Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtPartially AllowedPetition 13 of 2019

Githiga & 5 others v Kiru Tea Factory Company Ltd

Supreme Court of Kenya
16 June 2023
Philomena Mbete MwiluP.M. MwiluMohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
10,385 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

#

Supreme Court: Courts must give you notice and a hearing before punishing you for contempt.

What this practically means

#

The Supreme Court of Kenya ruled that the Court of Appeal violated the right to a fair hearing of two people it punished for contempt. The Court of Appeal did not properly list the contempt application for hearing, so the accused had no notice they needed to defend themselves. Because contempt proceedings are quasi-criminal, courts must follow strict fairness rules. The Supreme Court set aside the contempt ruling and ordered any fines paid to be refunded.

Executive summary

#
The Supreme Court of Kenya (unanimous, 5-judge bench) partially allowed an appeal against the Court of Appeal's ruling that had dismissed an application to review a contempt conviction. The dispute arose from a corporate governance battle within Kiru Tea Factory Company Limited (KTFC), where two factions contested control. The Court of Appeal had convicted the appellants for contempt of its status quo orders. The Supreme Court framed five issues for determination, primarily concerning procedural fairness in contempt proceedings. The Court first addressed jurisdiction, finding that although the constitutional issue arose for the first time at the Court of Appeal, the quasi-criminal nature of contempt proceedings and the gravity of consequences constituted exceptional circumstances warranting departure from the settled jurisdictional requirement under Article 163(4)(a). The Court struck out the 3rd to 6th appellants from the appeal as they were not parties to the impugned ruling. On the merits, the Court held that the Court of Appeal erred by: (1) deliberately ignoring the defenses and responses of the 1st and 2nd appellants, violating procedural fairness; (2) failing to expressly list the contempt application for hearing, thereby denying the appellants prior notice and a reasonable opportunity to be heard, which amounted to trial by ambush and violated Article 50(1); (3) upon striking out the amended contempt application, reviving the original application in chambers and convicting the appellants without giving them a fresh hearing date and opportunity to be heard. The Court declared that the 1st and 2nd appellants' right to a fair hearing was breached, set aside both the March 28, 2019 ruling and the February 22, 2019 contempt ruling as against them, ordered refund of any monies paid as punishment, and awarded costs to the 1st and 2nd appellants.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether a court presiding over contempt proceedings has a right to ignore deliberately the responses/defences placed before it by the cited contemnors.
  2. 2.Whether a court hearing a contempt application can revive the original un-amended contempt of court application in chambers, prosecute and convict on the same upon striking out the amended contempt application.
  3. 3.Whether a court in presiding over proceedings which have been heard fully on an amended pleading can upon striking out the amended pleading proceed suo motu to determine the original pleading without invitation and participation of either party in the proceedings.
  4. 4.Whether a court hearing a contempt of court application can convict the alleged contemnors without affording them a hearing.
  5. 5.Whether a court hearing a contempt of court application can overlook a miscarriage of justice to convict for contempt.

Key legal issues

#
01

Whether the Court of Appeal had jurisdiction to entertain the appeal under Article 163(4)(a) of the Constitution where the constitutional issue arose for the first time at the Court of Appeal.

Holding

The Supreme Court has jurisdiction to entertain the appeal because the contempt proceedings and the interpretation and application of the Constitution arose at the Court of Appeal, making it a court of first instance, and the case raises exceptional circumstances warranting departure from the settled jurisdictional requirement.

Reasoning

The Court noted that the substratum of the appeal emanated from the Court of Appeal's determination in Civil Application No 137 of 2017, where the appellants cited a breach of their constitutional right to a fair hearing. Due to the quasi-criminal nature of contempt proceedings and the gravity of consequences, the Court found it important to settle how the Court of Appeal procedurally and substantially deals with contempt proceedings where violation of rights is questioned for the first time at the Court of Appeal. The Court held that this case raises exceptional circumstances that warrant departure from the settled jurisdictional requirement that a case concerning constitutional interpretation must progress through the appellate mechanism.

p. 16
02

Whether a court presiding over contempt proceedings has a right to deliberately ignore the responses/defences placed before it by the cited contemnors.

Holding

The Court of Appeal did not have the right to deliberately ignore the defenses or responses by the 1st and 2nd appellants, and by doing so, fell into fatal error.

