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Court of AppealDismissedCivil Appeal No 247 of 2008· [2015] KECA 272 (KLR)

Freight in Time Limited v Image Apparels Ltd [2015] KECA 272 (KLR)

Court of Appeal
30 October 2015
2,576 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that knowingly ignoring a court order leads to contempt, even without perfect personal service or flawless procedure.

What this practically means

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Executive summary

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The Court of Appeal (Warsame, Sichale and Kantai, JJ.A) dismissed an appeal against a ruling of Nambuye, J. of the High Court, which had cited the appellant company's directors for contempt for failing to comply with an order of 9th March 2005 requiring the immediate release of the respondent's goods, fining each director Kshs 350,000 with six months' imprisonment in default. The goods had been attached by an auctioneer without due procedure; the magistrate's court ordered the execution restarted afresh and the goods released, but the appellant did not comply, releasing the goods only piecemeal between 2006 and 2007. The appellant argued first that leave to bring the contempt application was never properly sought, since the respondent used a supporting affidavit rather than a statement of facts and omitted notice to the Registrar, contrary to Order 52 of the English Rules of the Supreme Court imported by section 5 of the Judicature Act. The Court held the irregularity not fatal, the purpose of contempt jurisdiction being to uphold the authority and dignity of the courts. It next held that although personal service had long been required, service and knowledge were here proved through uncontroverted affidavits of process servers: the order carried a penal notice, was served on the directors and on the auctioneers, and Amit Shah acknowledged service through his secretary. Citing Hadkinson v Hadkinson and Mutitika v Baharini Farm Ltd, the Court held a party who knows of an order cannot disobey it. Finally, as the appellant offered no affidavit of mitigation or apology, the fines were not excessive. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether non-compliance with the Order 52 procedure for contempt applications was fatal

Holding

No - leave was effectively sought and the procedural deviations did not render the application incompetent, since the purpose of contempt jurisdiction is to uphold the authority and dignity of the courts

Reasoning

Section 5 of the Judicature Act confers the same power to punish contempt as the High Court of Justice in England, importing Order 52 of the Rules of the Supreme Court. The respondent filed a motion supported by affidavit rather than a statement of facts and gave no notice to the Registrar. The High Court held the omission not fatal given the section's purpose of commanding obedience to court orders, and this Court agreed, holding that nothing in section 5 requires strict compliance with every detail or rules out local adaptation of the English rules.

p. 3
02

Whether personal service on the directors was a prerequisite for contempt findings

Holding

Knowledge of the order, not strict personal service, is decisive; where service and knowledge are proved, the contemnor cannot escape liability by objecting to the mode of service

Reasoning

The prior position required proof of personal service of the contempt application and the order on the alleged contemnor. In this case the order was extracted with a penal notice and served on the directors (Amit Shah acknowledged service through his secretary after refusing service personally) and on the auctioneers, who acknowledged receipt. The uncontroverted affidavits of service established that the directors were fully aware of the orders requiring release of the goods, so the objection to service failed.

p. 4
03

Whether the fines of Kshs 350,000 were excessive

Holding

No - in the absence of any affidavit of mitigation or apology, the Court would not interfere with the sentences

Reasoning

The goods were only released piecemeal between 2006 and 2007 and the respondent had to pay money to secure release; the appellant took no steps to comply with the orders and offered no explanation. Following Refrigerator & Kitchen Utensils Ltd, the Court will not condone deliberate disobedience and will deal firmly with proved contemnors; without mitigating factors, the contention that the fines were excessive was rejected.

p. 5

Legal principles established

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  • Irregularity in the procedure for seeking leave to apply for contempt (including omission of the statement of facts and notice to the Registrar) is not necessarily fatal where the power's purpose is upholding the authority and dignity of the courts
  • A person with knowledge of a court order, whether regular or irregular, cannot disobey it and is liable to be committed for contempt; lack of personal service is no protection where knowledge of the order is proved
  • Wilful failure to comply with a subsisting court order, without apology or explanation, justifies sanctions for contempt and refusal to reduce fines as excessive

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Ruling and orders of the High Court (Nambuye, J.) citing the directors for contempt and fining each Kshs 350,000 with 6 months imprisonment in default left undisturbed

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Judicature ActSection 5(2)
  • Rules of the Supreme Court (England)Order 52 Rules 1 to 4
  • Supreme Court of Judicature Act 1873 (England)
  • Contempt of Court Act 1981 (England)

Cases cited (7)

  • In the Matter of an Application by Gurbaresh Singh & Sons Ltd
    Misc. Civil Case No. 50 of 1983
  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others
    [2014] eKLR, Civil Application No. 233 of 2007 (Ur 144/2007)
  • Hadkinson v Hadkinson
    [1952] 2 All ER 567
  • Mutitika v Baharini Farm Ltd
    [1985] KLR 227
  • Kariuki & 2 others v Minister for Gender, Sports, Culture & 2 Others
    [2004] 1 KLR 78
  • Refrigerator & Kitchen Utensils Ltd v Gulabchand Popotlal Shah & Others & Shanti Lal Khetshi Shah & Others
    LLR No. 5229 (CAK) (Civil Appeal No NAI 39/1990)
  • Nyamodi Ochieng Nyamogo & another v Kenya Posts & Telecommunications Corporation
    [1994] eKLR, Civil Application No. Nai 264 of 1993 (NAI 114/93 UR)
On appeal from
High Court of Kenya at Nairobi
High Court Misc. Civil Application No 1623 of 2005
Jurisdiction invoked
Section 5(2) of the Judicature Act - an order made by way of punishment for contempt of court is appealable as if it were a conviction and sentence in the exercise of the High Court's ordinary original criminal jurisdiction

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, "Freight in Time Limited v Image Apparels Ltd [2015] KECA 272 (KLR)", Case Analysis (2015). Civil Appeal No 247 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/272/eng@2015-10-30

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