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Court of AppealOtherNot stated in the extract· [1994] KECA 91 (KLR)

Republic v David Makali & 2 others [1994] KECA 91 (KLR)

Court of Appeal
27 April 1994
756 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that criminal contempt cases get full criminal-law protections, including the prosecution proving guilt beyond reasonable doubt.

What this practically means

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Executive summary

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This is the closing portion of a judgment of the Court of Appeal at Nairobi, delivered on 27 April 1994 by Cockar, Omolo and Tunoi JJA sitting as a full bench, in contempt proceedings brought by the Republic against four respondents before a consolidated hearing. Counsel for the Republic sought to invoke sections 7, 20 and 21 of the Penal Code (with sections 22 and 23) as codifying the general principles of criminal law applicable to the contempt charges. Counsel for respondents Nos 1, 2 and 3 (Mr Imanyara) objected, arguing that section 5 of the Judicature Act conferred a special contempt jurisdiction importing the law and practice of England, with no mention of the Penal Code. Mr Khaminwa for the 4th respondent adopted those objections, pointing to Order 52 of the Supreme Court Rules and relying on Mutitika v Baharini Farm, where contempt was described as quasi-criminal, and warned against introducing Penal Code procedure 'through the back door'. The Court, having already determined that the proceedings were criminal in nature, held that criminal contempt in England is a common law misdemeanour governed by the principles applicable to criminal offences generally, citing Lord Denning in Balagh v St Albans Crown Court via Smith & Hogan. It distinguished Baharini Farm as civil contempt arising from disobedience of a stay order. The Court overruled the objections, affirming that part 5 of the Penal Code, including the burden of proof on the prosecution and the standard of proof beyond reasonable doubt, applies to criminal contempt. No costs order or final substantive disposition appears in the extract.

Key legal issues

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01

Nature of contempt proceedings and applicability of Penal Code general principles

Holding

These contempt proceedings are criminal in nature; the general principles in part 5 of the Penal Code, including burden of proof on the prosecution and proof beyond reasonable doubt, apply to criminal contempt

Reasoning

Criminal contempt in England is a common law misdemeanour that may be dealt with on indictment or by summary process; criminal contempt is governed by the principles applicable to criminal offences generally, per Lord Denning in Balagh v St Albans Crown Court. The Penal Code part 5 codifies general principles of criminal law protecting accused persons, so they apply to contempt proceedings in Kenya. Counsel's objections based on section 5 of the Judicature Act and Order 52 of the Supreme Court Rules were rejected.

p. 2
02

Relevance of Mutitika v Baharini Farm

Holding

The Baharini Farm authority was distinguished because that contempt arose from disobedience of a stay order and was civil, not criminal, in nature

Reasoning

Mr Khaminwa relied on Mutitika v Baharini Farm, where Hancox JA had termed contempt proceedings quasi-criminal, to resist reliance on the Penal Code. The Court held the reference had no relevance here because those proceedings emanated from disobedience of a stay order granted by the Court and were eminently civil, whereas the present proceedings are criminal.

p. 1

Legal principles established

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  • Criminal contempt is of a criminal nature and the general principles of criminal law codified in part 5 of the Penal Code, including burden and standard of proof, apply to it
  • The general principles of criminal law in the Penal Code apply to offences committed in breach of any statute

Court orders

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  1. 1.The objections by respondents Nos 1, 2, 3 and the 4th respondent to any reference to sections of the Penal Code were overruled
Jurisdiction invoked
Section 5 of the Judicature Act (cap 8) - power to punish for contempt as possessed by the High Court of Justice of England

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v David Makali & 2 others [1994] KECA 91 (KLR)", Case Analysis (1994). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/91/eng@1994-04-27

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