West Kenya Sugar Company Limited v Busia Sugar Industries Limited & 2 others [2020] KEELC 2447 (KLR)
The bottom line
#The Bungoma High Court dismissed West Kenya Sugar's contempt application because no valid decree existed to enforce, and the alleged contempt had not been proven.
What this practically means
#Executive summary
#Key legal issues
#Effect of the unconstitutionality of the Contempt of Court Act 2016
The Act ceased to exist and no remedy can be founded on it, but the lacuna is not fatal because the Court may invoke its contempt jurisdiction under Section 5(1) of the Judicature Act and Section 3A of the Civil Procedure Act
The court noted the Act was declared unconstitutional in the Kenya Human Rights Commission case and not reversed on appeal. Applying Nuh Nassir Abdi, it held a claim cannot be founded on an unconstitutional law. However, the court retained inherent powers to uphold its dignity, and Order 51 Rule 10(1) saves applications filed under the wrong provision.
Necessity of a Decree for contempt proceedings
Contempt proceedings are a means of enforcing a Judgment, and without a settled and extracted Decree there is no basis for such proceedings
The Decree of 29th January 2018 was disputed; the Court of Appeal directed resolution under Order 21 Rule 8(4) and Mukunya J directed parties to file draft decrees, but no new Decree was ever settled. The only Decree on record is the disputed one, so the contempt application founded on the Judgment of 10th March 2017 was fatally incompetent.
Whether the 1st Respondent was in contempt of the Judgment of 10th March 2017
No contempt was made out because the Judgment left the licensing of the 1st Respondent to the discretion of the 2nd and 3rd Respondents, who lawfully exercised it
The Judgment directed that EMCA and the Crops Act deal with all licensing issues and that the authorities decide the fate of the 1st Respondent. The 2nd Respondent gazetted the application, heard the Petitioner's objections, and issued the milling licence after NEMA confirmed the EIA licence. No time limits were set in the Judgment.
Reliance on non-existent orders of 17th March 2018
The orders cited as issued on 17th March 2018 do not exist; the Petition was only before the court on 8th March 2018, and those interim orders could not found this application
The record showed the Petition never came up on 17th March 2018. The orders of 8th March 2018 arose from an application that was abandoned and were directed at different matters, including citing the Officer Commanding Busia Police Station, who was not a party and was never served.
Legal principles established
#- A law declared unconstitutional cannot be the basis of any claim
- Courts retain power to punish contempt under the Judicature Act notwithstanding the invalidity of the Contempt of Court Act
- A Judgment must have a settled Decree extracted from it before it can be enforced or executed
Court orders
#- 1.The Petitioner's Notice of Motion dated 20th December 2018 is dismissed
- 2.Costs to the 1st and 2nd Respondents
- Jurisdiction invoked
- Judicature Act Section 5(1) (contempt jurisdiction) and Section 3A Civil Procedure Act (inherent jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "West Kenya Sugar Company Limited v Busia Sugar Industries Limited & 2 others [2020] KEELC 2447 (KLR)", Case Analysis (2020). Contempt application dated 20th December 2018 in Constitutional Petition (Bungoma High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2447/eng@2020-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.