ATP 105 PROFFESSIONAL

ETHICS

FIRM 29 PRESENTATION

CONTEMPT OF COURT.
Definition of contempt

 Black’s Law Dictionary defines contempt as,

"Conduct that defies the authority or dignity of a
court or interferes with the administration of justice
and is punishable by a fine or imprisonment.”
 Contempt of court is the offence of being
disobedient to a court.
 Failing to respect legal authorities in the courtroom
or willfully failing to obey a court order may attract
a contempt of court proceedings
 Contd…

• It is quasi-criminal in nature
• This means the standard of proof is higher than in
civil cases but lower than that of criminal cases
• Teachers Service Commission v Kenya
National Union of Teachers & 2 others [2013]
eKLR the court observed that, “the reason why
courts will punish for contempt of court is to
safeguard the rule of law which is fundamental in
the administration of justice.”
Rationale for contempt
 Article 159 of the Constitution of Kenya
recognizes the judicial authority of courts and
tribunals established under the constitution to
exercise democracy and the rule of law on behalf
of the people.
 When the court exercises this power, it does so to
uphold the majesty of the law and of the
administration of justice.
Objectives of contempt

 To uphold the authority and dignity of the court.

 To ensure compliance with the directions of the court.
 To guarantee observance and respect for due process of the law.
 To ensure an efficient and impartial system of justice is
maintained.
 To ensure the maintenance of public confidence in the
administration of justice by the court.
Legal framework on contempt
of court
 Section 5 Judicature Act, Chapter 8 Laws of
Kenya
 In Clerk, Nairobi City County Assembly v
Speaker, Nairobi City County Assembly &
another; Orange Democratic Party & 4
others, the court stated;
“...after the nullification of the Contempt of Court
Act, the courts have been forced to revert back to
Section 5 of the Judicature Act as the law under
which to punish for contempt of court.”
 Cont.…
 Section 28 of Supreme court Act (No 7 of 2011)
 Section 10 Magistrates Act
 Section 47 Small Claims Court Act
 Section 56 Advocates Act (
 Section 121 Penal Code
 Contempt of court Act (2016) (repealed)
 Kenya Human Rights Commission v Attorney
general and another (2018).
 Types of contempt
 Contempt is categorized into Criminal and Civil
contempt.
 The distinction between the two is mainly distinct by the
forum in which the application is to be made and the
penalty to be awarded.
 Generally, the most common form of civil contempt is
disobedience of a court order by a party to the
proceedings, while the most common of criminal
contempt is in the form of conduct obstructing or
calculated to the administration of justice or contempt in
the face of the court .
 Civil Contempt
 There are essentially four elements that must be
proved to make the case for civil contempt:

(a)The terms of the order (or injunction or

undertaking) were clear and unambiguous and
were binding on the respondent;

(b) The respondent had knowledge of or proper

notice of the terms of the order;

(c) The respondent has acted in breach of the terms

of the order; and

(d)The respondent’s conduct was deliberate.

Criminal Contempt

 Criminal Contempt involves conduct that

hinders or obstructs justice.
 Examples of criminal contempt include
threatening or insulting a judge or witness and
disobeying court to produce evidence.
 Criminal contempt is punishable by fine, jail or
both. The punishment is imposed to vindicate the
court's authority.
TYPES OF CRIMINAL
CONTEMPT
 The Penal Code section 121 gives the offences that are related to the judicial
proceedings and if anyone is guilty the person is liable to imprisonment for three
years. The offences include,
1. Disrespecting the judicial proceedings.
2. Witness failing to adduce evidence.
3. Disturbance and obstruction during the proceedings.
4. Making speeches that misrepresents a pending case that might lead to
prejudicing any person.
5. Publishing any statement from the proceedings that was supposed to be
private.
6. Interfering and influencing a witness.
7. Wrongfully retakes possession of land from another person after possession by
writ of court.
 Contempt in the face of the
court

 It may be broadly categorized into;

