.
According AV Dicey, no man is above the law. He explains:
“ When we speak of the ʺRule of Lawʺ as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary courts”. 16
The Law should apply to everyone equally without appearing to favour anyone irrespective of the status or rank one holds. The law should not discriminate and no one should be exempted from the jurisdiction of the courts. Thus all citizens should obey Court Orders.
12 Article 1 of the Constitution of Kenya 13Henry Fielding and others, The Politics (classics) (Penguin Classics 1962). 14Mark Ryan and Steve Foster, Unlocking Constitutional and Administrative Law (2nd edn, Hodder Education 2010). 15Lord Steyn, The Constitutionalisation of Public Law (The constitution unit, 1999), p4 th 16Dicey, AV, Introduction to the Study of the Law of the Constitution, 8 ed, 1885, reprint 2001, Liberty Fund Publishing p110
15
It is necessary in society, in order to ensure order, that office holders be given such responsibility, but that the exercise of the powers needed to carry out their responsibilities are properly governed, regulated and supervised by the courts, and that furthermore, any citizen can aspire to such an office on the basis of equal opportunity and merit.
Raz17 is a major exponent of formal conception of the rule of law. He argued that rule of law is a political ideal which means individuals should be ruled by law and law should be the one to guide the individuals if they are to obey the law. Thus, where laws demand that certain things are to be done in a certain way, individuals should be able to obey. Where rule of law prevails, court orders are obeyed.
Rule of law ensures that there is social order and this can only exist where there is a functioning legal system18. With a functioning legal system, chaos and anarchy cannot be tolerated. Such a legal system ensures that the judges are independent and are able to make decisions fairly and according to the law. Where judges are independent and resolve citizens’ by peaceful and consensual means as opposed to having to resort to armed force, points to an independent Judiciary.
Functioning legal systems are characterised by the principle of independence of judiciary and court system, where issues are fairly resolved and according to the law hence making the public have confidence in the judiciary. Thus obeying the courts especially by State officials, serves to inspire confidence from the public who will also see the need to obey the courts and avoid chaos and anarchy when aggrieved by their fellow citizens or State officials.
The relevance of the doctrine of Rule of Law to this study is that all individuals, public and private citizens, are not above the law and must therefore be governed by the law. Courts have the powers to arbitrate and interpret laws as provided for by the Kenyan Constitution. Therefore the decisions on interpretation and application of law by the courts are final and must be accepted and obeyed by all to avoid chaos and anarchy.
1:8. Literature Review
Although there exists a wealth of literature on contempt of Court, there is an apparent scarcity regarding the critical analysis that this paper seeks to address. However, many important aspects of this paper, relating to both form and substance, have been crafted with heavy reliance being placed on the existing literature.
Halsbury’s Laws of England 19generally discusses the law of contempt in England. It classifies the Law of Contempt into criminal contempt and civil contempt. It discusses how personal service of court orders is central to the law of contempt. It further indicates that where a person has knowledge or notice of the terms of the order, the court may dispense with the strict requirement of personal service20. It restricts adherence of personal service of orders. However, this Literature
17J Raz, ‘The Rule of Law and its Virtue’ [1977] 93 LQR 195 18Mark Ryan and Steve Foster, Unlocking Constitutional and Administrative Law (2nd edn, Hodder Education 2010). 19 Halsbury’s Laws (4th Edn, 1974) Vol 9, Para 2. 20 Husson v Husson [1962] 3 ALL ER cited in n 56, Para 65.
16 does not discuss how the insistence on strict adherence to the requirements for personal service has led to the ineffective application of the law of civil contempt of court and this study, therefore, seeks to fill this gap as insistence on personal service is a technicality which through case law and statute has been rendered irrelevant and inapplicable.
There is inadequate literature on enforcement of court orders especially on public officers and how they can be punished by the laws. The existence of such literature would make it easier to understand how other jurisdictions have dealt with the problem of enforcing the court orders. There seems to be a dearth of literature on how other governments have overcome the problem of personal service upon public officers.
David Eady and A. T. H. Smith21 have extensively discussed the history of the Law of Contempt of Court in England until the enactment of Contempt of Court Act, 1981. The earliest procedures in initiating contempt of court were by way of writ of attachment which in the 12th and 13th Century was used to compel appearance in Court. This was followed by a complaint, then the Bill in the Kings Bench. In the latter case, a complainant lodged a bill in the King’s Bench notifying of the contempt and sued for damages for himself `and a penalty for the King. This was finally followed by the procedure of indictment which applied to cases of contempt in the presence of the justices.
The present study will benefit from this Literature in that it critiques the procedural technicalities that characterized the law on contempt of Court. The newly enacted Contempt of Court Act has tried to do away with too much procedural technicalities
This study therefore offers unique scholarly contribution in that it will expound on how the newly enacted Contempt of Court Act insists on summary procedure and discards lengthy proceedings entangled with technicalities.
Bowrie and Nigel Lowe22 have argued that contempt of court can be divided into two broad categories, contempt by interference and contempt by disobedience. They argue that the former category comprises acts such as disrupting court proceedings, publications or other acts which risk prejudicing or interfering with legal proceedings, or conduct that scandalizes the court. This is categorized as criminal contempt. An example is the case of Republic-vs-Tony Gachoka & Another23 which involved skewed reporting of court proceedings by a journalist.
The second category comprises of disobeying court orders and breaking undertakings given to court. This category is characterised as civil contempt. The learned writers argue that the distinction between criminal and civil contempt is important for reason of procedure and consequences. Since criminal contempt is an offence of a public nature, leave from the Director of Public Prosecutions is sought before instituting the Criminal proceedings. The writers further argue that the essence of the court’s jurisdiction in respect of criminal contempt is penal, intended to protect the public interest in ensuring that the administration of justice is not impeded in any way.
21 David Eady and A.T. H. Smith, Arlidge, Eady & Smith on Contempt (3rd Edn, Sweet & Maxwell 2005). 22 Bowrie and Lowe (n 14) 1. 23 Crim. Appl. No. NAI 4 of 1999 (UR).
17
On the other hand, they are of the view that the court’s jurisdiction in respect of civil contempt is primarily remedial, and the object is to coerce a party to obey the court order.
This study will benefit from the above Literature because in practice, the distinction seems to be blurred between criminal and civil contempt. Enforcement of Civil Orders is usually committal to jail - thus becoming criminal in nature. Section 8 of the Contempt of Court Act No.46 of 2016 stipulates that one has to seek leave from the Director of Public Prosecutions before instituting criminal contempt although the Act is silent on whether leave should be sought before instituting civil contempt. The newly enacted Contempt of Court Act draws a clear distinction between criminal and civil contempt of Court.
John Miller24 has discussed the initiation of contempt proceedings in England and the applicable procedure. He also discusses how the power to punish for contempt of court is exercised by the High Court and the Court of Appeal of England. The work generally deals with the common law in England as amended by the English Contempt of Court Act, 1981.
The article above is relevant to this study in that it explores the Jurisdiction of Courts to punish for contempt. Although the newly enacted Contempt of Court Act grants even the Magistrates Courts power to punish for in facie contempt thus declaring the said Literature irrelevant thus far. Further, this Literature, does not deal with the challenges that face enforcement of civil orders by way of civil contempt of court proceedings in Kenya, where the procedure is not clear. This study, therefore, hopes to fill this gap.
Article 1925in this legal analysis examines the Kenyan Contempt of Court Bill, 2013 (the Bill) which has since been passed into law(the Contempt of Court Act No.46 of 2016) from the perspective of international human rights law and standards on freedom of expression, as well as comparative approaches to contempt of court. The analysis aims to promote the adoption of legislation that both safeguards the judiciary from undue interference and allows key actors, in particular the media, to hold the judiciary to account. ARTICLE 19 had serious concerns about the Bill and has made a series of recommendations so that its shortfalls may be appropriately addressed. In particular, they were concerned that:
ARTICLE 19 examines the Kenyan Contempt of Court Bill,(now Act) from the perspective of international human rights law and standards on freedom of expression, as well as comparative approaches to contempt of court. The aim of the analysis was to promote the adoption of legislation that both safeguards the judiciary from undue interference and allows key actors, in particular the media, to hold the judiciary to account.
At the outset, ARTICLE 19 observes that there has been no legislation devoted to issues of contempt of court since the state gained independence, fifty years ago. There is however relevant legislation, namely the Judicature Act which in section 5(1) gives the High Court and Court of Appeal the same power to punish for contempt of court. This power has previously been used to by the Kenyan courts to prosecute and punish journalists and other commentators for criticising
24 John Miller (n 5). 25 Article 19, Kenya: Contempt of Court Bill, 2013 (2014), January.
18 the court4 and in doing so have negatively relied on Lord Atkin's opinion for the Privy Council in Andre Paul Terrace Ambard v A-G for Trinidad & Tobago from
This legal analysis was intended to provide comprehensive guidance to key actors within Kenya with respect to the draft legislation, namely: legislators, particularly those in the Parliamentary Committee on Legal Affairs and Administration of Justice, in their consideration and expected redrafting of the Bill; civil society organisations that monitor the administration of justice in Kenya (such as Kituo cha Sheria, Kituo cha Katiba, the Legal Resources Foundation, the Federation for Women Lawyers and ICJ-Kenya) in developing their positions on the Bill and in their engagement with the committee; the professional bodies of the legal profession, notably the Law society of Kenya, in their responses to the Bill; as well as court reporters and other journalists in understanding the Bill and developing their own positions towards it.
Article 19 makes the following ssummary of recommendations
1. The Bill should state that it is for an Act of Parliament “to amend the law relating to contempt of court and related matters.” One of the “overriding objectives” of the Bill (Section 3 a)) should be to “uphold the authority and impartiality of the court.” Further, Section 3 should state that the objectives of the legislation include the following: to “ensure the public’s right to receive information and ideas about the administration of justice”; and to “safeguard media coverage of the administration of justice
2. The reference to “dignity” in section 4(1)(b) should be replaced with “impartiality
3. Section 5 should include a provision stating that its provisions might only be used in exceptional circumstances to interfere with the freedom of expression of counsel and should in no circumstances be used to restrict them in their submission of arguments which they consider to be reasonably arguable
4. Section 8(2)(a) should be deleted. Publications and other expressions that “scandalize or tends to scandalize the court” should not be deemed to constitute contempt of court or any other offence. The reference to “scandalizing a judge [or] judicial officer” in section 8(3) should be removed
5. References to “temperate language” should be removed from Sections 9(a), (b) and (f). “Temperate language” should not be used as a criterion for conduct which will not be considered as contempt of court. Further, Section 9(c) should not require that a publication is a “substantially accurate report” but state that it simply needs to have an “accurate factual basis” in order for it to have a defence from an allegation of contempt
6. Reference to conduct that “tends to interfere with …” should be deleted from section 10(1) and 13(1)
7. Section 11(1)(a) should indicate that the strict liability rule applies to publications only and where the publication creates a “substantial risk that the course of justice in relation to the proceedings in question will be seriously impeded or prejudiced
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8. Section 13(5) should be deleted 9. Section 18 should simply state that a “publication as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as contempt of court under the strict liability rule
10. Section 14(1) should state it is a defence to publish a report with an “accurate factual basis”, rather than an “accurate report
11. Section 14(2) should state that the threshold for a court to order the postponement of a publication is “a substantial risk of serious prejudice to the administration of justice
12. The Bill should consider acknowledging the use of internet-enabled devices at court through provisions that respect with jurors’ rights to freedom of expression as well as privacy
13. Section 20 should be amended to indicate that a person is not guilty of contempt of court for refusing to disclose a source of information unless (a) the identity of the source is necessary for the investigation or prosecution of a serious crime, or the defence of a person accused of a criminal offence; (b) the information or similar information leading to the same result cannot be obtained elsewhere; (c) the public interest in disclosure outweighs the harm to freedom of expression; and (d) disclosure has been ordered by a court, after a full hearing
14. Section 27(c) should be deleted in its entirety
15. The regime of penalties in sections 27 and 28 should be amended to indicate that the superior courts are enabled to impose the maximum penalties for contempt of court of six months imprisonment and/or a fine not exceeding 200,000 shillings and the inferior courts are enabled to impose a prison sentence of up to one month and a fine not exceeding 250,00 shillings. Also, Sections 27 and 28 should provide that, insofar as they apply to corporate entities, media organisations should only be punished with a fine, unless the circumstances are exceptional.”
This legal analysis is very relevant to this study. Much as the legal analysis is on the Contempt of Court Bill, 2013,the Bill has since been passed into law which is the focus of this study. Many of the weaknesses and lacuna that were highlighted by the legal analysis were not considered before passing the bill until law. The proposed recommendations by the legal analysis were not put into consideration before passing the Bill into Law. The legal analysis deals with the criminal contempt aspect of the bill. The legal analysis does not discuss the special place of public officers under the Constitution of Kenya, 2010. It does not also discuss the desirability of rigorous procedural aspects for civil contempt; for instance, personal service as well as adequacy of current sanctions as against state and public officers. The legal analysis does not discuss the specific areas that need reform to make the application of the law of civil contempt more effective in Kenya. This is the gap this study seeks to bridge.This study intends to critically analysis the Contempt of Court Act,No.46 of 2016 Laws of Kenya.
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Michigan Judicial Institute26 in its book discusses contempt of court generally and powers of the court to punish for contempt, both inherent and statutory. It distinguishes between civil and criminal contempt. It also discusses the procedure for contempt proceedings as well as available sanctions for both civil and criminal contempt.
This book is very helpful to this study as it highlights the distinction between civil; and criminal contempt although the distinction seems to be blurred nowadays. Further the book does not recognize the special position of public officers in contempt as well as further sanctions that may be available against them besides the traditional sanctions such as fine and jail term.
Mriganka and Amba27 discuss contempt of court, the historical perspective and rationale in light of the Indian Contempt Of Court Act, 1971. They argue that that Act does not seek to protect the dignity of the individual Judges but the administration of justice and judicial proceedings. The article discusses mostly criminal contempt under the Act and the place of the defense of truth.
This book is relevant to this study in light of the fact that the Contempt of Act 2016 of Kenya is almost a replica of the Indian Contempt of Court, 1971 as it also seeks to protect the dignity of the individual Judges but to the administration of judicial proceedings although the literal wording seems to state otherwise as will be well discussed in this study at Chapter 3. Further this book does not examine and consider the special place of public officers in civil contempt especially in light of their constitutional obligations to uphold the rule of law.
Githu Muigai and Ongoya E.Elisha in their article, The Law of Contempt in Kenya.28, have argued that whilst both the procedural and substantive law of contempt of court in Kenya was heavily borrowed from English Law before 1963, the English Law has undergone substantial modification by the enactment of the Contempt of Court Act of 1981 whilst our law in Kenya was still static. The writers argue that, the English Contempt of Court Act of 1981 has improved the common law in the question of protection of journalists and their sources of information. They have further argued that lack of comprehensive Contempt of Court Act continue to complicate contempt proceedings in Kenya and that contempt proceedings appear to be instigated and conducted at the whims of individual judges. They propose a restricted approach of court’s own motion jurisdiction and that Parliament should enact a comprehensive legislation in the line of the Contempt of Court Act of England 1981 in order to provide for a more effective legal regime. They discuss both criminal and civil contempt. With respect to civil contempt they discuss salient procedural aspects such as the procedure for instituting contempt proceedings and the requirement of personal service of the order for a successful application for contempt. They also discuss the two jurisdictions under Section 5 of the Judicature Act and under the Civil Procedure Rules. They also discuss the impact of the Constitution of Kenya, 2010 on the law of civil contempt.
This article is relevant to this study albeit a substantive Act on contempt being enacted. However, in light of the newly enacted Contempt of Court Act, the salient procedural aspects such as the
26 Michigan Judicial Institute, Contempt of Court Benchmark (4th edn 2014)
21 procedure for instituting contempt proceedings and the requirement of personal service of the order for a successful application for contempt have since been declared obsolete and inapplicable. The Act is more concerned with knowledge of the order as opposed to personal service and the procedure for instituting contempt has been summarized and simplified as there is no need for leave. However, the Contempt of Act is still encompassed by procedural technicalities. The Contempt of Court Act under Section 30 provides that before any civil contempt of court proceedings are instituted in disobedience of a judgement, decree or order, the applicant must first move the Court to issue a notice to show cause against the accounting officer of the State organ, government department, ministry or corporation concerned. Such notice is to be served on both the accounting officer and the Attorney General. If no response to the notice is received, the Court may then at the expiry of the said thirty days’ notice proceed to commence contempt of court proceedings against the concerned accounting officer. Without the rules of procedure having been promulgated it is therefore my view that an application for notice ought to be accompanied by an affidavit and that application may be heard ex parte since the merits thereon may be dealt with when the cause is shown by the entity or public officer concerned. The writers do not discuss the specific areas that need reform to make the application of the law of civil contempt more effective in Kenya. This is the gap this study seeks to bridge
Mbote and Akech.29 suggest that the powers of Judiciary to punish for contempt of court to be reviewed. Even though the powers to impose penalties for contempt of court are meant to ensure respect for courts’ decisions, in the past, the Kenyan courts have used such powers to punish those legitimately criticizing the judicial conduct and processes. For instance, the courts abused such powers in the case of Republic v. Gachoka & Another in 1999, touching on corruption allegations in the judiciary. In this case, the Attorney General accused the respondents of contempt of court for publishing articles in the Post of Sunday newspaper, contravening the sub judice rule by commenting on cases still pending before the court. Besides, he accused them of being scurrilous and malicious in their attacks on the Chief Justice and judiciary30.
Additionally, Mbote and Akech suggest that any new legislation on the Judiciary as envisaged by the Constitution should be able to control the use of this power to ensure that punishment for contempt of court should not be in such a way that it prevents the reporting in the public interest on the courts. This thesis interrogates the new Contempt of Court Act, 2016, which was passed in an effort to address the lacuna regarding contempt of court.
Kenyan courts do not seem to be able to enforce court orders. Mbote and Akech Aketch31 claim that there is rise of cases of disobedience of court orders by public officials and the courts are not taking any action. Further, they suggest that instead of taking action, the courts should establish standards to regulate failure, neglect or refusal by public officers to obey a court order. They assert that there is need for the courts to effectuate broad intentions of the Constitution especially the rule of law
29 Patricia Kameri Mbote and Migai Akech, Kenya Justice Sector and the Rule of Law Discussion Paper (Open Society Initiative for Eastern Africa 2011). 30 ibid 31 Patricia Kameri Mbote and Migai Akech, Kenya Justice Sector and the Rule of Law Discussion Paper (Open Society Initiative for Eastern Africa 2011).
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The discussion in the book is especially important in that it provides useful case studies on how the Courts have used such powers to punish those legitimately criticizing the judicial conduct and processes. The Contempt of Court Act incorporates the fears and concerns raised in the books. PART 111 of the Act provides for Defences to Contempt of Court. Section 14 of the Act provides that fair and accurate report of judicial proceedings is not contempt.
1:9. Research Methodology
The method that has been used to gather information for this paper is through the use of the library. The library research will seek to analyse and interpret the Contempt of Court Act No.46 of 2016 and judicial decisions and scholarly writings on the contempt of Court.
This research will also examine the primary and secondary sources of data. In primary sources, the study will examine the Constitution of Kenya, 2010, the Contempt of Court Act, 2016 and any other relevant statute and subsidiary legislation. Case laws from Kenya and jurisdictions forming the best practices will also be examined. The study will also involve observing law reports, visiting court registries to look at the court files.
In secondary sources, the study will focus on academic materials such as books, articles and journals. The journals from University of Nairobi Law Library and other libraries including High Court of Kenya Law Library will be studied and analysed.
Lastly, the study will rely on electronic data especially to access case law in the Kenya Law Report Website, electronic books and journals and scholarly journals.
CHAPTER BREAK DOWN
1:10:1 Chapter 1: Introduction and background of the Study
This Chapter introduces the work, and gives the background to the research problem. The research problems as well as the conceptual and theoretical framework underpinning contempt of court are also discussed. Existing literature on the research topic are also reviewed and gaps identified for each item of literature set out. Objectives of the research, hypothesis to be tested by the research and research questions are also set out in this chapter. This chapter finally deals with the research methodology employed and gives a synopsis of chapter breakdown for subsequent chapters.
1:10:2 Chapter 2: Analysis of the Laws on Contempt of court in Kenya prior to enactment of the Contempt of Court Act No.46 of 2016
This chapter examines the juridical basis for the law of civil contempt of court in Kenya prior to the enactment of the Contempt of Court Act No.46 of 2016. In this regard, the Chapter considers how the courts in Kenya had challenges in dealing with the procedural requirements in contempt proceedings having to apply the law applicable in the United Kingdom. Emphasis is on both the substantive and procedural law applicable in England as had been applied in Kenya. It further examines how Kenyan courts had expressed frustration and displeasure with the lack of Kenya’s
23 own law of contempt of court and the confusion arising in having two jurisdictions for contempt of court, to wit, section 5 of the Judicature Act and Section 63 (c) of the Civil Procedure Act.
1:10:3 Chapter 3: A critical analysis of Contempt of Court Act No.46 of 2016
This chapter critically analyses the Contempt of Court Act No.46 of 2016 .The chapter discusses the definition of contempt, the jurisdiction of various courts in dealing with contempt of court and the punishment provided therein. The aim of the Chapter is to examine whether the Contempt of Act No.46 of 2017 fully addresses the shortcomings and challenges that existed in the law of contempt of court prior to its enactment like procedural technicalities, lack of uniformity in punishment for contempt of court and the punishments not being deterrent.
1:10:4 Chapter 4: Comparative Analysis of contempt of court
This chapter is the comparative study and analysis of the law of contempt of Court law in Kenya with selected countries, the United Kingdom and the United States of America. It analyses the Law of contempt of Court in the highlighted Countries, the challenges and strides they have made to address the contempt of court and the lessons Kenya can learn from these countries.
