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KadhiPartially AllowedNot stated in the judgment (Kadhi's Court contempt application arising from ruling dated September 30, 2021)· [2022] KEKC 149 (KLR)

Nur v Karam (Divorce Cause E010 of 2021) [2022] KEKC 149 (KLR)

Kadhi's Court
28 July 2022
1,955 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Kadhi's Court confirmed it can jail people who ignore its orders, committing a landlord to four months in prison for disobeying orders.

What this practically means

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Executive summary

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This is a first-instance contempt ruling of the Kadhi's Court at Nairobi delivered by Hon Abdulhalim H. Athman, Senior Principal Kadhi, on July 28, 2022. The applicant moved the court by Notice of Motion dated June 3, 2022 seeking that the petitioner be cited for contempt of orders of September 30, 2021, which directed the parties to open a joint account for depositing rental proceeds of a fiat in Eastleigh, Nairobi, and that the petitioner account for rent unilaterally collected. The petitioner opposed, citing a pending appeal and alleging unclean hands. The court reviewed the High Court ruling of May 6, 2022 (Maureen A. Odero J) dismissing the petitioner's application for stay and injunction. It first resolved the jurisdictional objection, holding that rule 120 of the Kadhi's Court Procedure and Practice Rules 2020, section 6 of the Contempt of Court Act, section 3 of the Magistrates Court Act and article 10 of the Constitution confer power on the Kadhi's court to punish for contempt, following Fazleabbas Mohammed Chandoo v A.I. Hussein (Onguto J). Relying on Wildlife Lodges Ltd v County Council of Narok and Hadkinson v Hadkinson, the court held that filing an appeal is no stay and disobedience of orders, valid or otherwise, is impermissible. It found the petitioner in wilful contempt, committed him to four months' imprisonment with warrants of arrest to issue, restrained him and his agents from collecting rent, and directed that rent proceeds be deposited in the respondent counsel's account pending determination.

Key legal issues

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01

Jurisdiction of Kadhi's courts to punish for contempt

Holding

The Kadhi's court has power to enforce its own orders and punish for contempt; the suggestion that its orders must be filed elsewhere for enforcement is fallacious.

Reasoning

The court noted that rules under section 8 of the Kadhi's Court Act have now been promulgated, and rule 120 of the KCPPR 2020 expressly confers power to punish for contempt, including committal or fines, and deems the court a court of record. It adopted Onguto J's reasoning in Chandoo that a Kadhi's court, being of even status to the magistrates' court, cannot be hapless in execution of its own orders.

p. 3
02

Whether the petitioner was in contempt and the consequence of non-compliance

Holding

The petitioner was in wilful contempt of the orders of September 30, 2021 and was committed to four months' imprisonment.

Reasoning

The court found the orders of September 30, 2021 were valid and undisputed, and that the petitioner had refused and/or neglected to open the joint account while continuing to collect rent unilaterally. The appeal against the ruling had been dismissed, so there was no excuse. Contempt attacks the rule of law under article 10 and judicial authority under article 159(1) of the Constitution.

p. 4
03

Effect of a pending or concluded appeal on compliance with orders

Holding

Filing or pursuing an appeal does not act as a stay of execution or excuse disobedience of orders.

Reasoning

Counsel for the applicant submitted, and the court accepted, that an appeal is not a stay. The High Court (Maureen A. Odero J) had dismissed the petitioner's application for stay and injunction in its entirety, observing that the joint-account order would cause no substantial loss and funds would remain available if the appeal succeeded. The court also found the petitioner had been economical with the truth about the state of the appeal.

p. 4

Legal principles established

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  • A Kadhi's court has the power to enforce its own orders and to punish for contempt, including under rule 120 of the Kadhi's Court Procedure and Practice Rules 2020
  • Willful disobedience of a judgment, decree or order of a court constitutes contempt of court
  • A party cannot disobey a court order merely because an appeal is pending; filing an appeal is not a stay
  • A party who knows of an order cannot be permitted to disobey it, whether the order is null or void, regular or irregular

Court orders

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  1. 1.The petitioner/respondent is found in contempt of court for wilful disobedience of valid court orders
  2. 2.The petitioner is committed to four (4) months jail for contempt; warrants for his arrest to issue
  3. 3.The petitioner or his agents are restrained from collecting rent of the suit property
  4. 4.The rent proceeds of the suit property be deposited in the respondent counsel's account, who shall account for the same upon determination of the matter
Jurisdiction invoked
Article 10 and Article 159(1) of the Constitution of Kenya (2010); section 3 of the Magistrates Courts Act (No. 26 of 2015); section 8 of the Kadhi's Court Act (Cap 11); rule 120 of the Kadhi's Court Procedure and Practice Rules (2020); section 6 of the Contempt of Court Act (No. 46 of 2016)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nur v Karam (Divorce Cause E010 of 2021) [2022] KEKC 149 (KLR)", Case Analysis (2022). Not stated in the judgment (Kadhi's Court contempt application arising from ruling dated September 30, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2022/149/eng@2022-07-28

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