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Court of AppealPartially AllowedCivil Appeal (from HCCC No 1572 of 1988)

Ochino & another v Okombo & 4 others [1989] KECA 65 (KLR)

Court of Appeal
13 July 1989
JGJ.M. GachuhiJMJ.R.O MasimeRKR.O. Kwach
1,166 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a union official from civil jail because the injunction served on him lacked a penal notice, but it still upheld the reversal of his actions taken in breach of that injunction.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal against an order of Mbaluto J in HCCC No 1572 of 1988, arising from a bitter power struggle within the Kenya Petroleum Oil Workers Union. After the first appellant, the Union's general secretary, called an Executive Committee meeting to consider disciplinary action against four respondents, the respondents obtained an ex-parte injunction from Gicheru J on April 26, 1988 directing that the status quo be maintained. The Committee nonetheless met the following day, dismissed four respondents from the Union, and filed notification of change with the Registrar of Trade Unions. The judge found the first appellant in contempt, ordered his detention in civil jail for one month, and directed the Registrar to reverse the changes. The Court of Appeal, in a unanimous judgment of the whole court (Gachuhi, Masime and Kwach JJA), allowed the appeal in part. Following section 5 of the Judicature Act, order 39 rule 2(3) of the Civil Procedure Rules and English practice as reflected in Mwangi Mangondu v Nairobi City Commission, it held that committal for contempt requires personal service of the order indorsed with a penal notice; since only an unindorsed copy was served, there was no competent contempt application and the committal order was set aside. However, the court declined to disturb the order requiring the Registrar to restore the prior position, holding that to do so would lend judicial support to the appellant's disobedience. Each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the committal of the first appellant for contempt was sustainable where the copy of the injunction order served was not indorsed with the penal notice
  2. 2.Whether the order requiring the Registrar of Trade Unions to reverse the changes notified after the meeting held in breach of the injunction should stand

Key legal issues

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01

Procedural requirements for committal for contempt

Holding

The committal order could not stand because the copy of the injunction served on the first appellant bore no indorsement of the penal consequences, so there was no competent contempt application before the judge.

Reasoning

Section 5 of the Judicature Act and order 39 rule 2(3) of the Civil Procedure Rules require Kenyan courts to follow English practice on contempt. Under that practice, personal service of the order, indorsed with a penal notice, is a prerequisite to committal. Although the order was served, no indorsed copy was served before the contempt application. Following Mwangi Mangondu v Nairobi City Commission, the court held the application incompetent and set aside the one-month detention order, counsel for the respondents having properly conceded.

p. 2
02

Effect of holding a meeting and filing notification of change in breach of an injunction

Holding

The order requiring the Registrar of Trade Unions to reverse the changes made pursuant to the meeting held in breach of the injunction was left undisturbed.

Reasoning

The Executive Committee met the day after service of the status quo order and dismissed four respondents, then filed notification of change with the Registrar. Although the contempt order fell, the court declined to disturb the reversal order because granting it would reward and support the appellant's defiance of the High Court order. The reversal restored the status quo that the injunction was intended to maintain; this part of the appeal was dismissed.

p. 2

Legal principles established

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  • An order of court requiring a person to do or abstain from doing an act may not be enforced by committal for contempt unless a copy of the order, indorsed with a notice of the penal consequences of disobedience, has been served personally on that person.
  • A person will only be punished for breach of an injunction where the terms are clear and unambiguous, he had proper notice of them, and breach is proved beyond reasonable doubt.
  • A party in contempt of a subsisting court order cannot obtain appellate relief that would confer judicial support on his disobedience.

Court orders

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  1. 1.Appeal against the order committing the first appellant to civil jail for contempt allowed and that order set aside
  2. 2.Order directing the Registrar of Trade Unions to restore the position prevailing prior to the meeting of April 27, 1988 not disturbed; that part of the appeal dismissed
  3. 3.Each party to bear his own costs

The bench

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

JG
majority
JM
majority
RK
majority
On appeal from
High Court at Nairobi
HCCC No 1572 of 1988
Jurisdiction invoked
Appeal from the order of the High Court at Nairobi (HCCC No 1572 of 1988)

Relief refused

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Setting aside the order requiring the Registrar of Trade Unions to reverse the notification of changes

The court would not lend judicial support to the first appellant's disobedience of the injunction

p. 2

Costs

Each party to bear his own costs

Quotable passages

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

His appeal against the order for committal for contempt succeeds and is allowed and we set aside that order.
p. 2Disposition - committal order set aside
This part of the appeal fails and is dismissed.
p. 3Disposition - reversal of Registrar's changes maintained
since the present contest has ended in a draw, so to speak, we think that the fairest order to make in the circumstances would be for each party to bear his own costs and we so order.
p. 3Costs order
the court will only punish as a contempt a breach of injunction if satisfied that the terms of the injunction are clear and unambiguous, that the defendant has proper notice of the terms and that breach of the injunction has been proved beyond reasonable doubt.
p. 2Conditions for punishing contempt of injunction

Issues in the judgment

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minor

Internal date inconsistency in the judgment text regarding the notification of change

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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

Cite this brief

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Cite this brief

Caselaw, "Ochino & another v Okombo & 4 others [1989] KECA 65 (KLR)", Case Analysis (1989). Civil Appeal (from HCCC No 1572 of 1988). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/65/eng@1989-07-13

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