Kenya Union of Post Primary Teachers & 3 others v Njeru Kanyamba [2018] KECA 85 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed KUPPET's otherwise strong appeal because the union and its lawyers deliberately misled the court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred by refusing to hear the appellants on the basis that they were in contempt of court
Key legal issues
#Whether disobedience of a court order bars a party from being heard
There is no general rule barring a contemnor from being heard; the right to a fair hearing under Article 50(1) is fundamental, but the court retains a discretionary power, exercised sparingly, to refuse audience where the contempt impedes the course of justice, per Hadkinson v Hadkinson and Rose Detho.
The Court relied on its earlier decision in AB & Another v RB, which affirmed that a general rule curtailing the right to fair hearing in all cases of contempt would not pass constitutional muster. It adopted Lord Denning's formulation in Hadkinson v Hadkinson: disobedience is not of itself a bar, but the court may in its discretion refuse to hear a party whose continuing disobedience impedes the course of justice. The discretion exists because the constitutional edifice rests on respect for the rule of law.
Whether the trial judge's refusal to hear the appellants was lawful
The refusal was erroneous: the appellants had not been cited or convicted of contempt; the alleged contempt arose in a different cause not before the judge; and the judge excluded them suo motu without affording them an opportunity to show cause.
The Court found that the judge failed to apply the correct legal principles: no contempt application had been made against the appellants, no conviction existed, and the alleged contempt concerned orders in Cause No. 1539 of 2012, a different matter. The judge did not address the law on the right to be heard before denying audience. Nevertheless, the Court declined to allow the appeal because of the appellants' misconduct in misleading it.
The consequence of a party deliberately misleading the appellate court
Even though the appeal had merit, the Court dismissed it because the appellants and their counsel deliberately misled the Court, claiming the application to set aside the judgment was never heard when the record showed extensive submissions and a reserved ruling.
The Court invoked section 3 and sections 3A and 3B of the Appellate Jurisdiction Act, which oblige parties and advocates to assist the Court in the just determination of appeals. The original handwritten record confirmed the proceedings of 24th January 2013. A party prepared to mislead the Court to its benefit forfeits its claim to the Court's aid, notwithstanding the merits of its substantive contention.
Legal principles established
#- There is no absolute rule that a party in contempt cannot be heard; the court retains a discretion, to be exercised sparingly, to refuse to hear a contemnor depending on the circumstances of each case, especially where the contempt impedes the course of justice.
- A party who deliberately misleads the Court is not assisting it to attain a just determination, and the Court may decline to entertain that party's plea.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment & Labour Relations Court
- ICC. No. 1918 of 2011
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (first appeal from the Employment & Labour Relations Court)
Relief refused
#Allowance of the appeal to give the appellants an opportunity to be heard
The appellants conducted themselves in an unworthy and deceptive manner by deliberately misleading the Court about the hearing of their application to set aside the judgment
Costs
The appeal is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, due to the appellants' blatant misconduct, this appeal is dismissed with costs to the respondent. It is so ordered.
We readily agree with the appellants that there is no hard and first rule that a party alleged to be in contempt of court cannot be granted a hearing.
I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is notof itself a bar to his being heard
A party who deliberately misleads the Court cannot by any stretch of imagination be said to be assisting the Court in the attainment of just determination of disputes.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Post Primary Teachers & 3 others v Njeru Kanyamba [2018] KECA 85 (KLR)", Case Analysis (2018). Civil Appeal No. 80 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/85/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.