'Contempt of court' has been defined as wilful defiance of or disrespect towards the court or conduct that wilfully challenges or offends the authority of the court or supremacy of the law, whether in civil or criminal proceedings.(1) In Kenya, contempt of court is a crime punishable on conviction by imprisonment for up to three years.(2) However, only the High Court and Court of Appeal have successfully prosecuted cases of contempt. The Judicature Act provides that the High Court and Court of Appeal have the same power to punish contempt of court as the English High Court, and that such power should extend to upholding the authority and dignity of the subordinate courts.(3)
Under the 2010 Constitution, the jurisdiction of courts on matters of contempt of court has been expanded to include other courts. For instance, the Employment and Labour Relations Court Act provides that anyone who fails to comply with an order of the court has committed an offence and will, on conviction, be liable to a fine not exceeding KSh1 million, imprisonment for up to two years or both.(4) Similarly, the Environment and Land Court Act provides that anyone who refuses, fails or neglects to obey an order or direction from the court commits an offence, and will, on conviction, be liable to a fine not exceeding KSh20 million, imprisonment for up to two years or both.(5) The Supreme Court Act also provides for the jurisdiction of the court to deal with matters of contempt and maximum penalties.(6)
These provisions expose both litigants and the public to various avenues for the prosecution of contempt. In the past, if a party was found to be in contempt, that party lost the right to argue any application in court or to be heard in any matter until it had purged the contempt. In Econet Wireless Ltd v Minister for Information and Communication of Kenya, the court held that a contemnor has no right of audience in any court of law unless he or she is has punished or purged the contempt.(7) Similarly, in Hadkinson v Hadkinson, Lord Denning held that the court, in its discretion, may fail to grant a contemnor a right of audience until the impediment (contempt) has been removed.(8)
In light of the Constitution, the components of a fair trial are sacred. The Constitution provides that the right to a fair trial cannot be limited by any law, act or omission.(9) As elements of a fair hearing, the Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Kenya include:
"adequate opportunity to prepare a case, present arguments and evidence and to challenge or respond to opposing arguments or evidence, an entitlement to an appeal to a higher judicial body."(10)
Thus, failure to grant a contemnor the right of audience in an appeal or application for stay of execution of orders translates to the limitation of a fundamental right provided for by the Constitution. In effect, this leads to an abuse of judicial power and unenforceable orders.(11)
In Hadkinson, Lord Denning added that "no matter how badly a litigant has behaved, if he has a right of appeal, he has a right to be heard, for the simple reason that if he is not heard his right of appeal will be valueless".(12) However, Hadkinson gave only two instances of when a contemnor may be heard:
- when the contemnor defends himself or herself against disobedience of court orders; and
- when arguing matters of jurisdiction.(13)
A strict reading of Article 25 of the Constitution could conclude that the exceptions in Hadkinson imply a limitation of the right to a fair trial.
On the other hand, the law on contempt of court seeks to maintain the rule of law.(14) It is maintained by denying a contemnor the right of audience until he or she has purged the contempt. Therefore, Article 25 undermines past jurisprudence. The Constitution upholds the right of every person to be heard before any penalty is issued.(15) This is held to be an absolute right.(16)
In Rose Detho v Ratilal Automobile the court held that if the disobedience of court orders does not impede the course of justice, then the contemnor has a right to be heard.(17) The sole purpose of contempt proceedings is not to delay justice, but to promote it. It therefore means that if the contemnor seeks to prove his or her innocence then he or she should be heard. Similarly, if the contemnor wishes to apply for a stay of execution of the orders with the intent to appeal, he or she should be heard.
Contrasting Rose Detho and the exceptions in Hadkinson, on the one hand the contemnor can contest the legality of the orders given by the court through an appeal.(18) However, on the other hand, the exceptions in Hadkinson refer to instances where a contemnor defends himself or herself in contempt of proceedings and not in an appeal.(19) As stated by Justice E Githinji in Teachers Service Commission v Kenya Union of Teachers:
"The punishment for contempt by denying a party a right to be heard until he has purged the contempt is a rule of common law and, as section 3(1) of the Judicature Act provides, its application is subject to the Constitution and the written laws."(20)
Despite the value of the law on contempt of court, a contemnor's right of audience should not be limited arbitrarily. The Constitution allows for the creation of new courts, whose substantive law on jurisdiction provides for penalties rather than limitation of a fair trial. Similarly, court jurisprudence post-2010 shows that a contemnor has a right to be heard in an application for stay of execution of court orders, as well as in an appeal. Therefore, contempt proceedings should not be used to serve the interests of the parties at the expense of the administration of justice.
For further information on this topic please contact Rosemary Kamau at Njoroge Regeru & Company by telephone (+254 020 261 2531) or email (firstname.lastname@example.org). The Njoroge Regeru & Company website can be accessed at www.njorogeregeru.com.
(10) African Commission on Human and Peoples' Rights 2003, "Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Kenya", available at www.achpr.org/instruments/principles-guidelines-right-fair-trial/.
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