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Supreme CourtDismissedCriminal Application 2 of 2018

Republic v Mohammed & another (Criminal Application 2 of 2018) [2018] KESC 51 (KLR) (23 April 2018) (Ruling)

Supreme Court of Kenya
23 April 2018
David Kenani MaragaD. K. MaragaMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguN. S. Ndungu
3,308 words in judgment
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·~13 min to read original · ~4 min brief

The bottom line

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Supreme Court dismisses contempt case against police chief for lack of proof of willful disobedience.

What this practically means

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The Supreme Court of Kenya dismissed a case accusing the Inspector General of Police of disobeying a court order. The court said the order did not require releasing the suspects, only ensuring their lawful treatment. To prove contempt, you must show the person deliberately and willfully violated the order. The police chief showed he acted in good faith to balance security and the court's instructions. The case failed because the evidence did not meet the high standard needed for contempt.

Executive summary

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This ruling by the Supreme Court of Kenya (Maraga CJ, Ibrahim, Ojwang, Wanjala & Ndungu SCJJ) dismissed a contempt of court application filed by Ahmad Abolfathi Mohammed and others (respondents in the main matter) against the Inspector General of the National Police Service. The contempt application arose from an earlier Supreme Court order of 23rd February 2018, which directed that arrangements be made to ensure the respondents' continued presence in Kenya without infringing on their constitutional liberties. The respondents alleged that the Inspector General had willfully disobeyed this order by continuing to hold them in police custody at the Anti-Terrorism Police Unit. The Court identified two issues for determination: whether the application was fatally defective for non-compliance with the notice requirements of Section 30 of the Contempt of Court Act, and whether the Inspector General was in contempt. The Court did not resolve the procedural issue, instead deciding the matter on its merits. It held that the standard of proof in contempt proceedings is higher than a balance of probabilities, almost but not exactly beyond reasonable doubt, because the liberty of the contemnor is at stake. The Court found that its order of 23rd February 2018 did not require the release of the respondents. It accepted the Inspector General's evidence that holding the respondents at the Anti-Terrorism Police Unit was a well-considered course of action to balance their security with compliance with the Court's order. The Court concluded that the allegations of contempt had not been proved to the required standard, as the Inspector General had demonstrated that he acted in what he sincerely believed was in accordance with the Court's order. The application was dismissed with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application before the Court is fatally defective
  2. 2.Whether the applicant is in contempt of this Court’s Order

Key legal issues

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01

Whether the application for contempt was fatally defective for non-compliance with the notice requirements under Section 30 of the Contempt of Court Act.

Holding

The Court did not make a finding on this issue, as it proceeded to determine the application on its merits and found that contempt was not proved.

Reasoning

The applicant argued that the application was defective because no 30-day notice to show cause was served on the Inspector General as required by Section 30 of the Contempt of Court Act. The Court noted the arguments but did not resolve this procedural point, instead deciding the case on the substantive question of whether contempt had occurred.

p. 6
02

Whether the Inspector General of the National Police Service was in contempt of the Supreme Court's Order of 23rd February 2018.

Holding

The Inspector General was not in contempt of the Court's Order.

Reasoning

The Court found that its Order of 23rd February 2018 did not require the release of the respondents. The Court held that the steps taken by the applicant, including holding the respondents at the Anti-Terrorism Police Unit, were a well-considered course of action for balancing the respondents' security with compliance with the Court Order. The Court was unconvinced that the allegations of contempt had been proved to the required standard, as the applicant had rebutted inferences of willfulness and bad faith by demonstrating that he did what was sincerely believed to be in accordance with the Court Order.

p. 8

Legal principles established

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  • Contempt requires proof that the person willfully and deliberately disobeyed a court order.
  • The standard of proof in contempt cases is higher than in ordinary civil cases, almost like criminal cases.
  • A court order must clearly require a specific action before someone can be held in contempt for not doing it.
  • Good faith efforts to comply with a court order can defeat a contempt claim.
  • Courts can decide a contempt case on its merits without first resolving procedural technicalities.