The choice of the selected countries has been influenced by many factors to wit;
Given the influence of the Common Law in Kenya, it is obviously instructive to look to the United Kingdom law on Contempt of Court. Traditionally, common law inspired the applicable regime in Kenya on matters of contempt. Kenya borrowed the procedure of the High Court of Justice in England. This was incorporated by Section 5 of the Kenyan Judicature Act 1967.Section 5 and the applicable common law regime have since been repealed and replaced by the new Contempt of Court Act No.46 of 2016 Laws of Kenya. The Contempt of Court Act No.46 of 2016 Laws of Kenya is almost a replica of the Contempt of Court Act 1981,UK.
In the United States, the law of contempt is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law which includes case law. Just like Kenya, the United States is commonwealth country and heir to the common law legal tradition of English law. However, it is important to understand that despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law. The reason is that although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution Commonwealth rulings unless there is no American ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive. In the U.S.A the contempt power of all courts, federal as well as state, is limited by the guaranty of the First Amendment against interference with freedom of speech or of the press. U.S.A also draws a clear distinction between direct and indirect contempt of Court. U.S.A has a more elaborate law on contempt which is not open to abuse and is undoubtedly a very good case study.
1:10:5 Chapter 5: Recommendations
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This chapter contains the conclusions and the recommendations for the reform in the law of contempt of court in Kenya.
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CHAPTER TWO
ANALYSIS OF THE LAWS ON CONTEMPT IN KENYA PRIOR TO THE ENACTMENT OF THE CONTEMPT OF COURT ACT NO.46 OF 2016
2.0: Introduction
The previous chapter introduces the work, and gives the background to the research problem. The research problems as well as the conceptual and theoretical framework underpinning contempt of court are also discussed. Existing literature on the research topic are also reviewed and gaps identified for each item of literature set out. Objectives of the research, hypothesis to be tested by the research and research questions are also set out in this chapter. This chapter finally deals with the research methodology employed and gives a synopsis of chapter breakdown for subsequent chapters.
The Chapter considers how the courts in Kenya had challenges in dealing with the procedural requirements in contempt proceedings having to apply the law applicable in the United Kingdom. Emphasis is on both the substantive and procedural law applicable in England as had been applied in Kenya. It further examines how Kenyan courts had expressed frustration and displeasure with the lack of Kenya’s own law of contempt of court and the confusion arising in having two jurisdictions for contempt of court, to wit, section 5 of the Judicature Act and Section 63 (c) of the Civil Procedure Act.
2.1: Justification for the Law of Contempt of Court.
The justification for the law of Contempt of court can be properly deduced from the pronouncements of Salmon L. J and Lord Cross of Chelsea. The said Judges observed that the term ‘contempt of court’ is misleading. The term suggests that contempt of court proceedings are designed to buttress the dignity of the judges and to protect them from insult. However, the sole purpose of proceedings for contempt of court is to give courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented, trampled on or trammeled upon. Further, that contempt of court is an interference with the administration of justice which is something all citizens should be anxious to safeguard.32
The court argued in Abbeybarn Limited v Infinity Gemstones Ltd,33 that disobedience of court orders undermines the rule of law.
Similarly, in the case of Shah & Another v Shah,34 the court observed that once a dispute is before a court, citizens should be able to rely on the function of that court to decide it according to law without any interference from any other quarter.
32 Morris v Crown Office (n132) 322. 33 Abbeybarn Limited v Infinity Gemstones Ltd [2000] KLR 248. 34 Shah & Another v Shah [1989] KLR 220.
26
The Court of Appeal in the case of Justus Kariuki Mate & Anor v Martin Nyaga Wambora,35held that the power granted to the court to punish for contempt is meant to guard and protect the authority and dignity of the court orders which power however, when exercised must be balanced with the likelihood of a party losing his or her liberty. That it is essential for the maintenance of the rule of law and good order that the authority and dignity of the courts be upheld at all times. It is for that reason that courts should not condone deliberate disobedience of their orders and should deal with such disobedience swiftly and firmly with proved contemnors.36
2.2: Applicable law in contempt cases
Prior to the enactment of the Contempt of Court Act, there existed two legal regimes in Kenya regarding punishment for contempt of court. This was to be found in Section 5 of the Judicature Act and Section 63 of the Civil Procedure Act.
Section 5 of the Judicature Act provided:-
“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.”
From the foregoing, it is clear that this provision gave a general power to punish for contempt of court. It was a power that extended to upholding the authority of subordinate courts. This was a provision that was general and not specific in its tenure as to particular contempt. It applied to all forms of contempt of court.
On the other hand, Section 63(c) of the Civil Procedure Act 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 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”.
It is 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.
35 [2014] eKLR 36 Refrigeration and Kitchen Utensils v Gulabchand and Popatlal Shah & Anor, Civil Appl. No. 39 of 1990 (UR).
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Therefore, the power donated under Section 63 of the Civil Procedure Act and order 40 Rule 3 (1) was only in respect of disobedience of an order of injunction. It was a specific power.
A close look at Order 40 of the Civil Procedure Rules shows that that the provision is silent on the procedure to be followed when bringing an application to punish for breach of a Court order in the nature of an injunction. In this regard, an application under order 40 Rule 3 (1) of the Civil Procedure Rules did not require leave or service of notice to the Attorney General.
When the legislature enacted Section 5 of the Judicature Act in 1977, it was aware of Section 63 (c) of the Civil Procedure Act that had been enacted in1948. That provision was categorical on how to deal with disobedience of an order of injunction. In this regard, the requirement for leave and service of Notice upon the Attorney General was a procedure under the Rules of the Supreme Court of England and is applicable if an application is under Section 5 of the Judicature Act.
Before the amendment of procedural law in England in 2012, the sources of English law contempt was contained in the substantive law of Contempt of Court Act, 1981. 37 Prior to the enactment of the Contempt of Court Act No.46 of 2016, Kenyan courts used to look at the contempt laws in force in England. This law was applied substantively and procedurally, in the case of Abdiwahab Ali v Governor, County Government of Garrisa & Another, 38 the court held that the court’s power was derived from the English Contempt of Court Act, 1981 as well as Order 52 of the Rules of the Supreme Court applicable in England then.
The courts appreciated the lacuna in Kenyan law of contempt, in the case of John Mugo Gachuki v New Nyamkima Co. Ltd, 39
It is unfortunate and regrettable that nearly 50 years after independence, our procedure, with respect to punishment for contempt in our court is referable to the procedure, in the 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 enacted.”
In this case, the court was challenging the Parliament to enact Kenya’s own law of contempt. The legislation heard the Justice’s cry and have since enacted the Contempt of Court Act No.46 of 2016 which itself has glaring loopholes as will be discussed in the next Chapter.
2:3: Procedure in contempt cases
The applicable law in contempt proceedings in Kenya was the law applicable in the High Court of Justice in England
37 C.J. Miller, Contempt of Court (3rd edn, Oxford University Press, Reprinted 2006) 676. 38 Abdiwahab Ali v Governor, County Government of Garrisa & Another [2013] eKLR. 39 John Mugo Gachuki v New Nyamkima Co. Ltd [2012] eKLR.
28
Order 52 of the Rules of the Supreme Court of England required an applicant in such an application to give notice to the Crown Office (Attorney General) of the contempt application prior to filing.
As correctly pointed out by this Court in Christine Wangari Gachege -vs- Elizabeth Wanjiru Evans & 11 Others40, the statutory basis of contempt of court in so far as the Court of Appeal and the High Court were concerned was Section 5 of the Judicature Act and Section 63(c) of the Civil Procedure Act. Of relevance to this case is Section 5 of the Judicature Act which 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.”
In the Matter of an Application by Gurbaresh Singh & Sons Ltd41the High Court expressed itself as follows: -
“The second aspect concerns the words of Section 5- ‘for the time being’, which appear to mean that this Court should endeavor to ascertain the law in England at the time of the trial, or application being made”.
In Christine Wangari Gachege -vs- Elizabeth Wanjiru Evans & 11 Others, (supra), this Court stated as follows:-
“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.
On 1st October, 2012 the Civil Procedure (Amendment No. 2) Rules, 2012 came into force and part 81 thereof effectively replaced Order 52 of the Rules of the Supreme Court of England 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.'
Rules 81.11 relates to committal for 'interference with the due administration of justice'. (Applicable only in criminal proceedings)
40 Civil Application No. 233 of 2007 41 Misc. Civil Case No. 50 of 1983
29
Rules 81.16- relates to committal for contempt 'in the face of the court. And
Rules 81.17- relates to committal for 'making false statement of truth or disclosure statement.'
As per Rule 81.1 the amendment provided the procedure in contempt of court proceedings which applied in the Court of Appeal, the High Court and county courts in England.
Rule 81.10 sets out the procedure for filing a contempt application is as follows:-
“(3) The application notice must—
a. set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and
b. be supported by one or more affidavits containing all the evidence relied upon.
(4) Subject to paragraph (5), the application notice and the evidence in support must be served personally on the respondent.
(5) The court may— a. dispense with service under paragraph (4) if it considers it just to do so; or b. make an order in respect of service by an alternative method or at an alternative place.
The aforementioned provisions left out the requirement of notice to the Crown Office (Attorney General) prior to filing an application for contempt as was previously required under Order 52.
Rule 18.6 of the Civil Procedure (Amendment No. 2) Rules 2012 of England provides that a copy of judgment or orders and any orders or agreements fixing or varying the time for doing an act should be served personally.
Rule 18.6 of the Civil Procedure (Amendment No. 2) Rules 2012 emphasised on personal service. However Rule 18.8 (1) of the Civil Procedure (Amendment No. 2) Rules 2012 provides for circumstances when the court can dispense with personal service of an order as follows:-
“1. In the case of a judgment or order requiring a person not to do an act, the court may dispense with service of a copy of the judgment or order in accordance with rules 81.5 to 81.7 if it is satisfied that the person has had notice of it—
a. by being present when the judgment or order was given or made; or
b. by being notified of its terms by telephone, email or otherwise”.
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2.4 The law of contempt prior to the 2012 amendments in England
Prior to 2012, the procedure of the English Courts was regulated by the Rules of the Supreme Court. Order 45 Rule 5 of those Rules provided: -
1. Where- A person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or as the case may be, within the time as extended or abridged under Order 3 Rule 5, or
A person disobeys a judgment or order requiring him to abstain from doing an act, then subject to the provisions of these rules, the judgment or order may be enforced by one or more of the following means; that is to say:
-with the leave of the court, a writ of sequestration against the property of that person;
where that person is a body corporate, with the leave of the court, a writ of sequestration against the property of any director or other officer of the body;
subject to the provisions of the Debtors Act 1869 and 1878, an order of committal against the person or where that person is a body corporate, against any such officer.
There were strict procedural requirements that had to be met in contempt of court proceedings. These requirements are considered in the following paragraphs.
2.4.1. Clarity
It is imperative that the order upon which a party was to be charged with contempt had to be as clear as possible as to what such party was required to do or abstain from. The alleged contemnor had to be able to know clearly what the subject order requires of him.
2.4.2. Service
It was a procedural requirement that, no order of court requiring a person to do or abstain from doing any act could be enforced unless and until a copy thereof was served personally upon such person.42Such an order must be served before the expiry of the time fixed for the doing of the act required to be done43.The service had to be effected personally upon the concerned person.44Such service was necessary so that the person sought to be committed was able to know what conduct would amount to breach. Service however, could be dispensed with if it is shown that the person sought to be served is evading service of it.45
42 Re Launder, Launder v Richards [1908] 98 L.T. 554. 43 Re Seal and Edgelow [1903] 1 Ch 87. 44 Churchman v Joint Shop Stewards Committee of the Workers of the Port of London [1972] 1 W.L.R. 1094 [1098]. 45 Eady and Smith (n 96) 1090.
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2.4.3. Penal Notice
There had to be prominently displayed on the front of the order a warning to the person on whom it was to be served that disobedience to the order would be a contempt of court punishable by imprisonment or if it was a body corporate, by sequestration of the assets of such corporation.46 In a body corporate, the penal notice was directed to the company even where it is sought to be enforced against individual directors47.
2.4.4. Leave
Before an order could be enforced by way of committal, leave to bring such proceedings had to be first be sought.48An application for leave to commence contempt proceedings was first made ex- parte to a Divisional Court. It is only after leave was granted by that court that a party seeking to enforce an order by way of contempt of court proceeding, could then lodge a substantive motion for committal. The requirement for leave enabled the court to satisfy itself that there was a basis of commencing committal proceedings and that the same was not sought for purposes of vexing or annoying the Respondent. Before leave could be granted, the applicant had to serve a notice upon the crown one day before lodging the application for leave.49
2.4.5. The Application
The application was by way of a Notice of Motion. The grounds of the alleged contempt were set out on the motion. The written evidence together with the application must be served personally upon the alleged contemnor. The applicant was confined to the grounds set out in the application and could not be allowed to supplement them by reliance on additional matters disclosed in the evidence50.This was to safeguard against the likelihood of surprise upon the Respondent who was entitled to know in advance of what he is accused of. The hearing was in open court. If the contempt was proved, then the contemnor was sentenced appropriately either by a fine or is committed to jail.
It must be remembered that while criminal contempt was codified under the English Contempt of Court Act of 1981, the practice and procedure in civil contempt of court remained under the Rules of the Supreme Court of England.
2.4.6. Practice and Procedure
Before the amendment of the law in 2012, the procedure for punishing for civil contempt of court was to be found in Order 52 of the RSC Rule 2 thereof provided that: -
2(1) No application to Divisional Court for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule
46 Benabo v William Jay & Partners [1940] 4 ALL ER 196. 47 Eady and Smith (n 96)1094 48 Order 52 rule 2 (1), the Rules of the Supreme Court. 49 ibid, Rule 2(3). 50 Eady and Smith (n 96) Chapter 2.
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. (2) An application for such leave must be made ex-parte to a Divisional Court, except in vacation when it may be made to a judge in chambers, and must be supported by a statement setting out the name and description of the applicant, the name and description and address of the person sought to be committed and on the grounds on which his committal is sought, and by an affidavit filed before the application is made verifying the facts relied on.
(3) The applicant must give notice of the application for leave not later than the preceding day to the crown office and must at the same time Lodge in that office copies of the statement and affidavit.”
It was a requirement of the law of contempt that all the procedural requirements be strictly followed. This is due to the fact that the liberty of a subject is at risk and the courts power for summary jurisdiction must be guarded against abuse.51
Once leave was granted, an applicant made the substantive application by notice of motion within 4 days of such leave being granted failure of which the leave lapsed. The notice of motion accompanied by a copy of the statement, and an affidavit in support of the application for leave was served personally upon the person sought to be committed.
At the hearing, unless leave was granted, the only grounds which could be relied upon to support the application for committal are those set out in the statement or the Notice of Motion.52 Upon contempt being proved, the court could punish the contemnor by either committal or by fine. The maximum period of committal is two (2) years53.The court however, has power to order earlier discharge or to suspend the execution of the committal order for such period or on such condition as the court may specify.54
2.5. The Current State of the Law of Civil Contempt in England
In 2012, England undertook amendments to its Civil Procedure Act whereby the Rules of the Supreme Court concerning contempt were replaced with Part 81. This part now provides for applications and proceedings in relation to contempt of court. The part makes extensive provisions on the area of contempt of civil court. Part 81 makes the procedure for contempt of court proceedings much easier, clear and more certain. It provides for enforcement of judgments and orders by way of committal.55
51 Butler v Butler [1992] 4 ALL ER 833. 52 Order 52, r 6 (3). 53 Section 14 (1) of the Contempt of Court Act 1981. 54 Bowrie and Lowe (n 14) 626–627. 55 Rule 81.4 (1).
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2.5.1. Service
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.56The service must be personal.57
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.58 Such service may be by post to the person giving the undertaking or to his solicitor.59However, 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.60
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.61The court may also order an alternative mode or place of service.62This is a major departure from the previous practice under the Rules of the Supreme Court 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.
2.5.2. Penal Notice
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.63Such 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 order64.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.
56Rule 81.5 (1). 57 Rule 81.6. 58 Rule 81.7. 59ibid sub-rule 1 ( c). 60 ibid sub-rule 2. 61 Rule 81.8 (1). 62 Sub-rule 2. 63 Rule 81.9 (1). 64Sub-rule 2.
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2.5.3. Leave
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 upon65. 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 on66.The application for leave is to be considered by the court at an oral hearing unless the court considers that a hearing is not appropriate67.The Respondent may appear at the permission hearing if he so wishes upon giving 7 days’ notice of such intention.68
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 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.
2.5.4. The Application
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 given69.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.70
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.71
2.5.5. The Hearing
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)72.
65 Rule 81.14 (1). 66 Sub-rules 2 & 3. 67 Sub-rule 4. 68 Sub-rule 5. 69 Rule 81.10 (1). 70 Sub-rule 2. 71 Sub-rules 4 & 5. 72 Rule 81.28 (1).
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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 court73
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-examination74.
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.
2.6: Inadequacy of the old contempt of court laws
2.6.1: Leave
The courts were inconsistent in the application of the procedural prerequisites for the citing of contemnors. An example is the requirement for leave. In some cases, the courts insisted that leave was required before contempt proceedings were lodged even where the application was made under Order 40 Rule 3 of the Civil Procedure Rules, Cap 21 Laws of Kenya which clearly does not provide for such leave. In other cases, the courts held that leave was only required if the contempt jurisdiction was invoked vide section 5 of the Judicature Act. A case in point is in the cases of Tricon International Ltd v Giro Commercial Bank Ltd 75 and Africa Management Communication International Ltd v Joseph Mathenge Mugo76,where the High Court applied the position taken by the Court of Appeal in Joseph Schilling Bingo (K) Ltd v Star Dust Investments Ltd77to the effect that, there is no requirement under Order 40 Rule 3 of the Civil Procedure Rules and section 63 (c) of the Civil Procedure Act for a party to obtain leave before commencing contempt proceedings under that provision of the law. However, there have been other instances where courts have held that since Order 40 Rule 3 does not set out the procedure to punish for contempt, the procedure obtaining in England, where leave is necessary before commencing contempt proceedings, must be adopted notwithstanding that the jurisdiction of the court under section 5181 has not been invoked. A case in point is the case of Republic v County Council of Nakuru ex-parte Edward Alera T/a Genesis Reliable Equipment & 2 Others78 the court declined to punish for breach of an injunction on the basis that the practice and procedure obtaining in England had not been followed notwithstanding that the order breached was an injunction and the Applicant had not invoked the jurisdiction of the court under section 5 of the Judicature Act.
73 Sub-rule 2. 74 Sub-rules 3 & 4. 75 2012] eKLR. 76 2013] eKLR. 77 CA No. 134 of 1997 (UR). 78 [2011] eKLR.
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There were challenges for litigants who wished to enforce civil court orders through committal proceedings. This was occasioned by strict procedural requirements attendant in the English law of civil contempt of court. In Ochieng Nyamongo & Another v Kenya Posts and Telecommunications Corporation79, an application to commit the officers of the respondent Corporation to civil jail for disobedience of a court order was dismissed on the grounds that there had been no personal service of that order on the officers of that corporation and that the order that was served did not have a notice of penal consequences appended thereon. Further, the court held that mere knowledge of the terms and directions of the court order and disobedience thereof by the alleged contemnors was not enough to commit the said officers for contempt.
Equally in the case of Mutitika v Baharini Farm Ltd80,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.
Courts had grappled with the problem of having to either apply procedures laid under Orders 45 and 52 of the RSC by virtue of section 5 of the Judicature Act or section 63 (c) of the Civil Procedure Act (Order 40 Rule 3 of the Civil Procedure Rules) In Andalo & another v James Gleen Ruseel Ltd81,the applicant applied to commit the respondents to civil jail for contempt of court for having breached an order of injunction. The applicant brought the application under section 63(c) of the Civil Procedure Act. The court held that the applicant should have applied for leave to commence those proceedings under Orders 45 and 52 of the RSC. This was so notwithstanding that section 63(c) of the Civil Procedure Act does not provide for leave before applying for committal.
In M v S82, an order was made by a subordinate court barring the appellant from taking a child who was the subject of a custody dispute, out of jurisdiction. In disobedience of that order, the appellant took the child to Uganda as a result whereof the respondent took out proceedings in the High Court seeking leave to commence contempt proceedings against the appellant and for the latter’s committal. The High Court granted the said leave and ordered that the child be returned to Kenya. On appeal against those orders, the Court of Appeal held that by combining the application for leave and the application for committal in one application, the application was in contravention of the rules of procedure and could not lie. The application was dismissed in its entirety as the court was of the view that the two prayers, the one for leave and the other for contempt, had to be made under separate applications.
In strict requirement that leave be obtained before commencing contempt proceedings, courts had declined to entertain contempt proceedings where leave was either obtained irregularly or where there was no strict compliance with the rules of procedure in applying for leave. In Republic v The
79 [1994] KLR 1. 80 1985] KLR 229. 81 [1990] KLR 54. 82 [2008] KLR 271. 0
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Attorney General Ex parte Birdi A. Gadhia83,the court dismissed an application for committal on the basis that leave had been obtained irregularly. The irregularity was that the application for leave was not supported by a statement and a verifying affidavit and had not been served upon the registrar whom the court wrongly equated to the crown office in England. In a Jane Nduta Maina v Muthoni wa Monica NRB84, the court struck out an application for committal on the ground that leave had been obtained wrongly. In that case, although leave had been obtained, the application for leave was not supported by a statement of facts.
In Republic v County Council of Nakuru ex-parte Edward Alera85, an order was made against the Respondent who defied the same by demolishing part of the suit premises. The ex-parte applicant sought to cite the respondent for contempt of court. The application was dismissed because the applicant had failed to seek leave of court before commencing the contempt proceedings.
