Orange Democratic Movement v Fredrick Okolla Ojwang & 2 others [2018] KECA 646 (KLR)
The bottom line
#The Court of Appeal confirmed that anyone bound by a Kenyan court order must obey it exactly as written—choosing your own way to comply is contempt.
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 Judge erred in failing to take into account the appellant's party constitution in interpreting the order to conduct a repeat nomination
- 2.Whether the contempt was purged by the nomination exercise conducted on 18 June 2017
- 3.Whether the Judge was functus officio after delivering his judgment and decree of 24 May 2017, such that the contempt orders of 14 June 2017 were null and void
Key legal issues
#Whether ODM's adoption of direct nomination, instead of a repeat nomination by universal suffrage, constituted contempt of the order of 24 May 2017
It did. The order required a repeat of the nomination exercise in the same manner it had been carried out in the first instance, leaving no room for discretion in mode of compliance.
The Court found that the order of 24 May 2017 obligated ODM to repeat the nomination in the same manner as the 29 April 2017 exercise. ODM's opting for direct nomination, as admitted by Dr. Arunga, was flagrant disobedience. If ODM doubted the mode of compliance it ought to have applied for variation rather than choose its own path.
Whether the High Court was functus officio and its contempt directions null and void
No. The Judge was properly seized of the contempt proceedings.
All the case law reviewed indicates that the court which issued the orders allegedly disobeyed is better placed to gauge the veracity of the explanation for the alleged disobedience and accept or reject it. The contempt orders were therefore valid and not null and void.
Whether knowledge of the orders required proof of personal service on the officials
No. Dr. Arunga's replying affidavit showed the officials were aware of the orders.
Contrary to the submission that there was no proof of personal service, the content of Dr. Arunga's replying affidavit was explicit that the officials were aware of the orders, elected to use direct nomination due to time constraints, and considered direct nomination the most ideal mode of compliance.
Whether the nomination of 18 June 2017 purged the contempt
The Court declined to determine this, as the proper forum was the court that issued the orders.
The 18 June 2017 exercise postdated the 14 June 2017 directions to appear. The proper forum for interrogating the nature and extent of that supposed compliance was the court that issued the orders for appearance, not an appellate court. The Court was satisfied there was a proper basis for the orders of 14 June 2017.
Legal principles established
#- A party who is the addressee of a court order must obey it as directed and has no discretion to choose the mode of compliance; any doubt should be resolved by returning to court for variation.
- The obligation to obey a court order extends even to orders the addressee believes to be irregular or void; the proper course is to apply for discharge, not to disobey.
- The court that issued orders allegedly disobeyed is the proper forum, and is properly seized, of contempt proceedings arising from disobedience of those orders; functus officio is no bar.
- Whether subsequent conduct purged a contempt is a matter for the court that issued the orders, not the appellate court.
Court orders
#- 1.The appeal is dismissed with costs to the 3rd respondent (IEBC)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.ELC. No. 56 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Appeal No. 216 of 2017); the judgment does not cite a specific constitutional or statutory provision for its jurisdiction
Relief refused
#Setting aside the High Court's direction that Judy Pareno and Dr. Robert Arunga attend court to show cause why they should not be punished for contempt
The Court found a proper basis for the orders of 14 June 2017 and no error in the Judge's findings
Claim that the High Court was functus officio
The court that issued orders allegedly disobeyed is better placed to gauge the veracity of the explanation for disobedience
Costs
The appeal was dismissed with costs to the 3rd respondent (IEBC) as it is the only party that attended Court on the hearing date.
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.
The upshot of all the above is that we find no merit in this appeal. The same is dismissed with costs to the 3rd respondent as it is the only party that attended Court on the hearing date.
the cardinal and guiding principle on contempt of court orders is that a party who is the addressee of a court order has a duty to obey it as directed and that there is no room left for such a party to choose how to comply
It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged.
if ODM had any doubts as to how best to comply with the said orders, it ought to have applied for variation.
it is the court that issued orders allegedly disobeyed that is better placed to gauge the veracity of the explanation given for any alleged disobedience of the orders and either accept or reject it as the case may be
Issues in the judgment
#Internal inconsistency in the dates of the judgment and decree cited for contempt: the application is described as seeking to cite the officials for contempt of orders issued on 24 May 2017, but elsewhere the narrative refers to orders of '24th May, 2011' and the Mwongo ruling is described as cancelling nomination results of '19th April, 2007', which appear to be typographical errors for 2017.
The coram describes the appeal as from a 'Ruling' of E.C. Mwita, J. dated 14 June 2017, while the background states that the orders of 24 May 2017 were granted by 'Mwongo, P.J' after Election Petition number 56 of 2017; the two judicial involvements are not fully reconciled in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orange Democratic Movement v Fredrick Okolla Ojwang & 2 others [2018] KECA 646 (KLR)", Case Analysis (2018). Civil Appeal No. 216 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/646/eng@2018-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.