Speaker, Kakamega County Assembly v Cleophas Wakhungu Malala & 2 others [2016] KECA 779 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that even county assemblies must obey court orders, and ignoring them can lead to fines for contempt.
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 application to cite the appellant for contempt of court was competent
- 2.Whether the High Court had jurisdiction to entertain the contempt application
- 3.Whether the appellant was guilty of contempt of court as found by the learned trial Judge
Key legal issues
#Competence of contempt proceedings without leave
The contempt application was competent because no leave is required to commence contempt proceedings for an injunction (an order requiring a person not to do an act).
Section 5 of the Judicature Act pegs Kenyan contempt powers to the law in England 'for the time being'. Following this Court's decisions in Mate v Wambora, Christine Wangari Gachege and Shimmers Plaza, the current English law is the Civil Procedure (Amendment No. 2) Rules 2012, Part 81, which replaced Order 52 of the Rules of the Supreme Court and abolished the leave requirement for breach of prohibitory orders. The absence of leave therefore did not render the application incompetent.
Jurisdiction over legislative impeachment proceedings
The High Court had jurisdiction to entertain the petition and grant the injunction because impeachment is a quasi-judicial function subject to its supervisory jurisdiction.
While separation of powers requires judicial deference to the legislature, Article 165(6) confers supervisory jurisdiction over any person, body or authority exercising judicial or quasi-judicial functions. Following County Assembly of Kisumu, impeachment of a Speaker is quasi-judicial, and the petition alleged constitutional breaches including denial of an opportunity to respond to charges, so the court could restrain the proceedings.
Contempt conviction despite absence of personal service
The conviction was proper: knowledge of the order, proved beyond reasonable doubt, suffices even without personal service.
The order was served on the appellant's secretary, but the Hansard Report of 2nd July 2014 recorded the appellant himself acknowledging the orders to the Assembly. The Court rejected the claim that the Hansard was inauthentic merely for lack of the Speaker's signature, holding that no rule requires Speaker authentication of a Hansard and that the applicant never alleged forgery. His recorded admission and conduct in guiding the vote established knowledge beyond reasonable doubt.
Privilege of legislative proceedings
Not determined as a bar to the appeal; privilege arguments did not defeat the contempt conviction because the injunction order, being unappealed, had to be obeyed.
Counsel argued the appellant's acts were absolutely privileged under Articles 177(1)(d) and 196(3), the County Governments Act and the National Assembly (Privileges and Immunities) Act. The Court held instead that in a constitutional democracy the Constitution, not Parliament, is supreme, and no institution is immune from judicial scrutiny where conduct is unauthorised by the Constitution.
Legal principles established
#- No leave of court is required to commence contempt proceedings in the case of a judgment or order requiring a person not to do an act.
- Impeachment of a Speaker of the National or a County Assembly is a quasi-judicial function subject to the High Court's supervisory jurisdiction under Article 165(6), so subjecting assemblies to that jurisdiction does not derogate from separation of powers.
- In contempt proceedings, personal service of the order is not essential; proof beyond reasonable doubt of knowledge of the order and its terms suffices to found a conviction for disobedience.
- Until set aside, a court order must be obeyed by all parties, including legislative bodies, even if they believe it was wrongly granted.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court at Kakamega
- Constitutional Petition No. 13 of 2014
- Jurisdiction invoked
- Section 5 of the Judicature Act (contempt jurisdiction of the Court of Appeal); appeal from High Court in constitutional petition
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.
It follows that no leave of court was required to commence the contempt proceedings giving rise to this appeal. The contempt application was therefore competent.
no derogation from the doctrine of separation of powers to subject the County Legislative Assemblies (and even the National Assembly) to the supervisory jurisdiction of the court if, in the exercise of their quasi-judicial functions, they violate the Constitution.
Until set aside, the appellant and the other respondents in that petition had no option but to obey that order.
It is, however, settled law that knowledge of the judgment or order alleged to have been disobeyed suffices to found a conviction for its disobedience.
We therefore find no merit in this appeal and we hereby accordingly dismiss it with costs.
Issues in the judgment
#The judgment describes the decision as dismissing 'this application' in one passage and the appeal in another, which may confuse the object of the disposition, though the final order clearly dismisses the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Speaker, Kakamega County Assembly v Cleophas Wakhungu Malala & 2 others [2016] KECA 779 (KLR)", Case Analysis (2016). Civil Appeal No. 77 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/779/eng@2016-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.