2.6.2. Notice upon the Attorney General
According to procedure, before the application for leave was brought, the Attorney General had to be served with a notice to institute proceedings.
In Republic v Attorney General and 5 others ex-parte Peter Nyamu & Anor86, the court dismissed an application for committal on the ground that the applicant had not complied with Rule 2 Sub rule (3) of Order 52 of the RSC of giving notice of the application for leave to the Attorney General at least one day before the application was lodged in court.
Equally in Republic v The Attorney General E-parte Birdi A Gadhia,87 the court dismissed an application for committal on the grounds that the same had not been served upon the registrar of the High Court, whom the court had wrongly equated to the English Crown Court.
The rationale for serving the Attorney-General with a notice before instituting proceedings was because the Attorney-General was the custodian of the prosecutorial powers for all criminal offences and since contempt of court proceedings are of criminal nature, and if it deemed necessary, it would take over the prosecution.
Even where a party did not act, the court may drew the order to the attention of the Attorney- General as an element of public interest may be involved that would require Attorney-General to enforce the order.88
It was a requirement under the English Law that notice of the application for leave to commence contempt proceedings together with the statement and affidavit must be served upon the crown office (Attorney General) before the hearing of the application for leave ex parte.
83 Kisumu H.C. Misc. Appl. No. 124 of 1990 (UR). 84 HC Misc. Appl. No.324 of 2012 (UR). 85 2011] eKLR. 86 NRB H.C. Misc C.A No. 405 of 2007 (UR). 87Kisumu H.C. Misc. Appl. No. 124 of 1990 (UR). 88 Clerk v Chadburn [1084] 1.R.L.R 350, [1985] 1 ALL ER 211 cited in David Eady and A.T.H. Smith, Arlidge, Eady & Smith on Contempt (3rd edn, London Sweet & Maxwell, 205) 139.
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Another reason given is that most punishments in contempt of court cases are custodial which are expected to be enforced by the Attorney-General.89
Finally in the case of Andalo & Another v James Gleen Ruseel Ltd90, the court dismissed an application to commit a defendant who had disobeyed an injunctive order for contempt on the grounds, inter alia, that the application for leave had not been served upon the Attorney General.
2.6.3. Personal Service
It was a requirement that a party who was in breach of an order of court must be shown to have been made aware of that order before he can be punished for contempt of court. This was a requirement under Order 52 Rule 2 of the RSC. Courts insisted that for an application for committal to succeed, there must be prove of personal service upon the alleged contemnor of the order alleged to have been breached.
In Augustine Marete Rukunga v Agnes Njeri Ndungire & Anor91 the courts declined to allow contempt of court proceedings where a party was aware of an order by other means other than by personal service where the officer effecting personal service failed to personal service failed to personally swear the affidavit of service, or where a party authorised an employee to receive process on his behalf.
Parties who were aware of court orders but had not been personally served with those orders could continue to ignore such orders and escape the process of enforcement thereof by way of committal proceedings.
2.6.4. Notice of Penal Consequences
Courts used to insist that apart from the alleged contemnor being personally served with the order, such order had to have a penal notice. This was meant to warn the party that incase of disobedience, there were consequences.
In the case of Akber Abdullah Kassam Ismail v Equip Agencies Ltd & 4 others92,the Court of Appeal held that failure to have the order endorsed with the notice of penal consequences on the face of it is a serious irregularity and fatal to an application for contempt. In that case, the alleged contemnors had been served with an order which did not have a penal notice. The contemnors disobeyed the order but could not be punished for lack of penal notice of the face.
89 Julius Wambua Waita v David Kimonyi Mwisa & Another [2014] eKLR 90 1990] KLR 54. 91 [2001] 254 92 [2014] eKLR.
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Further in the case of Nyamodi Ochieng Nyamogo and another-vs-Kenya Posts and Telecommunications Corporation93 (Cocker,Omolo and Tunoi, JJA) on 13th January,1995 held as hereunder:- a) The omission to serve a penal notice is fatal to an application for contempt of Court b) The order for injuction must be served personally and not on the advocate c) Absence of an affidavit of service of the order renders the service of no effect d) Application of English procedure in contempt e) Mere knowledge of all terms and directions of the Court is not enough for the purposes of contempt f) The consequences of contempt being penal applying must show that he himself has complied with the procedural requirements g) If the order cannot be complied with the Court will not grant an order for contempt
2.6.5. 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 & another94and John Mbugua Kimari v John Njoroge Kimari95, 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 Adan96the 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 Wanjohi97 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
93 Civil application number Nairobi 264 of 1993,[1990-1994] 94 [2013] eKLR. 95 [2014] eKLR. 96[2015] eKLR. 97 (2016) eKLR
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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 Ltd98,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. Conclusion
This chapter has analysed the status of contempt in Kenya prior to the enactment of the Contempt of Court Act No.46 of 2016 in light of the jurisdiction exercised by the High Court and the Court of Appeal by dint of section 5 of the Judicature Act. It has emerged that the previous legal regime was characterized with technicalities to wit, the order for injunction must be served personally, absence of an affidavit of service of the order renders the service of no effect, mere knowledge of all terms and directions of the Court is not enough for the purposes of contempt, and the consequences of contempt being penal applying must show that he himself has complied with the procedural requirement.
The courts complained about the lack of a substantive law on contempt of court in Kenya and suggested the need for law reform in this administration of justice. In answer to the plea, the Contempt of Court Act was enacted and the next chapter seeks to examine whether the Act has addressed the above cited procedural technicalities and complications.
98[1985] KLR 229.
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CHAPTER THREE
A CRITICAL ANALYSIS OF THE CONTEMPT OF COURT ACT NO.46 OF 2016
Introduction
Chapter two examined the juridical basis for the law of civil contempt of court in Kenya prior to the enactment of the Contempt of Court Act No.46 of 2016. In this regard, the Chapter considered how the courts in Kenya had challenges in dealing with the procedural requirements in contempt proceedings having to apply the law applicable in the United Kingdom. Emphasis was on both the substantive and procedural law applicable in England as had been applied in Kenya. It further examined how Kenyan courts had expressed frustration and displeasure with the lack of Kenya’s own law of contempt of court and the confusion arising in having two jurisdictions for contempt of court, to wit, section 5 of the Judicature Act and Section 63 (c) of the Civil Procedure Act.
Chapter Three critically analyses the Contempt of Court Act No.46 of 2016 .It discusses the definition of contempt of court, the jurisdiction of various courts in dealing with contempt of court and the punishment provided therein. The aim of this Chapter is to examine whether the Contempt of Act No.46 of 2017 fully addresses the shortcomings and challenges that existed in the law of contempt of court prior to its enactment as has been exhaustively discussed in the preceding chapter(3).
3. The Contempt of Court Act No.46 of 2016
Parliament vide Act No. 46 of 2016 enacted the Contempt of Court Act, 2016 which was assented to on 23rd December, 2016 and commenced on 13th January, 2017.
3.1: Definition of contempt of court
Under the Act99 civil contempt of court has been defined as willful disobedience of any judgment, decree, direction, order or other process of court or willful breach of an undertaking given to a court. This definition is wide enough in that it encompasses any willful disobedience of a decision made by a court as well as breach of undertaking given to court.
Apart from giving both criminal and civil definitions of contempt of court, the Act gives another definition of contempt of court that is neither civil nor criminal. The Act provides that any willful conduct or act that interferes, obstructs or interrupts the due process of the administration of justice in relation to any court or that is meant to lower the authority of court or scandalizes a judge or a judicial officer in relation to any proceeding before a court constitutes contempt of court.
99 Section 4 of the Contempt of Court Act
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The meaning of “contempt of Court” as enumerated in Section 4(b)100 is too broad and should be amended and more narrowly tailored. While it covers a broad range of forms of contempt the real problem with the provision is the nature of the expressions that it encompasses within the concept of contempt of court. This includes expression which…“lowers the judicial authority or dignity of the court.”
The notion of “dignity” of the court should be amended and the Act should have instead focused on “maintaining the authority and impartiality” of the court. However, the major concern with this provision is the inclusion of expression which “scandalizes or tends to scandalize.” This phrase suggests that such forms of expression do not actually need to have the effect of prejudicing or harming the authority or impartiality of the judicial proceedings.
Another problematic aspect of the way in which “contempt of court” is conceived by section 4(b) is that it covers not only expression which actually scandalizes the court (a), prejudices or interferes with judicial proceedings (b) and also interferes with the administration of justice (c), but also expressions which “tend to” any of these things. This term means that courts – specifically judges – are given a wide discretion to make their own subjective assessments as to whether publications and other expressions have a tendency to scandalize, prejudice or interfere with proceedings. This reliance on the interpretation of individual judges increases uncertainty about the scope of the concept of contempt of court, and is thus also problematic from a lawyer’s perspective.
Section 4 goes to state that any act, not relating to civil or criminal proceedings, which “is willfully committed to interfere, obstruct or interrupt the due process of the administration of justice in relation to any Court, or to lower the authority of a court, or to scandalize a judge, prejudices or interferes or tends to interfere with, the due course of any judicial proceeding; or (c) interferences or tends to interfere with, or obstructs or tends to obstruct the administration of justice, constitutes contempt of court.”
3.2: Jurisdiction
The Act includes four provisions on the “jurisdiction of the courts”. Section 5(1) states that every superior court has the power to (a) punish for contempt of court on the face of the court; and (b) punish for contempt of court and uphold the dignity and authority of subordinate courts.
100 Section 4(b) provides that, in the context of criminal proceedings “the publication, whether by words, spoken or written, by signs, visible representation, or otherwise, of any matters or doing of any other act which – (a) scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court; (b) prejudices or interferes or tends to interfere with, the due course of any judicial proceeding; or (c) interferences or tends to interfere with, or obstructs or tends to obstruct the administration of justice, constitutes contempt of court.”
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Every Superior Court (meaning the High Court, Employment and Labour Relations Court, Environment, and Land Court, Court of Appeal and Supreme Court) have power to punish for contempt of Court and uphold the dignity and authority of inferior Courts.
As highlighted before, the reference to dignity here in section 4(1) (b) should be amended and replaced with the term “impartiality.”
The types of contempt of court are confusingly presented here and not properly identified. It is unclear why section 4(1) makes a distinction between contempt of court in general in section 4(1)(b) and contempt of court in the face of court in section 4(1)(a), as presumably the scope of section 4(1)(b) could cover what is covered by section 4(1)(a). Also, the appropriate grammatical correct term is “contempt of court in the face of the court” rather than “contempt of court on the face of the court”.
3.2.1: Jurisdiction of the subordinate Courts
Section 6 provides that subordinate courts have power to punish for contempt committed on the face of the Court .A reading of this provision is clear that subordinate courts and by extension tribunals can only punish for contempt on the face of the Court but not contempt away from the face of the court or for breach of judgment and decrees committed outside the face of the court or tribunal
Section 6 of the Contempt of Court Act stipulates as follows: 6. Jurisdiction of subordinate courts to punish for contempt of court
“Every subordinate court shall have power to punish for contempt of court on the face of the court in any case where a person- (a) assaults, threatens, intimidates, or willfully insults a judicial officer or a witness, during a sitting or attendance in a court, or in going to or returning from the court to whom any relevant proceedings relate; (b) willfully interrupts or obstructs the proceedings of a subordinate court; or (c) willfully disobeys an order or direction of a subordinate court.”
Contempt of court comes through four ways. There is contempt in the face of the court outside of the court room and which the judicial officer need not see. There is secondly, contempt for interference with the due administration of justice through disobedience of a court order. The third category is contempt on the face of the court. Fourthly, contempt through the making of false statements of truth, often referred to as perjury.
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Section 6 has limited the contempt to contempt of court on the face of the court. It would be inappropriate to index the instances but quick examples would include the instances stated under Section 6(a) and (b) as well as (c ) with the latter including where an order is made to a party and there is non-observance or non-compliance even as the court watches. Disorderly, contemptuous or insolent behavior towards the judicial officer while holding the court which tends to disrupt or interrupt the course of a judicial proceeding is to be prosecuted as direct contempt. It is the court that cites the person in contempt by describing the behavior observed on record. It is to be distinguished from the rather indirect contempt where a party lodges complaint papers that a person has willfully disobeyed or violated court orders.
Thus when Section 6 itemizes instances of contempt on the face of the court and includes disobedience of court order and direction of the court, the inclusion must be read ejusdem generis. It must be read to include only contempt on the face of the court like failing to obey an order, in the course of a trial failure to answer questions put to one, or failing to observe summons. The power is necessary for all judicial and quasi-judicial bodies as the judicial officer may need to act quickly.
The legislature could not have intended to donate more powers to subordinate courts to punish for contempt than it already did under Section 6. If it had willed to, then nothing could have been easier than to enact a provision similar to Section 5 of the same Act. Likewise, if the legislature had intended all subordinate courts to have such powers nothing could have been easier than to adopt the provisions of Section 10 of the Magistrates Courts Act No 26 of 2015101 or even Section 83 of the Cooperatives Societies Act (Cap 490)102.
101 Section 83 of the Co-operatives Societies Act (Cap 490) provides …. “It shall be an offense for any person to engage in acts or make omissions amounting to contempt of the Tribunal and the Tribunal may punish any such person for contempt in accordance with the provisions of this Act.” 102Section 10 of the Magistrates Court Act,2015 provides the Court shall have power to punish for contempt . (2) A person who in the face of the Court- a) assaults, threatens, intimidates ,or insults a magistrate ,Court administrator, judicial officer, or a witness ,during a sitting or attendance in Court, or in going to or returning from the Court b) interrupts or obstructs the proceedings of the Court, or c) without lawful excuse disobeys an order or direction of the Court in the course the hearing of a proceeding, commits an offense 3) In the case of civil proceedings, the willful disobedience of any judgment, decree , direction, order, or other process of a court or willful breach of an undertaking given to a court constitutes contempt of court 4) scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court b) prejudices, or interferes or tends to interfere with the due course of any judicial proceedings, or c) Interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice constitutes contempt of court. 6) The Court may sentence a person who commits an offense under subsection(1) to imprisonment for a term not exceeding 5 days, or a fine not exceeding one hundred thousand shillings or both In the case of criminal proceedings, the publication, whether by words, spoken or written ,by signs visible representation, or otherwise, of any matters or the doing of any other act which-
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From the above, both sections 10 of the Magistrates Court Act and 83 of the Co-operatives Societies Act donated unlimited powers to the Magistrates’ court and to the Co-operative Tribunal to punish for contempt. Section 36 of the Contempt of Court Act states that the Act supersedes any other written law relating to contempt of court thus deleting the above cited law.
However, the Courts have given confusing and conflicting interpretations of jurisdiction of the Magistrates Court and Tribunals.
In the case of Secretary General & another- vs- Salah Yakub Farah103, The Respondent who is a member of the Kenya African National Union (KANU) had sought to be nominated for the position of member of the National Assembly Fafi Constituency in Garissa County. The Respondent paid the required party nomination fees. There was another candidate. KANU however decided not to hold any free and fair nominations. Instead KANU awarded a direct nomination to the other candidate.The Respondent complained to the KANU’s internal dispute resolution organ.When the Respondent failed to get any reprieve from KANU, he moved the Political Parties Disputes Tribunal (“the PPDT”) .The PPDT nullified the direct nomination process and directed KANU to conduct a competitive nomination exercise for the position of Member of National Assembly for Fafi Constituency within 48 hours.The Respondent claimed that KANU and its Secretary General had failed to comply with PPDT’s orders of 5 May 2017; the Respondent sought an array of reliefs. The Respondent sought to commit one Nick Salat and one Edward Kivuvani to prison for contempt of the PPDT’s orders.. JUSTICE L.ONGUTTO (now deceased, may his soul rest in peace) held……Section 6 has limited the contempt to contempt of court on the face of the court. It would be inappropriate to index the instances but quick examples would include the instances stated under Section 6(a) and (b) as well as (c ) with the latter including where an order is made to a party and there is non-observance or non-compliance even as the court watches. Disorderly, contemptuous or insolent behavior towards the judicial officer while holding the court which tends to disrupt or interrupt the course of a judicial proceeding is to be prosecuted as direct contempt. It is the court that cites the person in contempt by describing the behavior observed on record. It is to be distinguished from the rather indirect contempt where a party lodges complaint papers that a person has willfully disobeyed or violated court orders. Thus when section 6 itemizes instances of contempt on the face of the court and includes disobedience of court order and direction of the court, the inclusion must be read ejusdem generis. It must be read to include only contempt on the face of the court like failing to obey an order in the course of a trial to answer questions or failing to observe a subpoena. The power is necessary for all judicial and quasi-judicial bodies as the judicial officer may need to act quickly. In the end, I am not convinced that the PPDT had any jurisdiction to punish for contempt in the face of the court or any other form of contempt save contempt on the face of the court. The PPDT however in the instant case convicted the two officials of KANU for contempt which falls in the realm of indirect contempt. This is evident on the fact that the court had to be prompted through a motion filed by the Respondent. In proceeding as it did, the PPDT in my humble view
7) A person may appeal against an order of the Court made by way of punishment for contempt of court as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the Court” 103 [2017] eKLR
46 obtained its jurisdiction in this respects “through craft”. It overarched. It could not convict the Appellants for want of jurisdiction. The appeal succeeds to that extent.”
Equally in the case of Robert Pukose v Alwin Chepyagan Sasia & 2 others104 The appellant , contested for nomination certificate for Member of Parliament for Endebes constituency under Jubilee Party. The first respondent had been dissatisfied with the outcome of the nomination and lodged a complaint with IDRM of his party. The IDRM considered the complaint and determined that there was no reason to interfere with the outcome of the nomination where the appellant had garnered 9186 votes against the 1strespondent’s 6931 votes and dismissed that complaint. The 1st respondent was not satisfied with the decision of IDRM and filed a complaint with PPDT. After hearing arguments from Counsel for the parties, the PPDT allowed the motion, revoked the nomination certificate issued to the appellant, and directed the party to conduct fresh nomination to determine its nominee for Member of National Assembly for that constituency within 96 hours and the PPDT disregarded submissions by parties on jurisdiction to hear contempt proceeding, and ordering fresh nomination without first determining if the 3rd and 4th respondents were in contempt. Justice Mwita held as follows…“Contempt proceedings are governed by the Contempt of court Act 2016. Section 4(1)(a) of the Act states that civil contempt is the willful disobedience of any judgment decree direction, order or other process of a court or willful breach of an undertaking given to a court. Section 5(b) (c) provides that superior courts have power to punish for contempt of court and uphold the dignity and authority of subordinate courts. Section 6 provides that subordinate courts have power to punish for contempt committed on the face. A reading of these provisions is clear that subordinate courts and by extension tribunal can only punish for contempt on the face but not contempt away from the face of the court or for breach of judgment and decrees committed outside the court or tribunal”.
However a different interpretation was applied in the case of Lawises Juma Otete v Orange Democratic Movement105, The exparte applicant was a claimant before the Political Parties Disputes Tribunal in which he complained against the Orange Democratic Party. This followed the nomination conducted to pick the Member of County Assembly candidate for West Karachuonyo Ward in Karachuonyo Constituency in Homa Bay County. He alleged that he had won in the nomination by garnering 2000 votes but the returning officer had declared one Samuel Okuta Leita to be the winner. He complained to the 1st respondent’s Special County Appeals Tribunal which declared him the winner. He followed up the decision to be issued with the provisional certificate to no avail. That was when he complained to the Tribunal where a consent order was entered restraining the 1st respondent from issuing a provisional certificate to any other aspirant pending the hearing and determination of the matter. Notwithstanding the order, the 1st respondent published the name of Samwel Okuta Leita as the nominee for the seat. JUSTICE A.0.MUCHELULE held…”When the Tribunal heard the complaint by the exparte applicant it was acting in pursuant to its jurisdiction conferred under section 40 of the Political Parties Act (No. 11 of 2011). Under section 41(3) of the Act, it is provided that –“A decision of the Tribunal shall be enforced in the same manner as a decision of a Magistrate’s Court. The magistrates’ courts’ powers are contained in the Section 10(1),(2) and (3) of Magistrates’
104 [2017] eKLR 105 [2017] eKLR
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Courts Act No. 26 of 2015106. It follows that the Tribunal has powers to enforce its own orders, and has powers to punish any person who is in wilful disobedience of its judgment, decree, direction or order. This is the same way a magistrate’s court can punish for contempt”
The above decision by Justice Muchelule is per incurium and bad law. Section 10 of the Magistrates Court Act which donated unlimited powers to the Magistrates’ court to punish for contempt was amended and/or deleted by Section 6 of the Contempt of Court Act which provides that subordinate courts/Tribunals have power to punish for contempt committed on the face. Section 36 of the Contempt of Court Act states that the Act supersedes any other written law relating to contempt of court thus deleting the said section 40 of the Political Parties Act (No. 11 of 2011 and Section 10(1),(2) and (3) of Magistrates.
Much as Section 6 refers to contempt of court in the face of court, there is the lack of clarity about what amounts to contempt in the face of the court. In particular, the law is not settled as to what mental element is required to commit contempt in the face of the court, it must be committed “willfully” which is not a word which members of the public will readily understand in this context. A narrower definition of contempt in the face of the court is desirable. The law needs to be clear .Practically speaking, it is when the court’s powers are limited to dealing with particular kinds of behaviour that it has been important to determine which behaviour amounts to contempt in the face of the court. It could be argued that section 6 contains more than one offence, and it would be better if the different ways in which a contempt in the face of the court could be committed were clearly separated out.
3.2.2: Jurisdiction of superior Courts Superior courts of record include the High Court, Employment and Labour Relations Court, Environment and Land Court, Court of Appeal and Supreme Court.