Reasoning

The Court held that courts are required to adhere to the principles of procedural fairness and due process in the administration of justice. The Court of Appeal, like all courts in Kenya, is required to adhere to these principles when dispensing justice. The Court found that the Court of Appeal did not specifically take into account the responses by the 1st and 2nd appellants, and such action violates the principle of procedural fairness and due process which require meaningful participation in matters before the court.

p. 19
03

Whether a court hearing a contempt of court application can convict the alleged contemnors without affording them a hearing.

Holding

The appellate court denied the 1st and 2nd appellants a reasonable opportunity to be heard by failing to expressly list the application dated December 13, 2017 for hearing, thereby violating their right to a fair hearing under Article 50(1) of the Constitution.

Reasoning

The Court found that the appellate court should have expressly made it clear in its directions issued on August 7, 2018 that the application dated December 13, 2017 was coming up for hearing on November 15, 2018. Failure to expressly list the application was detrimental to the appellants because they had no prior notice that the application was coming up for hearing on that day. The Court held that it is not enough for the appellate court to conclude that parties understood and appreciated that the substance of the proceedings was contempt proceedings. The right to a fair hearing dictates that an individual shall not be penalized by a decision affecting his rights unless he has been given prior notice of the case against him, a fair opportunity to answer, and the opportunity to present his case.

p. 21
04

Whether a court hearing a contempt application can revive the original un-amended contempt of court application in chambers, prosecute and convict on the same upon striking out the amended contempt application.

Holding

While striking out the amended application had the legal effect that the original application stood unamended and was properly on record, the court ought to have informed the parties and given them another hearing date to canvass the original application; failure to do so amounted to reviving the application in chambers and convicting the appellants without giving them an opportunity to be heard.

Reasoning

The Court agreed with the Court of Appeal that to the extent that striking out the amended application dated May 28, 2018 had the legal effect that the application dated December 13, 2017 stood unamended and was properly on record. However, the Court opined that once the appellate court had determined that the application dated December 13, 2017 was properly on record, it ought to have informed the parties as such and given them another hearing date to enable the parties to canvass the application. The failure to issue another hearing date amounted to reviving the application in chambers, prosecuting and convicting the appellants without giving them an opportunity to be heard.

p. 23
05

Whether a court in presiding over proceedings which have been heard fully on an amended pleading can upon striking out the amended pleading proceed suo motu to determine the original pleading without invitation and participation of either party in the proceedings.

Holding

The Court of Appeal erred by suo motu proceeding to determine the application dated December 13, 2017 without the invitation and participation of the parties to the proceedings and particularly, the appellants.

Reasoning

The Court reiterated its reasoning that the Court of Appeal upon striking out the application dated May 28, 2018, ought to have given the parties a hearing date for the application dated December 13, 2017 as it was not among the applications expressly listed for hearing that day. A court presiding over contempt proceedings must make every stage of hearing expressly clear to the contemnors since such proceedings are quasi-criminal, to ensure meaningful participation of the contemnors.

p. 24

Legal principles established

#
  • Contempt proceedings are quasi-criminal, so courts must strictly follow fair hearing rules under Article 50(1) of the Constitution.
  • A court must expressly list every application for hearing and give the alleged contemnor prior notice and a reasonable opportunity to be heard.
  • A court cannot deliberately ignore defenses or responses filed by a person cited for contempt.
  • If a court strikes out an amended pleading, the original pleading revives, but the court must give parties a fresh hearing date on it.
  • The Supreme Court can hear appeals on constitutional issues that first arise at the Court of Appeal in exceptional circumstances.

Court orders

#
  1. 1.The appeal dated April 3, 2019 is allowed.
  2. 2.A declaration that the 1st and 2nd appellants' right to a fair hearing was breached by the Court of Appeal in Nyeri Court of Appeal in Civil Application No 137 of 2017.
  3. 3.The Ruling of the Court of Appeal delivered on March 28, 2019 in Civil Application No 137 of 2017 is hereby set aside.
  4. 4.The Ruling of the Court of Appeal delivered on February 22, 2019 in Civil Application No 137 of 2017 in regard to the 1st and 2nd appellants is hereby set aside.
  5. 5.Any monies paid by the 1st and 2nd appellants as punishment for contempt of court shall be refunded to them forthwith by the Registrar of the Court of Appeal.
  6. 6.Costs to the 1st and 2nd appellants.
  7. 7.We hereby direct that the sum of Kshs 6000/- deposited as security for costs upon lodging of this appeal to be refunded to the appellants.