1. Contempt in the face of court (contempt in facie)

2. Contempt committed outside the court(contempt ex facie)

 The Magistrates Courts Act section 10 (2) recognises
contempt in the face of court and gives the magistrate
power to punish individuals who assaults, threatens,
intimidates or insults a magistrate, administrator, judicial
officer, or a witness during a sitting or in attendance in
court. Section 10(2b) of the act also considers interrupting
or disrupting court proceedings as contempt.
PROCEDURE FOR CONTEMPT
PROCEEDINGS
 An offence of contempt of court shall be tried by dispensing with
formal proceedings, dealing with discovery and the Court shall keep
a record of the proceedings.
 Part 81 of the Application and Proceedings in Relation to Contempt
of Court provides for proceedings for four different forms of
violations: Breach of a judgment; Order or undertaking to do or
abstain from doing an act; Interference with the due administration
of justice (in criminal proceedings); and Contempt in the face of the
court; and making a false statement of truth or disclosure statement.
 Rule 81.9 states that no contempt proceedings may be undertaken
without service of an order endorsed with a penal notice.
 Rule 81.6 on the mode of service.
CONT…

 The procedure is found in Regulation 41 of the High Court

(Organisation and Administration) (General) Rules, 2016. It
provides that the court may:-
 Cause the person to be informed of the nature of the contempt of
court which he or she is charged with.
 Afford the contemnor an opportunity to make a defense to the
charge;
 After taking all necessary evidence and hearing the person, proceed,
either forthwith or after adjournment, to determine the matter of the
charge;
 Make an order for the punishment or discharge of such person on
such terms as may be just.
DEFENCES FOR DIRECT
CONTEMPT
1. Fair comment and fair criticism on the general working of the
court;
2. Fair comment on the merits of a decision of a court;
3. Where the contemnor makes a true declaration of commencement
of the action or in the course of disciplinary against a judge or
judicial officer;
4. That the matter does not constitute a commission of an offence of
contempt of court under any other written law; and
5. An observation made by an authority in an administrative
capacity, which refers to a disciplinary inquiry or in an inspection
note or a character roll or confidential report of a judicial officer.
CONT..

1. Innocent publication and distribution of any matter amounting to

contempt of court by a person who had no reasonable ground to
believe that the publication was of a legal proceeding that was
active.
2. Lack of intention to commit contempt. This means that the
contemnor lacked knowledge and contempt of court was not
wilful or deliberate.
3. That the publication was in good faith and it was a fair and
accurate report of judicial proceedings.
4. That it was a fair criticism of the judicial proceedings;
Punishment

 The court treats applications for committal for contempt of court

orders with seriousness and urgency and more often will suspend
any other proceedings until the matter is dealt with.
 Section 10(3) of the Magistrate’s Courts Act provides that The
court may sentence a person who commits an offence under Sub-
Section (1) to imprisonment for a term not exceeding five days, or
a fine not exceeding one hundred thousand shilling or both
 Penal Code section 121 (2) - the court may cause the offender to
be detained in custody, and at any time before the rising of the
court on the same day may take cognizance of the offence and
sentence the offender to a fine not exceeding one thousand four
hundred shillings or in default of payment to imprisonment for a
term not exceeding one month.
Contempt of court in relation to
advocates
 Republic v Ahmad Abolfathi Mohammed &
another [2019] eKLR
“The Court bears responsibility for exercising
disciplinary procedure against Advocates who, in its
full view, display conduct unbecoming of an
Advocate.”
Cont.…

 Section 56 of the Advocates Act, Nothing in this

Act shall supersede, lessen or interfere with the
powers vested in the Chief Justice or any of the
judges of the Court to deal with misconduct or
offences by an advocate, or any person entitled to
act as such, committed during, or in the course
of, or relating to, proceedings before the Chief
Justice or any judge.”
Various jurisdictions to punish
for Contempt of Court
 There are four main jurisdictions under which the
courts in Kenya have authority to punish for
contempt of court and include,
I. Civil contempt under the Judicature Act.
II. Civil contempt under Order 39 of the Civil
Procedure Rules.
III. Criminal contempt under the Penal code.
IV. Contempt ex facie curiae.
conclusion

 Court orders must be obeyed at all times in order to

maintain the Rule of Law and good order.

 With the Contempt of Court Act now unconstitutional,

contempt of court proceeding is now characterized by
many technicalities, hence the enactment of another
Contempt of Court Act will be the right step in attempts
to fill in the gaps that exist.