(Being an appeal from the ruling Hon L. Ambasi in Milimani Misc Application E953 of 2022 dated 2.2.2024).
This appeal arises from the ruling of Hon. L. Ambasi (CM) delivered on the 2.2.2024 in Miscellaneous Application No. E953 of 2022.
The background of the matter is that by a ruling delivered on 11th May 2023, the learned magistrate issued an order against the appellants directing them to return to the 2nd respondent a metallic container which was in possession of the appellants to where it had been removed from, a plot Githunguri, plot T. 397/57. The ruling was delivered in the presence of the appellants’ counsel, Mr Kairu, who was representing the appellants and continue to do so. The 2nd respondent’s case was that the order of 11th May 2023 was subsequently served upon the appellants but that they flagrantly failed to obey.
The 2nd respondent moved the learned magistrate by way of an application for contempt and by its ruling delivered on the 2nd February 2024, the court held the appellants in contempt.
The appellants raised ten grounds of appeal in their Memorandum of appeal dated 5th February 2024. I have noted however that some of the grounds of appeal relate to the ruling dated 11th May 2023. Whether that is deliberate or inadvertent, it is important to state from the outset that the findings in the ruling dated 11th May 2023 are not the subject of this appeal. As clearly indicated in their memorandum of appeal, this appeal is against the ruling dated 2nd February 2024. I will therefore focus on the issues raised with respect to the ruling dated 2nd February 2024.
APPELLANT'S SUBMISSIONS
The appellants submitted that the learned magistrate ignored the essential elements in contempt proceedings. Reference was made to the cases of Samuel M.N Mweru & others –v– National Land Commission & 2 others. (2020) eKLR and Christine Wangari Gachenge –v– Elizabeth Wanjiru Evans & 11 others Civil application No. 233 of 2007.
The appellants further submitted that the learned magistrate failed to find that the standard of proof required in cases of contempt is higher than that required in ordinary civil cases. Reference was made to the case of MNN –v– JNN (2022) eKLR and Gatharia K. Mutikika –v– Baharini Farm Ltd (1985) KLR 227.
RESPONDENT’S SUBMISSIONS
The respondents submitted that the ruling of the honorable magistrate was sound. That the appellants were aware of the court orders as they were represented by an advocate who was present during the ruling. That the appellants have deliberately disobeyed the court orders.
DETERMINATION
This appeal turns on the question whether the learned magistrate’s finding that the appellants were in contempt is sound in law.
It is generally understood that the purpose of contempt of court proceedings is to protect the integrity of the judicial system, ensure compliance with court orders, and uphold the rule of law. Contempt of court proceedings ensure that public confidence in the courts is maintained by penalising actions that obstruct justice, disrupt proceedings or defy judicial authority.
It cannot be gainsaid that the duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. As stated by Romer L.J. In Hadkinson –v– Hadkinson [1952] ALL.E.R.567;
“It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, L.C., said in Chuck –v– Cremer (1) (1) Coop. temp.Cott 342):’A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it.....It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid- whether it was regular or irregular. That, they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.”
The question is therefore whether the appellants were correctly found to have disobeyed the court order. There is no dispute that the court order was made in the presence of the advocate for the appellant. Kenyan courts have gradually moved from the position that service of the order along with the penal notice must be a prerequisite before contempt can be proved. Kenya’s growing jurisprudence right from the court of appeal has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings.
In Shimmers Plaza Limited –v– National Bank of Kenya Limited (2015) KECA 945 KLR the court of appeal expressed itself as follows:
“Would the knowledge of the Judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behooves him/her to report back to the client all that transpired in court that has a bearing on the client’s case”.
In the matter before me, the appellants were ably represented by Mr Kairu who opposed the appeal. Mr Kairu was in court when the orders were granted by court. The orders were clear and unambiguous.
The learned magistrate correctly applied the case of Shimmers Plaza Limited -v- National Bank of Kenya (Supra) and the case of Basil Criticos –v– Attorney General & 8 others (2012) e KLR.
The upshot of the foregoing is that the ruling by the learned magistrate cannot be disturbed. To do so will amount to abdication of my sacrosanct duty bestowed by the constitution to protect the dignity and authority of the court.
The result is that the appeal is dismissed with costs.