The Superior courts of record accordingly have powers to punish for contempt of their own motion. This power applies in three circumstances:
1. Contempt "in the face of the court" (not to be taken literally; the judge does not need to see it, provided it took place within the court precincts or relates to a case currently before that court); 2. Disobedience of a court order; and
106 “(1) Subject to the provisions of any other law; the Court shall have power to punish for contempt (2) A person who, in the face of the Court – (a) assaults, threatens, intimidates, or insults a magistrate, court administrator, judicial officer, or a witness, during a sitting or attendance in Court, on in going to or returning from the Court; (b) interrupts or obstructs the proceedings of the Court; or (c) without lawful excuse disobeys an order or direction of the Court in the course of the hearing of a proceeding, commits an offence. (3) In the case of civil proceedings, the wilful disobedience of any judgment, decree, direction order, or other process of a court or wilful breach of an undertaking given to a court constitutes contempt of court.”
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3. Breaches of undertakings to the court.
The Act gives superior Courts inherent jurisdiction to punish for contempt of Court.-
“Section 5. (1) Every superior court shall have power to: - (a) punish for contempt of court on the face of the court; (b) punish for contempt of court and (b) uphold the dignity and authority of subordinate courts.”
While the courts should be empowered to “deal with intentional threats or insult and misconduct committed with the intention that proceedings will or might be disrupted”, there should be a “sufficiently high threshold of both the mental element and the conduct element to ensure compliance with freedom of expression.107
3.4: Defences
Part III of the Act deals with the Defence of the contempt of court.
The Act provides for many defences to contempt of Court. The defences include but are not limited to fair comment on the general working of the Court made in good faith, in public interest and in temperate language; fair comment on the merits of a decision of a Court made in good faith and in temperate language; that the publication is a fair and substantially accurate report of any judicial proceeding; innocent publication; and that the publication was by a person who had no reasonable grounds to believe that such judicial proceedings were pending at the time of the publication of the matter. There is one major issue with defences enumerated in Section 9 of the Act108.There are a number of conditions applied to the dissemination of information in the public, “fair comment”, “made in good faith” and “in temperate language.” Legislators may have good grounds for arguing that the “protection of the right of journalists to impart information on issues of general interest
107 Law Commission, Consultation Paper No 209, op.cit. , p. 33. 108 Section 9 states that it shall be a defence if the court is satisfied that the conduct at issue constitutes one of the following: “(a) “a fair comment on the general working of the court made in good faith in the public interest and in temperate language”; (b) “a fair comment on the merits of a decision of a court made in good faith and in temperate language; (c) “a publication of a fair and substantially accurate report of any judicial proceeding”; (d) “a publication of any matter amounting to contempt of court by reason of its being published during the pendency of judicial proceedings, by a person who had no reasonable grounds to believe that such judicial proceedings were pending at the time of the publication. Averment made in good faith and in temperate language for initiation of action or in the court of disciplinary proceedings against a judge or judicial officer”; (g) “a plea of truth taken up as a defence in any contempt of court charge under this Act or any written law”; (h) “a relevant observation made in judicial capacity such as those by a superior court on an appeal or revision or application for transfer of a case or by a court in judicial proceedings against a judge or a judicial officer”; (i) “a remark made in an administrative capacity by an authority in the course of official business, including a remark connected with a disciplinary inquiry or in an inspection note or a character roll or confidential report”; (j) “pertains to any other matter exempted from constituting a commission of an offence of contempt of court under any other written law.” Presumably, these defences apply to whether contempt of court takes place in civil or criminal proceedings.
49 requires that they should act in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism.”109
However, there should be no requirement that any publication should be expressed in “temperate language”. The meaning of this term rather like the term “tendency” discussed above depends on the individual and subjective perspective of the presiding judge. What is “temperate”, in the sense of being moderate and self-restrained to one judge, may be “intemperate” to another.
Another problem with this phrase which appears in subsections (a), (b) and (f) is that there may be situations where “temperate” language might not do justice to the coverage of a particular issue concerning the administration of justice, where a journalist or commentator has good reason to criticise or condemn in extreme or strongest of terms possible a particular problem involving the judiciary or the courts system, such as would be the case of corruption or bribery involving judicial officials, and in so doing reflect the public interest.
Section 9 states that it would be a defence if the court is satisfied that the conduct at issue constitutes one of the following:
“(a) “a fair comment on the general working of the court made in good faith in the public interest and in temperate language”; (b) “a fair comment on the merits of a decision of a court made in good faith and in temperate language; (c) “a publication of a fair and substantially accurate report of any judicial proceeding”; (d) “a publication of any matter amounting to contempt of court by reason of its being published during the pendency of judicial proceedings, by a person who had no reasonable grounds to believe that such judicial proceedings were pending at the time of the publication of the matter”; (e) “pertains to distribution of a publication containing any matter amounting to contempt of court by a person who had no reasonable ground to believe that the publication contained or was likely to contain any such matter”; (f) “a true averment made in good faith and in temperate language for initiation of action or in the court of disciplinary proceedings against a judge or judicial officer”; (g) “a plea of truth taken up as a defence in any contempt of court charge under this Act or any written law”; (h) “a relevant observation made in judicial capacity such as those by a superior court on an appeal or revision or application for transfer of a case or by a court in judicial proceedings against a judge or a judicial officer”; (i) “a remark made in an administrative capacity by an authority in the course of official business, including a remark connected with a disciplinary inquiry or in an inspection note or a character roll or confidential report”; (j) “pertains to any other matter exempted from constituting a commission of an offence of contempt of court under any other written law.”
There are other problematic phrases that potentially narrow the scope of defences which are available to an allegation of contempt of court. Notably, Section 9(c) requires that a publication is
109 Pedersen v Denmark, Application No 49017/99, judgment of 17 December 2004, para 78.
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not only fair, but also a “substantially accurate report of any judicial proceeding”, which is different and a higher threshold than having an “accurate factual basis”.
References to “temperate language” should be deleted from Sections 9(a), (b) and (f) as it is ambiguous. “Temperate language” should not be used as a criterion for conduct which will not be considered as contempt of court.
Section 9(c) should not require that a publication is a “substantially accurate report” but state that it simply needs to have an “accurate factual basis” in order for it to have a defence from an allegation of contempt.
Section 14(1) provides that it will not be contempt of court to publish “a fair and accurate report of a judicial proceeding held in open court if the report is published in good faith”. Section 14(1) should be amended to state that it is a defence to publish a report with an “accurate factual basis” rather than an “accurate report
Section 14(2) empowers the court to order the postponement of the “publication of any report of the proceedings, or any part of the proceedings … for such period as the court thinks necessary” to avoid “the risk of prejudice to the administration of justice in those proceedings.” Section 14(2) should state that the threshold for a court to order the postponement of a publication is “a substantial risk of serious prejudice to the administration of justice”.
Section 17(1) provides that a person “is not guilty of contempt of court for publishing a fair and accurate report of judicial proceedings before any court sitting in chambers or in camera” unless
(a) “the publication is contrary to any law” (b) “the court, on grounds of public policy or in exercise of any power vested in it, expressly prohibits the publication of all information relating to the proceeding or of information of the description which is published” (c) “the court sits in chambers or in camera for reasons relating to public order or national security, the publication of information relating to those proceedings”; (d) “where the information relates to a secret process, discovery or invention which is in issue in the proceedings”.
In Section 17(1), the requirement of an “accurate report” of judicial proceedings should be removed and replaced with a requirement of report which had an “accurate factual basis.”
3.5. Strict liability Rule and limitation
The rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.
Sections 10 and 11 set out the strict liability rule and limitations of it, and in doing so it appears to largely reflect on UK law under the Contempt of Court Act 1981.
Section 11(1) provides that “the strict liability rule” applies to publications only where and when
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(a) the publication creates a risk that will impede or prejudice the course of justice in relation to the proceedings in question; and
(b) proceedings in question are active within the meaning of this section at the time of the publication.
Under Section 13(1) it is a defence under the strict liability rule if a person publishes “any matter which interferes or tends to interfere with, or [obstruct] or tend to [obstruct], the course of justice in connection with any civil or criminal proceedings pending at the time of publication, if at that time, that person had no reasonable grounds to believe that the proceeding was pending”. The phrase “tends to interfere with” should be removed for reasons stated earlier.
Section 13(2) clarifies that “notwithstanding anything to the contrary contained in this Act or any other law, the publication of any matter referred to subsection (1) in connection with any civil or criminal proceeding which is not pending at the time of publication does not constitute contempt of court”. A person is also not guilty of contempt if she/he “distributes a publication containing any matter referred to in subsection (1), if at that time of distribution, that person had no reasonable ground to believe that it contained or was likely to contain any such matter.
The burden of proof is on any person seeking to rely on one of the defences, under section 13(4).
Section 13(5) qualifies subsection (3) by stating that it does not apply to the distribution of
“(a) any publication which is a book or paper printed or published; or (b) any publication which is a newspaper published other than in conformity with the Books and Newspapers Act……….”
This latter provision which refers to a piece of legislation governing books and the press is likely to have a restrictive effect on the possibility of relying on the defense of innocent publication or distribution. .
It is positive that Section 18 contains a public interest defence. However, the qualifying part of the provision, requiring that a defence is only available if the risk of impediment or prejudice is “merely incidental”, restricts its scope unjustifiably and it should be removed. This standard falls short of the principle of proportionality. It does not provide a means of weighing up the seriousness of the prejudice against the significance of the speech in question. It is not the equivalent of a proportionality test since it depends upon problematic determinations as to the central focus of a publication, as opposed to its peripheral aspects. The courts are being asked to engage in literary as opposed to legal analysis. Section 18 should be amended to simply state that a “publication as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as contempt of court under the strict liability rule”.
While other provisions on strict liability appear to draw on UK law, Sections 10(1) and 11(1) (a) appear distinct. The UK law presents a different threshold for strict liability: it applies only to such a publications or communications “which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”. Section 11(1)(a) should be
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amended to indicate that the strict liability rule applies to publications only and where the publication creates a “substantial risk that the course of justice in relation to the proceedings in question will be seriously impeded or prejudiced”. The standard specified is higher – i.e. at least of “substantial risk of serious prejudice”, rather than simply “risk” in the ordinary sense – should be the standard followed by section 11(a) as it is higher and more likely to be compliant with freedom of expression standards. Furthermore, reference to conduct that “tends to interfere with the course of justice …” should be amended from the Act for reasons indicated earlier.
3.5.1. Limitation of scope of strict liability
(1) The strict liability rule applies only in relation to publications, or other communication in whatever form, which is addressed to the public at large or any section of the public.
(2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.
(3) The strict liability rule applies to a publication only if the proceedings in question are active within the meaning of this section at the time of the publication.
3.6. Source protection
Section 20 of the Act provides that refusing to disclose the source of information contained in a publication for which the person is responsible does not amount to contempt unless the Court is satisfied that such disclosure is necessary in the interests of justice, national security, or for the prevention of disorder or crime. 110.
This provision is important as journalists routinely depend on contacts outside the media for the supply of information on issues of public interest. Individuals sometimes come forward with secret or sensitive information, relying upon the reporter to convey it to a wide audience in order to stimulate public debate or expose wrongdoing. In many cases, anonymity is the precondition upon which the information is provided to the journalist by the source; this may be motivated by fear of repercussions which might adversely affect their job security or even physical safety. That the media should enjoy a special privilege allowing them not to reveal confidential sources of information unless certain stringent conditions are met has been recognised by international authorities111 and courts.
The African Commission’s Declaration on Principles on Freedom of Expression in Africa states; “Media practitioners shall not be required to reveal confidential sources of information or to disclose other material held for journalistic purposes except in accordance with the following principles: -
110 Section 20 states that a person is not guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which the person is responsible, unless it is established to the satisfaction of the court that such disclosure is necessary in the interests of justice 111 Recommendation No R (2000) 7 of the Council of Europe Committee of Ministers to member states on the right of journalists not to disclose their sources of information, adopted 8 March 2000.
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1. The identity of the source is necessary for the investigation or prosecution of a serious crime, or the defense of a person accused of a criminal offence
2. The information or similar information leading to the same result cannot be obtained elsewhere; - the public interest in disclosure outweighs the harm to freedom of expression and disclosure has been ordered by a court, after a full hearing.
These principles should be incorporated into Section 20 of the Act.
Section 20 should be amended to indicate that a person is not guilty of contempt of court for refusing to disclose a source of information unless
(a) the identity of the source is necessary for the investigation or prosecution of a serious crime, or the defence of a person accused of a criminal offence
(b) the information or similar information leading to the same result cannot be obtained elsewhere;
(c) the public interest in disclosure outweighs the harm to freedom of expression; and
(d) disclosure has been ordered by a court, after a full hearing.
3.7. Publication
Section 17 of the Act limits the publication to the publications which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced and secondly, it will apply only if the proceedings in question are active at the time of publication. The Act provides a Schedule which sets out the instances when proceedings are to be treated as being active. The Act also recognises that a publication made as part of a discussion in good faith of public affairs or other matters of general public interest does not amount to contempt of Court if the risk of impediment or prejudice to legal proceedings is merely incidental to the discussion.
Important as undoubtedly it is to protect the due administration of justice from wrongful interference, there are competing values which must be recognized. This is especially true of the freedom of the Press and other news media to publish and the corresponding interest of the public to be informed.
3.8. Procedure
Section 37 of the Act empowers the Chief Justice to make rules for the better carrying out of the purposes of the Act. Before the enactment of the Act, section 5 of the Judicature Act imported the procedure for contempt of court followed by the High Court of Justice in England. Whereas the said section was deleted by section 38 of the Act, the rules contemplated by section 37 have not yet been promulgated.
In the absence of the rules of procedure the lacuna must be filled by the invocation of section 24 of the Interpretation and General Provisions Act which provides that:…..“Where an Act or
54 part of an Act is repealed, subsidiary legislation issued under or made in virtue thereof shall, unless a contrary intention appears, remain in force, so far as it is not inconsistent with the repealing Act, until it has been revoked or repealed by subsidiary legislation issued or made under the provisions of the repealing Act, and shall be deemed for all purposes to have been made thereunder”.
The procedure existing before the enactment of the Contempt of Court Act was restated by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others 112.In that case the Court found that under Rule 81.4 of the Civil Procedure (Amendment No. 2) Rules, 2012, which deals with breach of judgement, order or undertaking, the application for contempt is made in the proceedings in which the judgement or order was made or undertaking given by what is referred to as “application notice” which application is required to set out fully the grounds on which the committal application is made, identify separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon. The said application and affidavit(s) must be served personally on the respondent unless the Court dispenses with the same if it considers it just to do so or authorises an alternative mode of service.
Section 28(2) provides that the court may order that the accused person detained in police custody until the rising of the court. When the alleged contempt is committed in the presence or during the proceedings of a Superior Court, the Court may cause such person to be detained in custody and at any time before the rising of the Court.
Under section 8 of the Act, in the case of any criminal contempt of a subordinate Court, the Superior Court may take action on a reference made to it by the subordinate Court or upon an application by the Director of Public Prosecutions.
3.9.Court Recordings
Of the means than might be used to records court proceedings, only tape recordings are specifically dealt with by legislation. No legislative provision regulates the use of, in particular, lap top computers or mobile telephones. Such matters can be regulated by the Judge who is entitled to control the proceedings in such a way as to avoid disruption or other interference with the smooth progress at a trial.
Section 19 of the Act provides:-
“Use of recording devices
(1) Subject to subsection (4), it is contempt of court to — (a) use in court any recording device or instrument for recording proceedings, a tape recorder or other instrument for recording sound, except with the leave of the court; (b) publish a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any
112 [2014] eKLR.
55 section of the public, or disposes of it or any recording so derived, with a view to such publication; or (c) use any such recording in contravention of any conditions granted under paragraph (a). (2) Leave under subsection (1)(a) may be granted or refused by the court, and where such leave is granted, it may be subject to such reasonable conditions as the court considers necessary. (3) Without prejudice to any other power to deal with an act of contempt under subsection (1) (a), the court may order the instrument, device or any recording made with it, or both, to be forfeited, and any object so forfeited shall, unless the court otherwise determines on application by a person appearing to be the owner, be sold or otherwise disposed of in such manner as the court may direct. (4) This section shall not apply to the making or use of sound recordings for purposes of official transcripts of proceedings. (5) For purposes of this section "recording" includes any visual or audio recording.
Section 19 deals with the use of recording devices.113 Since it is specifically provided by the statute that a breach of Section 19 constitutes contempt of court, the matter should be dealt with in accordance with the ordinary principles governing the summary jurisdiction .Section 19(a) appears generally to fall within the category of contempt “in the face”. Thus it comes within the inherent jurisdiction of courts of record, both superior and inferior. However, breach of Section 19(b) does not appear to fall within the notion of contempt in the face, it should be dealt with by a formal application before the superior court.
Section 19(2) gives the court an unfettered discretion to allow the use of a tape recorder in court. The courts scope for granting leave is limited to that situation, the statute does not appear to confer on the court express power to give leave to publish a recording to the public or a section of it. Section 19(1)(b) does not refer to leave of the court. Subsection 2 gives the court power to restrict the private use of the recording still further, but it would not seem to give power to allow public use.
The discretion given to the court to grant, withhold or withdraw leave to use tape recorders or to impose conditions as to the use of the recordings is unlimited, but the following factors should be considered;(a )the existence of any reasonable need on the part of the applicant for leave, whether a litigant or a person connected with the press or broadcasting, for the recording to be made,(b) the risk that the recording could be used for the purpose of briefing witnesses out of court,( c) any possibility that the use of the recorder would disturb the proceedings or distract or worry any witness or other participants. Consideration should always be given whether conditions as go the use of a recording made pursuant to leave should be imposed. The identity and role of the applicant for leave and the nature of the subject matter of the proceedings may be relevant. The transcript of the permitted recording is intended for the use of the person given leave to make it and is not intended to be used as, or to compete with, the official transcript mentioned in Section 19(4)
113 Section 19(1) provides that an individual “is guilty of contempt if he or she – (a) uses in court any [visual or audio] recording device or instrument for recording proceedings tape recorder or other instrument for recording sound, except with the leave of court; (b) publishes a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or disposes of it or any recording so derived, with a view to such publication; or (c) uses any such recording in contravention of any conditions granted under paragraph (a).” Section 19(4) states that the section “shall not apply to the making or use of sound recordings for the purposes of official transcripts of proceedings.”
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The Act should be amended to include a provision that deals with possession and use of mobile phones and other internet-enabled devices in court.
Any such restrictions should be for the legitimate aims of protecting fair trial rights and should only be for the period of deliberations. The drafters of the legislation should have considered how to acknowledge the very live issue of the use of internet-enabled devices at court, and should have done so in accordance with litigants’ and all other Court users’ rights to freedom of expression as well as privacy.
The Act should be amended to acknowledging the use of internet-enabled devices at court through provisions that respect litigants’ and all other Court users’ rights to freedom of expression as well as privacy.
In this 21st century, a generation of near obsessive sharing of videos, photographs and screenshots, the use of recording devices in Courts is widespread. Section 19 of the Act recognises this growing trend by providing for several actions as amounting to contempt such as using a recording device without the leave of the Court, publishing a recording of legal proceedings by playing it in the hearing of the public or any section of the public, or disposing it with a view to such publication; or using any such recording contrary to any conditions granted by the Court to record the proceedings. The Act on the use of recording devices however does not apply to the making or use of sound recordings for purposes of official transcripts of proceedings, a provision which speaks to the efforts by the judiciary to enhance the delivery of justice.
3.10. Contempt by a Company
Section 29 of the Act provides that where a company is guilty of contempt of court in respect of an undertaking given to a court by the company, every person who, at the time the contempt was committed, was in charge of and was responsible to the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and such person may with the leave of the Court be committed to civil jail.
There is however a catch or rider , in the sense that such a person will not be liable to punishment if they prove to the satisfaction of the Court that the contempt was committed without their knowledge or that they exercised all due diligence to prevent its commission.
In the case of Charity Mpano Ntiyione v China Communications Construction Company Limited & National Environment Management Authority114 The application for contempt was based on the following grounds which in summary is that Liu Qitao, Fu Jinyuan, Liu Wensheng and Li Qiang, being directors of the 1st Respondent, have been served with the orders made by the court on together with the requisite Penal Notices, and have disobeyed the said Court Order as their servants have continued to carry out quarrying and crushing activities on the ‘suit land’. The actions of the 1st Respondent through its agents, servants or employees are in contravention of the court orders restraining the 1st Respondent from engaging in any further quarrying and crushing activities on the suit land pending the hearing and determination of the application. Justice
114 [2017] eKLR
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Christine Ochieng held…..“I note Contempt proceedings are criminal in nature and hence the burden of proof should be on the Plaintiff to prove that the same is ongoing. I note from the various affidavits of service, there is no indication whether the Court Order was accompanied with the mandatory Penal Notice. In the relying on the authorities above, and Section 29 of the Contempt of Court Act, I find that in the current circumstances and with the facts presented, I decline to allow the application dated the 1stFebruary, 2017 at this juncture”.
However, this decision defeats the spirit of the Act. The Act does not provide that the order should be accompanied by a penal notice. Practice has always been that Court Orders are not persuasive in nature and are thus meant to be obeyed and are/or complied with.
3.11. Contempt by the State
Section 30 of the Act provides that where a State organ, government department, ministry or corporation is guilty of contempt in respect of any undertaking given to a Court by the State organ, government department, ministry or corporation, the Court shall serve a notice of not less than 30 days on the accounting officer, requiring the accounting officer to show cause why contempt of Court proceedings should not be commenced against him.
Section 30 of the Act provides that:
(1) Where a State organ, government department, ministry or corporation is guilty of contempt of court in respect of any undertaking given to a court by the State organ, government department, ministry or corporation, the court shall serve a notice of not less than thirty days on the accounting officer, requiring the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer.
