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Court of AppealPartially AllowedCivil Appeal No. 69 of 2015· [2016] KECA 756 (KLR)

Ramadhan Salim v Evans M. Maabi T/A Murhy Auctioneers & another [2016] KECA 756 (KLR)

Court of Appeal
26 February 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,113 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 ruled that only the High Court could punish breach of a mandatory injunction then, reviving a matatu owner's contempt case.

What this practically means

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Executive summary

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The appellant, owner of a matatu, obtained orders from the Mombasa Principal Magistrate's Court restraining the respondents from disposing of the vehicle, and later an order of 5th February 2015 directing the respondents to restore the vehicle and the 2nd respondent to re-transfer it to him. The respondents ignored the orders and transferred the vehicle to a third party. Contempt proceedings in the magistrate's court failed on a preliminary objection holding that the court lacked jurisdiction to punish for breach of a mandatory injunction. The appellant moved to the High Court, where Kasango, J. struck out the application on the ground that the order, being made under Order 40 of the Civil Procedure Rules, could only be enforced by the court that issued it. On appeal, the Court of Appeal held that the order breached was a mandatory injunction, not a temporary injunction, so the magistrate's court had no jurisdiction to punish for its breach; under Section 5(1) of the Judicature Act, that jurisdiction vested in the High Court and Court of Appeal and extended to upholding the authority and dignity of subordinate courts. The Court noted that the Magistrates' Courts Act, 2015 has since conferred contempt jurisdiction on magistrates' courts, but that the prevailing law at the relevant time was otherwise. The Court allowed the appeal, set aside the High Court ruling, and remitted the application to the High Court for hearing on merit by a judge other than Kasango, J., declining an invitation to punish the respondents itself to preserve the right of appeal. No costs were awarded to any party.

Key legal issues

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01

Jurisdiction of the magistrate's court to punish for contempt of its own injunctive orders

Holding

The magistrate's court lacked jurisdiction to punish for breach of a mandatory injunction; only the High Court and Court of Appeal had such jurisdiction under Section 5(1) of the Judicature Act, and that power extends to upholding the authority and dignity of subordinate courts.

Reasoning

Section 5(1) of the Judicature Act vests contempt jurisdiction in the High Court and Court of Appeal, mirroring the High Court of Justice in England, and extends to upholding the dignity of subordinate courts. Section 63(c) of the Civil Procedure Act and Order 40 concerned only disobedience of temporary injunctions. The order of 5th February 2015 was a mandatory injunction ordering restoration and re-transfer of the matatu, not a temporary injunction, so the magistrate correctly upheld the preliminary objection. The prevailing law at the time was that magistrates had no power to punish for contempt.

p. 4
02

Whether the High Court erred in striking out the contempt application on the ground that the appellant was before the wrong forum

Holding

The High Court judge erred: she misconceived the order breached as a temporary injunction under Order 40, when it was in the nature of a mandatory injunction, so the High Court had jurisdiction and the application should have been heard on merit.

Reasoning

Kasango, J. held that an injunction issued under Order 40 could only be enforced for contempt by the court that issued it. The Court of Appeal found this conclusion erroneous because the operative order of 5th February 2015 directed the respondents to restore the matatu and the 2nd respondent to re-transfer it - a mandatory injunction. Had the judge appreciated the true nature of the order, she would have realised the magistrate's court lacked jurisdiction to punish for its breach and that the High Court was the right forum. Striking out the application for want of jurisdiction was therefore an error.

p. 5
03

Nature of the injunctive order breached

Holding

The order of 5th February 2015 requiring the respondents to restore the matatu and re-transfer it to the appellant was a mandatory injunction, not a temporary injunction.

Reasoning

Relying on New Ocean Transport Limited & Another v Anwar Mohamed Bayusuf Limited, the Court distinguished positive and negative injunctions, including mandatory and restorative injunctions. The impugned order required the respondents to undo a wrongful act and restore the status quo ante by returning the matatu, which places it squarely within the mandatory/restorative family of injunctions rather than a prohibitory temporary injunction under Order 40.

p. 4
04

Effect of the Magistrates' Courts Act, 2015 on contempt jurisdiction of subordinate courts

Holding

The Magistrates' Courts Act, 2015, which came into force on 2nd January 2016, now gives magistrates' courts power to punish for contempt, including willful disobedience of judgments, decrees and orders, but this did not apply at the time of the application.

Reasoning

The Court noted Section 10 of the Magistrates' Courts Act, 2015 as an innovation that buttresses the magistrate's position that he lacked such jurisdiction at the time. The prevailing law when the application was instituted was that magistrates' courts had no power to punish for contempt save in the face of the court or for disobedience of temporary injunctions. The Act's provisions are therefore prospective and did not cure the jurisdictional gap in this case.

p. 5

Legal principles established

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  • Under Section 5(1) of the Judicature Act, the High Court and Court of Appeal have power to punish for contempt, including contempt committed in subordinate courts; a magistrate's court could only punish for contempt committed in the face of the court or for breach of a temporary injunction under Section 63(c) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules (before the Magistrates' Courts Act, 2015)
  • Where the order breached is in the nature of a mandatory injunction rather than a temporary injunction, the magistrate's court lacked jurisdiction to punish for contempt and the High Court is the proper forum

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and order of the High Court striking out the appellant's application set aside
  3. 3.File returned to the High Court for determination of the appellant's application on merit by a Judge other than Kasango, J.
  4. 4.No costs awarded to any of the parties

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(c)
  • Civil Procedure RulesOrder 40 (including Rules 3(1) and 31)
  • Magistrates' Courts Act, 2015Section 10
  • English Civil Procedure (Amendment No.2) Rules, 2012Part 81.4
  • Contempt of Court Act, 1981 (England)
  • Supreme Court of Judicature Act, 1873 (England)
  • Rules of the Supreme Court (England)Orders 52 Rules 1 to 4

Cases cited (3)

  • New Ocean Transport Limited & Another v Anwar Mohamed Bayusuf Limited
    [2014] eKLR
  • Kyoga Hauliers Limited v Long Distance Truck Drivers & Allied Workers Union
    [2015] eKLR
  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others
    [2014] eKLR
On appeal from
High Court of Kenya at Mombasa
Misc. Appl. No. 123 of 2015
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over decisions of the High Court in exercise of its contempt jurisdiction under Section 5(1) of the Judicature Act (Cap 8)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Ramadhan Salim v Evans M. Maabi T/A Murhy Auctioneers & another [2016] KECA 756 (KLR)", Case Analysis (2016). Civil Appeal No. 69 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/756/eng@2016-02-26

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