DATED, SIGNED AND DELIVERED THIS 15 TH JULY 2026
D.O. ONYANGO
JUDGE
HCCA Case Number E167 of 2024 5
This appeal arises from the ruling of Hon. L. Ambasi (CM) delivered on the 2.2.2024 in Miscellaneous Application No. E953 of 2022.
The background of the matter is that by a ruling delivered on 11th May 2023, the learned magistrate issued an order against the appellants directing them to return to the 2nd respondent a metallic container which was in possession of the appellants to where it had been removed from, a plot Githunguri, plot T. 397/57. The ruling was delivered in the presence of the appellants’ counsel, Mr Kairu, who was representing the appellants and continue to do so. The 2nd respondent’s case was that the order of 11th May 2023 was subsequently served upon the appellants but that they flagrantly failed to obey.
The 2nd respondent moved the learned magistrate by way of an application for contempt and by its ruling delivered on the 2nd February 2024, the court held the appellants in contempt.
The appellants raised ten grounds of appeal in their Memorandum of appeal dated 5th February 2024. I have noted however that some of the grounds of appeal relate to the ruling dated 11th May 2023. Whether that is deliberate or inadvertent, it is important to state from the outset that the findings in the ruling dated 11th May 2023 are not the subject of this appeal. As clearly indicated in their memorandum of appeal, this appeal is against the ruling dated 2nd February 2024. I will therefore focus on the issues raised with respect to the ruling dated 2nd February 2024.
APPELLANT'S SUBMISSIONS
The appellants submitted that the learned magistrate ignored the essential elements in contempt proceedings. Reference was made to the cases of Samuel M.N Mweru & others –v– National Land Commission & 2 others. (2020) eKLR and Christine Wangari Gachenge –v– Elizabeth Wanjiru Evans & 11 others Civil application No. 233 of 2007.
The appellants further submitted that the learned magistrate failed to find that the standard of proof required in cases of contempt is higher than that required in ordinary civil cases. Reference was made to the case of MNN –v– JNN (2022) eKLR and Gatharia K. Mutikika –v– Baharini Farm Ltd (1985) KLR 227.
RESPONDENT’S SUBMISSIONS
The respondents submitted that the ruling of the honorable magistrate was sound. That the appellants were aware of the court orders as they were represented by an advocate who was present during the ruling. That the appellants have deliberately disobeyed the court orders.
DETERMINATION
This appeal turns on the question whether the learned magistrate’s finding that the appellants were in contempt is sound in law.
It is generally understood that the purpose of contempt of court proceedings is to protect the integrity of the judicial system, ensure compliance with court orders, and uphold the rule of law. Contempt of court proceedings ensure that public confidence in the courts is maintained by penalising actions that obstruct justice, disrupt proceedings or defy judicial authority.
It cannot be gainsaid that the duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. As stated by Romer L.J. In Hadkinson –v– Hadkinson [1952] ALL.E.R.567;
“It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, L.C., said in Chuck –v– Cremer (1) (1) Coop. temp.Cott 342):’A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it.....It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid- whether it was regular or irregular. That, they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.”
The question is therefore whether the appellants were correctly found to have disobeyed the court order. There is no dispute that the court order was made in the presence of the advocate for the appellant. Kenyan courts have gradually moved from the position that service of the order along with the penal notice must be a prerequisite before contempt can be proved. Kenya’s growing jurisprudence right from the court of appeal has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings.
In Shimmers Plaza Limited –v– National Bank of Kenya Limited (2015) KECA 945 KLR the court of appeal expressed itself as follows:
“Would the knowledge of the Judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behooves him/her to report back to the client all that transpired in court that has a bearing on the client’s case”.
In the matter before me, the appellants were ably represented by Mr Kairu who opposed the appeal. Mr Kairu was in court when the orders were granted by court. The orders were clear and unambiguous.
The learned magistrate correctly applied the case of Shimmers Plaza Limited -v- National Bank of Kenya (Supra) and the case of Basil Criticos –v– Attorney General & 8 others (2012) e KLR.
The upshot of the foregoing is that the ruling by the learned magistrate cannot be disturbed. To do so will amount to abdication of my sacrosanct duty bestowed by the constitution to protect the dignity and authority of the court.
The result is that the appeal is dismissed with costs.
DATED, SIGNED AND DELIVERED THIS 15 TH JULY 2026
D.O. ONYANGO
JUDGE
HCCA Case Number E167 of 2024 5