(2) No contempt of court proceedings shall be commenced against the accounting officer of a State organ, government department, ministry or corporation, unless the court has issued a notice of not less than thirty days to the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer.
(3) A notice issued under subsection (1) shall be served on the accounting officer and the Attorney-General.
(4) If the accounting officer does not respond to the notice to show cause issued under subsection (1) within thirty days of the receipt of the notice, the court shall proceed and commence contempt of court proceedings against the accounting officer.
(5) Where the contempt of court is committed by a State organ, government department, ministry or corporation, and it is proved to the satisfaction of the court that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of any accounting officer, such accounting
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officer shall be deemed to be guilty of the contempt and may with the leave of the court be liable to a fine not exceeding two hundred thousand shillings.
(6) No State officer or public officer shall be convicted of contempt of court for the execution of his duties in good faith.”
It is therefore clear that before any civil contempt of court proceedings are instituted in disobedience of a judgement, decree or order, the applicant must first move the Court to issue a notice to show cause against the accounting officer of the State organ, government department, ministry or corporation concerned. Such notice is to be served on both the accounting officer and the Attorney General. If no response to the notice is received, the Court may then at the expiry of the said thirty days’ notice proceed to commence contempt of court proceedings against the concerned accounting officer. With respect to the contempt pf court proceedings subsequent to the issuance of the notice to show cause, section 7(3) of the said Act provides that: “…any proceedings to try an offence of contempt of court provided for under any other written law shall not take away the right of any person to a fair trial and fair administrative action in accordance with Articles 47 and 50 of the Constitution.”
It follows that the rules of natural justice ought to be adhered to in respect of the proceedings subsequent to the notice to show cause. In that respect the application seeking orders to commit for contempt ought to be served personally upon the person sought to be committed. Section 37 of the Act empowers the Chief Justice to The Chief Justice may make rules for the better carrying out of the purposes of the Act. Before the enactment of the Act, section 5 of the Judicature Act imported the procedure for contempt of court followed by the High Court of Justice in England. Whereas the said section was deleted by section 38 of the Act, the rules contemplated by section 37 have not yet been promulgated. The procedure existing before the enactment of the Contempt of Court Act was restated by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others 115In that case the Court found that under Rule 81.4 of the Civil Procedure (Amendment No. 2) Rules, 2012, which deals with breach of judgement, order or undertaking, the application for contempt is made in the proceedings in which the judgement or order was made or undertaking given by what is referred to as “application notice” which application is required to set out fully the grounds on which the committal application is made, identify separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon. The said application and affidavit(s) must be served personally on the respondent unless the Court dispenses with the same if it considers it just to do so or authorises an alternative mode of service. In that case, the Court of Appeal held that leave or permission is nolonger required in such
115 [2014] eKLR.
59 proceedings. However, section 30(5) of the Act complicates the procedure by stating that the contemnor, in case of a State organ, government department, ministry or corporation may with the leave of the court be liable to a fine not exceeding two hundred thousand shillings. Thus the procedure described by the Court of Appeal has to be adopted with necessary modifications. Parliament intended and that the High Court has the responsibility for the maintenance of the rule of law hence there cannot be a gap in the application of the rule of law. Therefore where there is a lacuna with respect to enforcement of remedies provided under the Constitution or an Act of Parliament, or if, through the procedure provided under an Act of Parliament, an aggrieved party is left with no alternative but to invoke the jurisdiction of the Court and the Court is perfectly within its rights to adopt such a procedure as would effectually give meaningful relief to the party aggrieved. To fail to do so would be to engender and abet an injustice and as has been held before, a court of justice has no jurisdiction to do injustice. To require an applicant to apply for leave to impose a sentence after the Court has been satisfied that a contempt of court has been committed by a State organ, government department, ministry or corporation negates the provisions of Article 159(2)(d) of the Constitution. Courts have tried to apply the strict procedure with flexibility. A case in point is the case of Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex parte Stanley Muturi 116 where the Respondent was ordered to honour the decree in the Subordinate Court which Court had itself decreed that the respondent pays the applicant a sum of Kshs 516,362.52 together with interest thereon at 12% p.a. Despite the decree/order in this case having been extracted and served upon the respondent, and a return of service of the decree/order as well as penal notice has been filed in Court, the respondent blatantly disobeyed a court order and shown contempt for the dignity of the court. Justice G.V.Odunga held ….... “Similarly the financial status of a judgement debtor is peculiarly within his knowledge and the failure to satisfy the Court that its accounts are in “the red”, in my view, can only lead to a presumption that the contempt has been committed with the consent or connivance of, or is attributable to the neglect on the part the accounting officer, thus rendering such accounting officer guilty of the contempt. In this case, the accounting officer is clearly the County Executive Committee member in charge of Finance of the Respondent herein. Consequently, it is hereby directed that the said County Executive Committee member in charge of Finance do appear before this Court for purposes of sentencing.” Equally in the case of Republic v University of Nairobi & another Ex-Parte Nabiswa Wakenya Moses 117Following the delivery of the judgment the Applicant instructed his advocates to serve the Respondents with the judgment of the court which they served. However after the Court had delivered its judgment, he noticed that the position in the Court order was erroneously indicated as that of Finance Secretary as opposed to the KNH campus representative .Thereupon he
116 [2017] eKLR 117[2017] eKLR
60 instructed his advocates on record to move the court to have the said errors rectified and an application was filed and a consent was recorded by his advocates and Respondents’ in Court. However, despite serving the Respondents with the amended order and the previous Judgment of the court, the Vice Chancellor refused, ignored and neglected to swear him as the KNH Campus representative hence in contempt of Court. Instead, The 1st Respondent continued in contempt of the orders by allowing a different person to act as the KNH Campus representative whereas the court had issued prohibitory and mandamus orders which had not been set aside by this Court. It was contended that the failure and refusal by the Vice Chancellor to swear him in as the KNH Campus representative after the Election petition’s panel and this court’s judgment is in itself an indicator that unless contempt orders are made and is committed to civil jail the authority of this court is ridiculed. Justice G.V.Odunga held………“With respect to the allegation that the position of Finance Secretary is non-existent, on 4th October, 2016 a consent was recorded in these proceedings by which the application dated 13th September, 2016 was allowed. That application sought rectification of the judgement entered herein to substitute the order compelling the 1st Respondent to swear the ex parte applicant as the duly elected official of the 2nd Respondent in the position of Finance Secretary as opposed to the order compelling the applicant’s swearing as KNH Campus Representative. Accordingly, that ground does not stand. It is therefore clear that the 1st Respondent has not presented any justifiable ground or basis for not complying with the orders of this Court. In the premises I hereby issue a Notice to the 1st Respondent’s Vice-Chancellor Academic to appear in Court and show cause why appropriate action cannot be taken against him”. 3.13. Punishment
Section 28 of the Contempt of Court Act, sets out the punishment that should be meted in the event that a person is convicted for contempt of the orders of the court. It provides thus: “(1) Save as otherwise expressly provided in this Act or in any other written law, a person who is convicted of contempt of court is liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding six months, or to both. (2) Without prejudice to subsection (1), the court may order that the accused person be detained in police custody until the rising of the court. (3) A court may at any time revoke an order of committal made under subsection (2) and, if the offender is in custody, order his discharge. (4) Subject to subsection (1), the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. (5) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in subsection (1) for any contempt either in respect of that court or of a court subordinate to it.
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(6) Notwithstanding anything contained in this section, where a person is found guilty of civil contempt, the court may if it considers that the fine will not meet the ends of justice and that imprisonment is necessary direct that the person be detained in civil jail for such period not exceeding six months as the court may deem fit.” Under the Act, the court has the option of either imposing a fine or giving a custodial sentence or both. The court has other options to secure the respect of court orders and meet the ends of justice. The court may direct the contemnors to take positive action to purge the contempt. The most recent case where this provision of the Act was applied is the case of Miguna Miguna v Director of Public Prosecutions & 2 others118 The Applicant, was arrested by the Police.He filed an application seeking his release on anticipatory bail pending his production before court. The Applicant was ordered to be released on anticipatory bail upon paying a cash bail of Kshs.50,000/-.The Applicant was not released as ordered by the court but was instead deported from the country pursuant to a declaration issued by Fred Matiang’i, the Cabinet Secretary for Interior and Coordination of National Government pursuant to Sections 43 and 33(1) of the Kenya Citizenship and Immigration Act 2011. Justice Kimaru held ....“The declaration dated 6th February 2018 issued by Fred Matiang’i, Cabinet Secretary, Ministry of Interior and Coordination of National Government, in respect of the Applicant, on the advice of the Director of Immigration, under Section 33(1) of the Kenya Citizen and Immigration Act 2011 is hereby declared null and void and of no legal effect because it was issued in contempt of the orders of this court. The 2nd and 3rd Respondents shall personally give a written undertaking to this court that they shall comply and give effect to the orders of this court. The undertakings shall be presented to this court within seven (7) days of this Ruling.” Just as a court can in principle imprison an official, so can it fine that official. However, the monetary liabilities that government officials incur in doing their jobs are virtually always indemnified out of the appropriations of their department and/agencies, and there is little reason to think contempt fines are any different. Thus, a contempt fine against an individual official if indemnified could be a mechanism for a court effectively to order that the amount be deducted from their salaries. A case in point is the case of…. Miguna Miguna v Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 7 others ,119 Justice Mwita issued a conservatory order suspending the decision by the 2nd Respondent, MAJOR (RTD) GORDON KIHALANGWA made suspending JOSHUA MIGUNA MIGUNA’s Kenyan passport, pending the hearing and determination of the petition and directed the DIRECTOR OF IMMIGRATION, and in his absence, the most senior officer in the Directorate of Immigration to issue JOSHUA MIGUNA MIGUNA, the petitioner, with travel Documents to enable the petitioner re-enter and to remain in Kenya pending the hearing and determination of this petition. In default, JOSHUA MIGUNA MIGUNA, the petitioner, sbe at liberty to use the Canadian passport to re-enter and remain in Kenya pending the hearing
118 [2018] eKLR 119[2018] eKLR
62 determination of this Petition.The Respondents didn’t comply with these orders and a contempt application was filed .Justice Odunga ruled that Fred Matiang'i, Boinnet and Gordon Kihalangwa were guilty of contempt of several court orders related to the detention of the Petitioner Miguna Miguna and fined each of them Kshs.200,000/= and the amount to be deducted from their salary of April,2018.
However, it is important to stress that the regime of penalties in Sections 28 and 29120 should meet the test of proportionality under international human rights legal standards, in that the punishment does not go overboard, and that it is appropriate to achieve the function of protecting the aim of maintaining the authority and impartiality of the judiciary. It must be shown that the punishment is specific and individual to attaining that protective outcome and is no more intrusive than other instruments capable of achieving the same limited result.
Further, it should be noted that unlike the UK Contempt of Court Act which provides for different maximum penalties between the magistrates’ court and the Superior Court, the Kenyan Act makes no distinction between subordinate and superior courts when it comes to maximum penalties. The Act should be amended to make that distinction so that only the superior courts are enabled to impose the maximum penalties for contempt of court of six months imprisonment and/or a fine not exceeding Kshs.200,000 shillings. The inferior courts should only be able to impose a prison sentence of up to one month and/or a fine not exceeding Kshs.25,000 shillings. This is because Superior courts of record have more extensive contempt powers than inferior Courts, the position being broadly that superior courts can punish contempt whether committed in or outside the court whereas inferior courts can only punish contempt committed in the face of court thus creating uniformity in the Act.
120 Section 28(1) states that a person found guilty of contempt “is liable to imprisonment for a term not exceeding six months, or to a fine not exceeding two hundred thousand shillings, or to both”. A court can also order: under section 28(2), that the accused person “be detained in police custody upon the rising of the court”; under section 28(3), to “revoke an order of committal made under subsection (2) and, if the offender is in custody, order his discharge”. Section 28(4) provides that an accused may be discharged upon “apology being made to the satisfaction of the court.” Section 28(6) provides that “where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing that person to imprisonment, direct that the person be detained in civil jail for such a period not exceeding six months as the court may deem fit”. This means that where a company has been found guilty of contempt of court, under section 28(7), “every person, at the time the contempt was committed, was in charge of and was responsible to the company for the conduct of business of the company, as well as the company shall [be] deemed to be guilty of the contempt and such person may with the leave of the court be committed to civil jail”. According to Section 29(1) if the contempt has been “committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and such person may with the leave of the court be committed to civil jail.” Similarly, under section 28(8), where a state body is found guilty of contempt, “the accounting officer shall be deemed guilty of contempt and … may be committed to civil jail” and if the contempt has been “committed with the consent or connivance of, or is attributable to any neglect on the part of the accounting officer, such accounting officer shall also be deemed to be guilty of the contempt and such person may with the leave of the court be committed to civil jail”. It is unclear what this adds to what is provided in section 28(8).” Furthermore, in addition to the committal to civil jail under sections 29(1) and (2), under section 29(3), the court “may impose against the director, manager, secretary or other officer of the company, or the accounting officer of the State organ, government department, ministry or corporation, as the case may be, a fine not exceeding Ksh 200,000.”
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It is also important that nothing in Sections 28 or 29 is used to imprison journalists or media workers. This will have a real chilling effect on the reporting of court proceedings otherwise and in doing so undermine the objective of ensuring the public confidence in the administration of justice.
Sections 28 and 29(1) might be abusively relied upon with precisely this effect. It has been noted recently that it is extremely rare for publishers to be punished by anything more than a fine. The Act should be amended to add an additional safeguard for reporting on court proceedings inserted into both provisions.
With respect to the contempt court proceedings subsequent to the issuance of the notice to show cause, section 7(3) of the said Act provides that: “…any proceedings to try an offence of contempt of court provided for under any other written law shall not take away the right of any person to a fair trial and fair administrative action in accordance with Articles 47 and 50 of the Constitution.”
3.14. Review and Appeal
Sections 32&33 of Act provide mechanisms for the review of an order as well as for an appeal from an order to punish for contempt. A person who is aggrieved by an order by a subordinate Court, to punish for contempt may make an application to the Superior Court to revise and/or review the order or file an appeal.
Section 32 states that the High Court has power to review its own orders. The Act is silent on appeal of the decision from the subordinate Courts decision. The High Court has power to review its own orders and it may make several orders pending such review to suspend the execution of the punishment, or order to be reviewed and the contemnor released on bail if he or she is in confinement. An application for revision may be made where there is an error apparent on the face of the record, or discovery of new important material or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant and could not be produced by the Applicant at the time when the order was made.
Section 33 of the Act provides for an appeal from the decision or order of the High Court to punish for contempt to the Court of Appeal, only on points of law. Pending an appeal, an appellate court may order that the execution of the punishment or order appealed against be suspended and if the appellant is in confinement, the appellant be released on bail.
An appeal to the High Court must be filed within thirty (30) days while an appeal to the Court of Appeal must be filed within sixty (60) days from the date of the order appealed against.
3.15: Limitations of Actions for Contempt of Court
Section 34 of the Act provides that no Court shall initiate or allow any proceedings for contempt of Court either on its own motion or otherwise, after the expiry of a period of six (6) months from the date on which the contempt is alleged to have been committed. This provision was applied in
64 the case of Macharia Waiguru v Attorney General & 2 others,121 the applicant received an order from the Chief Magistrate’s Court ordering the defendant to excise his portion of land. On presentation to the lands office the District surveyor refused to register. The 2nd Respondent avers that she is a stranger to the Court order and the mutation form yet they were served with the application which was stamped by the Attorney General. Justice Kimei held dismissed the application for contempt for being statute barred by not having been filed within 6 months.
This provision is prejudicial in that nowhere in the Act is there provision for extension of time. In this regard, if for any reason, whether plausible or otherwise, a party delays for any period of up to six (6) months before commencing civil contempt proceedings with a view to enforce compliance, the contempt persists thereafter notwithstanding any continued breach of a court order or judgment or direction. This is a serious flaw in the Act.
Conclusions.
The Act marks a great achievement in codifying the law relating to contempt of Court in Kenya, as previously, the law merely incorporated the law of contempt prevailing in UK. It is therefore very much localised, which is a major milestone for all those who take pride in Kenyan-made laws. It is said that the obedience of Court orders is the linchpin upon which the wheels of justice turn and ultimately, the Act is a laudable attempt to uphold the dignity and authority of Courts. However, the Act is not comprehensive restatement of the law of contempt .It reformed the law in certain specific areas by for example attempting to set relatively clear limits to the points in time at which publishers are at risk of committing the strict liability offence, providing for a defence in respect of the discussions of public affairs and also for the protection of journalists’ sources. While much of the common law still applies after the Act, the relationship between the statute and the common law, particularly in the content of publication contempt, was not addressed by Parliament but was left to the discretion of the courts. An attempt was made in the Act to reconcile the public interest in ensuring, so far as possible, that citizens are able to have a fair trial and permitting freedom of communication on the other hand. The Act intended to resolve these tensions definitively by the strict liability framework. Yet it has not proved to be capable of finally disposing of the problem, and much of the chapter concerned with how far traditional common law restraints and procedural technicalities continue to apply, and how much they interrelate with the statutory rules.
121[2017] eKLR
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CHAPTER FOUR
COMPARATIVE ANALYSIS OF THE LAW OF CONTEMPT OF COURT
4.0: Introduction
Chapter three examined the Contempt of Court Act No.46 of 2016 .The chapter discussed the definition of civil contempt, the jurisdiction of various courts in dealing with contempt of court and the punishment provided therein. The aim of the Chapter was to examine whether the Contempt of Act No.46 of 2017 fully addresses the shortcomings and challenges that existed in the law of contempt of court prior to its enactment.
This chapter is the comparative study and analysis of the law of contempt of Court law in Kenya with selected countries, the United Kingdom and the United States of America. It analyses the Law of contempt of Court in the highlighted Countries, the challenges and strides they have made to address the contempt of court and the lessons Kenya can learn from these countries.
The choice of the selected countries has been influenced by many factors to wit;
Given the influence of the Common Law in Kenya, it is obviously instructive to look to United Kingdom law on Contempt of Court. Traditionally, common law inspired the applicable regime in Kenya on matters of contempt. Kenya borrowed the procedure of the High Court of Justice in England. This was incorporated by Section 5 of the Kenyan Judicature Act 1967.Section 5 and the applicable common law regime have since been repealed and replaced by the new Contempt of Court Act No.46 of 2016 Laws of Kenya. The Contempt of Court Act No.46 of 2016 Laws of Kenya is almost a replica of the Contempt of Court Act 1981,UK.
In the United States, the law on contempt of court is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law which includes case law. Just like Kenya, the United States is commonwealth country and heir to the common law legal tradition of English law. However, it is important to understand that despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law. The reason is that although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution Commonwealth rulings unless there is no American ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive. In the U.S.A the contempt power of all courts, federal as well as state, is limited by the guaranty of the First Amendment against interference with freedom of speech or of the press. U.S.A also draws a clear distinction between direct and indirect contempt of Court. U.S.A has a more elaborate law on contempt which is not open to abuse and is undoubtedly a very good case study.
4.1. The United Kingdom:
In English law (a common law jurisdiction) the law on contempt is partly set out in case law, and partly specified in the Contempt of Court Act, 1981. Contempt may be a criminal or civil offence.
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Disorderly, contemptuous, or insolent behaviour toward the judge or magistrates while holding the court, tending to interrupt the due course of a trial or other judicial proceeding, may be prosecuted as "direct" contempt. The term "direct" means that the court itself cites the person in contempt by describing the behaviour observed on the record. Direct contempt is distinctly different from indirect contempt, wherein another individual may file papers alleging contempt against a person who has willfully violated a lawful court order.
Traditionally, English common law inspired the applicable regime in Kenya on matters of contempt. Kenya borrowed the procedure of the High Court of Justice in England. This was put into effect by section 5 of the Kenyan Judicature Act 1967. Section 5, and the applicable common law regime, have since been repealed and replaced by the new Contempt of Court Act.
In England, the laws of the High Court of Justice in England on contempt were amended by the additions to part 62 of the Criminal Procedure Rules in 2012. However, by virtue of section 5, Kenya continued to apply the law on contempt as previously applicable to High Court of Justice in England.
4.1.1. Constructive' or indirect contempt
'Constructive' or indirect contempt, e.g. the publication of a newspaper article prejudicing a forthcoming trial (this may also be referred to as 'Strict Liability Contempt', although publication of such prejudicial matter may also be a contempt at common law). This is known as a civil contempt.
Civil contempt is not a criminal offence, even if committed in connection with a criminal case. Contempt by breach of an undertaking to the court is not unusual in civil cases but is rare in criminal cases. One example would be where a sentence was mitigated on the basis of an undertaking made by someone to repay money stolen by the defendant. Giving such an undertaking, if it misleads the judge, may amount to a contempt of court and possibly to a criminal offence such as perjury (where the undertaking is given on oath) or perverting the course of justice. Where the conduct may amount to being a distinct criminal offence (particularly where it could amount to perjury, where the defendant has the right to jury trial and there is a statutory requirement for corroborative evidence) it would normally be appropriate to refer the matter to be investigated by the police.
Civil contempt is usually raised by one of the parties to the proceedings. The Attorney General may intervene in order to institute proceedings in the Administrative (Divisional) Court of the Queen Bench Division in appropriate cases under Criminal Procedure Rules Schedule 1, RSC Order 52.
Once such a breach has come to light, it is the responsibility of the court to summon the alleged contemnor. However, because it is undesirable that the court should then act as prosecutor, and judge, it is appropriate for the Criminal Prosecutor Service to assist by instructing an advocate to place the circumstances of the matter before the court and question the alleged contemnor in case of any dispute. Steps are taken to instruct the original advocate at the hearing. The responsibility
67 for providing the Criminal Prosecutor Service with the relevant transcripts and post-trial documents lies with the Ministry of Justice.
