Nyamodi Ochieng Nyamogo & Another v Kenya Posts & Telecommunications Corporation
The bottom line
#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 three corporation officials were personally served with the order of 8th October 1993 as required for committal
- 2.Whether the order carried the mandatory endorsement of penal consequence
- 3.Whether the order was capable of being enforced or complied with
- 4.Whether the order of 8th October 1993 should be discharged following the five-judge bench decision in the University Don's case
Key legal issues
#Personal service of the order as a prerequisite to committal
The application against Mr Ngeny and Mr Josiah was dismissed for lack of any service, and against Mr Malakwen struck out because he was served only after the committal application was filed.
Halsbury's Laws (4th Ed) Vol 9 states personal service is required; service on the corporation's advocates does not constitute personal service on the officers. There was no return of service by an authorised process server, and Mr Malakwen was served six days after the committal application was filed, rendering that service of no legal effect for those proceedings.
Endorsement of penal consequence on the order
The copies of the order served bore no endorsement of penal consequence, rendering the application incompetent; the court preferred Wangondu over Shah's case.
Order 45 rule 7/5 RSC 1982 makes the penal notice a necessary condition of enforcement by committal. In Wangondu this Court confirmed the mandatory nature of the requirement. In Shah's case knowledge of the order was held sufficient, but this Court, with respect, preferred Wangondu because it followed English law and procedure; mere awareness of the order's terms is not enough to commit.
Whether the order was capable of enforcement
The order restraining retirement could not be enforced because the applicants' offices had been abolished on 7th April 1993, six months before the order.
The affidavits of Mr Josiah and Mr Malakwen deponed that the applicants ceased to be employees on 7th April 1993 and their offices were abolished by the Board; this was not controverted by further affidavit evidence. The applications in the High Court had sought only a prohibitory injunction, not reinstatement, so punishing the officials for failing to reinstate was wrong.
Discharge of the underlying order of 8th October 1993
The Court discharged its own order of 8th October 1993 under rule 56(2) of the Court of Appeal Rules, it having been based on a ruling over-ruled by a five-judge bench.
The five-judge bench in the University Don's case unanimously over-ruled the Nyamogo ruling, describing the order as a pious farce. The Court held it has jurisdiction to discharge its own injunction or stay order and discharged it to prevent further misuse and repetition of similar applications.
Legal principles established
#- No order requiring a person to do or abstain from doing an act may be enforced in contempt unless a copy has been served personally on that person; service on a company's advocates is not personal service on an officer.
- Endorsement of the penal notice on the order served is a necessary condition for enforcement by committal; mere knowledge of the order's terms does not suffice.
- The party seeking a contempt finding must show strict compliance with the procedural requirements; knowledge or constructive awareness of the order cannot cure non-compliance.
- The Court of Appeal has jurisdiction to discharge its own order of injunction or stay.
Court orders
#- 1.Dismissal of the notice of motion dated 28th October 1993 seeking committal of the three respondents for contempt
- 2.Striking out of the application as against Mr Malakwen as incompetent for want of service before filing
- 3.Declaration that the order dated 8th October 1993 granted in Civil Application NAI 204 of 1993 is discharged under rule 56(2) of the Court of Appeal Rules
- 4.Costs of the application awarded to the respondents against the applicants jointly and severally
- 5.A certified copy of the order to be placed in the file of Civil Application NAI 204 of 1993
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC Nos 1736 & 1890 of 1993 (consolidated)
- Jurisdiction invoked
- Section 5(1) of the Judicature Act (cap 8) - power to punish for contempt equivalent to the High Court of Justice in England; rule 56(2) of the Court of Appeal Rules for discharge of the court's own order
Relief refused
#Committal to prison of Mr Ngeny, Mr Malakwen and Mr Josiah for contempt
No personal service of the order; no endorsement of penal consequence; order not capable of enforcement as the offices had been abolished before it was granted
Costs
Costs of this application are awarded to the respondents against the applicants jointly and severally.
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.
As a general rule, no order of court requiring a person to do or abstain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question
It is a necessary condition for the enforcement of a judgment or order under rule 5 by way of sequestration or committal, that the copy of the judgment or order served under this rule should have the requisite penal notice indorsed thereon.
The consequences of a finding of disobedience being penal, the party who calls upon the Court to make such a finding must show that he has himself complied strictly with the procedural requirements and his failure to so comply cannot be answered by merely saying that the other side was aware or ought to have been aware of what the order required him to do.
We dismiss the application filed on 28th October, 1993, seeking for the committal of the three respondents for contempt of the court and we also declare the order dated 8th October, 1993, granted in Civil Application NAI 204 of 1993 to be discharged under rule 56(2) of the Court of Appeal Rules.
Costs of this application are awarded to the respondents against the applicants jointly and severally.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyamodi Ochieng Nyamogo & Another v Kenya Posts & Telecommunications Corporation", Case Analysis (1994). Civil Application No. NAI 264 of 1993 (NAI 114/93 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/114/eng@1994-01-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.