Republic v Tony Gachoka
The bottom line
#Kenya's Court of Appeal jailed a newspaper publisher and fined his paper KShs 1 million for publishing unproven corruption claims about judges while a ruling was still pending.
What this practically means
#Executive summary
#Key legal issues
#Whether the publications scandalised the Court
The articles alleging that the Chief Justice took a KShs. 30 million bribe and dictated outcomes, and that judges were corrupt and biased, were scurrilous abuse imputing improper motives and constituted scandalising the court.
Applying Halsbury's Laws of England and R v Gray, the court held the test is whether the publication is calculated to lower the authority of the court, not whether the judge is personally offended. The language was violent, scornful and untemperate, imputing corruption, bias and lack of independence. No evidence supported the allegations; hearsay from informants cannot justify them. Such attacks undermine public confidence in the administration of justice, which the law of contempt protects.
Whether the sub-judice rule was breached
Yes - the ruling of 15th January 1999 was not final because reasons were reserved to 19th February 1999, so comment attacking the ruling before reasons were delivered prejudged pending proceedings.
The court reasoned that a judgment cannot be conclusive unless reasons are given for the findings; one cannot fairly comment on reasons not yet delivered. The first respondent knew reasons were reserved yet published allegations that the ruling was procured by bribery. Comments on pending proceedings which pre-judge issues to be tried by the court constitute contempt under the sub-judice rule.
Whether refusal of oral evidence rendered the trial unfair
By the majority, no - the respondent had elected the affidavit procedure, withdrew his affidavit, and the intended oral evidence was irrelevant; the local practice of deciding contempt on affidavit evidence was established.
The majority held that Order 52 rule 6(4) did not entitle a respondent who had withdrawn his affidavit to insist on oral testimony as a last resort; the Deputy Registrar had directed him to file affidavits from his witnesses and he declined. He was heard at length and suffered no prejudice. Gicheru JA dissented, holding that refusal would be a material irregularity producing a mistrial.
Whether freedom of the press under section 79 of the Constitution is a defence
No - the Constitution itself recognises the power to punish for contempt, and press freedom must be exercised responsibly; it is no licence to malign or publish unsubstantiated falsehoods.
Omolo JA held that freedom of the press is a means to a free society, not an end in itself, and that the proviso to section 77(8) preserves the power to punish contempt. Kwach JA held press freedom is not a licence to regurgitate falsehoods and journalists must verify information. Lakha JA held the law of contempt rests on public policy and restricts speech only so far as reasonably necessary to protect the administration of justice.
Liability of Njoroge Nani Mungai
Acquitted - he had resigned before publication, took no part in the publications, and the applicant failed to discharge the shifted burden of proof.
Mungai swore he resigned as director and secretary on 13th May 1998 and that Gachoka failed to notify the Registrar of Companies. The majority held that once he showed resignation, the burden shifted to the applicant to prove beyond reasonable doubt that he remained an active director involved in the publications, which was not done; passive directorship without mens rea or actus reus does not attract contempt liability.
Legal principles established
#- Scandalising the court is a punishable head of criminal contempt in Kenya, and it is not necessary that the attack affect pending proceedings only
- A ruling is not complete until the reasons for it are given; publication attacking a ruling before reasons are delivered breaches the sub-judice rule
- Fair, temperate criticism of judges in good faith is not contempt, but imputing improper motives or corruption without proof exceeds the bounds of legitimate criticism
- Committal for contempt being criminal in nature, the applicant must prove the charge beyond reasonable doubt
- A director who has resigned and taken no part in the publication is not liable for contempt; the evidential burden then shifts to the applicant
Court orders
#- 1.First respondent Tony Gachoka convicted of contempt of court and committed to prison for six months
- 2.Second respondent The Post Limited convicted of contempt and fined KShs. 1,000,000/-
- 3.In default of immediate payment of the fine in full, the second respondent to cease publication of The Post on Sunday or any other publication until the fine is paid in full
- 4.Njoroge Nani Mungai discharged
- 5.No order as to costs
- Jurisdiction invoked
- Section 5(1) of the Judicature Act (Cap 8) and section 77(8) of the Constitution of Kenya - the Court's inherent and statutory power to punish for contempt of itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Tony Gachoka", Case Analysis (1999). Criminal Application (Contempt) arising from publications in The Post on Sunday, January-February 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/192/eng@1999-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.