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Court of AppealDismissedCivil Application No. 87 of 2009 (UR 53/2009)· [2009] KECA 267 (KLR)

PATRICK WAMULA t/a PATROS AGENCIES LTD & another v ESTHER WAMBUI KIBE [2009] KECA 267 (KLR)

Court of Appeal of Kenya
3 July 2009
EOE. O. O'KubasuEGE. M. GithinjiDAD. K. S. Aganyanya
2,136 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt a six-month jail sentence for defying court orders, confirming courts will enforce obedience to their own orders.

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 (O'Kubasu, Githinji and Aganyanya, JJA) dismissing an application under Rule 5 of the Court of Appeal Rules for a stay of proceedings pending an intended appeal against a ruling of Waweru, J of the High Court dated 27th March 2009, by which the first applicant was sentenced to six months' imprisonment for contempt of orders made on 18th December 2008 requiring him to release the respondent's goods and give her access to and possession of leased premises. The applicants argued, through Dr Khaminwa, that the contempt proceedings were fatally defective because no leave was obtained, the court order was not served in time, and the White Book procedure under Order 52 was not followed; they also urged that the sentence would be fully served before the appeal was heard, rendering it nugatory. The respondent opposed, contending that the Notice of Appeal did not comply with rule 74(6) of the Court of Appeal Rules and that the application was an abuse of process. The Court, noting that the applicant's counsel was present when the orders of 18th December 2008 were made and had complied with none, doubted the arguability of the procedural objections and entirely agreed that the superior court was asserting its authority to have its orders obeyed. The application was dismissed, with a direction that the matter be mentioned before the superior court for the applicant to purge his contempt or seek other orders. No express costs order was made.

Key legal issues

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01

Arguability of the intended appeal on procedural defects in contempt proceedings

Holding

The Court doubted the arguability of the grounds on leave to institute contempt proceedings and service of the court order, given that counsel for the applicant was present when the orders of 18th December 2008 were made and had complied with none.

Reasoning

The Court noted that counsel for the applicant was present in court when the orders of 18th December 2008 were made, yet complied with none, instead moving to review them. The superior court's direction that contempt proceedings be instituted was an assertion of its authority, with which the Court of Appeal agreed. In light of that background, the procedural objections about leave and service were not arguable.

p. 4
02

Whether the discretion to stay the contempt order and sentence should be exercised

Holding

No justifiable reason existed to stay the superior court's order; the application lacked merit and was dismissed.

Reasoning

Having found the grounds of the intended appeal not arguable, the Court was not required to assess the nugatory aspect in detail. It held that the superior court's direction of 15th January 2009 was a legitimate assertion of its authority to have its orders obeyed, and accordingly declined to stay the order and sentence of imprisonment for contempt.

p. 4

Legal principles established

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  • A superior court is entitled to assert and enforce its authority to have its orders obeyed, and a party in contempt of court orders cannot demand a stay of contempt proceedings or invoke the Court's discretion for relief.

Court orders

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  1. 1.The application for stay of proceedings pending the intended appeal is dismissed
  2. 2.The matter be mentioned before the superior court (Waweru, J) or, if he is no longer at the station, before any other Judge in the same division, for the applicant to purge his contempt or seek other orders from the superior court

Authorities

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Legislation

  • Court of Appeal RulesRule 5
  • Court of Appeal RulesRule 74(6)
  • Supreme Court Practice (White Book)Order 52 rules 2 and 3

Cases cited (1)

  • High Court Civil Case No. 45 of 2005 at Malindi (V.R)
On appeal from
High Court of Kenya at Nairobi
E.I.C. Suit No. 602 of 2008
Jurisdiction invoked
Rule 5 of the Court of Appeal Rules (inherent discretionary jurisdiction to grant stay of proceedings and orders pending intended appeal)

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, "PATRICK WAMULA t/a PATROS AGENCIES LTD & another v ESTHER WAMBUI KIBE [2009] KECA 267 (KLR)", Case Analysis (2009). Civil Application No. 87 of 2009 (UR 53/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/267/eng@2009-07-03

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