In Kenya, the Contempt of Court Act has attempted to divided contempt of court into direct or indirect and civil or criminal. Section 6 of the Act provides that subordinate courts have power to punish for contempt committed on the face of the Court (direct). Section 5(b) (c) provides that superior courts have power to punish for contempt of court and uphold the dignity and authority of subordinate courts thus for both direct and indirect contempt of court).
Section 4 of the Act defines civil contempt is the willful disobedience of any judgment decree direction, order or other process of a court or willful breach of an undertaking given to a court and criminal contempt as publication whether by words, spoken or written or the doing of any other act which scandalizes or tends to scandalize or lowers judicial authority, prejudices or tends to interfere with due course of any judicial proceedings or interferes or tends to interfere with administration of justice. However, unlike in the UK Kenya doesn’t draw a distinction on the punishment of civil and criminal contempt of court and both carry the same sentence. Further, the distinction between criminal and civil contempt is one of the most confusing and problematic areas of contempt jurisprudence. Some of this confusion results from the fact that criminal contempt can occur in either a criminal or civil proceeding, just as civil contempt can occur in either a criminal or civil proceeding. Moreover, single acts of contempt can result in both criminal and civil contempt sanctions in some cases. That’s why contempt of court is considered to be quasi-criminal in nature.
4.1.2. Criminal contempt.
A person commits the offense of criminal contempt when the person knowingly engages in any of the following conduct:
a) Disorderly, contemptuous, or insolent behavior committed during the sitting of a court in its immediate view and presence and directly tending to interrupt its proceedings or to impair the respect due to its authority b) Breach of the peace, noise, or other disturbance directly tending to interrupt a court's proceeding c) Purposely disobeying or refusing any lawful process or other mandate of a court d) Unlawfully refusing to be sworn as a witness in any court proceeding or, after being sworn, refusing to answer any legal and proper interrogatory e) Purposely publishing a false or grossly inaccurate report of a court's proceeding f) Purposely failing to obey any mandate, process, or notice relative to juries issued
4.1.3. Civil contempt
In civil proceedings there are two main ways in which contempt is committed:
1. Failure to attend at court despite a summons requiring attendance. In respect of the High Court, historically a writ of latitat would have been issued, but now a bench warrant is issued, authorizing the tipstaff to arrange for the arrest of the individual, and imprisonment
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until the date and time the court appoints to next sit. In practice a groveling letter of apology to the court is sufficient to ward off this possibility, and in any event the warrant is generally "backed for bail"—i.e. bail will be granted once the arrest has been made and a location where the person can be found in future established.
2. Failure to comply with a court order. A copy of the order, with a "penal notice"—i.e., notice informing the recipient that if they do not comply they are subject to imprisonment—is served on the person concerned. If, after that, they breach the order, proceedings can be started and in theory the person involved can be sent to prison. In practice this rarely happens as the cost on the claimant of bringing these proceedings is significant and in practice imprisonment is rarely ordered as an apology or fine are usually considered appropriate.
4.1.4. Juror contempt
A juror may commit contempt if he or she disobeys an order of the judge or tells someone who is not on the jury details of the jury’s thoughts and decisions on the case they are considering. Sometimes a judge will deal with contempt by a juror straight away - for example, a juror disrupts the trial or is not on time. When a more detailed investigation is needed, a judge asks the Attorney General for advice.
4.1.5. Jurisdiction
All courts and those tribunals that are not merely administrative but exercise the judicial power of the State are protected by the law of contempt. At common law, only courts of record have an inherent power to punish for contempt and their powers of punishment vary according to their status as 'superior' or 'inferior' courts. Proceedings brought under the Contempt of Court Act 1981 are in practice initiated by the Attorney General, and the Crown Prosecution Service may be involved in preparing papers on his or her behalf. "Quasi contempt" offences are usually investigated by the police and prosecuted by the Crown Prosecution Service.
The question of jurisdiction was illustrated by House pf Lords in the case of Attorney General-vs- BBC122, whenever an allegation of contempt arises, there are two quite separate questions asto jurisdiction. Which may have to be considered.
a) Whether the affected court or tribunal is protected by law of contempt at all
b) If it is, whether it has any power to deal with the alleged contempt itself, or whether it can only be dealt with by some other court, either on reference to it or of its own motion. The answers will not always be in harmony, because there are some tribunals whose proceedings are protected by the law of contempt without their having power to take proceedings in respect of such conduct.
122 [1981]A.C.303
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As a general rule a superior court of record has jurisdiction to deal summarily with any contempt affecting its own proceedings. An inferior court of record had jurisdiction at common law only to deal with contempts committed in the face of the court.
Superior courts of record include the House of Lords, the several branches of the Supreme Court including Court of Appeal 123, the Court Martial Appeal Court, the High Court, the Crown Court and the Employment Appeal Tribunal124.
The Superior courts of record accordingly have powers to punish for contempt of their own motion. This power applies in three circumstances:
4. Contempt "in the face of the court" (not to be taken literally; the judge does not need to see it, provided it took place within the court precincts or relates to a case currently before that court); 5. Disobedience of a court order; and 6. Breaches of undertakings to the court.
Where it is necessary to act quickly the judge (even the trial judge) may act to sentence for contempt.
Where it is not necessary to be so urgent, or where indirect contempt has taken place the Attorney General can intervene and the Crown Prosecution Service will institute criminal proceedings on his behalf before a Divisional Court of the Queen’s Bench Division of the High Court of Justice of England and Wales. Section 14 of the Act restricts the period of committal to prison for contempt where there is no express limitation to 2 years for a superior court.
Section 12 of the Contempt of Court Act,1981 states that A magistrates’ court has jurisdiction to deal with any person who— (a) wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or wilfully interrupts the proceedings of the court or otherwise misbehaves in court”.
Magistrates’ courts are not superior courts of record, but nonetheless have powers granted under the Contempt of Court Act 1981. They may detain any person who insults the court or otherwise disrupts its proceedings until the end of the sitting. Upon the contempt being either admitted or proved the Magistrate or may imprison the offender for a maximum of one month, fine them up to £2,500, or do both.
4.1.6. Contempt "in the face of the court
This can arise before, during or after criminal proceedings being prosecuted at either the Crown Court or the magistrates' court. This is sometimes described as "criminal contempt" irrespective of the court in which the proceedings are heard.
123 Supreme Court Act,S.45(1) 124 Industrial Tribunals Act 1996,S.20(3) now known as the Employment Tribunals Act 1996,bu virtue of the Employment Rights (Dispute Resolution)Act 1998,S.1(2)
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In McKeown –vs-The Queen125,Laskin J said…..“Contempt in the face of court is, in my view distinguished from contempt not in the face on the footing that all the circumstances are in the personal knowledge of the court. The presiding judge can deal summarily with the matter without the embarrassment of having to be a witness to issues of fact which may be in dispute because of events occurring outside”.
A Superior Court may deal with contempt "in the face of court" when the contempt is committed either: in the courtroom itself (for example, interrupting or interfering with the proceedings); or in the court building where it has been reported to the judge (for example, threatening a witness waiting to give evidence); or beyond the courtroom and the court's precincts, when it is reported to the judge and it relates to proceedings whether in progress or pending (for example, improper approaches to witnesses or jurors).
4.1.7. Summary procedure
Although the jurisdiction to punish for contempt is frequently referred to as summary, the term has to be approached with some caution. Each of the categories of contempt described in the previous paragraphs is made the subject of a different procedure.
The principal justification for resorting to a summary procedure, and the concomitant by-passing of the traditional safeguards of criminal proceedings is because of “urgency or practical necessity”
Hodgson J.said in A.G-vs-Sport Newspapers Ltd126…. “It seems to me that the principle underlying the arrogation to themselves by the judges of a right to deprive a person of the right he would otherwise have to trial by jury and, by a summary procedure, punish him, lies in the need for them to have available machinery by which, speedily and effectively, they can protect the proceedings over which they have control”
Another factor might be the need to save delay and expense, for example where there is no dispute as to the facts and no wider question of public interest involved. In R-vs-Powell,127 the appellant had disrupted proceedings by whistling loudly at a juror from the rear of the court. He was sentenced to 14 days imprisonment. Although the sentence was varied, the Court of Appeal held that the trial judge had been correct to employ the summary procedure. In the words of Staughton L.J… “There are some cases which although serious, do not justify the cumbersone procedure of reporting the matter to the Attorney General, waiting for him to consider it, prepare affidavits and possibly oral evidence, and then have a motion before the Divisional Court. In such cases, it seems to us that it is right for the judge to deal with the matter then and there”.
In R v Callum Iain McLeod 128the Court of Appeal held there was no reason why a trial judge could not be considered to be an independent and impartial tribunal for proceedings for contempt
125 (1971)16D.L.R(3d)390 126 (1991)1WLR 1194 at 1225G 127 (1993)98 Cr.App.R.224 128 20.12.200? TLR)
71 of court. Sometimes the contempt may be sufficiently serious to justify proceedings for a criminal offence (for example perverting the course of justice or witness interference); however the court may prefer to deal with the conduct as part of its inherent jurisdiction to administer justice in a speedy and orderly manner
4.1.8. Safeguards to summary procedure
The safeguards missing when the contempt jurisdiction is exercised summarily were succinctly summarized by Mustill L.J. in R-vs-Griffin129,
“ We are here concerned with the exercise of a jurisdiction which is sui generis so far as English law is concerned .In proceedings for criminal contempt there is no prosecutor, or even a requirement that a representative of the Crown or of the injured party should initiate the proceedings. The judge is entitled to proceed of his own motion. There is no summons or indictment, nor is it mandatory for any written account of the accusation made against him to be furnished to the contemnor. There is no preliminary enquiry or filtering procedure, such as a committal. Depositions are not taken. There is no jury. Nor is the system adversarial in character. The judge himself enquiries into the circumstances, so far as they are not within his personal knowledge. He identifies the ground of complaint, selects the witness and investigates what they have to say(subject to a right to cross-examination),decides on guilt and pronounces sentence. This summary procedure, which by its nature is to be used quickly if it is to be used at all,omits many of the safeguards to which an accused is ordinarily entitled, and for this reason it has been repeatedly stated that the Judges should choose to adopt it only in cases of real need.”
The Courts in the UK have with increasing frequency, stressed the need for the contempt jurisdiction to be used with caution. Lord Diplock explained;
“The remedy for contempt of court after it has been committed is punitive, it may involve imprisonment yet it is summary ,it is generally obtained on affidavit evidence and it is not accompanied by those special safeguards in favour of the accused that are a feature of the trial of an ordinary criminal offence. Furthermore, it is a procedure which if instituted by one of the parties to litigation is open to abuse, particularly in relation to so-called gagging writs issued for the purpose of preventing repetition of statements that are defamatory but true. The courts have therefore been vigilant to see that the procedure for committal is not lightly invoked in cases, where although a contempt has been committed there is no serious likelihood that it has caused any harm to the interest of any of the parties to the litigation or to the public interest.”
Where court exercises a statutory power to deal with contempt the hearing should be before a bench of justices other than those justices before whom the alleged contempt took place. Kenya should adopt this practice to avoid issues of impartiality being raised provided it won’t delay the conclusion of the case.
The above safeguards have been built into rules that it is difficult to identify any injustice to alleged contemnors, and in effect the only advantage they do not have which is associated with criminal proceedings generally is that of jury. In Kenya, contempt in the face of the Court is by way of
129 (1989)88 Cr.App.R.63
72 summary jurisdiction but the above highlighted safeguards should be incorporated into the rules to avoid injustice to the alleged contemnor.
4.1.10. The Strict liability rule
Since a finding of contempt of court may have serious consequences for the liberty of the subject, it would accord with general criminal law principles to require the applicant to prove mens rea on the part of the alleged contemnor, in relation to element of the actus Reus. However Section 1 of the Contempt of Court Act 1981 renders this unnecessary in cases to which the “strict liability rule” applies. This Section provides that
“In this Act, the strict liability rue means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so”
Under the Contempt of Court Act 1981 it is criminal contempt of court to publish anything which creates a real risk that the course of justice in proceedings may be seriously impaired. It only applies where proceedings are active, and the Attorney General has issued guidance as to when he believes this to be the case, and there is also statutory guidance. The clause prevents the newspapers and media from publishing material that is too extreme or sensationalist about a criminal case until the trial or linked trials are over and the juries have given their verdicts.
Section 2 of the Act limits the common law presumption that conduct may be treated as contempt regardless of intention: now only cases where there is a substantial risk of serious prejudice to a trial are affected.
Section 2(2) of the Act provides that:
“The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.”
In the case of Attorney-General v Guardian Newspaper Ltd130,where an editor and publisher were made subject of contempt applications by the Attorney General, for having written and published respectively an article criticizing the use by trial judges of their powers to impose reporting restrictions. Mention had been made of the fact that one of the defendants in a major fraud trial in Manchester was also involved in other proceedings, described as “ a quite separate which may one day come to court in the Isle Man”. In order to avoid prejudice to the future proceedings, reporting restrictions under S.4(2) of the 1981 Act were imposed of the first Manchester trial. As a result of the publication of the critical article revealing to the Manchester jury the existence of the other pending proceedings, the judge discharged the jury and ordered a retrial, resulting in substantial wasted costs and delay. Notwithstanding this, when the Attorney General launched proceedings for strict liability contempt, the Divisional Court held that the publication of the article need not necessarily have created a substantial risk that the course of justice would be seriously impeded.
130 (1992)1W.L.R 874,(1992)3ALL E.R 38
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It was said that the question to be determined was not whether an article is inherently likely to cause prejudice, but whether in the particular case, there had been created a substantial risk that the course of justice would be seriously impeded or prejudice. The publication of the fact that one unidentified defendant was involved in a separate trial in the Isle of man gave rise to no significant practical risk of engendering bias un a juror of ordinary good sense.
Equally in the case of Attorney-General v MGN Ltd131, the Divisional Court was considering an application to commit a newspaper for breaching the strict liability rule by publishing an article about pending criminal proceedings before a jury. Schiemann LJ summarised the principles governing the assessment of the risk of prejudice in the application of the strict liability rule, thus:-
“….The court will look at each publication separately and test matters as at the time of publication; nevertheless, the mere fact that, by reason of earlier publications, there is already some risk of prejudice does not prevent a finding that the latest publication has created a further risk……The publication in question must create some risk that the course of justice in the proceedings in question will be impeded or prejudiced by that publication…. ”
While other provisions on strict liability in the Contempt of Court Act No.46 of 2016 Laws of Kenya, appear to draw on UK law, Sections 10(1) and 11(1) (a) appear distinct. The UK law presents a different threshold for strict liability: it applies only to such a publications or communications “which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”. Together these two aspects or “benchmarks” … make up one test which must do two things: it must help ensure adequate protection for defendants’ fair trial rights, whilst also being the minimum interference necessary with the right to freedom of expression. The standard specified is commendable in the UK because it is higher – i.e. at least of “substantial risk of serious prejudice”, rather than simply “risk” in the ordinary sense – should be the standard followed by section 11(a) as it is higher and more likely to be compliant with freedom of expression standards. Furthermore, reference to conduct that “tends to interfere with the course of justice …” should be amended from the Kenyan Act for reasons indicated above. The benchmark by the UK act on strict liability excludes or minimizes risks which are so trivial. The publication must create some substantial risk that the course of justice in the proceedings in question will be impeded or prejudiced by that publication.
4.1.11. Specific Orders
Section 4(2) of the Contempt of Court Act 1981 gives the court power to make orders postponing publication to avoid substantial risk of prejudice to the administration of justice in those proceedings or in other proceedings that are either pending or imminent.
Section 11 Contempt of Court Act 1981 gives the court the power to make a direction prohibiting the publication of a name or other matter but only where the court has exercised either its inherent or statutory jurisdiction to withhold a name or other matter from the public in the proceedings. The Kenyan Act doesn’t have such a provision and leaves it to the discretion of the Court.
131 1 [1977] 1 All ER 456.
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4.1.12. Punishment and sanctions
The principal sanctions for contempt of court are imprisonment, fine, and seizure of the contemnor’s goods under a writ of sequestration. On an application to commit, the court may imprison or fine the contemnor. The court also has power to bind over a contemnor to be of good behaviour, to grant an injunction restraining the repetition of the contempt and to penalize the contemnor with an order to pay the costs of the committal proceedings. However, damages are not available to compensate for a contempt of court.
There is no statutory limit to the amount of a fine unless it is imposed by an inferior court, in which case it is £2,500 or sentenced to a maximum of one month sunder Section 14(2) Contempt of Court Act 1981. If a fine is the appropriate punishment it is wrong to impose a custodial sentence because the contemnor is unable to pay the fine. The court may also order that a person gives security for good behaviour under Civil Procedure Rules (CPR) 81.2(2)).
A writ of sequestration against the property of the contemnor under Civil Procedure Rules (CPR 81.20(1)), which appoints enforcement officers to enter the contemnor's property and take possession of their real and personal estate and to collect and receive rents and profits from the contemnor's real and personal estate.
A custodial sentence must be for a fixed term and the maximum is two years under Section 14(1) Contempt of Court Act 1981.
Section 18 of the Criminal Procedure and Investigations Act 1996 creates a contempt of court where a person knowingly uses or discloses an object or information contained in it if the use or disclosure contravenes section 17. The magistrates' court may commit a person guilty of this contempt to prison for a maximum of 6 months, or impose a fine that does not exceed £5000 or both. The Crown Court may commit to custody for a maximum of 2 years or impose an unlimited fine or both.
Section 14(1) of the Contempt Act 1981 provides that;
“In any case where a court has power to commit a person to prison for contempt of court, no limitation applies to the period of committa ,the committal shall be for a fixed term and that term shall not on any occasion exceed 2 years in the case of committal by a superior court, or one month in the case of committal by an inferior court.
In Allason.vs.Random (UK)Ltd No.2)132Neuberger.J, referred to the dual aspect of the contempt jurisdiction ,and decided to give priority to coercion over punishment, because it would be more satisfactory from the applicants point of view that the disclosure orders be obeyed. A copyright claim had been dismissed and costs ordered against the claimant. Owing to concerns about his ability to meet costs, he was ordered to disclose his financial position and that of his service company property interests. Not only was there unjustifiable delay in compliance, but he also failed to give full disclosure. Nevertheless, he was given a final opportunity to comply.
132 [2002]EWHC 1030,[200] All E.R.158
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It has been suggested that the Court should bear in mind the desirability of keeping offenders, and particularly first-time offenders, out of prison. In November 2017 in Official Receiver v. Brown133 Mr. Brown was a bankrupt who was found guilty of contempt of court for failures to comply with obligations under the Insolvency Act 1986, including failing to provide a statement of affairs to the Official Receiver (the “OR”) (s.288), failing to deliver possession of his estate and all books and records to the OR (s.291) and otherwise failing to provide information to the OR/his trustee in bankruptcy (s.333). Mr Brown persistently refused to accept the validity of court orders concerning the bankruptcy, he didn’t purge his contempt, he only cooperated at a late stage and there was little mitigation The Judge said that "in line with general sentencing principles, if the appropriate period of imprisonment under consideration is 12 months or less, the court should further consider whether a shorter term will sufficiently meet the sentencing objectives, especially if the contemnor has not previously experienced imprisonment". In that case, the Judge reduced a term of 12 months by 4 months expressly in recognition of the fact that Mr Brown had not previously experienced prison.
4.1.13. Guidance as to nature and length of custodial penalty
An attempt was made in R.v.Montgomery134,to give guidance as to the principles which should be followed in sentencing for contempt of court.
i) An immediate term of imprisonment is the only appropriate sentence to impose on a person who interferes with the administration of justice unless the circumstances are wholly exceptional ii) Whether the claimant has been prejudiced by the contempt, and whether the prejudice is capable of remedy iii) The extent to which the contemnor has acted under pressure or was placed in breach by reason of the conduct of others, iv) Whether the breach of the order was deliberate or unintentional, v) The degree of culpability, vi) Whether the contemnor appreciated the seriousness of the breach, vii) Whether the contemnor has cooperated or apologised, viii) Whether the contemnor has admitted his contempt and has entered the equivalent of a guilty plea. By analogy with sentencing in criminal cases, the earlier the admission is made, the more credit the contemnor is entitled to be given, ix) The contemnor's previous good character and antecedents, x) Any personal mitigation advanced on his or her behalf.
In Universal Business Team PTY Ltd v Lawrence Moffitt135 Mr Moffitt had obstructed the Claimant’s attempts to enforce a Search Order which resulted in two further court orders being made. The Claimant alleged that the defendant was guilty of thirteen contempts of court, and the defendant pleaded guilty to the majority of these contempts, including failing to permit entry to the defendant’s premises, failing to deliver up items and to provide information ordered, Tweeting
133 [2017] AER (D) 97 (Nov), 134 (1995)2ALL E.R.28 135 (December 2017)
76 in breach of the Search Order, failing to permit execution of the Search Order and deliberately destroying evidence. The Judge said that although imprisonment was always a punishment of last resort, in this case it was the only option; a failure to obey a search order had to be sanctioned. The Judge imposed a custodial sentence of fourteen months.
