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Court of AppealDismissedCivil Appeal No. 184 of 2010· [2019] KECA 612 (KLR)

Kenya Reinsurance Corporation Ltd v Eunice Mbogo [2019] KECA 612 (KLR)

Court of Appeal
21 June 2019
3,029 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that once a company is served with a clear court order, ignoring it means contempt, even if served on its secretary.

What this practically means

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Executive summary

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The respondent, formerly Managing Director of the appellant under a three-year contract expiring 12th April 2010, sought judicial review orders of prohibition and mandamus to prevent termination and compel renewal of her contract. On 12th April 2010 Khaminwa, J. granted leave ex parte, directing that it operate as a stay maintaining the status quo as at 7th April 2010 until hearing of the notice of motion. The order, with a penal notice, was served on the appellant's Corporation Secretary, Habil Waswani. The following day the respondent was barred from her office. The High Court found the appellant in contempt and fined it Kshs. 1,000,000, which was paid. The appellant appealed on grounds including improper service, a defective penal notice annexed rather than displayed on the face of the order, lack of High Court jurisdiction over an industrial dispute, and insufficient proof of contempt. The Court of Appeal reviewed the confused history of contempt law in Kenya, noting that in 2010 section 5(1) of the Judicature Act applied, incorporating the powers of the English High Court. The court held that service on the Corporation Secretary was proper under Rules 45(5), 48 and 69 of the English Rules of the Supreme Court; that the manner of displaying a penal notice is undefined, so an annexed notice suffices; that jurisdiction could not be impeached since the substantive motion remained unheard; and that contempt was proved to the requisite standard, the appellant having disobeyed a clear order of which it had notice. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Proper recipient of service of a court order on a body corporate for contempt purposes

Holding

Service upon the Corporation Secretary was proper; disobedience of court orders may be enforced against officers of a body corporate under the English Rules of the Supreme Court applicable via section 5(1) of the Judicature Act.

Reasoning

The court invoked Rules 45(5), 48 and 69 of the English Rules of the Supreme Court in the Civil Procedure Rules 1998, which provide that breach by a body corporate may be enforced against its directors or other officers. Since the Corporation Secretary described himself as such and accepted service on 12th April 2010 at 4pm together with the penal notice, service was regular. The submission that service ought to have been upon the directors was rejected.

p. 4
02

Form and placement of the penal notice

Holding

A penal notice annexed to the order rather than displayed on its face satisfies the requirement of Rule 45(4) of the Rules of the Supreme Court of England, which requires only prominent display of a warning on the copy served; the mode of display is undefined.

Reasoning

Rule 45(4) requires that a warning that disobedience would be a contempt punishable by imprisonment or sequestration be prominently displayed on the front of the copy served, but the rule does not describe or define the manner of display. Since a penal notice accompanied the order served on the Corporation Secretary, the objection that the notice was on a separate annexed sheet was without merit.

p. 4
03

Jurisdiction of the High Court over an employment dispute framed as judicial review

Holding

The High Court had jurisdiction to grant the interim order notwithstanding that the underlying dispute was industrial; whether judicial review was the most efficacious route could not be determined because the notice of motion was yet to be heard.

Reasoning

While courts have stressed that where a clear procedure for redress is prescribed it should be strictly followed, the respondent elected judicial review. The court cited authority that judicial review is an alternative remedy of last resort and that its efficacy must be assessed, but held that this question could not be answered because the substantive motion for prohibition and mandamus remained unheard. That ground of appeal therefore failed.

p. 4
04

Whether contempt was proved

Holding

Contempt was proved: the appellant was regularly served with a clear order directing maintenance of status quo, and barring the respondent from her office the next day was a clear and deliberate violation.

Reasoning

The order directed that status quo as at 7th April 2010 be maintained until hearing of the Notice of Motion. The Corporation Secretary was served with the order and penal notice on 12th April 2010; the following day the respondent was barred from accessing her office, a clear violation. Although a notice of 9th April 2010 indicated the contract was ending, upon service the appellant ought to have held its hands in deference to the court. The standard of proof, higher than balance of probabilities but not beyond reasonable doubt, was met.

p. 4

Legal principles established

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  • To prove contempt of court it must be demonstrated that the terms of the order were clear and unambiguous and binding, that the defendant had knowledge or proper notice, that the defendant breached the order, and that the conduct was deliberate.
  • Contempt must be proved to a standard higher than a balance of probabilities, almost but not exactly beyond reasonable doubt.
  • The purpose of punishing contempt is to prevent undue interference with the administration of justice, not to vindicate the dignity of the court or judge.
  • The manner of displaying a penal notice on an order served is not prescribed; what matters is that a penal notice accompanies the order.
  • Service of an order on a corporation's officer (here the Corporation Secretary) is proper for contempt purposes.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Judicature Actsection 5(1)
  • Judicature Actsection 5(2)
  • Constitution of Kenya (former)section 72
  • Constitution of Kenya (former)section 77
  • High Court (Organization and Administration) Actsection 36
  • High Court (Organization and Administration) Actsection 39(2)(g)
  • Court of Appeal (Organization and Administration) Actsection 35
  • Contempt of Court Actsections 38, 39 and 40
  • Rules of the Supreme Court of England (Civil Procedure Rules, 1998)Rule 45(4)
  • Rules of the Supreme Court of England (Civil Procedure Rules, 1998)Rules 45(5), 48 and 69
  • English Civil Procedure (Amendment No.2) Rules, 2012
  • Constitution of Kenya, 2010Articles 10 and 118(b) (as invoked in the quoted KHRC judgment)

Cases cited (7)

  • Heelmore V Smith
    (1886) L.R. 35 C.D 455
  • Teachers Service Commission V. Kenya National Union of Teachers & 2 others
    (2013) e KLR
  • Cecil Miller V Jackson Njeru
    (2017) e KLR
  • Gatharia K. Mutikika V Baharini Farm Ltd
    (1985) KLR 227
  • Kenya Human Rights Commission V. Attorney General & another
    [2018] eKLR
  • Speaker of the National Assembly V. Karume
    (2008) 1KLR 425
  • Nasieku Tarayia V. Board of Directors, AFC & another
    (2012) e KLR
On appeal from
High Court of Kenya at Nairobi
Misc. Civil Case No. 135 of 2010
Jurisdiction invoked
Section 5(2) of the Judicature Act - an order of the High Court punishing for contempt is appealable as if it were a conviction and sentence in the exercise of ordinary original criminal jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kenya Reinsurance Corporation Ltd v Eunice Mbogo [2019] KECA 612 (KLR)", Case Analysis (2019). Civil Appeal No. 184 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/612/eng@2019-06-21

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