Andrew Nyarindo v Republic

High Court of Kenya

15 June 2009

JMJ. W. Mwera

1,092 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~4 min to read original · ~4 min brief

The bottom line

Obey all court orders immediately, even if you disagree, until they are formally reviewed or set aside.

What this practically means

Executive summary

This was a High Court revision arising from contempt proceedings in Kisumu Criminal Case No. 438 of 2007, in which Agnes Awinja Okong'o and Joshua Okongo were jointly charged with procuring registration and fraudulent disposal of plot KSU/PANDPIERI/1032 belonging to the late Barrack Olonde Ogembo, and Okong'o additionally with fraudulent mortgaging contrary to section 318 of the Penal Code. Andrew Nyarindo, the investigating officer, had written a letter dated 21.11.2007 to the Senior Deputy Commissioner of Customs reporting that his employee, accused 2, had been arraigned in court. Before submissions on whether a prima facie case existed, the trial magistrate directed that the investigating officer withdraw that letter. When Nyarindo's letter of 13.6.2008 was held not to constitute the required withdrawal or apology, counsel for the accused sought contempt proceedings; the magistrate found him in contempt, ordered him to retract the letter and fined him Ksh 10,000/= with three months' imprisonment in default. The fine was paid. On revision, the State supported setting aside the order, contending the officer acted within the KRA Code of Conduct and Force Standing Orders. The High Court reaffirmed that contempt protects the administration of justice and that every court order must be obeyed until reviewed, varied or set aside, but held the magistrate should first have issued a stern warning requiring compliance before imposing a penalty. The order of 3.7.2008 was set aside and the paid fine made refundable. The trial in the criminal case was noted to be still ongoing.

Key legal issues

Whether disobedience of a court order justified the contempt finding against the investigating officer

Holding

Yes - the order to withdraw the letter of 21.11.2007 had not been varied, reviewed or set aside, so non-compliance warranted penalty; but the court nonetheless revised the order.

Reasoning

The High Court reaffirmed that court orders must be obeyed regardless of the officer's belief that he acted within KRA regulations. The magistrate's finding of non-compliance was factually correct. However, exercising revisionary discretion, the court held a stern warning should have preceded the penalty, and set the order aside.

p. 2

Whether the contempt order should be revised

Holding

Yes - the order of 3.7.2008 was set aside and the fine refundable.

Reasoning

The State Counsel supported revision, arguing the officer acted within KRA Code of Conduct and Force Standing Orders in reporting an employee's suspected crime. The court, while upholding the principle of obedience to orders, held the magistrate should first have warned the officer to comply before penalising him, and set the order aside.

p. 2

Legal principles established

Every court order, whether right or wrong, must be obeyed until reviewed, varied or set aside on appeal; disobedience attracts a penalty.
Contempt of court protects the administration of justice, not individual judicial officers.

Court orders

1.The order of the trial magistrate dated 3.7.2008 (contempt finding, withdrawal direction and fine) is set aside
2.The paid fine of Ksh 10,000/= may be refunded
3.Orders accordingly

On appeal from: Principal Magistrates' Court, Kisumu; KSU CM CR. C. 438/07
Jurisdiction invoked: Revisionary jurisdiction under the Criminal Procedure Code (CPC), entertained as revision rather than appeal at the election of Senior State Counsel

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Andrew Nyarindo v Republic", Case Analysis (2009). High Court Criminal Revision (from Kisumu CM CR. C. 438/07). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.