Hellen Nasambu v Jane Naliaka Simiyu [2019] KEELC 897 (KLR)
The bottom line
#A Kenyan court confirmed that disobeying a court order remains punishable even after the Contempt of Court Act was struck down, and refused to review the sentence.
What this practically means
#Executive summary
#Key legal issues
#Whether the declaration of unconstitutionality of the Contempt of Court Act No. 46 of 2016 constitutes a ground for review of the defendant's conviction and sentence for contempt
It does not; the ground is not analogous to the grounds in Order 45 Rule 1 and the defendant's admission of disobedience remains on record, with Order 40 rule 3(1) independently empowering punishment
The court found that the defendant knew of the Kenya Human Rights Commission decision at the relevant time, so its citation was neither new evidence nor an error apparent on the record. The defendant had admitted disobeying the order of 19/6/2018, and the respondent's committal application was brought under Order 40 rule 3(1), which independently mandates punishment for disobedience regardless of the statute applied. The conviction therefore rested on the admission and stood.
The proper scope of 'any other sufficient reason' under Order 45 Rule 1
It must be a reason sufficiently analogous to the two specified grounds - discovery of new and important matter and error apparent on the face of the record - not a misapprehension of law correctable only on appeal
Applying National Bank of Kenya Ltd vs Ndungu Njau and Mativo J's citation of Ajit Kumar Rath vs State of Orissa and Sadar Mohamed vs Charan Singh and Another, the court held that a decision based on a misapprehension of the law is corrected by appeal, not review. The defendant's ground did not satisfy the analogousness requirement and the application was an exercise in futility.
Legal principles established
#- A review cannot be granted merely because the judge misapprehended the law or procedure or exercised discretion wrongly; the proper remedy is an appeal unless the error is apparent on the face of the record
- 'Any other sufficient reason' for review means a reason sufficiently analogous to discovery of new and important matter or error apparent on the face of the record
- The invalidity of the Contempt of Court Act does not take away the court's power under Order 40 rule 3(1) of the Civil Procedure Rules to punish for disobedience of its orders
Court orders
#- 1.The application dated 17/5/2019 is dismissed with no orders as to costs
- 2.The sentence meted out against the defendant on 13/5/2019 still stands
- 3.The defendant shall forthwith pay the fine or be committed to serve the sentence
- Jurisdiction invoked
- Sections 3A and 63(e) of the Civil Procedure Act; Order 45 Rule 1(a) & (b), Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellen Nasambu v Jane Naliaka Simiyu [2019] KEELC 897 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/897/eng@2019-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.