Rustam Hira v Charles Mbagaya Amira & Commerce Bank Limited (Civil Appeal 43 of 2007) (Civ) [2016] KECA 570 (KLR)
The bottom line
#Kenya's Court of Appeal set aside contempt orders made against an advocate because he was never given a chance to defend himself.
What this practically means
#Executive summary
#Key legal issues
#Whether a record of the alleged contemptuous conduct is necessary to sustain a conviction for contempt in the face of the court
A finding of contempt cannot stand where the judge failed to record what the advocate said or did; the appellate court cannot determine whether contempt was committed without such a record.
The learned Judge stated that Mr. Hira had engaged in an altercation but did not record what he said or how long he spoke. Without that record the appellate court, on a first appeal, cannot ascertain whether the conduct amounted to contempt or whether the judge was obstructed in conducting proceedings.
Whether the appellant was denied a fair hearing before being cited for contempt
Condemning a person to punishment for contempt without first giving him an opportunity to respond breaches natural justice and vitiates the finding, regardless of the quality of his conduct.
The right to be heard is fundamental. The appellant was cited and condemned for contempt in the face of the court without being afforded an opportunity to respond to the charge, a breach of natural justice relying on Maharaj v A.G. of Trinidad. This failure alone sufficed to allow the appeal.
Standard of proof applicable in contempt proceedings
Contempt is quasi-criminal; guilt must be proved with strictness consistent with the gravity of the charge - higher than balance of probabilities but not beyond reasonable doubt.
Following Re Bramblevale Ltd and Mutitika v Baharini Farm Ltd, the court reiterated that contempt is an offence of a criminal character which may result in imprisonment and must be satisfactorily proved, but the criminal standard of beyond reasonable doubt should not be extended to quasi-criminal contempt proceedings.
Legal principles established
#- A person cannot be condemned for contempt without first being given an opportunity to be heard on the charge.
- There must be a record of the alleged contumelious conduct before an appellate court can sustain a finding of contempt in the face of the court.
- The standard of proof in contempt proceedings is higher than the balance of probabilities but not beyond reasonable doubt, commensurate with the gravity of the charge.
- Contempt jurisdiction must be exercised with restraint, and recourse should not be had to contempt where another method of doing justice exists.
Court orders
#- 1.Appeal allowed and the orders sought granted
- 2.The orders of contempt made by Ojwang, J on 3rd June 2005 and the order requiring the appellant to purge contempt set aside
- 3.Each party to bear its own costs
- On appeal from
- High Court of Kenya, Nairobi
- H.C.C.C. No. 1169 of 1998
- Jurisdiction invoked
- Section 5(2) of the Judicature Act (Cap. 8), under which an order of the High Court made by way of punishment for contempt of court is appealable as if it were a conviction and sentence in the exercise of original criminal jurisdiction; first appeal under the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rustam Hira v Charles Mbagaya Amira & Commerce Bank Limited (Civil Appeal 43 of 2007) (Civ) [2016] KECA 570 (KLR)", Case Analysis (2016). Civil Appeal No. 43 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/570/eng@2016-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.