REPUBLIC vs TONY GACHOKA & ANOTHER [1999] KECA 192 (KLR)
The bottom line
#Kenya's Court of Appeal jailed a newspaper publisher and fined his paper KShs 1 million for publishing unproven corruption claims about judges while a ruling was still pending.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the two articles published in The Post on Sunday scandalised the Court and were calculated to bring the administration of justice into disrepute
- 2.Whether the publications contravened the sub-judice rule given that reasons for the ruling of 15th January 1999 were reserved
- 3.Whether the first respondent's right to a fair trial was violated by the refusal to let him give oral evidence or call witnesses under Order 52 rule 6(4)
- 4.Whether freedom of the press under section 79 of the Constitution justifies the publications
- 5.Whether Njoroge Nani Mungai was liable for contempt as a director of the second respondent
- 6.What punishment, if any, should be imposed
Key legal issues
#Whether the publications scandalised the Court
The articles alleging that the Chief Justice took a KShs. 30 million bribe and dictated outcomes, and that judges were corrupt and biased, were scurrilous abuse imputing improper motives and constituted scandalising the court.
Applying Halsbury's Laws of England and R v Gray, the court held the test is whether the publication is calculated to lower the authority of the court, not whether the judge is personally offended. The language was violent, scornful and untemperate, imputing corruption, bias and lack of independence. No evidence supported the allegations; hearsay from informants cannot justify them. Such attacks undermine public confidence in the administration of justice, which the law of contempt protects.
Whether the sub-judice rule was breached
Yes - the ruling of 15th January 1999 was not final because reasons were reserved to 19th February 1999, so comment attacking the ruling before reasons were delivered prejudged pending proceedings.
The court reasoned that a judgment cannot be conclusive unless reasons are given for the findings; one cannot fairly comment on reasons not yet delivered. The first respondent knew reasons were reserved yet published allegations that the ruling was procured by bribery. Comments on pending proceedings which pre-judge issues to be tried by the court constitute contempt under the sub-judice rule.
Whether refusal of oral evidence rendered the trial unfair
By the majority, no - the respondent had elected the affidavit procedure, withdrew his affidavit, and the intended oral evidence was irrelevant; the local practice of deciding contempt on affidavit evidence was established.
The majority held that Order 52 rule 6(4) did not entitle a respondent who had withdrawn his affidavit to insist on oral testimony as a last resort; the Deputy Registrar had directed him to file affidavits from his witnesses and he declined. He was heard at length and suffered no prejudice. Gicheru JA dissented, holding that refusal would be a material irregularity producing a mistrial.
Whether freedom of the press under section 79 of the Constitution is a defence
No - the Constitution itself recognises the power to punish for contempt, and press freedom must be exercised responsibly; it is no licence to malign or publish unsubstantiated falsehoods.
Omolo JA held that freedom of the press is a means to a free society, not an end in itself, and that the proviso to section 77(8) preserves the power to punish contempt. Kwach JA held press freedom is not a licence to regurgitate falsehoods and journalists must verify information. Lakha JA held the law of contempt rests on public policy and restricts speech only so far as reasonably necessary to protect the administration of justice.
Liability of Njoroge Nani Mungai
Acquitted - he had resigned before publication, took no part in the publications, and the applicant failed to discharge the shifted burden of proof.
Mungai swore he resigned as director and secretary on 13th May 1998 and that Gachoka failed to notify the Registrar of Companies. The majority held that once he showed resignation, the burden shifted to the applicant to prove beyond reasonable doubt that he remained an active director involved in the publications, which was not done; passive directorship without mens rea or actus reus does not attract contempt liability.
Legal principles established
#- Scandalising the court is a punishable head of criminal contempt in Kenya, and it is not necessary that the attack affect pending proceedings only
- A ruling is not complete until the reasons for it are given; publication attacking a ruling before reasons are delivered breaches the sub-judice rule
- Fair, temperate criticism of judges in good faith is not contempt, but imputing improper motives or corruption without proof exceeds the bounds of legitimate criticism
- Committal for contempt being criminal in nature, the applicant must prove the charge beyond reasonable doubt
- A director who has resigned and taken no part in the publication is not liable for contempt; the evidential burden then shifts to the applicant
Court orders
#- 1.First respondent Tony Gachoka convicted of contempt of court and committed to prison for six months
- 2.Second respondent The Post Limited convicted of contempt and fined KShs. 1,000,000/-
- 3.In default of immediate payment of the fine in full, the second respondent to cease publication of The Post on Sunday or any other publication until the fine is paid in full
- 4.Njoroge Nani Mungai discharged
- 5.No order as to costs
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Would have allowed the first respondent to give oral evidence under Order 52 rule 6(4) before final adjudication, holding that refusal would be a material irregularity producing a mistrial; acknowledged the majority convicted the respondents.
