Republic v David Makali & 3 others [1994] KECA 100 (KLR)
The bottom line
#Kenya's Court of Appeal convicted journalists and a lawyer of contempt for accusing it of dishonesty, confirming courts can punish such attacks — but fair criticism remains protected.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal over contempt against itself
The Court of Appeal, being a superior court of record whose essential characteristic is the power to punish for contempt, has jurisdiction to hear and determine contempt proceedings against itself under section 5(1) of the Judicature Act and the proviso to section 77(8) of the Constitution; the absence of a further right of appeal does not oust that jurisdiction.
Section 64(1) makes the Court of Appeal a superior court of record, and a court of record is characterised by power to punish for contempt. The proviso to section 77(8) expressly permits courts to punish contempt notwithstanding that the act is not defined in written law, and section 86(1) defines 'Court' in Chapter V to include the Court of Appeal. Re Lonhro establishes that the status of a final appellate court is no bar; the right of appeal argument was logically inconsistent because even contempt in facie would leave no appeal.
Whether the article and the offensive words constituted contempt by scandalising the Court
The article, read as a whole, imputed improper motives to the Court - that it was dishonest and subordinated itself to the Executive in the Dons case - and thereby constituted scurrilous contempt calculated to bring the Court into disrepute.
Applying the law of England on scandalising the Court as required by section 5(1) of the Judicature Act, and the Ambard principle, the words 'reeked of State interference', 'indecision and dishonesty' and 'judicial lynching and blackmail' in their plain meaning imputed spinelessness and fraud to the Court. No acceptable defence of justification or fair comment was advanced. The Constitution's protection of expression is qualified by section 79(2)(b) which preserves laws maintaining the authority and independence of the courts.
Whether the 4th respondent caused the publication of the offensive words
On circumstantial evidence, including the 1st respondent's admission that he used a paragraph from the 4th respondent's article and the 4th respondent's failure to dissociate himself after publication, an irresistible inference arose that the 4th respondent sent or caused his article to be sent to the newspaper for publication.
The article was plainly intended for publication; the 1st respondent reproduced verbatim the paragraph containing the offensive words; the words were not taken out of context; and the 4th respondent, a senior advocate exposed to grave danger by the attribution, took no step to disclaim it. His conduct corroborated that the publication was authorised. The prosecution had proved guilt beyond reasonable doubt.
Disqualification of the bench for alleged bias
There was no legal basis for disqualification; the alleged bias rested solely on the judges' participation in the Dons case, the proceedings were initiated by the Attorney General and not the Court, and the respondents failed to establish specific facts constituting bias.
Applying the objective test from Metropolitan Properties v Lannon and Tumaini v R, no circumstances existed from which right-minded persons would think the judges would favour one side unfairly. The article was directed at the Court and the Judiciary generally, not at any individual judge. Raybos authority confirms that judges should not accede too readily to suggestions of appearance of bias.
Freedom of expression and the American approach to scandalising the Court
American case law disavowing the offence of scandalising the Court is of little persuasive relevance because section 5(1) of the Judicature Act binds Kenyan courts to English contempt law, and the Kenyan Constitution expressly preserves the power to punish for contempt.
The Constitution of the USA has no derogations comparable to Kenya's, and section 79(2)(b) expressly protects laws maintaining the authority and independence of the courts. Parliament alone could authorise departure from the English position. However, press freedom is constitutionally guaranteed and the press must act responsibly; vigorous but reasonable criticism is protected.
Legal principles established
#- The Court of Appeal of Kenya has jurisdiction to punish for contempt committed against itself, including contempt not committed in its face.
- The Constitution confers no right of appeal in criminal or civil proceedings; rights of appeal exist only as conferred by statute.
- Section 111(1) of the Evidence Act imposes on an accused the burden of proving a fact especially within his knowledge, but it does not cast on him the burden of proving that no crime was committed nor excuse the prosecution from proving guilt beyond reasonable doubt.
- Criticism of judicial decisions is constitutionally protected, but a publisher who imputes improper motives (such as dishonesty or subordination to the Executive) to a court commits contempt unless he can justify the accusation.
- An allegation of bias against a judge must be founded on specific facts established by evidence; surmise or conjecture is not enough.
Court orders
#- 1.The 3rd respondent, Independent Media Services Ltd, to pay forthwith a fine of Shs 500,000/-, failing which it must cease publication and sale of 'The People'
- 2.The 4th respondent, G B M Kariuki, committed to prison for six months, the warrant to lie with the Registrar for seven days, discharged if he pays a fine of Shs 500,000/- and publishes a written apology in The Daily Nation, The Standard, The Kenya Times and The People at his own expense
- 3.The 2nd respondent, Bedan Mbugua, committed to prison for five months, the warrant to lie with the Registrar for seven days, discharged if he pays a fine of Shs 400,000/- and publishes a written apology in the same newspapers at his own expense
- 4.The 1st respondent, David Makali Baraza, committed to prison for four months, the warrant to lie with the Registrar for seven days, discharged if he pays a fine of Shs 300,000/- and publishes a written apology in the same newspapers at his own expense
- 5.No order as to costs
- Jurisdiction invoked
- Section 5(1) of the Judicature Act (Cap 8); sections 64(1), 72(1)(b) and the proviso to section 77(8) of the (former) Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v David Makali & 3 others [1994] KECA 100 (KLR)", Case Analysis (1994). Criminal Application No NAI 4 of 1994 (consolidated with Criminal Application No NAI 5 of 1994). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/100/eng@1994-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.