Republic v David Makali & 3 others [1994] KECA 100 (KLR)
The bottom line
#Kenya's Court of Appeal convicted journalists and a lawyer of contempt for accusing it of dishonesty, confirming courts can punish such attacks — but fair criticism remains protected.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to punish for contempt committed against itself, including contempt not committed in its face
- 2.Whether the judges of the Court who sat in the Dons case should disqualify themselves from hearing the contempt proceedings
- 3.Whether the two applications should be consolidated
- 4.Whether the article published in 'The People' of 6-12 March 1994, and the offensive words attributed to the 4th respondent, constitute contempt by scandalising the Court
- 5.Whether the 4th respondent caused the publication of the offensive words
- 6.Whether freedom of expression under sections 70 and 79 of the Constitution, fair comment on a matter of public interest, or alleged discriminatory prosecution by the Attorney General constitute defences
Key legal issues
#Jurisdiction of the Court of Appeal over contempt against itself
The Court of Appeal, being a superior court of record whose essential characteristic is the power to punish for contempt, has jurisdiction to hear and determine contempt proceedings against itself under section 5(1) of the Judicature Act and the proviso to section 77(8) of the Constitution; the absence of a further right of appeal does not oust that jurisdiction.
Section 64(1) makes the Court of Appeal a superior court of record, and a court of record is characterised by power to punish for contempt. The proviso to section 77(8) expressly permits courts to punish contempt notwithstanding that the act is not defined in written law, and section 86(1) defines 'Court' in Chapter V to include the Court of Appeal. Re Lonhro establishes that the status of a final appellate court is no bar; the right of appeal argument was logically inconsistent because even contempt in facie would leave no appeal.
Whether the article and the offensive words constituted contempt by scandalising the Court
The article, read as a whole, imputed improper motives to the Court - that it was dishonest and subordinated itself to the Executive in the Dons case - and thereby constituted scurrilous contempt calculated to bring the Court into disrepute.
Applying the law of England on scandalising the Court as required by section 5(1) of the Judicature Act, and the Ambard principle, the words 'reeked of State interference', 'indecision and dishonesty' and 'judicial lynching and blackmail' in their plain meaning imputed spinelessness and fraud to the Court. No acceptable defence of justification or fair comment was advanced. The Constitution's protection of expression is qualified by section 79(2)(b) which preserves laws maintaining the authority and independence of the courts.
Whether the 4th respondent caused the publication of the offensive words
On circumstantial evidence, including the 1st respondent's admission that he used a paragraph from the 4th respondent's article and the 4th respondent's failure to dissociate himself after publication, an irresistible inference arose that the 4th respondent sent or caused his article to be sent to the newspaper for publication.
The article was plainly intended for publication; the 1st respondent reproduced verbatim the paragraph containing the offensive words; the words were not taken out of context; and the 4th respondent, a senior advocate exposed to grave danger by the attribution, took no step to disclaim it. His conduct corroborated that the publication was authorised. The prosecution had proved guilt beyond reasonable doubt.
Disqualification of the bench for alleged bias
There was no legal basis for disqualification; the alleged bias rested solely on the judges' participation in the Dons case, the proceedings were initiated by the Attorney General and not the Court, and the respondents failed to establish specific facts constituting bias.
Applying the objective test from Metropolitan Properties v Lannon and Tumaini v R, no circumstances existed from which right-minded persons would think the judges would favour one side unfairly. The article was directed at the Court and the Judiciary generally, not at any individual judge. Raybos authority confirms that judges should not accede too readily to suggestions of appearance of bias.
Freedom of expression and the American approach to scandalising the Court
American case law disavowing the offence of scandalising the Court is of little persuasive relevance because section 5(1) of the Judicature Act binds Kenyan courts to English contempt law, and the Kenyan Constitution expressly preserves the power to punish for contempt.
The Constitution of the USA has no derogations comparable to Kenya's, and section 79(2)(b) expressly protects laws maintaining the authority and independence of the courts. Parliament alone could authorise departure from the English position. However, press freedom is constitutionally guaranteed and the press must act responsibly; vigorous but reasonable criticism is protected.
Legal principles established
#- The Court of Appeal of Kenya has jurisdiction to punish for contempt committed against itself, including contempt not committed in its face.
- The Constitution confers no right of appeal in criminal or civil proceedings; rights of appeal exist only as conferred by statute.
- Section 111(1) of the Evidence Act imposes on an accused the burden of proving a fact especially within his knowledge, but it does not cast on him the burden of proving that no crime was committed nor excuse the prosecution from proving guilt beyond reasonable doubt.
- Criticism of judicial decisions is constitutionally protected, but a publisher who imputes improper motives (such as dishonesty or subordination to the Executive) to a court commits contempt unless he can justify the accusation.
- An allegation of bias against a judge must be founded on specific facts established by evidence; surmise or conjecture is not enough.
