Gabriel O. Ochieng & another v Pamela Apondi Omino [2015] KECA 501 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a contempt application because it skipped mandatory steps: proper legal procedure, prior leave, and personal service of the order.
What this practically means
#Executive summary
#Key legal issues
#Governing procedure for contempt applications in the Court of Appeal
Order 40 Rule 3 of the Civil Procedure Rules is inapplicable where the contempt application is not made in the proceedings in which the order was granted; the application must be brought only under Section 5(1) of the Judicature Act and the rules thereunder
The applicants sought leave to cite for contempt outside the consolidated applications in which the stay order had issued. Order 40 Rule 3 applies only within those proceedings. The correct route is Section 5(1) of the Judicature Act, which imports the power and procedure of the High Court of Justice in England, namely Order 52 rule 2 of the Rules of the Supreme Court requiring prior leave.
Nature of contempt proceedings and the leave requirement
Contempt of court is not a private matter but interference with the course of justice, a public wrong, hence leave must be obtained before commencing contempt proceedings
Relying on the English Chancery Division in Mariar Ltd v R.E. Teach (Engineering) Ltd, the court reasoned that contempt proceedings are brought in the public interest and resemble criminal proceedings, so a public control over their initiation is required. Leave is sought ex parte before a single judge in chambers, with the substantive application reserved for the full court.
Service of the order on the alleged contemnor
Personal service of the order, with an endorsement of penal consequences, is mandatory unless the contemnor is shown to have been aware of it; awareness may not be assumed
The respondent was not a party to either the ELRC petition or the consolidated applications in which the stay order was made. There was no evidence, nor even an assertion in the supporting affidavit, that she was aware of the order. Because contempt carries criminal consequences, the procedural steps must be strictly complied with and no assumptions of public notoriety or knowledge are permissible.
Legal principles established
#- An application for leave to cite for contempt in the Court of Appeal must be brought under Section 5(1) of the Judicature Act and the procedural rules thereunder, not Order 40 Rule 3 of the Civil Procedure Rules where the application is not made in the proceedings in which the order was granted
- Leave to commence contempt proceedings must first be obtained, made ex parte to a single judge in chambers, with the main application made to the full court; the two cannot be lumped together in one application
- An order with an endorsement of penal consequences must be served personally upon the alleged contemnor unless it is shown the contemnor was aware of it, and awareness cannot be assumed because contempt proceedings have criminal consequences
Court orders
#- 1.The application for leave to cite the respondent for contempt of court is struck out with costs
- On appeal from
- Court of Appeal at Kisumu
- Civil Application Nos. 4 & 5 of 2015 (consolidated)
- Jurisdiction invoked
- Section 5(1) of the Judicature Act (Cap 8 of the Laws of Kenya) and the procedural rules thereunder; invoked as an application for leave to cite for contempt
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Plaintiff v Cyprian Nyakundi (contempt of court application)[2019] KEHC 11739 (KLR)30 Sept 2019
Cite this brief
#Cite this brief
Caselaw, "Gabriel O. Ochieng & another v Pamela Apondi Omino [2015] KECA 501 (KLR)", Case Analysis (2015). Civil Application No. 21 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/501/eng@2015-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.