Republic v David Makali & 2 others [1994] KECA 91 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Nature of contempt proceedings and applicability of Penal Code general principles
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
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.
Relevance of Mutitika v Baharini Farm
The Baharini Farm authority was distinguished because that contempt arose from disobedience of a stay order and was civil, not criminal, in nature
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.