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Court of AppealPartially AllowedCivil Application No. Nai. 304 of 2006 (171/2006 UR)· [2007] KECA 304 (KLR)

ROSE DETHO v RATILAL AUTOMOBILES LTD & 6 OTHERS [2007] KECA 304 (KLR)

Court of Appeal of Kenya
25 May 2007
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiJOJ.W. Onyango Otieno
5,822 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that disobeying a court order doesn't automatically strip you of the right to be heard on appeal — refusal is exceptional.

What this practically means

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Executive summary

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Rose Detho, statutory manager of Charterhouse Bank Limited appointed by the Central Bank of Kenya, was found in contempt by the High Court at Eldoret (Gacheche, J) for disobeying stay orders issued on 15th September 2006 in judicial review proceedings brought by bank customers, and ordered to regularise her position within thirty-six hours or face six months' imprisonment. She moved the Court of Appeal under rule 5(2)(b) for stay of execution of that contempt ruling pending an intended appeal challenging the legality and jurisdictional basis of the orders. The respondents raised a preliminary objection that, being an unrepentant contemnor who had neither purged the contempt nor served the imprisonment, she should not be heard. By majority (Onyango Otieno and Githinji, JJA; Tunoi, JA dissenting), the preliminary objection was dismissed. The majority held that the power to refuse to hear a contemnor is discretionary and must be exercised judicially upon reasons; there is no absolute bar, and the power should be exercised only exceptionally, particularly where the applicant appeals against the very order the disobedience of which put her in contempt. A preliminary objection was also incompetent where what is sought is the exercise of judicial discretion. Tunoi JA dissented, reasoning that the continuing disobedience impeded the course of justice and the application should not be heard until she appeared before the superior court to purge the contempt or be dealt with. The preliminary objection was dismissed with costs, costs being in the application, permitting the stay application to be heard on its merits.

Key legal issues

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01

Whether a contemnor who has not purged the contempt may be heard on an application for stay of the contempt order pending appeal

Holding

Yes. The court has a discretion, to be exercised judicially on the Hadkinson principles; a party appealing against the very order disobedience of which put him in contempt is prima facie entitled to be heard, and the refusal power should be exercised only exceptionally.

Reasoning

The court traced the rule from Hadkinson v Hadkinson through local authority (Mawani, Schilling, Commercial Bank of Africa) establishing that hearing a contemnor is discretionary, not absolutely barred. The discretion must be exercised judicially upon reasons, not emotion. Where the applicant challenges the legality and jurisdictional foundation of the orders she allegedly breached, and denial of audience would render the intended appeal ineffectual by committing her to prison, she should be heard on the interlocutory stay application.

p. 6
02

Whether the disobedience impeded the course of justice so as to justify declining the applicant a hearing

Holding

No. The respondents did not show how the continued disobedience would impede the court's hearing and determination of the stay application itself.

Reasoning

Onyango Otieno JA reasoned that purging contempt means more than appearing and apologising - it means atoning for the offence or putting right what the court ordered. But the critical question was whether the ongoing disobedience would make it more difficult for the Court of Appeal to ascertain the truth or enforce its orders on the stay application. Since the respondents could not suggest any such impediment, the discretionary refusal power was not properly engaged.

p. 6
03

Maintainability of the preliminary objection against an application seeking discretionary relief

Holding

Incompetent. A preliminary objection cannot be raised where what is sought is the exercise of judicial discretion, following Mukisa Biscuits.

Reasoning

Githinji JA applied Newbold P's formulation in Mukisa Biscuits: a preliminary objection must rest on a point of law uncontested by facts. Because the stay application invites the exercise of the court's discretion in the applicant's favour, the objection that she be barred as a contemnor was not a proper preliminary objection and was incompetent. The majority therefore dismissed it and cleared the way for the application to be heard on its merits.

p. 10

Legal principles established

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  • The general rule that a contemnor will not be heard until he purges the contempt is subject to a discretion in the court, exercisable on the Hadkinson 'modern rule' principles; there is no absolute bar.
  • A court's power to refuse to hear an alleged contemnor in support of an appeal against the very order in respect of which he is said to be in contempt should be exercised only exceptionally.
  • A preliminary objection cannot be raised where what is sought is the exercise of judicial discretion, such as an application for stay of execution.
  • Court orders must be obeyed; it is not open to any person to choose whether or not to comply with orders of a court of law.

Court orders

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  1. 1.Preliminary objection dismissed
  2. 2.The applicant to be heard on her Notice of Motion for stay of execution pending appeal
  3. 3.Costs of the preliminary objection awarded (costs in the application, as proposed by Onyango Otieno, JA)

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Banking ActSection 34(1)(d)
  • Banking ActSection 34(2)
  • Banking ActSection 34(4)
  • Banking ActSection 34(6)
  • Banking ActSection 34(8)
  • Civil Procedure RulesOrder LIII
  • Judicature ActSection 5
  • Rules of the Supreme Court (England)Order 52
  • Rules of the Supreme Court (England)Order 52 Rule 1(12), Supreme Court Practice Vol. 1 Part 1

Cases cited (10)

  • Exito Navegacion S.A. v Southland Enterprises Co. Ltd, The Messianik Tolmi
    [1981] 2 Lloyd's Rep. 595
  • Hadkinson v. Hadkinson
    [1952] 2 All ER 567
  • Mawani v Mawani
    [1977] KLR 159
  • Joseph Schilling & 2 Others v Stardust Investments Ltd & Another
    Nairobi Civil Appeal No. 134 of 1997 (unreported)
  • Macfoy v United Africa Company Ltd
    [1961] 3 All ER 118
  • Commercial Bank of Africa Limited v. Isaac Kamau Ndirangu
    Civil Appeal No. 157 of 1991
  • Gordon v Gordon
    [1904–1907] All ER Rep. 702
  • X Ltd v Morgan-Grampian (Publishers) Ltd
    [1990] 2 All ER 128
  • National Hospital Insurance Fund Board of Management v Boya Rural Nursing Home Ltd
    Kisumu Civil Appeal No. 46 of 2005 (unreported)
  • Mukisa Biscuits Co. Ltd v West End Distributors Ltd
    [1969] EA 696
On appeal from
High Court of Kenya at Eldoret
H.C. Misc. Civil Application No. 649 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "ROSE DETHO v RATILAL AUTOMOBILES LTD & 6 OTHERS [2007] KECA 304 (KLR)", Case Analysis (2007). Civil Application No. Nai. 304 of 2006 (171/2006 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/304/eng@2007-05-25

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