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Court of AppealOtherCivil Application 233 of 2007· [2014] KECA 840 (KLR)

Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others

Court of Appeal
14 February 2014
PKP K KariukiDavid Kenani MaragaD K MaragaWilliam OukoW Ouko
2,690 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you don't need court permission to start contempt proceedings for disobeying a court order — but you must follow the procedure exactly.

What this practically means

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Executive summary

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This ruling of a three-judge bench of the Court of Appeal (P.K. Kariuki, D.K. Maraga and W. Ouko, JJ.A) determined a question framed by the court on 9th December 2013: whether the applicant's Notice of Motion dated 14th November 2013, seeking leave to institute contempt proceedings against nine named individuals (including four advocates) for breach of orders issued by the Court on 25th April 2008, should be heard ex parte before a single judge. The applicant, relying on Order 52 Rule 4 of the English Rules of the Supreme Court and older Kenyan decisions such as the Gachoka and Makali cases, supported a full-bench procedure; respondents submitted the application belonged before a single judge and should be struck out if filed in the wrong forum. The court held that Section 5 of the Judicature Act incorporates the contempt powers and procedure of the High Court of Justice in England 'for the time being', requiring Kenyan courts to ascertain the prevailing English law. Order 52 RSC was replaced in its entirety by Part 81 of the English Civil Procedure Rules with effect from 1st October 2012. Under Rule 81.4, committal for breach of a judgment, order or undertaking requires no leave (now 'permission'); leave is required only for interference with the due administration of justice or false statements. The application for leave was therefore incompetent and was struck out with costs. The court also urged the tabling of the Kenya Contempt of Court Bill, 2013, stressing that because contempt is punished in the exercise of ordinary criminal jurisdiction, the instituting procedure must be scrupulously followed.

Key legal issues

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01

Whether an application for leave to institute contempt proceedings must be heard by a full bench or a single judge

Holding

The question is moot because under the prevailing English law incorporated by Section 5 of the Judicature Act, no leave is required at all for committal for breach of an order; the application for leave is incompetent and struck out.

Reasoning

The court traced the statutory basis of contempt to Section 5 of the Judicature Act, which incorporates English law 'for the time being'. Order 52 RSC was replaced by Part 81 of the English Civil Procedure Rules on 1st October 2012. Under Rule 81.4, committal for breach of a judgment, order or undertaking requires no leave (now 'permission'); leave is required only for interference with due administration of justice or false statements. The applicant's application for leave therefore had no legal basis.

02

Which English court's powers are incorporated by Section 5 of the Judicature Act

Holding

The reference is to the High Court of Justice in England (Queen's Bench, Chancery and Family Divisions), not the Court of Appeal of England and Wales, even for matters before the Kenyan Court of Appeal.

Reasoning

Although the Court of Appeal of England and Wales predates the Judicature Act by 92 years, the statute deliberately directs Kenyan courts to the High Court of Justice in England. The court set out the English contempt procedure under Order 52 RSC and its replacement by Part 81 CPR 2012, distinguishing the four forms of contempt and their differing leave requirements.

p. 3
03

Relevance of earlier Kenyan contempt decisions (Makali, Gachoka) and English authorities cited by the applicant

Holding

Decisions rendered 15-20 years ago may not provide authority on current procedure since English law has changed; the English cases cited by the applicant were irrelevant as they do not deal with the procedure for instituting contempt proceedings.

Reasoning

The court held that because Section 5 incorporates English law 'for the time being', older Kenyan decisions applying Order 52 RSC no longer state the current procedure. The applicant's authorities (Hadkinson, In re Tuck, M v P, Butler) were distinguished as irrelevant to the institution-of-proceedings question.

p. 5

Legal principles established

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  • The statutory basis of contempt law for the High Court and Court of Appeal is Section 5 of the Judicature Act, which incorporates the powers and procedure of the High Court of Justice in England as they exist for the time being.
  • Section 5 of the Judicature Act directs Kenyan courts to the powers of the High Court of Justice in England, not the Court of Appeal of England and Wales.
  • Under Part 81 of the English Civil Procedure Rules (in force from 1st October 2012), which replaced Order 52 RSC, no leave or permission is required before bringing committal proceedings for breach of a judgment, order or undertaking.
  • Because contempt is punished in the exercise of ordinary criminal jurisdiction under Section 5(2) of the Judicature Act, the procedure for instituting contempt proceedings must be scrupulously followed.

Court orders

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  1. 1.The application for leave to institute contempt proceedings is struck out with costs
On appeal from
Court of Appeal
Civil Application No. 233 of 2007 (orders of 25th April 2008 by E. M. Githinji, Onyango Otieno, Aluoch, JJ.A)
Jurisdiction invoked
Section 5 of the Judicature Act (Cap 8) - contempt powers of the High Court and Court of 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, "Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others", Case Analysis (2014). Civil Application 233 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/840/eng@2014-02-14

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