Ikinu Ngwatio Co Limited v Havak Enterprises Limited [2021] KEELC 1298 (KLR)
The bottom line
#The Environment and Land Court in Thika dismissed a contempt case because it should have been filed in the Magistrates Court that issued the original orders.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrates Court to determine contempt of its own orders
The Magistrates Court has power to punish for contempt of its own orders, derived from Section 10(3) of the Magistrates Act, Section 63 of the Civil Procedure Act, Section 3A of the Civil Procedure Act and Section 29 of the ELC Act; the application filed before the ELC was incompetent.
Following the invalidation of the Contempt of Court Act in the Kenya Human Rights Commission case, contempt law reverts to Section 5 of the Judicature Act, which preserves the dignity of subordinate courts. Section 10(3) of the Magistrates Act expressly empowers the magistrates' court to punish wilful disobedience of its orders, and its punitive limits (five days' imprisonment or a KSh 100,000 fine) apply. The inherent powers under Sections 3A and 63 CPA reinforce this jurisdiction.
Governing law of contempt after the Contempt of Court Act was declared unconstitutional
The applicable law of contempt is that set out in the Judicature Act, incorporating English law as it stood when the application was filed.
The High Court in Kenya Human Rights Commission v Attorney General declared the entire Contempt of Court Act No. 46 of 2016 inconsistent with the Constitution and null and void. The consequence is that the law in force is the contempt law under the Judicature Act, which adopts the powers of the High Court of Justice in England, including rules 81.4-81.9 of the 2012 English rules on enforcement of judgments and service.
Legal principles established
#- Magistrates Courts have inherent and statutory power to punish for contempt of their own orders, unaffected by the declaration of invalidity of the Contempt of Court Act 2016
- The power to punish for contempt is inherent in the courts in addition to statutory powers
- The court with original jurisdiction over contempt of its own orders is the Magistrates Court, and contempt applications arising from such orders should be filed there in the first instance
Court orders
#- 1.The application dated 22nd August 2021 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Article 159 of the Constitution; Section 5 of the Judicature Act; Sections 10(3) and 29 of the Magistrates Courts Act and the ELC Act on contempt powers of subordinate courts
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ikinu Ngwatio Co Limited v Havak Enterprises Limited [2021] KEELC 1298 (KLR)", Case Analysis (2021). Application dated 22nd August 2021 (arising from Thika MCL&E 129 and 144 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1298/eng@2021-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.