Republic v Directors of Immigration Services & others Ex-Parte Kenya Association of Plastic and Reconstructive Surgeons through its Claimant Stanley Ominde Kahinga [2018] KEELRC 2216 (KLR)
The bottom line
#A Kenyan court refused to jail a foreign surgeon for contempt because the court order in question was directed at government officials, not at him.
What this practically means
#Executive summary
#Key legal issues
#Awareness of the court order
The 4th Respondent was aware of the orders of 31.8.2017, having admitted service on 4.9.2017
The court relied on the 4th Respondent's own replying affidavit filed on 13.12.2017 in which he averred that he was served with the order on 4.9.2017. Awareness was therefore proved despite the objection that personal service was required under section 30(3) of the Contempt of Court Act.
Whether Radovan Boca committed contempt
No contempt; the orders prohibited the 1st and 2nd Respondents from issuing a work permit, and the permit had already been issued before the orders
The orders of 31.8.2017 restrained the 1st and 2nd Respondents only. The 4th Respondent's work permit had been issued on 26/7/2017, before the orders, so nothing he did after 31/8/2017 contravened them. The applicant's remedy lay in the pending certiorari application to quash the permit, not in contempt proceedings against the 4th Respondent.
Legal principles established
#- A party cannot be punished for contempt where the court order breached was not directed at him and where the conduct complained of predates the order
- Knowledge of a court order may be established by admission of service even where personal service is disputed
Court orders
#- 1.The notice of motion dated 27.10.2017 seeking contempt orders against Radovan Boca is dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Section 8 of the Contempt of Court Act No. 46 of 2016 and all other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Directors of Immigration Services & others Ex-Parte Kenya Association of Plastic and Reconstructive Surgeons through its Claimant Stanley Ominde Kahinga [2018] KEELRC 2216 (KLR)", Case Analysis (2018). Miscellaneous Application (Notice of Motion dated 27.10.2017) arising from Judicial Review application dated 3.8.2017 (substantive motion filed 31.8.2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2216/eng@2018-03-20
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