James Kamau Mwaura v Mary Njeri & another [2018] KEELC 1405 (KLR)
The bottom line
#A Kenyan court ruled that contempt of court can now be pursued directly under the Contempt of Court Act 2016, without needing prior court permission.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over contempt after the Contempt of Court Act, 2016
Prior to 2016 superior courts' contempt jurisdiction derived from Section 5 of the Judicature Act and mirrored English law; that provision was repealed by the Contempt of Court Act, 2016, which created an elaborate self-contained framework
The court traced the pre-2016 framework under Section 5 of the Judicature Act, which tied Kenyan contempt jurisdiction to the law and practice of the High Court of Justice in England. It noted that the Contempt of Court Act, No. 46 of 2016 repealed that provision and promulgated an elaborate substantive and procedural framework, departing from reliance on English law. Consequently, the applicant's invocation of the Judicature Act framework was misplaced.
Necessity of leave and notice to show cause for contempt
Neither leave nor a notice to show cause is now necessary; a party with evidence of contempt may bring a motion directly
Because the new statutory framework displaced the old regime under which leave and notice were required, prayers 2 and 3 of the application were unnecessary. The court held that an applicant with evidence of contempt may bring a motion seeking contempt orders without leave or notice to show cause.
Duplicate injunctive relief
A plea for a duplicate conservatory order where one subsists is an abuse of process; the applicant should seek enforcement instead
The court noted that the orders of 17/5/2017 restraining development of plots P2172B, P387B, P1719B and P1720B remained in force and were binding on all parties. Seeking a fresh restraining order duplicating a subsisting one amounts to abuse of process. The court cautioned that development in disobedience of court orders attracts severe sanctions and does not enhance the developer's title, but instead exposes the developer to possible loss.
Legal principles established
#- The Contempt of Court Act, 2016 repealed Section 5 of the Judicature Act, and contempt proceedings no longer require prior leave or a notice to show cause
- A court will not issue a duplicate conservatory or injunctive order where a subsisting conservatory order exists; the remedy is enforcement
Court orders
#- 1.The Notice of Motion dated 3/10/2017 is dismissed
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act, Section 5(1) of the Judicature Act and Order 40 rule 3 of the Civil Procedure Rules 2010 (as invoked by the applicant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kamau Mwaura v Mary Njeri & another [2018] KEELC 1405 (KLR)", Case Analysis (2018). ELC Civil Suit No. 382 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1405/eng@2018-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.