Evans Wafula Makokha & another v Council of Governors & 2 others [2018] KEELRC 2384 (KLR)
The bottom line
#A Kenyan court threw out a contempt case because the winning party never served the court order with a penal notice warning of punishment for disobedience.
What this practically means
#Executive summary
#Key legal issues
#Applicable law of contempt
The pre-2017 contempt regime under section 5 of the Judicial Service Act applies because the alleged contempt arose before the Contempt of Court Act commenced
The alleged contempt relates to matters prior to the commencement of the Contempt of Court Act No. 46 of 2016 on 13th January 2017. The court therefore applied the law as set out under section 5 of the Judicial Service Act, which drew on the English Contempt of Court Act 1981 and Part 81 of the Civil Procedure (Amendment No. 2) Rules 2012, including the four categories of committal.
Mandatory service of order with penal notice
Contempt for breach of an order cannot be enforced unless the served order prominently displays a penal notice warning of imprisonment, fine or sequestration, served simultaneously with the order
Under rule 81.9, judgments or orders to do or not do an act may not be enforced in contempt proceedings unless a warning of the consequences of disobedience is prominently displayed on the front of the served order. Only the 'breach' category has an outlined service procedure under rules 81.5–81.8. The applicant produced no evidence of such service.
Evidential failure of the contempt application
The application failed for want of proof of service and absence of the served order with penal notice
The supporting affidavit of David Koross did not depone to service of the order at all; the order bearing the express warning allegedly served on the 1st Respondent's Chairman was not attached; and there was no evidence of compliance with the mandatory procedure. The application was therefore 'dead on arrival' and dismissed with costs.
Legal principles established
#- Where contempt is alleged for breach of an order, the order served must prominently display a penal notice warning that disobedience is punishable, and the order and penal notice must be served simultaneously
- Contempt proceedings for acts pre-dating the Contempt of Court Act 2016 are governed by section 5 of the Judicial Service Act (as it then stood)
Court orders
#- 1.The Notice of Motion dated 10th February, 2016 seeking committal for contempt is dismissed with costs
- Jurisdiction invoked
- Inherent contempt jurisdiction under section 5 of the Judicial Service Act (now repealed); contempt arising prior to the Contempt of Court Act No. 46 of 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Wafula Makokha & another v Council of Governors & 2 others [2018] KEELRC 2384 (KLR)", Case Analysis (2018). Cause No 107 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2384/eng@2018-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.