Court orders

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  1. 1.The motion dated 1st March, 2018 is dismissed
  2. 2.No orders as to costs
  3. 3.The Court is disinclined to issue stay of hearing for the applicant’s Notice of Motion of 19th February, 2018

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. S. NdunguSCJ
Currently serving
majority
Jurisdiction invoked
Section 28 (1) (c) of the Supreme Court Act, Article 160 of the Constitution

Relief refused

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Citation of Mr. Joseph K. Boinett, Inspector General of the National Police Service, for contempt and committal to civil jail

The allegations of contempt were not proved to the required standard; the applicant's conduct was not willful or deliberate disobedience.

p. 8

Stay of hearing of the applicant’s Notice of Motion dated 19th February 2018

The Court was disinclined to grant it.

p. 8

Costs

no orders as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is our finding that the applicant is not in contempt of Court; and we dismiss the motion dated 1st March, 2018 with no orders as to costs.
p. 8 Final Orders - Dismissal of Contempt Application
the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt
p. 7 Standard of Proof in Contempt Proceedings
The Court does not, and ought not to be seen to, make Orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.
p. 7 Sanctity of Court Orders
It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of our Courts are upheld at all times.
p. 6 Importance of Upholding Court Authority

Key timeline

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2018-02-23
Supreme Court orders arrangements for respondents' continued presence in Kenya without infringing on liberties.
2018-03-01
Contempt application filed against Inspector General for allegedly disobeying the 23rd February order.
Ruling date
Supreme Court dismisses contempt application, finding no willful disobedience.

Practical implications

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For lawyers

Prove willfulness in contempt cases

When bringing a contempt application, you must present clear evidence that the alleged contemnor deliberately and willfully flouted the court order. The court will not infer contempt from ambiguous conduct. Gather documentary proof or witness testimony showing intentional disregard, not just non-compliance. The high standard of proof means you need more than a balance of probabilities.

For businesses

Document good faith compliance

If your business receives a court order, document every step you take to comply, even if you interpret the order in a way that limits your actions. This ruling shows that demonstrating sincere belief in compliance can defeat a contempt claim. Keep records of internal decisions, legal advice, and communications with the other side to show you acted in good faith.

For individuals

Contempt requires clear orders

If you believe someone has violated a court order, check whether the order clearly required a specific action. The Supreme Court said the order here did not demand release of the suspects. Without a clear directive, contempt is hard to prove. You must also gather strong evidence of willful disobedience, as the court applies a high standard to protect against unfair punishment.

Frequently asked questions

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What is the standard of proof for contempt of court in Kenya?+

In Kenya, the standard of proof for contempt is higher than in ordinary civil cases. It is almost, but not exactly, beyond reasonable doubt. This is because contempt can lead to loss of liberty. You must prove the person willfully and deliberately disobeyed a court order.

Can a court order be ambiguous in a contempt case in Kenya?+

Yes. If a court order does not clearly require a specific action, a person cannot be held in contempt for failing to do that action. In this case, the Supreme Court found its order did not require releasing the suspects, so the police chief was not in contempt.

What happens if you disobey a court order in Kenya?+

Disobeying a court order can lead to contempt proceedings, which may result in penalties like fines or imprisonment. However, the court must find that you willfully and deliberately violated a clear order. Good faith efforts to comply can be a defense.

How do you prove contempt of court in Kenya?+

To prove contempt, you must show the person knew about the court order and deliberately acted against it. The evidence must be strong, almost like in a criminal case. You need to demonstrate willful disobedience, not just accidental non-compliance.

Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Mohammed & another (Criminal Application 2 of 2018) [2018] KESC 51 (KLR) (23 April 2018) (Ruling)", Case Analysis (2018). Criminal Application 2 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/51/eng@2018-04-23

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