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Court of AppealDismissedCivil Appeal (Application) No. 121 of 2012· [2013] KECA 122 (KLR)

Communications Commission of Kenya v Tetra Radio Limited [2013] KECA 122 (KLR)

Court of Appeal of Kenya
29 November 2013
William OukoW. OukoKMK. M'InotiJMJ. Mohammed
3,037 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that you cannot have someone's appeal thrown out for contempt unless a court has first formally found them in contempt.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Ouko, M'Inoti and J. Mohammed, JJ.A) determines an application by Tetra Radio Limited seeking the dismissal or striking out of Communications Commission of Kenya's appeal (Civil Appeal No. 121 of 2012) against a High Court judgment of Gacheche, J. The applicant contended that the appellant was in blatant contempt of orders of the High Court concerning the allocation of frequencies in the 370-470 MHz band, and invited the Court to invoke its inherent jurisdiction under rule 1(2) of the Court of Appeal Rules to strike out the appeal. The respondent opposed the application on two fronts: the Court lacked jurisdiction because rule 84 exhaustively regulates striking out of appeals, and no contempt had been established, particularly as the orders had been stayed by consent. The Court held that although it possesses inherent power to ensure compliance with its orders and even to refuse to hear a contemnor until contempt is purged, that power could not be exercised here. No court of competent jurisdiction had adjudged the respondent guilty of contempt; the respondent denied contempt on arguable grounds, including the consent stay; and the applicant had not instituted contempt proceedings. The Court declined to transform the application into a contempt application or to visit the consequences of contempt without any such adjudication. The application was dismissed with costs to the respondent, leaving the appeal intact. The decision binds lower courts to the principle that contempt must first be formally adjudged before contempt-based sanctions, including striking out an appeal, can be sought.

Key legal issues

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01

Whether inherent jurisdiction permits striking out an appeal by a party alleged to be in contempt

Holding

The Court has inherent power to uphold its authority, but it cannot exercise that power on the basis of an unadjudicated allegation of contempt; the contempt must first be established in proper proceedings.

Reasoning

The Court accepted that courts have inherent power to safeguard themselves against contemptuous intrusion, and may even refuse to hear a contemnor until the contempt is purged. However, no court of competent jurisdiction had adjudged the respondent guilty of contempt; the respondent denied the allegation on arguable grounds, including the consent stay of execution. The application presumed an adjudication of contempt that had never occurred, and the Court declined to transform it into a contempt application.

p. 5
02

The scope and limits of the inherent power of the Court

Holding

Inherent powers are residual and cannot be invoked where the law has provided a specific remedy; they do not confer substantive jurisdiction where none has been created.

Reasoning

Counsel for the respondent relied on the Supreme Court's decision in the Moi High School Kabarak case, which held that inherent powers are not substantive powers on which a cause of action can be founded and cannot be the basis for assumption of jurisdiction where none exists. The Court acknowledged this authority as recognising the power 'to safeguard itself against contemptuous or disruptive intrusion from elsewhere' as an attribute of inherent power, but held the present application was not a suitable case for its exercise.

p. 5

Legal principles established

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  • A party seeking to have an appeal struck out on the ground that the appellant is in contempt of a court order must first obtain a formal adjudication of contempt from a court of competent jurisdiction; a court will not presume contempt or transform an application into a contempt application.
  • Courts possess inherent power to ensure compliance with their orders, but that power is residual and cannot be exercised where the law has provided a specific remedy or where no contempt has been adjudged.

Court orders

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  1. 1.The application to strike out or dismiss Civil Appeal No. 121 of 2012 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 1(2)
  • Court of Appeal Rulesrule 84
  • Court of Appeal Rules (former)rule 76(1)
  • Court of Appeal Rules (former)rule 4

Cases cited (5)

  • The Board of Governors, Moi High School, Kabarak vs Malcom Bell & Another
    SC Petition Nos. 6 & 7 of 2013
  • Ameer Kassim Lakha vs Mistry Jadva Parbat & Co Ltd & Another
    Civil Appeal (Application) No. 296 of 2001
  • Kiungani Farmers Co Ltd vs Mbugua
    (1984) KLR 476
  • Hadkinson vs Hadkinson
    (1952) 2 All ER 567
  • Huawei Technologies Co Ltd vs The Public Procurement Administrative Review Board (PPARB) and Another
    High Court Miscellaneous Civil Application No. 16 of 2013
On appeal from
High Court of Kenya
HC Misc CA No. 141 'B' of 2008
Jurisdiction invoked
Inherent jurisdiction of the Court invoked under rule 1(2) of the Court of Appeal Rules 'and all other enabling provisions of the law'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Communications Commission of Kenya v Tetra Radio Limited [2013] KECA 122 (KLR)", Case Analysis (2013). Civil Appeal (Application) No. 121 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/122/eng@2013-11-29

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