Jack & Jill Supermarket Limited v Republic, Principal Magistrate’s Court, City Court Nairobi & 3 others [2017] KECA 513 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that strict procedural rules for contempt cases must be followed exactly, and courts cannot use constitutional flexibility to excuse skipped steps.
What this practically means
#Executive summary
#Key legal issues
#Competence of the 1st contempt application
The dismissal of the 1st application was affirmed because the appellant failed to comply with the mandatory prerequisites of Order 52 of the Rules of the Supreme Court of England applicable at the time of filing
The application was filed on 29 August 2012, before Part 81 of the Civil Procedure (Amendment No.2) Rules 2012 came into effect, so Order 52 procedures applied. The appellant neither served notice on the Attorney General as required nor presented the substantive motion within fourteen days of leave. Order 52 Rule 3(2) left the judge no discretion to excuse these lapses, and Article 159(2)(d) could not cure them. The learned Judge interpreted and applied the law correctly.
Competence of the 2nd contempt application
The dismissal of the 2nd application was set aside because it was procedurally sound under Part 81 of the Civil Procedure (Amendment No.2) Rules 2012, which abolished the leave requirement, and the learned Judge overlooked the question whether it qualified as an Application Notice
The 2nd application was filed after 1 October 2012, when Part 81 replaced Order 52 and did away with the requirement for leave. Leave being no longer required, the 2nd application could not be vitiated by defects in the earlier leave application, which was procedurally non-existent and stood on its own. The learned Judge failed to interrogate whether the 2nd application qualified as an Application Notice under Rule 81.4; since that issue was not determined, the court reinstated the application for merit hearing rather than itself deciding it.
Scope of Article 159(2)(d) in contempt proceedings
Article 159(2)(d) is not a panacea for all procedural shortfalls; whether a lapse is excusable depends on the circumstances of each case, and in contempt proceedings, which carry penal consequences, mandatory procedural safeguards may not be disregarded
The court collected authorities establishing that rules of procedure are handmaidens of justice, but that Article 159(2)(d) does not authorise derogation from express statutory procedures nor excuse every deficiency. Because contempt entails an element of criminality and possible imprisonment, strict adherence to the prescribed procedure may be required notwithstanding Article 159(2)(d). The court declined to treat the appellant's non-compliance with mandatory committal prerequisites as a mere technicality curable by that provision.
Interference with discretionary decisions on appeal
An appellate court may interfere with the exercise of judicial discretion only where the judge misdirected himself, misapprehended the facts, took into account wrong considerations, or where the decision is plainly wrong
The court applied the classic Mbogo v Shah test, as supplemented by United India Insurance v East Africa Underwriters, in assessing the impugned ruling of Korir, J. It found the Judge correct on the 1st application but plainly wrong on the 2nd application, having overlooked the applicable Part 81 regime and the central question it raised. This justified setting aside the dismissal of the 2nd application while affirming the dismissal of the 1st.
Legal principles established
#- Where procedural rules governing committal for contempt are mandatory, Article 159(2)(d) cannot be used to excuse non-compliance; each case must be assessed on its own merits
- Contempt of court proceedings are of a criminal character and must be proved beyond reasonable doubt, warranting strict compliance with procedural requirements
- Under section 5(1) of the Judicature Act, a court must ascertain and apply the law of contempt of court then prevailing in England at the time the application for contempt was filed
- A procedural infraction that causes no injurious prejudice should not have an invalidating effect
Court orders
#- 1.The appeal against the dismissal of the 1st application is dismissed
- 2.The order dismissing the 1st application is affirmed
- 3.The appeal against the dismissal of the 2nd application is allowed
- 4.The order dismissing the 2nd application is set aside and substituted with an order reinstating it
- 5.The matter is remitted back to the High Court for the substantive hearing of the second application on its own merits by a Judge other than W.K. Korir, J
- 6.Each party to bear own costs
- On appeal from
- High Court of Kenya at Nairobi
- JR. Misc. Application No. 185 of 2009
- Jurisdiction invoked
- First appeal to the Court of Appeal from a High Court ruling (articles 164(1)(c) of the Constitution implied; appeal against exercise of the High Court's contempt jurisdiction under section 5(1) of the Judicature Act, Cap 8)
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.
- Teleposta Pension Scheme Registered Trustees v Said Hemed & 3 others [2020] KECA 778 (KLR)[2020] KECA 778 (KLR)24 Apr 2020
Cite this brief
#Cite this brief
Caselaw, "Jack & Jill Supermarket Limited v Republic, Principal Magistrate’s Court, City Court Nairobi & 3 others [2017] KECA 513 (KLR)", Case Analysis (2017). Civil Appeal No. 199 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/513/eng@2017-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.