Altaf Abdulrasul Dadani & another v Amin Akberali Manji & 2 others [2005] KECA 183 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot block an appeal over alleged disobedience of orders unless a court has actually found that party in contempt.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal must be struck out because the appellant allegedly failed to comply with the orders under appeal
No. Compliance with the mandatory injunction issued by the High Court does not constitute an 'essential step' in prosecuting the appeal under Rule 80; a party who has appealed against and obtained a stay of the orders cannot be held in contempt of them.
The court held that Rule 80's reference to an essential step concerns the prosecution of the appeal, beginning with the notice of appeal and lodging of the record, not compliance with the substantive orders of the superior court. The respondents had not been found guilty of contempt, had promptly appealed the orders, and had obtained a stay of execution from Kasango J. With a valid stay in place, they could not be treated as contemnors barred from audience, and the application to strike out was futile and unmeritorious.
Whether the bar on hearing a contemnor who has not purged contempt applied to the respondents
No. The English authority cited (X Ltd v Morgan-Grampian) involved a party already found to be in contempt; here there was no such finding, and the respondents fell within the exception for those appealing against the very order whose disobedience is alleged.
The court accepted the settled principle that a contemnor should not be heard until the contempt is purged, but distinguished Morgan-Grampian because there the court was dealing with a party who had been found to be in contempt. In the present case the respondents had not admitted or been adjudged to be in contempt; they had immediately appealed the orders and obtained a stay. The court also noted the applicants' proper course was to execute the order or cite the respondents for contempt before the High Court.
Legal principles established
#- A party is only barred from being heard on the ground of contempt where there has been a finding of contempt of court; disobedience alleged but not adjudicated does not disqualify a litigant from appeal.
- An 'essential step' under Rule 80 of the Court of Appeal Rules refers to steps in prosecuting the appeal (filing notice of appeal, lodging the record), not compliance with the substantive orders appealed from.
- Where a stay of execution has been granted over the orders alleged to have been disobeyed, a party cannot be treated as in contempt of those orders.
- Where an alleged contemnor has appealed against and obtained a stay of the very order disobeyed, the exception to the rule that a contemnor must purge contempt before being heard applies.
Court orders
#- 1.The notice of motion dated 7th July, 2004 seeking the dismissal or striking out of Civil Appeal No. 101 of 2004 be and is hereby dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 913 of 2002 (ruling of Mwera J dated 26th May, 2004; related rulings of Mwera J dated 5th February 2004 and Kasango J dated 16th November 2004)
- Jurisdiction invoked
- Application under rules 1(2) and 80 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Prudenzio Nicholas Gaitara v Patrick Kariuki Muiruri & 2 others [2019] KEELC 4969 (KLR)[2019] KEELC 4969 (KLR)17 Jan 2019applied
Cite this brief
#Cite this brief
Caselaw, "Altaf Abdulrasul Dadani & another v Amin Akberali Manji & 2 others [2005] KECA 183 (KLR)", Case Analysis (2005). Civil Appli NAI 162 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/183/eng@2005-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.