Court orders
#- 1.The 3rd respondent, Independent Media Services Ltd, to pay forthwith a fine of Shs 500,000/-, failing which it must cease publication and sale of 'The People'
- 2.The 4th respondent, G B M Kariuki, committed to prison for six months, the warrant to lie with the Registrar for seven days, discharged if he pays a fine of Shs 500,000/- and publishes a written apology in The Daily Nation, The Standard, The Kenya Times and The People at his own expense
- 3.The 2nd respondent, Bedan Mbugua, committed to prison for five months, the warrant to lie with the Registrar for seven days, discharged if he pays a fine of Shs 400,000/- and publishes a written apology in the same newspapers at his own expense
- 4.The 1st respondent, David Makali Baraza, committed to prison for four months, the warrant to lie with the Registrar for seven days, discharged if he pays a fine of Shs 300,000/- and publishes a written apology in the same newspapers at his own expense
- 5.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote on jurisdiction and the 4th respondent's contempt. Held the Court of Appeal, as a superior court of record with power to punish for contempt under section 5 of the Judicature Act and the proviso to section 77(8) of the Constitution, had jurisdiction over contempt against itself including contempt not committed in its face, and rejected arguments that this denied a right of appeal. Found the 4th respondent caused publication of the offensive words, applying section 111 of the Evidence Act and drawing an irresistible inference from proved facts and his conduct.
I find the 4th respondent guilty of contempt of the Court of Appeal and I convict him accordingly.p. 12
Wrote the judgment
Dealt with the contempt by the 1st, 2nd and 3rd respondents. Held the article imputed improper motives (dishonesty and subordination to the Executive) to the Court; fair comment failed as a defence; American case law on scandalising the court was not applicable; no discriminatory prosecution was proved. Proposed the committal sentences with fines and conditional discharge.
I am fully satisfied that the applicant has proved beyond any reasonable doubt that the 1st, 2nd and 3rd respondents are guilty of contempt of this Court.p. 22
Wrote the judgment
Gave reserved reasons for consolidating the two applications and rejecting the preliminary objection seeking disqualification of the bench. Held no specific facts of bias were established; section 5(1) of the Judicature Act and section 79(2)(b) of the Constitution upheld the Court's power to punish contempt notwithstanding freedom of expression.
It is obvious beyond doubt that the respondents have failed to establish specific facts constituting the alleged bias by the members of this Court.p. 28
- Jurisdiction invoked
- Section 5(1) of the Judicature Act (Cap 8); sections 64(1), 72(1)(b) and the proviso to section 77(8) of the (former) Constitution of Kenya
- Consolidated with
- Criminal Application No NAI 5 of 1994
Relief refused
#Application by the Law Society of Kenya to act as amicus curiae
Filed without leave, without certificate of urgency and improperly presented during vacations; the Court deprecated the Society's intervention as partial and disrespectful of court procedure
Defence of fair comment on a matter of general public interest
The comment was not fair because it wrongly accused the Court of dishonesty and of kowtowing to the Executive
Claim that the prosecution was discriminatory and in abuse of the Attorney General's discretion
The evidential burden of proving discriminatory treatment lay on the respondents and no evidence supported it; failure to prosecute others is no defence
Costs
We make no order as to the costs of the application.
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.
Indeed as is seen in the said above quoted section the cumulative effect of the English law and our section 5(1) establishes clearly that the Court of Appeal of Kenya has power to consider, conduct a trial and make judgment on an allegation of contempt of itself.
It follows that no criticism of a judgment however vigorous can amount to contempt of court provided it keeps within the limits of reasonable courtesy and good faith.
So long as each side expresses its disagreement in sensible terms, no problem arises and the old adage still applies to this day
The sub-section refers to a burden of proof of a fact or facts and no more.
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
For its contempt of this Court of which we have found it guilty, the 3rd respondent, Independent Media Services Ltd, shall forthwith pay a fine of Shs 500,000/- and unless and until that fine shall have been paid, the 3rd respondent must forthwith cease publication and sale of its weekly newspaper "The People".
Accordingly, for his contempt of this court, he shall be committed to prison for six (6) months, but the committal warrant will lie with the registrar of the Court for seven (7) days
We make no order as to the costs of the application.
Issues in the judgment
#The citation of Blackburn (No 2) appears inconsistently as [1968] 2 QB 150 and [1968] 2 All ER 150 in different parts of the judgment
The judgment contains typographical/transmission errors, e.g. Shave v Bosner vs Shave v Rosner, and an incomplete sentence in Tunoi JA's passage on consolidation and joinder
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v David Makali & 3 others [1994] KECA 100 (KLR)", Case Analysis (1994). Criminal Application No NAI 4 of 1994 (consolidated with Criminal Application No NAI 5 of 1994). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/100/eng@1994-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.