FAM v HSS (Civil Appeal 129 of 2007) [2008] KECA 316 (KLR)
The bottom line
#Kenya's Court of Appeal struck down a contempt application filed with the wrong procedure, but upheld an order returning a child to Kenya pending an appeal.
What this practically means
#Executive summary
#Key legal issues
#Procedure for applications for committal for contempt not committed in the face of the court
The ex parte leave application and the committal application must be separate; combining them is procedurally defective and the combined application cannot lie.
Section 5(1) of the Judicature Act confers on the High Court and the Court of Appeal the same power to punish for contempt as the High Court of Justice in England, so the English procedure under Order 52 RSC applies. That procedure requires an ex parte application for leave first, followed by a separate notice of motion for committal. The husband's notice of motion combined leave and punishment in one application, and the learned Judge's orders reflected that confusion.
Jurisdiction of an appellate superior court to punish contempt of subordinate court orders under appeal
The superior court sitting as an appellate court lacked jurisdiction to entertain applications for leave and committal for contempt of the Children's Court orders, which were the subject matter of the appeal.
The orders allegedly breached were made by the Children's Court, not by the superior court in its original or appellate jurisdiction. They could only be enforced through independent proceedings, not through interlocutory proceedings in the pending appeal against those very orders. The court expressly agreed with counsel's submission to that effect.
Inherent jurisdiction to order return of a child to the jurisdiction pending appeal
The order for the return of the child was justified not as enforcement of a breached order but under the court's inherent jurisdiction to ensure the appeal was not rendered futile.
Relying on Hadkinson v Hadkinson, the court held that a court cannot exercise its quasi-parental powers or enforce its orders if the child is taken abroad. The child was removed about ten days before the scheduled hearing of the appeal; the order for return was based on the need to keep the child within the jurisdiction so that any order on appeal could be enforced, not on a finding of breach of any court order.
Propriety of a mandatory ex parte order for return of the child and the right to apply for its discharge
The ex parte mandatory order was properly granted given urgency and the appellant's absence from the jurisdiction, but the superior court should have heard the pending application for discharge before enforcing the order.
There was no sufficient time to serve the appellant, who was outside the jurisdiction, so the exercise of discretion to grant the order ex parte was proper. However, the appellant had a right to apply to discharge the order, and the superior court's failure to hear the discharge application filed on November 27, 2006 resulted in the appellant being held in contempt before being heard. The interest of justice required hearing her before enforcement.
Legal principles established
#- Where contempt is not committed in the face of the court, the applicant must first apply ex parte for leave to make an application for committal, and the application for leave must be separate from the application for committal; combining the two in one application contravenes the applicable rules of procedure and cannot lie.
- A superior court sitting as an appellate court lacks jurisdiction to enforce, through committal for contempt in interlocutory proceedings in the appeal, orders made by the subordinate court which are themselves the subject matter of the appeal; such orders may only be enforced through independent proceedings.
- A court seized of an appeal has inherent jurisdiction, under sections 3 and 3A of the Civil Procedure Act, to make a just order - including ex parte - for the return of a child who is the subject matter of the appeal, so as to prevent the appeal from being rendered futile by the child's removal from the jurisdiction.
- Even where a party is in contempt of an order, the court retains a discretion to hear that party where the party is challenging the legality of the order itself; a party facing an ex parte order should be heard on an application to discharge it before the order is enforced.
Court orders
#- 1.Appeal partially allowed to the extent that the order granting leave to the respondent to commence contempt proceedings is set aside
- 2.The order that prayers Nos 3, 4 and 5 of the notice of motion dated November 22, 2006 be heard inter partes is set aside
- 3.Appeal against the order for the return of the child SS to Kenya is dismissed
- 4.The appellant's notice of motion dated November 27, 2006 for discharge of the ex parte order for return of the child is to be heard on a priority basis before the order for return of the child is enforced
- 5.No orders as to costs of the appeal
- On appeal from
- High Court of Kenya
- High Court Civil Appeal No 10 of 2005
- Jurisdiction invoked
- Interlocutory appeal to the Court of Appeal against orders of the High Court (the judgment does not state the specific constitutional or statutory provision invoking appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FAM v HSS (Civil Appeal 129 of 2007) [2008] KECA 316 (KLR)", Case Analysis (2008). Civil Appeal No 129 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/316/eng@2008-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.