Busia Water and Sewerage Services Company Ltd & another v Pramukh Cash and Carry Limited (Environment & Land Case E018 of 2021) [2022] KEELC 2338 (KLR)
The bottom line
#A Busia court set aside contempt orders made against a water company's director because he was never given a fair chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of magistrates' courts to punish for contempt
Magistrates' courts have statutory contempt jurisdiction under Section 10 of the Magistrates' Court Act, 2016, unaffected by the invalidation of the Contempt of Court Act
The court held that although the Contempt of Court Act was declared unconstitutional, Section 5 of the Judicature Act was not repealed and Section 10 of the Magistrates' Court Act remained valid. The trial court therefore had jurisdiction to cite a party for contempt; the ground of appeal on jurisdiction failed.
Fair hearing in contempt proceedings
The magistrate erred in making substantive contempt orders on a mention date, in the absence of the Appellants and without hearing them
The matter was fixed for mention to confirm compliance, not for hearing the contempt application. Respondent's counsel appeared ex parte and misled the court into granting substantive orders. Article 50 guarantees a fair hearing, and condemning a party unheard is a ground for setting aside the order.
Proof of contempt and duty to give reasons
No proof of contempt was established; the magistrate gave no reasons and ignored the Appellant's replying affidavit as required by Order 21 rule 5 of the Civil Procedure Rules
Contempt must be proved beyond the balance of probability. The Appellant had filed a replying affidavit dated 19 October 2021 which the magistrate failed to consider, and no reasons were given for the finding of contempt, breaching Order 21 rule 5 of the Civil Procedure Rules.
Legal principles established
#- A court's jurisdiction flows only from the Constitution or legislation and cannot exceed what is conferred by law
- Magistrates' courts have power to punish for contempt under Section 10 of the Magistrates' Court Act, 2016
- The declaration of the Contempt of Court Act unconstitutional did not invalidate Section 10 of the Magistrates' Court Act
- The standard of proof of contempt is above the balance of probabilities
- Failure to hear a party before making adverse orders amounts to condemnation unheard and is a ground for setting aside the order
Court orders
#- 1.The order of the learned chief magistrate made on October 25, 2021 be and is hereby set aside
- 2.The Appellants are awarded costs of this appeal
- On appeal from
- Busia Chief Magistrate's Court (ELC)
- ELC Case No. E.127 of 2021
- Jurisdiction invoked
- First appeal from the magistrates' court; magistrates' courts' contempt jurisdiction under Section 10 of the Magistrates' Court Act, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Busia Water and Sewerage Services Company Ltd & another v Pramukh Cash and Carry Limited (Environment & Land Case E018 of 2021) [2022] KEELC 2338 (KLR)", Case Analysis (2022). Busia Chief Magistrate Court ELC Case No. E.127 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2338/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.