In Patel v Patel and others136 four defendants faced committal proceedings for bringing a fraudulent claim relating to what was found to be a forged will (first defendant) and giving false evidence to the Court by way of statements of case, witness statements, affidavits and oral testimony (all 4 defendants). The Judge said: "in any proceedings of whatever sort, be they civil or criminal, putting false evidence knowingly before the court is capable of undermining the integrity of the court process and is extraordinarily serious.” In mitigation the second, third and fourth defendants expressed profound regret at their actions, acknowledged their guilt shortly after changing legal advisers, and gave evidence of the serious impact on them of the committal proceedings and their own difficult personal circumstances. The first defendant was held to be “the architect of a dishonest scheme to mislead the court”. He brought the fraudulent claim, he was held to have forged a will, he coerced the other defendants to lie to the court, he tried to postpone the committal hearing and he did not take an early opportunity to acknowledge his guilt. The second, third and fourth defendants were each sentenced to three months in prison, suspended for twelve months. The first defendant was sentenced to twelve months in prison, to be served immediately. Mr Justice Norris said back in 2015 “A contempt of court is not a wrong done to another party to the litigation. It is an affront to the rule of law itself and to the court". The message being given by the Court is loud and clear – if you breach orders of the Court you do so at your peril and you face imprisonment for doing so. To have the best chance of defeating a Committal Application or to minimise the sanctions likely to be imposed by the Court, it is crucial that a defendant seeks legal advice at an early stage in the committal proceedings. If the defendant is not able to fund legal representation he/she should apply for publicly funded representation expeditiously.
Sections 28 and 29(1) of the Contempt of Court Act of Kenya provide for punishment. Punishment is specific and individual to attaining that protective outcome and is no more intrusive than other instruments capable of achieving the same limited result. The Act should be amended to make a distinction so that only the superior courts are enabled to impose the current maximum penalties for contempt of court of six months imprisonment and/or a fine not exceeding Kshs.200,000 shillings. The subordinate courts should only be able to impose a prison sentence of up to one month (as in the UK) and/or a fine not exceeding Kshs.25,000 shillings. The Act should be amended to make that distinction so that only the superior courts are enabled to impose the current maximum penalties for contempt of court of six months imprisonment and/or a fine not exceeding Kshs.200,000 shillings. This is because according to the Act superior courts of record have more extensive contempt powers than inferior Courts, superior courts can punish contempt whether committed in or outside the court whereas inferior courts can only punish contempt committed in the face of court.
136 [2017] EWHC 3229 (Ch)
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4.1.14. Relating a sentence for contempt to other penalties imposed
For a sentencing in criminal proceedings is kept separately for considerations applying to any contempt occurring in the face of the court given the appropriate sentence for the primary offence for which the award is before the court. In R.vs.Aston137,Lord Goddard C.J. emphasized that any insulting comments should not have the effect of increasing a sentence for the main offence, but should be dealt with, if appropriate, by the imposition of a separate penalty.
4.1.15. Privilege
Privilege from arrest and imprisonment is pleaded successfully only where the contemnor was arrested in respect of a civil contempt, and only then if the court was satisfied that the order sought to be executed was purely coercive in nature, rather than punitive or disciplinary.
4.1.16. Waiver
A civil contempt might sometimes be waived by the party for whose benefit the order was made, but only if there was no public interest element such as justify intervention for the purpose of vindicating the authority of the court (either of the court’s own motion or at the instance of the Attorney General).However, a criminal contempt cannot be waived by the party adversely affected.
In conclusion, discussion has highlighted the practice in the UK and analyzed the Contempt of Court Act of 1981 in comparison with the Contempt of Act Kenya. It has emerged that an attempt was made in the 1981 Act to reconcile the public interest in ensuring, so far as possible, that citizens are able to have a fair trial and permitting freedom of communication on the other hand. The Act intended to resolve these tensions definitively by the strict liability framework.UK has also successfully interrelated traditional common law with statutory rules in contempt of court.
4.2. United States of America
Under the United States jurisprudence, acts of contempt are divided into direct or indirect and civil or criminal. Direct contempt is that which occurs in the presence of the presiding judge (in facie curiae) and may be dealt with summarily, the judge notifies the offending party that he or she has acted in a manner which disrupts the Court and prejudices the administration of justice. After giving the person the opportunity to respond, the judge may impose the sanction immediately. The relevant statues include Federal Rule of Criminal Procedure and United States Code.
Indirect contempt occurs outside the immediate presence of the court and consists of disobedience of a court's prior order. Generally a party will be accused of indirect contempt by the party for whose benefit the order was entered. A person cited for indirect contempt is entitled to notice of the charge and an opportunity for hearing of the evidence of contempt and, since there is no written procedure, may or may not be allowed to present evidence in rebuttal.
137 (1948)W.N.522
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Contempt of court in a civil suit is generally not considered to be a criminal offense, with the party benefiting from the order also holding responsibility for the enforcement of the order. However, some cases of civil contempt have been perceived as intending to harm the reputation of the plaintiff, or to a lesser degree, the judge or the court.
Sanctions for contempt may be criminal or civil. If a person is to be punished criminally, then the contempt must be proven beyond a reasonable doubt, but once the charge is proven, then punishment (such as a fine or, in more serious cases, imprisonment) is imposed unconditionally. The civil sanction for contempt (which is typically incarceration in the custody of the sheriff or similar court officer) is limited in its imposition for so long as the disobedience to the court's order continues: once the party complies with the court's order, the sanction is lifted. The imposed party is said to "hold the keys" to his or her own cell, thus conventional due process is not required. The burden of proof for civil contempt, however, is a preponderance of the evidence, and theoretically punitive sanctions (punishment) can only be imposed after due process but the due process is unpublished.
Civil contempt is only appropriate when the imposed party has the power to comply with the underlying order. Contempt of court is considered a prerogative of the court, and "the requirement of a jury does not apply to 'contempt’s committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.
Additionally, if the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order.
In contrast with the purpose of a civil contempt sanction, the purpose of a criminal contempt sanction (e.g., an unconditional and determinate period of imprisonment or a fixed monetary fine) is to punish the contemnor and vindicate the authority of the court. Consequently, criminal contempt is punitive in character.
In Kenya, the Contempt of Court Act has attempted to divided contempt of court into direct or indirect and civil or criminal. Section 6 of the Act provides that subordinate courts have power to punish for contempt committed on the face of the Court(direct). Section 5(b) (c) provides that superior courts have power to punish for contempt of court and uphold the dignity and authority of subordinate courts thus for both direct and indirect contempt of court).
Section 4 of the Act defines civil contempt is the willful disobedience of any judgment decree direction, order or other process of a court or willful breach of an undertaking given to a court and criminal contempt as publication whether by words, spoken or written or the doing of any other act which scandalizes or tends to scandalize or lowers judicial authority, prejudices or tends to interfere with due course of any judicial proceedings or interferes or tends to interfere with administration of justice. However, unlike the USA, Kenya doesn’t draw a distinction on the punishment of civil and criminal contempt of court and both carry the same sentence. Further, the distinction between criminal and civil contempt is one of the most confusing
79 and problematic areas of contempt jurisprudence. Some of this confusion results from the fact that criminal contempt can occur in either a criminal or civil proceeding, just as civil contempt can occur in either a criminal or civil proceeding. Moreover, single acts of contempt can result in both criminal and civil contempt sanctions in some cases. That’s why contempt of court is considered to be quasi-criminal in nature.
4.2.1: Punishment for contempt
In civil contempt cases there is no principle of proportionality. In Chadwick v. Janecka138, a U.S. court of appeals held that H. Beatty Chadwick could be held indefinitely under federal law, for his failure to produce US$2.5 million as state court ordered in a civil trial. Chadwick had been imprisoned for nine years at that time and continued to be held in prison until 2009, when a state court set him free after 14 years, making his imprisonment the longest on a contempt charge to date.
Similarly, individuals who have refused to provide courts with information have been held in jail sometimes for years under contempt charges. In Maryland, a woman involved in a custody battle with her ex-husband refused to reveal the whereabouts of her child. Elizabeth Morgan spent 25 months in jail before her ex-husband dropped the custody case and it was revealed that the child was staying with Morgan's parents in New Zealand. Journalist Myron Farber of the New York Times spent more than three years in jail for refusing to turn over notes that prosecutors sought for a murder trial139.
This is a clear distinction from the Kenyan perspective because the Contempt of Court Act No.46 of 2016 under sections 28 & 29 provide for punishment and sets a limit to either fine of Kshs.200,000 or a sentence of six months imprisonment. This is not a deterrent when the contemnor has the means to pay the fine. Kenya should follow the USA context to punish the contemnor until he complies with the Court Orders. The practices of indefinite jail term is more efficient and reliable because the contemnor "carries the keys to his prison in his own pocket" and can be released by complying with the court.
Sanctions in the USA for contempt may be criminal or civil. If a person is to be punished criminally, then the contempt must be proven beyond reasonable doubt, but once the charge is proven, then punishment such as fine or in more serious cases, imprisonment is imposed unconditionally. The civil sanction for contempt which is typically in.carceration in the custody of the sheriff or similar court officer is limited in its imposition for so long as the disobedience to the Courts order continues; once the party complies with the Court’s Order, the sanction lifted. The imposed party is said to hold the keys to his own cell thus conventional due process is not required. This is a clear distinction from the Kenyan perspective because the Contempt of Court Act No.46 of 2016 under sections 28&29 provide for punishment and sets a limit to either fine of Kshs.200,000/= or a sentence of six months imprisonment. This is not a deterrent when the contemnor has the means to pay the fine. Kenya should follow the USA context to punish the contemnor until for so long as the disobedience to the Courts order continues; once the party complies with the Court’s Order, the sanction lifted.
138 3d Cir.2002 139 (In re Nevitt, 117 F. 448 [8th Cir. 1902]).
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Contempt of court is considered a prerogative of the court and the requirement of a jury does not apply to contempt committed in disobedience of any lawful writ, process, order, rule, decree, or command or prosecuted in the name of or on behalf of the United States. Equally in Kenya, contempt of Court is considered a prerogative of the court and the trial is done in a summary manner.
4.2.2. Inherent Power
The nature of the contempt power was described by Justice Field, writing for the Court in Ex parte Robinson, sustaining the act of 1831: “The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.” Expressing doubts concerning the validity of the act as to the Supreme Court, he declared, however, that there could be no question of its validity as applied to the lower courts on the ground that they are created by Congress and that their “powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction.” With the passage of time, later adjudications, especially after 1890, came to place more emphasis on the inherent power of courts to punish contempts than upon the power of Congress to regulate summary attachment.
By 1911, the Court was saying that the contempt power must be exercised by a court without referring the issues of fact or law to another tribunal or to a jury in the same tribunal.140 In Michaelson v. United States141,the Court intentionally placed a narrow interpretation upon those sections of the Clayton Act142 relating to punishment for contempt of court by disobedience of injunctions in labor disputes. The sections in question provided for a jury upon the demand of the accused in contempt cases in which the acts committed in violation of district court orders also constituted a crime under the laws of the United States or of those of the state where they were committed. Although Justice Sutherland reaffirmed earlier rulings establishing the authority of Congress to regulate the contempt power, he went on to qualify this authority and declared that “the attributes which inhere in the power [to punish contempt] and are inseparable from it can neither be abrogated nor rendered practically inoperative.” The Court mentioned specifically “the power to deal summarily with contempt committed in the presence of the courts or so near thereto as to obstruct the administration of justice,” and the power to enforce mandatory decrees by coercive means.143This latter power, to enforce, the Court has held, includes the authority to appoint private counsel to prosecute a criminal contempt.
In the case of Young v. United States ex rel. Vuitton144. However, the Court, invoking its supervisory power, instructed the lower federal courts first to request the United States Attorney to prosecute a criminal contempt and only if refused should they appoint a private lawyer. Still
140Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). See also In re Debs, 141 266 U.S. 42 (1924). 142 38 Stat. 730, 738 (1914). 143 266 U.S. at 65–66. See Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts: A Study in Separation of Powers, 37 HARV. L. REV. 1010 (1924 144 481 U.S. 787, 793–801 (1987
81 using its supervisory power, the Court held that the district court had erred in appointing counsel for a party that was the beneficiary of the court order; disinterested counsel had to be appointed. Justice Scalia contended that the power to prosecute is not comprehended within Article III judicial power and that federal judges had no power, inherent or otherwise, to initiate a prosecution for contempt or to appoint counsel to pursue it.
In the case of United States v. Providence Journal Co145., which involved the appointment of a disinterested private attorney. The Supreme Court dismissed the writ of certiorari after granting it, however, holding that only the Solicitor General representing the United States could bring the petition to the Court.
Although the contempt power may be inherent, it is not unlimited. In Spallone v. United States146,the Court held that a district court had abused its discretion by imposing contempt sanctions on individual members of a city council for refusing to vote to implement a consent decree remedying housing discrimination by the city. The proper remedy, the Court indicated, was to proceed first with contempt sanctions against the city, and only if that course failed should it proceed against the council members individually.
In Kenya, the Court has inherent power to deal summarily with contempt committed in the presence of the courts or so near thereto as to obstruct the administration of justice,” and the power to enforce mandatory decrees by coercive means. Although the trial judge may summarily and without notice or hearing punish contemptuous conduct committed in his presence and observed by him, he must afford the alleged contemnor at least reasonable notice of the specific charge and opportunity to be heard in his own defense.
4.2.3. Summary trial
The summary power of the courts of the United States to punish contempts of their authority had its origin in the law and practice of England where disobedience of court orders was regarded as contempt of the King himself and attachment was a prerogative process derived from presumed contempt of the sovereign. By the latter part of the eighteenth century, summary power to punish was extended to all contempts whether committed in or out of court.147 In the United States, the Judiciary Act of 1789 conferred power on all courts of the United States “to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.” The only limitation placed on this power was that summary attachment was made a negation of all other modes of punishment. The abuse of this extensive power led, following the unsuccessful impeachment of Judge James H. Peck of the Federal District Court of Missouri, to the passage of the Act of 1831 limiting the power of the federal courts to punish contempts to misbehavior in the presence of the courts, “or so near thereto as to obstruct the
145 485 U.S. 693 (1988), 146 493 U.S. 265 (1990). The decision was an exercise of the Court’s supervisory power. Id. at 276. Four Justices dissented. Id. at 281. 147 Fox, The Summary Power to Punish Contempt, 25 L.Q. REV. 238, 252 (1909).
82 administration of justice,” to the misbehavior of officers of courts in their official capacity, and to disobedience or resistance to any lawful writ, process or order of the court. 148
Misbehavior in the course of a trial may be punished summarily by the trial judge. In Ex parte Terry149, the Court denied habeas corpus relief to a litigant who had been jailed for assaulting a United States marshal in the presence of the court. In Cooke v. United States,150 however, the Court remanded for further proceedings a judgment jailing an attorney and his client for presenting the judge a letter which impugned his impartiality with respect to their case, still pending before him. Distinguishing the case from that of Terry, Chief Justice Taft, speaking for the unanimous Court, said: “The important distinction . . . is that this contempt was not in open court. . . . To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law.”
As to the timeliness of summary punishment, the Court, in Sacher v. United States,151at first construed Rule 42(a) of the Federal Rules of Criminal Procedure, which was designed to afford judges clearer guidelines as to the exercise of their contempt power, to allow “the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.” Subsequently, however, interpreting the Due Process Clause and thus binding both federal and state courts, the Court held that, although the trial judge may summarily and without notice or hearing punish contemptuous conduct committed in his presence and observed by him, if he does choose to wait until the conclusion of the proceeding, he must afford the alleged contemnor at least reasonable notice of the specific charge and opportunity to be heard in his own defense. Apparently, a “full scale trial” is not contemplated.
In the case of Taylor v. Hayes152, In a companion case, the Court observed that, although its rule conceivably encourages a trial judge to proceed immediately rather than awaiting a calmer moment, “summary convictions during trials that are unwarranted by the facts will not be invulnerable to appellate review.”
Curbing the judge’s power to consider conduct as occurring in his presence, the Court, in Harris v. United States,153 held that summary contempt proceedings in aid of a grand jury probe, achieved through swearing the witness and repeating the grand jury’s questions in the presence of the judge,
148 18 U.S.C. § 401. For a summary of the Peck impeachment and the background of the act of 1831, see Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts: A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1024–1028 (1924). 149 128 U.S. 289 (1888). 150 267 U.S. 517 (1925). 151 343 U.S. 1 (1952). 152 418 U.S. 488 (1974). 153 382 U.S.162(1965)
83 did not constitute contempt “in the actual presence of the court” for purposes of Rule 42(a); rather, the absence of a disturbance in the court’s proceedings or of the need to immediately vindicate the court’s authority makes the witness’ refusal to testify an offense punishable only after notice and a hearing. Moreover, when it is not clear that the judge was fully aware of the contemptuous behavior when it occurred, notwithstanding the fact that it occurred during the trial, “a fair hearing would entail the opportunity to show that the version of the event related to the judge was inaccurate, misleading, or incomplete.”
In Kenya, the Court has inherent power to deal summarily with contempt committed in the presence of the courts or so near thereto as to obstruct the administration of justice,” and the power to enforce mandatory decrees by coercive means. Although the trial judge may summarily and without notice or hearing punish contemptuous conduct committed in his presence and observed by him, he must afford the alleged contemnor at least reasonable notice of the specific charge and opportunity to be heard in his own defense.
4.2.4. Contempt by media
(First Amendment Limitations on the Contempt Power)
The phrase, “in the presence of the Court or so near thereto as to obstruct the administration of justice,” was interpreted so broadly in Toledo Newspaper Co. v. United States154as to uphold the action of a district court judge in punishing a newspaper for contempt for publishing spirited editorials and cartoons issues raised in an action challenging a street railway’s rates. A majority of the Court held that the test to be applied in determining the obstruction of the administration of justice is not the actual obstruction resulting from an act, but “the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty.” Similarly, the test whether a particular act is an attempt to influence or intimidate a court is not the influence exerted upon the mind of a particular judge but “the reasonable tendency of the acts done to influence or bring about the baleful result . . . without reference to the consideration of how far they may have been without influence in a particular case.” In Craig v. Hecht,155 these criteria were applied to sustain the imprisonment of the comptroller of New York City for writing and publishing a letter to a public service commissioner criticizing the action of a United States district judge in receivership proceedings.
The decision in Toledo Newspaper, however, did not follow earlier decisions interpreting the act of 1831 and was grounded on historical error. For these reasons, it was reversed in Nye v. United States,156 and the theory of constructive contempt based on the “reasonable tendency” rule was rejected. The defendants in the civil suit, by persuasion and the use of liquor, had induced a plaintiff feeble in mind and body to ask for dismissal of the suit he had brought against them. The events in the episode occurred more than 100 miles from where the court was sitting and were held not to put the persons responsible for them in contempt of court. Although Nye v. United States was exclusively a case of statutory construction, it was significant from a constitutional point of view because its reasoning was contrary to that of earlier cases narrowly construing the act of 1831 and
154 247 U.S. 402 (1918). 155 263 U.S. 255 (1923). 156 313 U.S. 33, 47–53 (1941).
84 asserting broad inherent powers of courts to punish contempts independently of, and contrary to, congressional regulation of this power. Bridges v. California157 was noteworthy for the dictum of the majority that the contempt power of all courts, federal as well as state, is limited by the guaranty of the First Amendment against interference with freedom of speech or of the press.
A series of cases involving highly publicized trials and much news media attention and exploitation, however, caused the Court to suggest that the contempt and other powers of trial courts should be used to stem the flow of publicity before it can taint a trial. In the case of Wood v. Georgia158, further clarifying the limitations imposed by the First Amendment upon this judicial power and delineating the requisite serious degree of harm to the administration of law necessary to justify exercise of the contempt power to punish the publisher of an out-of-court statement attacking a charge to the grand jury, absent any showing of actual interference with the activities of the grand jury. It is now clearly established that courtroom conduct to be punishable as contempt “must constitute an imminent, not merely a likely, threat to the administration of justice.
Thus, Justice Clark, speaking for the majority in Sheppard v. Maxwell,159wrote, “If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. . . . Neither prosecutors, counsel for defense, the accused, witness, court staff nor law enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.” Though the regulation the Justice had in mind was presumably to be of the parties and related persons rather than of the press, the potential for conflict with the First Amendment is obvious, as well as is the necessity for protection of the equally important right to a fair trial.
Unlike in Kenya, in the United States because of the broad protection granted by the First Amendment with extremely limited exceptions, unless the media outlet is a party to the case, a media outlet cannot be found in contempt of court for reporting about a case or forbid it from reporting facts discovered publicly. Section 9(c) of the Contempt of Court Act of Kenya should be amended to follow the American context and not require that a publication is a “substantially accurate report” but state that it simply needs to have an “accurate factual basis” in order for it to have a defense from an allegation of contempt.
4.2.5. Discretion of the Courts
The discretion permitted to judges in determining what contempt is and how to punish, has led some legal scholars in the USA to argue that the contempt power gives too much authority to judges. Earl C. Dudley, University of Virginia law professor, wrote that in the contempt power, "the roles of victim, prosecutor and judge are dangerously commingled."
157 314 U.S. 252, 260 (1941). 158 370 U.S. 375 (1962) 159 384 U.S. 333, 363 (1966).
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Equally Supreme Court Justice Hugo Black160 wrote in a dissent, “It is high time, in my Judgment, to wipe out root and branch the Judge-invented and Judge-maintained notion that Judges can try criminal contempt cases without a Jury.
Since the judge has discretion to control the courtroom, contempt citations are generally not appealable unless the amount of fine or jail time is excessive. "Criminal contempt" involves contempt with the aim of obstruction of justice, such as threatening a judge or witness or disobeying an order to produce evidence.
Much of the criticism focuses on the lack of restraint or due process in determining punishments for contempt. In criminal contempt, the contempt charges become a separate matter, but they may be heard by the judge who made them. In addition, the same judge may commence punishment immediately, and the punishment may be in effect until the contempt case is settled. Critics have argued that judges who are the principal offended party may be too harsh. For instance, in 1994, the U.S. Supreme Court overturned a decision by a Virginia judge who had fined the United Mine Workers of America $52 million in connection with violence that occurred during a 1989 strike. The High Court stated that the fines were excessive and improperly imposed because the union had never had a chance to defend itself in a trial before the fines were imposed.
