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High CourtAllowedMiscellaneous Civil Application (Chamber Summons dated 24th August 2020), arising from Miscellaneous Civil Application Number 406 of 2018· [2020] KEHC 2354 (KLR)
Republic v Director, Department of Immigration Services & Others (Ex Parte Henry Asugah Ongicho)
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·~4 min to read original · ~4 min briefThe bottom line
#Ignoring a court order doesn't require special permission to start contempt proceedings in Kenya.
What this practically means
#Executive summary
#The ex parte Applicant, through a Chamber Summons dated 24th August 2020, sought leave to commence contempt of court proceedings against the Director, Department of Immigration Services (Second Respondent) for wilful disobedience of orders issued on 7th November 2019 in Miscellaneous Civil Application Number 406 of 2018, directing the Second Respondent to consider the Applicant's application for citizenship within thirty days. The decree was extracted and served on the Second Respondent on 11th November 2019 and on the Third Respondent on 2nd March 2020, yet compliance was allegedly refused despite reminders. Justice P. Nyamweya held that following the declaration of unconstitutionality of the entire Contempt of Court Act on 9th November 2018 by Mwita J in Kenya Human Rights Commission v Attorney General, the applicable law on contempt is the English common law, applied through section 3 of the Judicature Act, guided by Part 81 of the English Civil Procedure Rules of 1998. Relying on the Court of Appeal's decision in Christine Wangari Gachege v Elizabeth Wanjiru Evans, the court held that leave (permission) is not required to commence committal proceedings for breach of a judgment, order or undertaking. The court therefore dispensed with the leave stage and directed the Applicant to file and personally serve the Respondents with the Chamber Summons, a substantive contempt application, a copy of the ruling and a mention notice within thirty days. Costs of the Chamber Summons were not ordered, and directions were issued for electronic filing and a mention on 23rd November 2020.
Key legal issues
#01
Whether leave is required before commencing contempt of court proceedings for breach of a court order
Holding
Leave is not required; the Applicant may proceed directly by filing and personally serving a substantive application for contempt under the English Civil Procedure Rules as applied via the Judicature Act.
Reasoning
The Contempt of Court Act was declared unconstitutional in 2018, reviving the pre-Act position under section 5(1) of the Judicature Act, which imported English law. The Court of Appeal in Christine Wangari Gachege held that under Rule 81.4 of the English Civil Procedure Rules, an application notice for committal for breach of judgment, order or undertaking requires no leave, must set out grounds numerically, and must be served personally unless dispensed with.
p. 2
Legal principles established
#- Following the declaration of unconstitutionality of the Contempt of Court Act, the applicable law on contempt of court in Kenya is the English common law, specifically Part 81 of the English Civil Procedure Rules of 1998, by virtue of section 3 of the Judicature Act.
- Under English law as applied, leave (permission) is not required to commence committal proceedings for breach of a judgment, order or undertaking under Rule 81.4 of the English Civil Procedure Rules.
Court orders
#- 1.The ex parte Applicant shall file and personally serve the Respondents with the Chamber Summons dated 24th August 2020, a substantive application for contempt of Court, a copy of the ruling and a mention notice within thirty (30) days
- 2.No order as to costs of the Chamber Summons dated 24th August 2020
- 3.Mention on 23rd November 2020 for further directions
- 4.The Court shall hear and determine the substantive Chamber Summons on the basis of electronic copies of pleadings and written submissions in view of COVID-19 Ministry of Health directives
- 5.Parties to file pleadings and submissions electronically via the Judiciary e-filing system and by email to the Deputy Registrar of the Judicial Review Division
- 6.Parties to file and send affidavits of service evidencing personal service by electronic mail
- 7.The Deputy Registrar to put the matter on the Division's causelist for mention on 23rd November 2020
- 8.The Deputy Registrar to send a copy of the ruling to the ex parte Applicant and Respondents by electronic mail by close of business on Thursday, 15th October 2020
- 9.Parties at liberty to apply
- Jurisdiction invoked
- Section 3 and section 5(1) of the Judicature Act (English common law on contempt applying after the Contempt of Court Act was declared unconstitutional)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director, Department of Immigration Services & Others (Ex Parte Henry Asugah Ongicho)", Case Analysis (2020). Miscellaneous Civil Application (Chamber Summons dated 24th August 2020), arising from Miscellaneous Civil Application Number 406 of 2018. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.