Kiru Tea Factory Company Ltd v Stephen Maina Githiga & 8 others
The bottom line
#Kenya's Court of Appeal ruled you can start a contempt case without permission, but you cannot amend it or add affidavits without the court's leave.
What this practically means
#Executive summary
#Key legal issues
#Whether an amended contempt application filed without leave is properly on record
The Amended Notice of Motion dated 25th May 2018 was incompetent and was struck off the record because Rule 44 requires leave to amend any document filed in the Court and no such leave was obtained.
The Court held that while institution of contempt proceedings needs no leave, once a Motion is filed any amendment thereto requires leave under Rule 44 of the Court of Appeal Rules. The amendment and filing were both effected without leave. Citing the dictum in Boniface Mutinda Kabaka, a pleading filed without requisite leave is a nullity, and accordingly the amended Motion was struck off the record.
Whether further affidavits filed without leave are properly on record
Further affidavits filed without leave contravene Rule 43 of the Court of Appeal Rules and are struck off the record.
Rule 43 permits supplementary affidavits only with the leave of a judge or the consent of the other party. The Further Affidavits deposed by Geoffrey Chege Kirundi were filed without leave and without consent. Relying on the Ugandan authorities Samuel Mayanja v Uganda Revenue Authority and Ariho Emmanuel v Centenary Rural Development Bank, the Court found them a nullity and struck them out.
Whether leave is required to institute contempt proceedings
Leave is not required to institute contempt of court proceedings, and the original Notice of Motion dated 13th December 2017 was properly on record.
The Court reaffirmed its decisions in Shimmers Plaza Limited v National Bank of Kenya Limited and Christine Wangari Gachege v Elizabeth Wanjiru Evans, holding that under the English Civil Procedure Rules applied in contempt matters, leave before instituting committal proceedings is unnecessary. The original Motion therefore remained on record.
Legal principles established
#- Leave of the Court is not required to institute contempt of court proceedings, but once such an application is on record, any amendment of it requires leave of the Court.
- Under Rules 43 and 44 of the Court of Appeal Rules, where leave is required for an amendment or a further affidavit, a pleading filed without leave is a nullity and liable to be struck out.
Court orders
#- 1.The Amended Notice of Motion dated 25th May 2018 and the supporting affidavit thereof be and is hereby struck off the record as being incompetent for having been amended and filed without leave of this Court
- 2.The Further Affidavits deposed by Mr. Geoffrey Chege Kirundi and variously dated 21st December 2017, 22nd January 2018; 16th April 2018, 28th May 2018 and 3rd August 2018 be and are hereby struck off the record as having been filed without leave of this Court
- 3.The Notice of Motion dated 13th December 2017 and the supporting affidavit attached thereto be and is hereby held to be properly on record as its filing did not require leave of this Court
- 4.Each party to bear its/his costs in this application
- Jurisdiction invoked
- Inherent jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act; interlocutory application within pending appeals (Court of Appeal Rules, Rules 43 and 44)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiru Tea Factory Company Ltd v Stephen Maina Githiga & 8 others", Case Analysis (2019). Civil Application No. 137 of 2017 (UR 100/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/868/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.