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Court of AppealDismissedCivil Application No. NAI 264 of 1993 (NAI 114/93 UR)· [1994] KECA 114 (KLR)

Nyamodi Ochieng Nyamogo & Another v Kenya Posts & Telecommunications Corporation

Court of Appeal of Kenya
13 January 1994
ACA.M. CockarROR.S.C. OmoloPhilip Kiptoo TunoiP.K. Tunoi
4,270 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Cockar, Omolo and Tunoi JJ A) on a notice of motion dated 28th October 1993 seeking committal of three officials of Kenya Posts & Telecommunications Corporation - the Managing Director, the Corporation Secretary and the Acting General Manager - for disobeying an order of 8th October 1993 restraining the Corporation from retiring the two applicants pending their intended appeal against a High Court ruling of Lady Justice Owuor dated 4th August 1993 discharging an injunction. The Court dismissed the application on three independent grounds. First, there was no proof of personal service of the order on any of the three officials; service on the Corporation's advocates did not amount to personal service, and Mr Malakwen was served only six days after the committal application was filed. Second, the order carried no endorsement of the penal consequence of disobedience, a mandatory requirement under section 5(1) of the Judicature Act and Order 45 of the RSC; the Court expressly preferred its earlier decision in Wangondu over Shah's case, holding that mere knowledge of the order cannot cure the defect. Third, the order was incapable of enforcement because the applicants' offices had been abolished on 7th April 1993, six months before the order was granted, and the underlying applications had sought only a prohibitory injunction, not reinstatement. The Court further discharged its own order of 8th October 1993 under rule 56(2) of the Court of Appeal Rules, it having been founded on a ruling unanimously over-ruled by a five-judge bench in the University Don's case. Costs were awarded to the respondents jointly and severally.

Key legal issues

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01

Personal service of the order as a prerequisite to committal

Holding

The application against Mr Ngeny and Mr Josiah was dismissed for lack of any service, and against Mr Malakwen struck out because he was served only after the committal application was filed.

Reasoning

Halsbury's Laws (4th Ed) Vol 9 states personal service is required; service on the corporation's advocates does not constitute personal service on the officers. There was no return of service by an authorised process server, and Mr Malakwen was served six days after the committal application was filed, rendering that service of no legal effect for those proceedings.

p. 4
02

Endorsement of penal consequence on the order

Holding

The copies of the order served bore no endorsement of penal consequence, rendering the application incompetent; the court preferred Wangondu over Shah's case.

Reasoning

Order 45 rule 7/5 RSC 1982 makes the penal notice a necessary condition of enforcement by committal. In Wangondu this Court confirmed the mandatory nature of the requirement. In Shah's case knowledge of the order was held sufficient, but this Court, with respect, preferred Wangondu because it followed English law and procedure; mere awareness of the order's terms is not enough to commit.

p. 5
03

Whether the order was capable of enforcement

Holding

The order restraining retirement could not be enforced because the applicants' offices had been abolished on 7th April 1993, six months before the order.

Reasoning

The affidavits of Mr Josiah and Mr Malakwen deponed that the applicants ceased to be employees on 7th April 1993 and their offices were abolished by the Board; this was not controverted by further affidavit evidence. The applications in the High Court had sought only a prohibitory injunction, not reinstatement, so punishing the officials for failing to reinstate was wrong.

p. 6
04

Discharge of the underlying order of 8th October 1993

Holding

The Court discharged its own order of 8th October 1993 under rule 56(2) of the Court of Appeal Rules, it having been based on a ruling over-ruled by a five-judge bench.

Reasoning

The five-judge bench in the University Don's case unanimously over-ruled the Nyamogo ruling, describing the order as a pious farce. The Court held it has jurisdiction to discharge its own injunction or stay order and discharged it to prevent further misuse and repetition of similar applications.

p. 6

Legal principles established

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  • No order requiring a person to do or abstain from doing an act may be enforced in contempt unless a copy has been served personally on that person; service on a company's advocates is not personal service on an officer.
  • Endorsement of the penal notice on the order served is a necessary condition for enforcement by committal; mere knowledge of the order's terms does not suffice.
  • The party seeking a contempt finding must show strict compliance with the procedural requirements; knowledge or constructive awareness of the order cannot cure non-compliance.
  • The Court of Appeal has jurisdiction to discharge its own order of injunction or stay.

Court orders

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  1. 1.Dismissal of the notice of motion dated 28th October 1993 seeking committal of the three respondents for contempt
  2. 2.Striking out of the application as against Mr Malakwen as incompetent for want of service before filing
  3. 3.Declaration that the order dated 8th October 1993 granted in Civil Application NAI 204 of 1993 is discharged under rule 56(2) of the Court of Appeal Rules
  4. 4.Costs of the application awarded to the respondents against the applicants jointly and severally
  5. 5.A certified copy of the order to be placed in the file of Civil Application NAI 204 of 1993
On appeal from
High Court of Kenya at Nairobi
HCCC Nos 1736 & 1890 of 1993 (consolidated)
Jurisdiction invoked
Section 5(1) of the Judicature Act (cap 8) - power to punish for contempt equivalent to the High Court of Justice in England; rule 56(2) of the Court of Appeal Rules for discharge of the court's own order

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, "Nyamodi Ochieng Nyamogo & Another v Kenya Posts & Telecommunications Corporation", Case Analysis (1994). Civil Application No. NAI 264 of 1993 (NAI 114/93 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/114/eng@1994-01-13

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