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ELCDismissedMiscellaneous Application (Notice of Motion dated 20th March 2017), Murang'a· [2017] KEELC 1185 (KLR)

Macharia Waiguru v Attorney General & 2 others [2017] KEELC 1185 (KLR)

High Court of Kenya
18 October 2017
2,136 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a jail-for-contempt application because the applicant waited too long and didn't prove the officials even knew about the court order.

What this practically means

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Executive summary

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By a Notice of Motion dated 20th March 2017, Macharia Waiguru sought committal to jail for up to six months of three respondents - Julius Irungu Ndungu, the Attorney General and the District Surveyor - for contempt of a consent order issued on 18/02/2015 in CMCC No. 24 of 2015 at Murang'a, which ordered the defendant to excise and transfer 0.25 acres out of land parcel Loc 11/Maragi/71 to the applicant. The applicant alleged that the District Surveyor refused to register a mutation form effecting the sub-division. The respondents filed a preliminary objection contending, among other grounds, that no 30-day notice was issued as required by section 30 of the Contempt of Court Act, that the application was filed more than six months after the alleged contempt contrary to section 34, that section 8 of the Office of the Attorney General Act shields state officers from personal liability, and that the respondents were strangers to the order disobeyed. The respondents further relied on Ex parte Langley for the threshold of proof beyond reasonable doubt. The court held that the applicant failed to link the respondents to the order, that they were not parties to the suit and were wrongly sued personally for official duties, that the applicant did not prove knowledge of the order beyond reasonable doubt, and that the application was statute-barred. The court also held that the miscellaneous application, not being anchored in a suit prescribed by procedure, was fatally incompetent and an abuse of process. The preliminary objection was upheld, the application dismissed with costs.

Key legal issues

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01

Whether the respondents were bound by and in contempt of the CMCC No. 24 of 2015 order

Holding

The applicant failed to directly link the respondents to the order; they were not parties to the suit in which the order was issued and were sued in their personal capacity for official duties

Reasoning

The order of 18/02/2015 was directed to the defendant in CMCC No. 24 of 2015, not to the District Land Surveyor, the Attorney General or any of the respondents. The court could not ascertain from the pleadings that the respondents were bound by the order, and there was no evidence that they had knowledge of it, an element that must be proved beyond reasonable doubt.

p. 4
02

Whether the application complied with sections 30 and 34 of the Contempt of Court Act

Holding

The application was statute-barred having been filed more than six months after the alleged contempt, and the applicant failed to follow the prescribed procedure

Reasoning

Section 34 bars initiation of contempt proceedings after six months from the date of the alleged contempt; the order was issued on 18/02/2015 and the application filed on 20/03/2017, well beyond that period. Section 30's thirty-day notice requirement applies to State organs and their accounting officers, and the applicant did not follow the statutory procedure for contempt actions.

p. 4
03

Whether the miscellaneous application was properly before the court

Holding

No - the application, not being anchored in a suit prescribed by procedure, was fatally incompetent, misconceived and an abuse of the process of the court

Reasoning

The court held that a contempt application cannot be brought by way of a miscellaneous application standing alone; it must be anchored in a suit as prescribed by the applicable procedure. Since the applicant's application was procedurally defective in this respect, the preliminary objection succeeded.

p. 4
04

Whether the respondents enjoy immunity under section 8 of the Office of the Attorney General Act

Holding

The preliminary objection relied on section 8 protection; the court found the objection merited without squarely deciding immunity, the application failing on the other grounds

Reasoning

Section 8 of the Attorney General Act protects the Attorney General, Solicitor-General and subordinate officers from personal liability for proceedings in the course of discharging the functions of the office. The respondents argued this protection applied; the court upheld the preliminary objection as a whole on the combined grounds including limitation and want of proper anchorage.

p. 4

Legal principles established

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  • Contempt must be proved beyond reasonable doubt, including that the contemnor had full knowledge and notice of the order alleged to have been disobeyed
  • Contempt proceedings cannot be initiated after the expiry of six months from the date the contempt is alleged to have been committed
  • It is the plain obligation of every person against whom a court order is made to obey it unless and until it is discharged
  • A contempt application brought as a miscellaneous application without being anchored in a suit prescribed by procedure is fatally incompetent and an abuse of process

Court orders

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  1. 1.The preliminary objection is found merited
  2. 2.The applicant's Notice of Motion dated 20th March 2017 seeking committal for contempt is dismissed
  3. 3.Costs of the application are awarded to the respondents

Authorities

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Legislation

  • Contempt of Court Actsection 30
  • Contempt of Court Actsection 34
  • Contempt of Court Actsection 6
  • Office of the Attorney General Actsection 8

Cases cited (3)

  • Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • Central Bank of Kenya & Another vs. Ratilal Automobiles Limited & Others
    Civil Application No. Nai. 247 of 2006
  • Ex parte Langley
    1879, 13 Chancery Division 110 (C.A)
Jurisdiction invoked
Contempt of Court Act, sections 6 and 34; contempt of a subordinate court order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Macharia Waiguru v Attorney General & 2 others [2017] KEELC 1185 (KLR)", Case Analysis (2017). Miscellaneous Application (Notice of Motion dated 20th March 2017), Murang'a. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1185/eng@2017-10-18

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