4.2.6. Right to Jury Trial
Originally, the right to a jury trial was not available in criminal contempt cases. But the Court held in Cheff v. Schnackenberg,161that a defendant is entitled to trial by jury when the punishment in a criminal contempt case in federal court is more than the sentence for a petty offense, traditionally six months. Although the ruling was made pursuant to the Supreme Court’s supervisory powers and was thus inapplicable to state courts and presumably subject to legislative revision, two years later the Court held that the Constitution also requires jury trials in criminal contempt cases in which the offense was more than a petty one. Whether an offense is petty or not is determined by the maximum sentence authorized by the legislature or, in the absence of a statute, by the sentence actually imposed. Again the Court drew the line between petty offenses and more serious ones at six months’ imprisonment. Although this case involved an indirect criminal contempt (willful petitioning to admit to probate a will known to be falsely prepared) the majority in dictum indicated that even in cases of direct contempt a jury will be required in appropriate instances. “When a serious contempt is at issue, considerations of efficiency must give way to the more fundamental interest of ensuring the even-handed exercise of judicial power.” Presumably, there is no equivalent right to a jury trial in civil contempt cases, although one could spend much more time in jail pursuant to a judgment of civil contempt than one could for most criminal contempt. The Court has, however, expanded the right to jury trials in federal civil cases on non-constitutional grounds.
160 United States –vs-Barnett,376 U.S 681 161 384 U.S. 373 (1966).
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4.2.7. Impartial Court
In Cooke v. United States,162 Chief Justice Taft uttered some cautionary words to guide trial judges in the use of their contempt powers. “The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.”
Sacher v. United States163, grew out of a tempestuous trial of eleven Communist Party leaders in which Sacher and others were counsel for the defense. Upon the conviction of the defendants, the trial judge at once found counsel guilty of criminal contempt and imposed jail terms of up to six months. At issue directly was whether the contempt charged was one that the judge was authorized to determine for himself or whether it was one that under Rule 42(b) could be passed upon only by another judge and only after notice and hearing, but behind this issue loomed the applicability and nature of due process requirements, in particular whether the defense attorneys were constitutionally entitled to trial before a different judge. A divided Court affirmed most of the convictions, set aside others, and denied that due process required a hearing before a different judge. “We hold that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion, he may do so without extinguishing his power……..We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar’s reluctance to appear for them rather more than fear of contempt. But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyer’s calling”.
162 267 U.S. 517, 539 (1925). 163348 U.S. 11 (1954).
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In Offutt v. United States164, acting under its supervisory powers over the lower federal courts, the Court set aside a criminal contempt conviction imposed on a lawyer after a trial marked by highly personal recriminations between the trial judge and the lawyer. In a situation in which the record revealed that the contumacious conduct was the product of both lack of self-restraint on the part of the contemnor and a reaction to the excessive zeal and personal animosity of the trial judge, the majority felt that any contempt trial must be held before another judge. This holding, that when a judge becomes personally embroiled in the controversy with an accused he must defer trial of his contempt citation to another judge, which was founded on the Court’s supervisory powers, was constitutionalized in Mayberry v .Pennsylvania,165 in which a defendant acting as his own counsel engaged in quite personal abuse of the trial judge. The Court appeared to leave open the option of the trial judge to act immediately and summarily to quell contempt by citing and convicting an offender, thus empowering the judge to keep the trial going, but if he should wait until the conclusion of the trial he must defer to another judge.
In Kenya there isn’t a precedent where a Judge has deferred a contempt to another Judge. However it is a good practice as espoused from the American practice that in the absence of a personal attack on a judge that would tend to impair his detachment, the judge may still be required to excuse himself and turn a citation for contempt over to another judge if the response to the alleged misconduct in his courtroom partakes of the character of “marked personal feelings” being abraded on both sides, so that it is likely the judge has felt a “sting” sufficient to impair his objectivity.
4.2.8. Contempt by Disobedience of Orders
Disobedience of injunctive orders and other orders, has been a fruitful source of cases dealing with contempt of court. In United States v. United Mine Workers166,the Court held, first, that disobedience of a temporary restraining order issued for the purpose of maintaining existing conditions, pending the determination of the court’s jurisdiction, is punishable as criminal contempt where the issue is not frivolous, but substantial. Second, the Court held that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings, even though the statute under which the order is issued is unconstitutional. Third, that violations of a court’s order are punishable as criminal contempt, even if the order is set aside on appeal as in excess of the court’s jurisdiction and even if the basic action has become moot. Finally, the Court held that conduct can amount to both civil and criminal contempt, and the same acts may justify a court in resorting to coercive and punitive measures, which may be imposed in a single proceeding.
Kenya the Act limits the punishment to either imprisonment for 6 months of a fine not exceeding Kshs.200,000/=, an American practice should be adopted where the contemnor is punished until either the contempt is purged or the Order is set aside.
In conclusion, the law of contempt in the U.S.A is very elaborate and isn’t open to abuse by the Courts, it draws the distinction between direct and indirect contempt. The law in the U.S.A also
164 400 U.S. 455 (1971 165 400 U.S. at 463 166 330 U.S. 258 (1947).
88 guards and/or limits summary trial of contempt cases and also protects journalists. Most importantly, the practice in the U.S.A of indirect(civil) contempt is that the contemnor is held in custody until he/she purges the contempt, this is deterrent and Kenya has a lot to learn from the United States of Ameica.
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CHAPTER FIVE
5.0 Conclusions and Recommendations
5.1 Conclusion From the study, it has emerged that prior to the enactment of the Contempt of Court Act No.46 of 2016, contempt of court proceedings were characterized by many technicalities like the insistence on personal service of court orders upon the contemnor informing them of the penalties if they default in complying with the same, absence of an affidavit of service of the order rendered the service of no effect, mere knowledge of all terms and directions of the Court was not enough for the purposes of contempt, and the consequences of contempt being penal applying had to show that he himself has complied with the procedural requirement. The study has examined the provisions of the Contempt of Court Act No.46 of 2016. It is quite clear that the Contempt of Court Act, 2016, is the right step in the right direction. The Act has attempted to fill gaps that had always existed in the Kenyan law and which courts had lamented about. However, the Act has several shortcomings as fully discussed in chapter 3 of the study. The Act has not adequately addressed the procedural technicalities that existed in the previous legal regimes, the Act leaves it to the Chief Justice under Section 37 of the Act to make rules for the better carrying out of the purposes of the Act. Before the enactment of the Act, section 5 of the Judicature Act imported the procedure for contempt of court followed by the High Court of Justice in England. Whereas the said section was deleted by section 38 of the Act, the rules contemplated by section 37 have not yet been promulgated which leaves a lacuna in the Law. The said procedure that existed prior to the enactment of the Act are the ones still applicable. 5.2 Recommendations Based on the above key findings and conclusions, lets proceed to make the following specific recommendations on how the law of Contempt of Court Act, 2016, can be reformed. 5.2.1. Need for enhanced sanctions for state and public officers The Act does not provide for the special sanctions for state and public officers who are found to be in contempt of court and has treated all contemnors equally. The Act needs to be amended to give the Court powers to declare a state or public officer unsuitable to hold state or public office. This should be in addition to any other sanction the court may impose. The basis of this is that such an officer has violated national values and principles by disobeying a court order. Section 30 of the Act provides for culpability of accounting officers in relation to an undertaking given to court by a State organ, Government Department, Ministry or a Corporation and extends such liability to all other kinds of contempt by an accounting officer of a State organ, Government Department, Ministry or Corporation. However, this applies where it is proved that such an officer consented to, connived or was negligent of the contempt of court. However, the application for committal is to be made with leave of court. This requirement for leave is retrogressive and complicates the procedure for institution of contempt against and should be removed.
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5.2.3 Need for a simplified rules of procedure for contempt of court Section 37 of the Contempt of Court Act 2016 gives the Chief Justice power to make rules for the better carrying into effect of the purpose of the Act. Firstly, it is suggested that due to their importance, the rules should be proposed to be made by a rules committee akin to the one under the Civil Procedure Act. This will enable participation of other stakeholders like the practicing advocates who are involved in daily litigation in this important area of law. Secondly, it is recommended that those rules should be made in line with the rules currently applicable in England and should be in line with Article 159(2) of the Constitution that obliges the court to dispense justice without undue regard to procedural technicalities and also without delay. 5.2.4 Need to activate lines of political accountability in civil contempt of court applications It is recommended that apart from allowing service upon the Attorney- General or substituted service of court orders against state and public officers, courts should also order that the order be served on the superiors of the officer concerned. The superiors to be served should be determined by the particular cadre of the officer concerned but is suggested that the superior should be the appointing authority. The purpose of such service is to bring to the attention of the superior of the disobedience of the order so that he or she can take an action. The basis of this is that the superior has also sworn an oath to defend the Constitution under Article 73. It is therefore expected that the superior will exert pressure on the junior to comply with the order. By so doing, the court will have activated the lines of political responsibility. It will also assist in cases where the disobedience of court order persists and the court finally declares the contemnor unfit to hold state and public office as such decision may have to be implemented by the superior or the appointing authority. The power at the discretion of the courts in contempt proceedings is enormous and open to abuse is not in doubt. That being the case, there is great need for caution in the exercise of this jurisdiction by the courts. Since a conviction for contempt of court carries the same effect as any criminal offence, the courts should not be in a hurry to find a conviction for the offence considering the social political and legal implication of such a conviction - most especially where such a conviction is not done by observing every prescribed step of procedure with regards to the offence. Therefore where the function of the courts have to be exercised in summary manner, the judge in dealing with such offence should not proceed other than with the greatest caution. The disability imposed on the subordinate courts ousting their jurisdiction to punish for contempt ex-facie curiae should be reviewed. Section 6 of the Act limits the Magistrates Courts to contempt on the face of Court, yet it’s the Magistrates Courts that handle on a daily basis most of the matters. Therefore denying them jurisdiction to punish for contempt makes a mockery of the essence of the offence of contempt itself. "Magistrates courts" after all are not "inferior" in the doing of justice but in hierarchy and jurisdiction only, therefore anything that is likely to prejudice a fair trial in these courts must also be avoided or made punishable by the inferior courts.
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While the law does not have to be or purport to be comprehensive, it would be preferable if the purpose of the Act was not simply framed in terms of the judiciary. A broader framing for the Act which does not impinge on any other provision can be achieved following the UK model of the Contempt of Court Act 1981 which simply states that it is an Act “to amend the law relating to contempt of court and related matters.”
The objectives of the Act enumerated in Section 3167 are laudable. However, while it is important that the public have confidence in the judicial branch of government, the term “dignity … of the court” should not be interpreted to curtail legitimate speech critical of the court or its judges: the protection of the justice system as a whole and not the protection of individual judges from criticism which should have been the issue for this piece of legislation. Moreover, although the term “dignity of the courts” might be understood, from the perspective of legal principles and terms, “dignity” should not be used to apply to individuals.
Section 3(a) of the Act should state that one of the “overriding objectives of this Act” is to “uphold the authority and impartiality of the court.”
While the courts should be empowered to “deal with intentional threats or insult and misconduct committed with the intention that proceedings will or might be disrupted”, there should be a “sufficiently high threshold of both the mental element and the conduct element” to ensure compliance with freedom of expression.168 There is a danger that Section 5 of the Act being relied upon to curtail the freedom of expression by defense counsels. To avoid the “chilling effect” on defense lawyers’ speech, there should be an exemption and/or considerable latitude introduced into section 5, stating that the provision should not be used with that purpose or for that effect.
The notion of “dignity” of the court should be amended and the Act should have instead focused on “maintaining the authority and impartiality” of the court. However, the major concern with this provision is the inclusion of expression which “scandalizes or tends to scandalize.” This phrase suggests that such forms of expression do not actually need to have the effect of prejudicing or harming the authority or impartiality of the judicial proceedings.
There are other problematic phrases that potentially narrow the scope of defenses which are available to an allegation of contempt of court. Notably, Section 9169(c) of the Act requires that a
167 Section 3 states that the overriding objectives of the Act is to “(a) uphold the dignity and authority of the court; (b) ensure compliance with the directions of the court; (c) ensure the observance and respect of due process of the law; (d) preserve and effective and impartial system of justice; and (e) maintain public confidence in the administration of justice as administered by the court.” 168 Law Commission, Consultation Paper No 209, op.cit., p. 33. 169“(a) “a fair comment on the general working of the court made in good faith in the public interest and in temperate language”; (b) “a fair comment on the merits of a decision of a court made in good faith and in temperate language; (c) “a publication of a fair and substantially accurate report of any judicial proceeding”; (d) “a publication of any matter amounting to contempt of court by reason of its being published during the pendency of judicial proceedings, by a person who had no reasonable grounds to believe that such judicial proceedings were pending at the time of the publication of the matter”; (e) “pertains to distribution of a publication containing any matter amounting to contempt of court by a person who had no reasonable ground to believe that the publication contained or was likely to contain any such matter”;
92 publication is not only fair, but also a “substantially accurate report of any judicial proceeding”, which is different and a higher threshold than having an “accurate factual basis” (as exhaustively discussed in chapter 3.3)
References to “temperate language” should be deleted from Sections 9(a), (b) and (f) as it is ambiguous. “Temperate language” should not be used as a criterion for conduct which will not be considered as contempt of court.
Section 9(c) of the Contempt of Court Act should not require that a publication is a “substantially accurate report” but state that it simply needs to have an “accurate factual basis” in order for it to have a defence from an allegation of contempt.
Section 11(1)(a) of the Contempt of Court Act should be amended to indicate that the strict liability rule applies to publications only and where the publication creates a “substantial risk that the course of justice in relation to the proceedings in question will be seriously impeded or prejudiced”.
Section 18 of the Contempt of Court Act should be amended to simply state that a “publication as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as contempt of court under the strict liability rule”.
Section 17(1) should be amended and remove the requirement of an “accurate report” of judicial proceedings and replace with a requirement of report which has an “accurate factual basis”.
Section 14(1) should be amended to state that it is a defence to publish a report with an “accurate factual basis”, rather than an “accurate report”
In Section 17(1), the requirement of an “accurate report” of judicial proceedings should be removed and replaced with a requirement of report which had an “accurate factual basis.”
Section 19 deals with the use of recording devices.170 While there is nothing that appears to contradict freedom of expression standards in this provision, it is interesting to note that the Act as it is currently drafted does not deal with the contemporaneous matter of possession and use of
(f) “a true averment made in good faith and in temperate language for initiation of action or in the court of disciplinary proceedings against a judge or judicial officer”; (g) “a plea of truth taken up as a defence in any contempt of court charge under this Act or any written law”; (h) “a relevant observation made in judicial capacity such as those by a superior court on an appeal or revision or application for transfer of a case or by a court in judicial proceedings against a judge or a judicial officer”; (i) “a remark made in an administrative capacity by an authority in the course of official business, including a remark connected with a disciplinary inquiry or in an inspection note or a character roll or confidential report”; (j) “pertains to any other matter exempted from constituting a commission of an offence of contempt of court under any other written law.” 170 Section 19(1) provides that an individual “is guilty of contempt if he or she – (a) uses in court any [visual or audio] recording device or instrument for recording proceedings tape recorder or other instrument for recording sound, except with the leave of court; (b) publishes a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or disposes of it or any recording so derived, with a view to such publication; or (c) uses any such recording in contravention of any conditions granted under paragraph (a).” Section 19(4) states that the section “shall not apply to the making or use of sound recordings for the purposes of official transcripts of proceedings.”
93 mobile phones and other internet-enabled devices in court. The Act should be amended to include a provision that deals with possession and use of mobile phones and other internet-enabled devices in court.
Any such restrictions as highlighted above should be for the legitimate aims of protecting fair trial rights and should only be for the period of deliberations. The drafters of the legislation should have considered how to acknowledge the very live issue of the use of internet enabled devices at court, and should have done so in accordance with litigants’ and all other Court users’ rights to freedom of expression as well as privacy.
The Act should be amended to acknowledging the use of internet-enabled devices in court through provisions that respect with litigants’ and all other Court users’ rights to freedom of expression as well as privacy.
It is positive that the Act includes a provision on source protection in Section 20171.This provision is important as journalists routinely depend on contacts outside the media for the supply of information on issues of public interest. Individuals sometimes come forward with secret or sensitive information, relying upon the reporter to convey it to a wide audience in order to stimulate public debate or expose wrongdoing. In many cases, anonymity is the precondition upon which the information is provided to the journalist by the source; this may be motivated by fear of repercussions which might adversely affect their job security or even physical safety. That the media should enjoy a special privilege allowing them not to reveal confidential sources of information unless certain stringent conditions are met has been recognised by international authorities172 and courts. Section 20 should be amended to indicate that a person is not guilty of contempt of court for refusing to disclose a source of information (as exhaustively discussed in chapter 3.6)
Sections 28 and 29(1) of the Contempt of Court Act of Kenya provide for punishment Punishment is specific and individual to attaining that protective outcome and is no more intrusive than other instruments capable of achieving the same limited result. From this perspective, the punishments which are outlined in these sections are too far-reaching, particularly with respect to the powers of the subordinate courts. It is noted that unlike the UK Contempt of Court Act 1981 which provides for different maximum penalties between the magistrates’ court and the Crown Court, the Contempt of Court Act of Kenya makes no distinction between subordinate and superior courts when it comes to maximum penalties.
171 Section 20 states that a person is not guilty of contempt of court for refusing to disclose the source of information contained in a publication for which the person is responsible, unless it is established to the satisfaction of the court that such disclosure is necessary in the interests of justice 172 Recommendation No R (2000) 7 of the Council of Europe Committee of Ministers to member states on the right of journalists not to disclose their sources of information, adopted 8 March 2000.
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Sections 28 and 29(1) of the Contempt of Court Act of Kenya provide for punishment. Punishment is specific and individual to attaining that protective outcome and is no more intrusive than other instruments capable of achieving the same limited result. The Act should be amended to make a distinction so that only the superior courts are enabled to impose the current maximum penalties for contempt of court of six months imprisonment and/or a fine not exceeding Kshs.200,000 shillings. The subordinate courts should only be able to impose a prison sentence of up to one month (as in the UK) and/or a fine not exceeding Kshs.25,000 shillings. The Act should be amended to make that distinction so that only the superior courts are enabled to impose the current maximum penalties for contempt of court of six months imprisonment and/or a fine not exceeding Kshs.200,000 shillings. This is because according to the Act superior courts of record have more extensive contempt powers than inferior Courts, superior courts can punish contempt whether committed in or outside the court whereas inferior courts can only punish contempt committed in the face of court.
Kenya can pick a lesson from the USA as discussed in chapter 4.2. In USA, the civil sanction for contempt which is typically incarceration in the custody of the sheriff or similar court officer is limited in its imposition for so long as the disobedience to the Courts order continues. Once the party complies with the Courts Order, the sanction lifted. The Kenya Contempt of Court Act under sections 28&29 provide for punishment and sets a limit to either fine of Kshs.200,000 or a sentence of six months imprisonment. This is not a deterrent when the contemnor has the means to pay the fine. Kenya should follow the USA context to punish the contemnor until he purges the contempt.
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BIBLIOGRAPHY TEXT BOOKS 1. Halsbury’s Laws of England (4th edn, 1974) Vol 9 2. Halsbury’s Laws of England, (4th edn, 2002 re-issue) Vol 9(1) 3. Barnet H, Constitution and Administrative Law (Cavendish, London 1996) 4. Borrie G, and Nigel Lowe N, The Law of Contempt (4th edn, Butterworths 2010) 5. Breyer S, Making Our Democracy work: a Judge’s View (1st edn, Alfred A. Knopf 2010) 6. Eady D, and A.T. H. Smith A.T.H, Arlidge, Eady & Smith on Contempt (3rd edn, London: Sweet & Maxwell 2005) 7. Miller C.J, Contempt of Court (3rd edn, Oxford University Press, Reprinted 2006) 8. Mugenda O.M, and Mugenda A.G, ‘Research Methods’ ( Acts Press, Revised 2003) 9. Gordon Borrie and Nigel Lowe, The Law of Contempt (4th Edn, Butterworth’s 2010) 129. 10. Mark Ryan and Steve Foster, Unlocking Constitutional and Administrative Law (2nd edn, Hodder Education 2010). LEGAL DICTIONARIES 1. Garner BA, A Dictionary of Modern Legal Usage (2nd edn, Oxford University Press 2000) 209. 2. Garner BA, Black’s Law Dictionary (9th edn, West Publishing Company: St Paul 2009) ARTICLES 1. Article 19, Kenya: Contempt of Court Bill, 2013 (2014), January. 2. Barber NW, “Prelude to Separation of Powers” (2001) 60 (1) Cambridge Law journal 59 3. Dutta MS & Kaj AU, “Contempt of court: Finding the Limit,”(2009) 2 NUJS Law Review) 55. 4. J.E. Gicheru JE, “Independence of the Judiciary: Accountability and Contempt of Court,” (2007) 1 Kenya Law Review 1, 3. 5. McDermott PA, “Contempt of court and the need for Legislation,”[2004] Judicial Studies Institute Journal 185 6. Muigai G and Ongoya Z E, “The Law of Contempt of Court in Kenya,” Law Society of Kenya Journal 56. 7. Patricia Kameri Mbote and Migai Akech, Kenya: Justice Sector and the Rule of Law Discussion Paper (Open Society Initiative for Eastern Africa 2011). 8. Peter Gacheru Ng’ang’a, Contempt of Court By Public Officers In Kenya Enforcing Orders and The Constitution’s Promise.
REPORTS
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1. The Law Reform commission of Hong Kong, ‘Report on Contempt of Court’ (Topic 4, December 1986);
3. Fred Oluoch, 'Story of petitions has changed,' The East African (16 March 2013)
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