As my brothers and sister Judges of Appeal, Kwach, Omolo, Tunoi, Shah, Lakha and Owuor, disagree with me, there will be a majority judgment of the Court that the first and second respondents are guilty of contempt of Court and are accordingly convicted.p. 5
Wrote the judgment
Found the publications scandalised the Court and breached the sub-judice rule; convicted the first and second respondents and proposed the sentences ultimately imposed.
I agree that the articles complained of by the Attorney General do constitute a contempt of this Court and that the first and second respondents cannot offer any lawful justification for their publications.p. 8
Wrote the judgment
Held scandalising the court exists in Kenya as a criminal offence; found the sub-judice rule breached because reasons were reserved; held the first respondent was not prejudiced by refusal of oral evidence; acquitted Mungai.
I am satisfied that the 1st and 2nd respondents are guilty of the contempt alleged against them, and I convict the two of them of the same.p. 13
Wrote the judgment
Found the articles a scurrilous attack calculated to bring the administration of justice into disrepute; held hearsay justification no defence; convicted Gachoka and The Post Limited, discharged Mungai.
I find Mr. Gachoka guilty of the offence of contempt of court and I hold that the two articles in question, more so the earlier article is a scurrilous and unjustified attack on this Courtp. 16
Wrote the judgment
Held the ruling was not complete until reasons were given, so the sub-judice rule was breached; found contempt proved beyond reasonable doubt; disallowed oral evidence rightly as the trial format had been set; convicted the first and second respondents, acquitted Mungai.
I hold that the Attorney-General's complaint was fully justified and I find Tony Gachoka and the The Post Limited guilty of contempt of court for making a scurrilous attack on the Judges and scandalizing the Courtp. 19
Wrote the judgment
Analysed the Attorney-General's role as amicus curiae; held intention irrelevant where the matter is calculated to interfere with justice; found the articles a scurrilous attack; acquitted Mungai for want of mens rea or actus reus; declined to decide the sub-judice ground.
I find the First Respondent TonyGachoka and the Second Respondent the Post Limited guilty of contempt of Court but acquit Mr. Mungai.p. 23
Wrote the judgment
Discussed rule of law, freedom of the press and the public-interest rationale of contempt; held affidavit practice locally established so the respondent could not compel oral evidence; convicted the first and second respondents and proposed the sentences.
I am fully satisfied 76the Applicant has proved beyond any reasonable doubt that the 1st and 2nd Respondents are guilty of contempt of This Court and I would convict them of that charge.p. 29
- Jurisdiction invoked
- Section 5(1) of the Judicature Act (Cap 8) and section 77(8) of the Constitution of Kenya - the Court's inherent and statutory power to punish for contempt of itself
Relief refused
#First respondent's application to give oral evidence and call fourteen witnesses
Majority held the trial format had been set in advance, the respondent had elected affidavit procedure and withdrawn his affidavit, and the intended evidence was irrelevant to the charges
Defence of justification based on information from unnamed sources
Hearsay from informants is no defence; the publisher bore the burden of proving the truth of what he published
Costs
No order as to costs - each side to bear its own costs of the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The first respondent, Tony Gachoka, is committed to prison for a period of six months and the second respondent, the Post Limited, is fined K.Shs. 1,000,000/- and in default of immediate payment of the same in full, the second respondent shall forthwith cease the publication of its Weekly Magazine, the Post on Sunday or any other publication by it until the said fine is paid in full. Njoroge Nani Mungai is hereby discharged. There shall be no order as to the costs occasioned by the applicant's application.
Any act done or writing published which is calculated to bring a court or a judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of court.
The punishment is inflicted, not for the purpose of protecting either the court as a whole or the individual judges of the court from a repetition of the attack, but of protecting the public
Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.
Reasons for any decision are the most important part of the decision and any one who rushes to print falsehoods with malice in regard to such a ruling is quite clearly in contempt of Court.
It is a jurisdiction, however, to be exercised with scrupulous care, to be exercised only when the case is clear and beyond reasonable doubt
The need for a free press is axiomatic, but the press cannot be allowed to charge about like a wild unbridled horse. It has to a necessary degree, in the public interest, to be curbed.
Issues in the judgment
#The judges state contradictory findings on whether Mungai was a director at the time of publication: Kwach JA finds he was still a director in law, while Lakha JA is satisfied he was not a director at the time of publication.
Gicheru JA's judgment opens in the voice of the whole court announcing conviction and sentence, then discloses that he was in dissent on the oral-evidence point, creating ambiguity about whether the opening passage states his own view or the majority's.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "REPUBLIC vs TONY GACHOKA & ANOTHER [1999] KECA 192 (KLR)", Case Analysis (1999). Criminal Application (Contempt) arising from publications in The Post on Sunday, January-February 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/192/eng@1999-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.