Kiru Tea Factory Co. Ltd v Stephen Maina Githiga & 13 others [2018] KECA 615 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot withdraw a contempt case if the withdrawal looks like a scheme to escape court orders.
What this practically means
#Executive summary
#Key legal issues
#Whether a litigant may withdraw an application for contempt of court while its authority to instruct advocates is disputed
The Court declined to permit the withdrawal where it was alleged that the purpose of the withdrawal was to shield and validate breach of the Court's orders, because the contempt application would also determine which directors were lawfully in office and competent to instruct advocates.
The Court acknowledged the general right of a party to withdraw an application, but held, applying Beijing Industrial Designing & Research Institute v Lagoon Development Ltd and Castanho v Brown & Root, that this right is circumscribed where withdrawal would abuse the court process or defeat the court's dignity and the supremacy of the law. Since the contempt proceedings would determine both the alleged contempt and the legitimacy of the Board that appointed the withdrawing advocates, allowing withdrawal would pre-empt those issues.
The Court's attitude to deliberate violation of its orders
The Court reiterated, citing its recent decision in Dr. Fred Matiang'i v. Miguna Miguna & 4 Others, that it takes seriously allegations of deliberate violation of its orders and that court orders bind all parties regardless of status.
While expressly declining to determine whether contempt had occurred, lest it pre-empt the fair hearing of the pending application, the Court affirmed that court orders issue ex cathedra and are compulsive, peremptory and expressly binding, and that courts will deal firmly and decisively with parties who disobey them, to preserve the authority and dignity of the court and the rule of law.
Legal principles established
#- A party's right to withdraw its suit or application is circumscribed where the purpose of the withdrawal is to abuse the court process or to shield and validate violation of court orders; the court has inherent power to refuse such withdrawal.
- Court orders are compulsory and binding, and no party may choose whether or to what extent to obey them.
- Pending contempt of court proceedings are not merely a private dispute between parties but a vehicle for upholding the supremacy of the law and the dignity of the court.
Court orders
#- 1.Dismissal of the application dated 31st January 2018 seeking withdrawal of the contempt of court application
- 2.Costs of the application to abide the outcome of the contempt of court application dated 13th December 2017
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules (interlocutory application before the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiru Tea Factory Co. Ltd v Stephen Maina Githiga & 13 others [2018] KECA 615 (KLR)", Case Analysis (2018). Civil Application No. 137 of 2017 (UR 100/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/615/eng@2018-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.