Kenya Reinsurance Corporation Ltd v Eunice Mbogo [2019] KECA 612 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Proper recipient of service of a court order on a body corporate for contempt purposes
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.
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.
Form and placement of the penal notice
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.
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.
Jurisdiction of the High Court over an employment dispute framed as judicial review
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.
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.
Whether contempt was proved
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbogo v Kenya Re-Insurance Corporation Limited (Cause 63 of 2011) [2023] KEELRC 1315 (KLR)[2023] KEELRC 1315 (KLR)29 May 2023
- Henry Owino Obonyo & another v Kenya Airways Limited [2020] KEELRC 735 (KLR)[2020] KEELRC 735 (KLR)9 Jul 2020
- Eziekiel O. Owuor v CIC Insurance Group Limited & another [2019] KEELRC 759 (KLR)[2019] KEELRC 759 (KLR)27 Sept 2019applied
Cite this brief
#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.