Mate & another v Wambora & another (Civil Appeal 24 of 2014) [2014] KECA 376 (KLR)
The bottom line
#The Court of Appeal confirmed that Kenyan public officials who ignore court orders cannot hide behind privilege or claims they were never personally served.
What this practically means
#Executive summary
#Key legal issues
#Competency of contempt proceedings for want of notice to the Attorney General
The proceedings were competent because Order 52 of the English Rules of the Supreme Court had been replaced by Part 81 of the Civil Procedure (Amendment No. 2) Rules 2012, which removed the notice-to-Crown requirement.
Section 5(1) of the Judicature Act confers on the High Court and Court of Appeal the contempt powers 'for the time being' possessed by the High Court of Justice in England. The court adopted its own prior ruling in Christine Wangari Gachege showing that since 1st October 2012 Part 81 governs committal applications and omitted the prior notice to the Crown Office. Hence the requirement urged by the appellants no longer existed in 2014.
Service of the order of 23rd January 2014 on the appellants
Service on the Legal Clerk and secretary at the County Assembly offices constituted valid service on the Speaker and Clerk, and in any event the appellants had knowledge of the order, which suffices.
The affidavit of service of Mr. Wilfred Nyamu detailed failed attempts at personal service before service on the Legal Clerk; the appellants did not controvert it or cross-examine the process server, so the burden lay on them to show it was incompetent. The offices of Speaker and Clerk are public institutional offices; service on an authorised officer is deemed service on the holders. Newspaper adverts were mere public notices, not substituted service, and dispensing with them as a nullity would be a mere technicality.
Whether parliamentary privilege and the standing orders shielded the appellants from contempt
No. The conservatory orders were issued under the High Court's constitutional jurisdiction under Article 165(1)(d)(ii) and had to be obeyed; the Speaker and Clerk, given their roles under Article 178(2)(a) and Standing Orders 24 and 36, were the persons responsible for compliance.
The court acknowledged a thin line between parliamentary immunity and judicial jurisdiction, but held that where constitutional rights are alleged to be breached, courts are empowered to intervene. The Speaker presides over the business of the Assembly and the Clerk prepares the Order Paper; they tabled and presided over the impeachment motion after service and in utter disobedience of the order, so no immunity applies.
Legal principles established
#- Knowledge of a court order, not proof of personal service, is sufficient to found a finding of contempt; personal service may be dispensed with where the person has notice of the order.
- Service on an authorised legal officer of a public institution is deemed service on the office holders of that institution.
- The statutory basis of contempt of court in Kenya is Section 5 of the Judicature Act and Section 63(c) of the Civil Procedure Act; the applicable English procedure is the one in force in England at the time the application is filed.
- Parliamentary or statutory privilege does not confer immunity from contempt proceedings for disobedience of court orders issued in exercise of constitutional jurisdiction.
- An uncontroverted affidavit of service raises a presumption of service and the burden lies on the party contesting it.
Court orders
#- 1.The appeal is dismissed with costs to the 1st respondent
- 2.The appellants should appear before the High Court at Kerugoya as ordered by the High Court
- 3.The appellants are ordered to appear before the High Court at Kerugoya on the 6th October, 2014, at 9 am for further orders
- On appeal from
- High Court of Kenya at Kerugoya
- Misc. Application No. 4 of 2014 (with Constitutional Petition No. 1 of 2014)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an interlocutory part of a High Court judgment (contempt/committal order appealable under Section 5(2) of the Judicature Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mate & another v Wambora & another (Civil Appeal 24 of 2014) [2014] KECA 376 (KLR)", Case Analysis (2014). Civil Appeal (Nyeri), Appeal against part of judgment in Kerugoya Misc. Application No. 4 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/376/eng@2014-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.