Ustawi Grain Millers Limited v Hema Bakers Limited; Oliech (Objector); Direct ‘O’ Auctioneers (Interested Party) (Civil Case E727 of 2022) [2025] KEMC 135 (KLR)
The bottom line
#A Nakuru court refused to jail an auctioneer for defying orders, ruling he must first be served personally and heard in his own defence.
What this practically means
#Executive summary
#Key legal issues
#Treatment of unopposed applications
The court retains a duty to scrutinise an unopposed application for merit and jurisdictional impediments before granting relief
Relying on the Supreme Court's decision in Gideon S. Konchellah v Julius L. Sunkuli, the court held that the absence of a response does not automatically entitle an applicant to the orders sought. The court must examine points of law such as jurisdictional impediments and whether there is sufficient material to exercise discretion, much as in formal proof proceedings where the defendant does not answer the claim.
Governing law of contempt in magistrates' courts
Section 10(3) of the Magistrates Courts Act now guides contempt of court following the invalidation of the Contempt of Court Act
The court identified the statutory basis for contempt jurisdiction after the Contempt of Court Act was declared unconstitutional, and adopted the Black's Law Dictionary definition of contempt as conduct defying the authority or dignity of a court, interfering with the administration of justice and punishable by fine or imprisonment.
Procedure and fair hearing in contempt proceedings
Because contempt is quasi-criminal, the alleged contemnor must be served directly and personally and given a full opportunity to defend himself before punitive orders issue
Applying the Supreme Court's decision in Githinga & Others v Kiru Tea Factory Co. Ltd, the court held that procedures for enforcing compliance with lawful orders must be fair and reasonable, giving the alleged contemnor a full opportunity to defend himself. Service by e-mail through the judgment creditor's counsel was held insufficient for so serious a process; the citee was therefore summoned to attend physically and answer the allegations viva voce.
Rationale of the power to punish contempt
The power to punish contempt exists to safeguard the rule of law and the administration of justice, not the judge's ego or the applicant's interests
Drawing on Sammy Nyamweya v Kenya Premier League, Heelmore v Smith and BOG Moi High School Kabarak, the court reasoned that court orders are commands, not suggestions, that must be obeyed; the contempt power is an inherent attribute of the court without which protection of citizens' rights would be impossible. A party aggrieved by an order must challenge it through available avenues, not defy it.
Legal principles established
#- An unopposed application is not automatically granted; the court must satisfy itself that the application is meritorious and free of jurisdictional impediments
- Contempt proceedings are quasi-criminal and require adherence to natural justice, procedure, fairness and the right to a fair hearing, including personal service and an opportunity to be heard
- Striving to abide by court orders is mandatory; deliberate disobedience must be dealt with firmly to protect the rule of law
Court orders
#- 1.Summons issued to Joseph Kangethe T/A Direct 'O' Auctioneers to attend court physically on a date to be agreed, to give his defence on the contempt allegations viva voce or by whatever means he preferred
- 2.Interim order that the motor vehicle be produced and unconditionally and immediately released to the Objector/Applicant, it being exposed to elements of weather causing wear and tear
- 3.Direction that the OCS Kaptembwo Police Station enforce the orders issued
- Jurisdiction invoked
- Section 10(3) of the Magistrates Courts Act (contempt of court after the Contempt of Court Act was declared unconstitutional); inherent power of the court to punish for contempt
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ustawi Grain Millers Limited v Hema Bakers Limited; Oliech (Objector); Direct ‘O’ Auctioneers (Interested Party) (Civil Case E727 of 2022) [2025] KEMC 135 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/135/eng@2025-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.