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Court of AppealAllowedCivil Appeal No. 43 of 2007· [2016] KECA 570 (KLR)

Rustam Hira v Charles Mbagaya Amira & Commerce Bank Limited (Civil Appeal 43 of 2007) (Civ) [2016] KECA 570 (KLR)

Court of Appeal of Kenya
19 May 2016
2,759 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 set aside contempt orders made against an advocate because he was never given a chance to defend himself.

What this practically means

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Executive summary

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The appellant, an advocate in ongoing civil proceedings, was cited by Ojwang, J of the High Court for contempt in the face of the court on 3rd June 2005 following an altercation during a hearing, and was ordered to appear and purge the contempt. On 13th June 2005 the judge further ordered that the appellant not be heard in the High Court until the contempt was argued, failing which he would be committed to jail. The appellant gave notice of appeal, obtained stay orders both from the High Court (Ibrahim, J) under the Chunga Rules and from the Court of Appeal under rule 5(2)(b), and appealed. The appeal was heard by way of written submissions; the respondents did not participate. The Court of Appeal framed two issues: whether the record disclosed conduct amounting to contempt in the face of the court, and whether the appellant was heard before being condemned. The court held that the judge had failed to record the appellant's alleged outburst, making it impossible to determine on appeal whether contempt was committed. More decisively, the court held that condemning the appellant without affording him an opportunity to be heard breached natural justice, applying Maharaj v A.G. of Trinidad. The court also restated the quasi-criminal character of contempt, the heightened standard of proof, and the reluctance with which judges should resort to contempt. The appeal was allowed and the contempt orders set aside, with each party bearing its own costs.

Key legal issues

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01

Whether a record of the alleged contemptuous conduct is necessary to sustain a conviction for contempt in the face of the court

Holding

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.

Reasoning

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.

p. 5
02

Whether the appellant was denied a fair hearing before being cited for contempt

Holding

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.

Reasoning

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.

p. 5
03

Standard of proof applicable in contempt proceedings

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal allowed and the orders sought granted
  2. 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. 3.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya (repealed)Section 84
  • Judicature ActChapter 8, Section 5(1) and (2)
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules 2001Rule 10(a) and (b)
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (6)

  • Ndegwa v. Republic
    [1985] KLR 534 @ 537
  • Mutitike v. Bahari Farm Ltd
    [1985] KLR 227
  • Re Breamblevale Ltd
    [1969] 3 All ER 1062
  • Mutitika v. Baharini Farm Ltd
    null
  • Re Mana Annie Davies
    [1989] 21 QBD 236
  • Maharaj v. A.G. of Trinidad
    [1987] 2 All ER 670
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

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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, "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.