Mbaya v Nkaboo & another
The bottom line
#Kenya's Court of Appeal ruled you cannot be jailed for contempt of an order that was never actually made against you.
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 applicant's procedural defects (non-paginated application, wrong statutory invocation) defeat the application
- 2.Whether this Court has power to consider an application for disobedience of its orders
- 3.Whether the 1st respondent ought to be found in further/continued contempt for failing to surrender to the Chief Magistrates' Court for committal
Key legal issues
#Wrong procedure invoked in the application
The application wrongly invoked the Civil Procedure Act and Order 51 Rule 1, but the invocation of Section 5 of the Judicature Act preserved the Court's jurisdiction over contempt.
The Court agreed the Civil Procedure Act provisions do not apply to it, as it is guided by the Appellate Jurisdiction Act and its Rules. However, because the applicant also invoked the Judicature Act, whose Section 5 confers on the Court of Appeal the same contempt powers as the High Court of Justice in England, the Court retained power to entertain the application for disobedience of its orders.
Whether the 1st respondent was in continued contempt for failing to surrender for committal
No - the committal order directed the police to arrest and escort her, not her to surrender herself; the 2024 ruling was mere expression of frustration, not a fresh order.
The Court examined the 23rd September 2022 order and found it directed the Officer Commanding Chogoria Police Station to arrest and escort the 1st respondent to court for committal; no order required her to deliver herself. The 20th September 2024 ruling merely expressed the Court's frustration and could not found a conclusive finding of disobedience of an order never made. The arrest orders remain in force and should be acted upon.
Competency of the notice of appeal
The Court declined to determine the competency of the notice of appeal, holding this application was not the forum for that question.
The 1st respondent argued the applicant's notice of appeal was incompetent, denying him locus standi. The Court held that the competency of a notice of appeal could not be addressed within a contempt application, effectively deferring the issue without ruling on it.
Legal principles established
#- A person cannot be held in contempt for disobeying an order that was never made against them; contempt requires an express order directed at the person.
- The Court of Appeal has power to punish for contempt of its orders under Section 5 of the Judicature Act.
- Non-paginated filings are a procedural technicality without prejudice, not a ground for striking out.
Court orders
#- 1.The application dated 21st October 2025 is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Succ. Cause No. 15 of 2013
- Jurisdiction invoked
- Section 5 of the Judicature Act, Cap 8, Laws of Kenya - the High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England
Relief refused
#Citation of the 1st respondent for continued contempt of the orders of 23rd September 2022 and 20th September 2024
There was no express order directing the 1st respondent to present herself to court; the order was directed at the enforcement agency to arrest and escort her
Committal of the 1st respondent to civil jail for a further period of 6 months
The application for a finding of further contempt failed
Costs
We make no orders as to costs as the 1st respondent does not deserve any, given her conduct and the fact that she is still at large.
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.
There is no question that a person is liable to be held in contempt if they fail to obey an order of the Court.
she cannot be held to be in contempt for not taking herself to court because there was no express order directing her to act as such
Those orders are still in force and should be acted upon if the 1st respondent does not so present herself to Court.
For the reasons above, we are not persuaded that the application should be allowed and the same is hereby dismissed.
We make no orders as to costs as the 1st respondent does not deserve any, given her conduct and the fact that she is still at large.
Issues in the judgment
#Typographical error in date of the 2022 ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbaya v Nkaboo & another", Case Analysis (2026). Civil Appeal E018 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1746/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.