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nyeri
Civil Application No 137 of 2017
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

#

The appeal by the 3rd, 4th, 5th, and 6th appellants

They were not parties to the impugned ruling of the Court of Appeal and their names were struck out from the appeal.

p. 16

Costs

Costs to the 1st and 2nd appellants.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We, therefore, find that the Court of Appeal did not have the jurisdiction to deliberately ignore the defenses or responses by the 1st and 2nd appellants and by doing so, fell into fatal error.
p. 19 Procedural fairness in contempt proceedings
It is our considered opinion that hearing the application dated December 13, 2017 without expressly listing the same amounted to trial by ambush.
p. 21 Right to fair hearing in contempt proceedings
We opine that once the appellate court had determined that the application dated December 13, 2017 was properly on record it ought to have informed the parties as such and given them another hearing date to enable the parties to canvass the application.
p. 23 Effect of striking out amended pleading on original pleading
Consequently, we issue orders as follows: 1. The appeal dated April 3, 2019 is allowed. 2. A declaration that the 1st and 2nd appellants' right to a fair hearing was breached by the Court of Appeal in Nyeri Court of Appeal in Civil Application No 137 of 2017. 3. The Ruling of the Court of Appeal delivered on March 28, 2019 in Civil Application No 137 of 2017 is hereby set aside. 4. The Ruling of the Court of Appeal delivered on February 22, 2019 in Civil Application No 137 of 2017 in regard to the 1st and 2nd appellants is hereby set aside.
p. 24 Final orders of the Supreme Court
Due to the uniqueness and peculiarity of this case, it is important for this court to settle how the Court of Appeal procedurally and substantially deals with contempt proceedings where violation of rights is questioned for the first time at the Court of Appeal.
p. 16 Jurisdiction of the Supreme Court under Article 163(4)(a)

Key timeline

#
2017-12-13
Contempt application filed against the appellants at the Court of Appeal.
2018-08-07
Court of Appeal issues directions but does not expressly list the contempt application for hearing.
2018-11-15
Court of Appeal hears and determines the contempt application without giving the appellants prior notice.
2019-02-22
Court of Appeal delivers ruling on contempt against the 1st and 2nd appellants.
2019-03-28
Court of Appeal delivers a second ruling on the same contempt matter.
2023
Supreme Court allows the appeal, sets aside the contempt rulings, and orders refund of any fines paid.

Practical implications

#
For lawyers

Fair hearing in contempt cases

When handling contempt applications, ensure the court expressly lists the matter for hearing and gives your client prior notice. If the court fails to do so, immediately object and record the objection. This judgment gives you strong grounds to challenge any contempt conviction obtained without proper notice and hearing, and to seek refund of any fines paid.

For businesses

Protect your company from unfair contempt

If your company or its directors are cited for contempt of court, insist on a formal hearing date with prior notice. Do not assume the court will give you a chance to respond without asking. If the court proceeds without proper notice, your lawyers can use this Supreme Court ruling to have the contempt order set aside and any fines refunded.

For individuals

Your right to be heard before punishment

If you are accused of disobeying a court order, you have a constitutional right to know the case against you and to be heard before any punishment. The court must give you clear notice of the hearing date. If it does not, you can appeal and have the punishment cancelled. Any money you paid as a fine must be refunded.

Frequently asked questions

#
What is contempt of court in Kenya?+

Contempt of court is disobeying a court order or showing disrespect to a judge. In Kenya, it is treated as a serious matter similar to a criminal case. This means the court must follow strict fair hearing rules before punishing anyone for contempt.

Can I be punished for contempt without being heard in Kenya?+

No. The Supreme Court of Kenya has now clearly stated that you must be given prior notice of the hearing and a reasonable opportunity to defend yourself. If the court punishes you without this, the punishment can be set aside and any fines refunded.

What should I do if I am accused of contempt in Kenya?+

Immediately ask the court for a formal hearing date and confirm in writing that you need notice. If the court proceeds without giving you a chance to respond, hire a lawyer to appeal using this Supreme Court ruling. You can also demand a refund of any fines paid.

Does this Supreme Court ruling apply to all courts in Kenya?+

Yes. The ruling binds all courts in Kenya, including the Court of Appeal and High Court. Any court handling contempt proceedings must now give the accused person prior notice and a fair hearing, or risk having its decision overturned.

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Githiga & 5 others v Kiru Tea Factory Company Ltd", Case Analysis (2023). Petition 13 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/41/eng@2023-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.