Stephen Maina Githiga & 5 others v Kiru Tea Factory Company Ltd
The bottom line
#Supreme Court can hear contempt appeals if they raise constitutional issues like fair hearing.
What this practically means
#The Supreme Court ruled that it has power to hear an appeal from contempt proceedings at the Court of Appeal if the appeal raises serious constitutional questions. In this case, the petitioners claimed their right to a fair hearing and access to justice were violated during contempt proceedings. The Court dismissed attempts to strike out the appeal, saying these issues must be examined on their merits.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petition of Appeal raises constitutional issues requiring the Supreme Court's attention under Article 163(4)(a) of the Constitution.
- 2.Whether there is a right of appeal to the Supreme Court upon conviction for contempt at the Court of Appeal.
- 3.Whether the Petitioners were granted access to justice under Article 48 of the Constitution.
- 4.Whether the Petitioners were granted a fair hearing under Article 50 of the Constitution.
- 5.Whether a Court presiding over contempt proceedings has a right to ignore deliberately the responses/defences placed before it by the cited contemnors.
- 6.Whether a Court hearing a contempt application can revive the original un-amended contempt of court application in chambers, prosecute and convict on the same upon striking out the amended contempt application.
- 7.Whether a Court in presiding over proceedings which have been heard fully on an amended pleading can upon striking out the amended pleading proceed suo moto to determine the original pleading without invitation and participation of either parties in the proceedings.
- 8.Whether a Court hearing a contempt of Court application can convict the alleged contemnors without affording them a hearing.
- 9.Whether a Court hearing a contempt of Court application can overlook a miscarriage of justice to convict for contempt.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal arising from contempt proceedings at the Court of Appeal where the contempt conviction and sentence have been concluded.
The Supreme Court has jurisdiction because the appeal raises constitutional issues concerning fair hearing and access to justice that require interrogation on merit.
The court noted that the appeal is unique because it arises from a concluded contempt application at the Court of Appeal where the petitioners were convicted and sentenced. The court identified several issues raised by the petitioners, including whether they were granted a fair hearing under Article 50 and access to justice under Article 48. The court held that these issues raise concern as to the right to a fair hearing if found to be true, and therefore the court must proceed to hear the parties on merit. The motion to strike out for want of jurisdiction was dismissed.
Whether the Respondent's Notice of Motion dated 3rd May 2019 to strike out the substantive application for want of jurisdiction should be granted.
The motion to strike out is dismissed because the petition raises constitutional issues that require merit determination.
The respondent argued that the petition did not raise constitutional issues within Article 163(4)(a) and that no jurisprudential moment was apparent. The court disagreed, finding that the issues raised, including whether the Court of Appeal ignored defences, revived an un-amended pleading, and convicted without a hearing, all concern the right to a fair hearing. The court concluded that these issues require interrogation on merit, and therefore the motion to strike out must be dismissed.
Whether the Respondent's Preliminary Objection dated 13th August 2019 challenging the Supreme Court's jurisdiction should be upheld.
The preliminary objection is overruled.
The preliminary objection was based on the same grounds as the motion to strike out, arguing that the petition did not meet the threshold under Article 163(4)(a). The court, having found that the petition raises constitutional issues requiring merit determination, overruled the preliminary objection.
Legal principles established
#- A party appealing under Article 163(4)(a) must show the issues were raised in lower courts or that the constitutional question arose in their reasoning.
- The Supreme Court has jurisdiction to hear appeals from concluded contempt proceedings if they raise constitutional issues like fair hearing.
- Allegations of violation of fair hearing under Article 50 and access to justice under Article 48 can give the Supreme Court jurisdiction.
- A preliminary objection or motion to strike out for want of jurisdiction will be overruled if the appeal raises constitutional issues requiring merit determination.
- The Court must proceed to hear parties on merit when constitutional concerns are raised.
Court orders
#- 1.The Notice of Motion dated 3rd May 2019 is hereby dismissed.
- 2.The Applicant/Respondent's Preliminary Objection dated 13th August 2019 is hereby overruled.
- 3.Each Party shall bear its costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Striking out of the substantive application (amended Notice of Motion dated 2nd December 2019) for want of jurisdiction
The court found that the appeal raises constitutional issues concerning fair hearing and access to justice that require merit determination, and therefore the motion to strike out was dismissed.
Costs
Each Party shall bear its costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We have often stated in that regard that a party invoking Article 163(4) must demonstrate that the issues raised on appeal must have been canvassed in the Superior Courts below, progressing through the normal appellate mechanism so as to reach this Court by way of an appeal.
In our view, all the above issues raise concern as to the right to a fair hearing if they are found to be true. Therefore, the Appeal before us requires that we must find in favour of the Petitioners and proceed to hear parties on merit and settle the issues we have raised above.
The Notice of Motion dated 3rd May 2019 is hereby dismissed.
Each Party shall bear it costs.
Key timeline
#Practical implications
#Jurisdiction in contempt appeals
When appealing a contempt conviction from the Court of Appeal, ensure you frame the appeal around constitutional violations such as fair hearing or access to justice. The Supreme Court will not strike out such appeals automatically; it will examine the merits. Prepare to argue that the lower court's conduct raised constitutional issues.
Contempt proceedings must be fair
If your business is involved in contempt proceedings at the Court of Appeal, ensure the process respects constitutional rights. The Supreme Court will review allegations of unfairness. Businesses should document all procedural steps and ensure they are given a hearing to avoid later challenges.
Your right to fair hearing in contempt
If you are cited for contempt of court, you have constitutional rights to a fair hearing and access to justice. The Supreme Court can hear your appeal if those rights were violated. Do not assume a contempt conviction is final; you can challenge it on constitutional grounds.
Frequently asked questions
#Can I appeal a contempt conviction to the Supreme Court in Kenya?+
Yes, if your appeal raises constitutional issues like violation of fair hearing or access to justice. The Supreme Court has jurisdiction under Article 163(4)(a) to hear such appeals even from concluded contempt proceedings.
What is Article 163(4)(a) of the Kenyan Constitution?+
It allows appeals to the Supreme Court from the Court of Appeal in cases involving the interpretation or application of the Constitution. The Supreme Court recently confirmed this applies to contempt appeals if constitutional questions are raised.
How do I challenge a contempt of court order in Kenya?+
You can file an appeal at the Court of Appeal, and if constitutional issues arise, you may further appeal to the Supreme Court. Ensure you raise violations of fair hearing or access to justice to invoke the Supreme Court's jurisdiction.
What happens if a court ignores my defence in contempt proceedings in Kenya?+
That may violate your right to a fair hearing under Article 50. The Supreme Court has ruled that such allegations require merit determination, so you can appeal on that basis.
Cite this brief
#Cite this brief
Caselaw, "Stephen Maina Githiga & 5 others v Kiru Tea Factory Company Ltd", Case Analysis (2020). Application 12 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/27/eng@2020-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.