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Court of AppealDismissedCivil Appeal No. 216 of 2017· [2018] KECA 646 (KLR)

Orange Democratic Movement v Fredrick Okolla Ojwang & 2 others [2018] KECA 646 (KLR)

Court of Appeal
4 May 2018
3,637 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that anyone bound by a Kenyan court order must obey it exactly as written—choosing your own way to comply is contempt.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against a ruling of E.C. Mwita, J. dated 14 June 2017 directing ODM's National Elections Board officials, Judy Pareno and Dr. Robert Arunga, to attend court to show cause why they should not be punished for contempt of court orders issued on 24 May 2017. Those orders required ODM to conduct a repeat nomination for the Port Reitz Ward MCA position within 36 hours, after the High Court nullified the nomination that produced the 2nd respondent. Instead of complying, ODM gave the 2nd respondent a direct nomination after the expiry of a three-day stay, and the 2nd respondent presented the nullified certificate to IEBC for clearance. ODM appealed on three compressed grounds: that the Judge ignored the party constitution permitting direct nomination; that a nomination by universal suffrage on 18 June 2017 purged the contempt; and that the Judge was functus officio. The Court, in a single judgment of Waki, Nambuye and Musinga, JJA, dismissed the appeal in its entirety. It held that a party bound by a court order must obey it as directed and may not choose the mode of compliance; any doubt should have been resolved by applying for variation. It affirmed that the court which issued the disobeyed orders is properly seized of the contempt proceedings, rejecting the functus officio argument, and declined to interrogate the alleged purge, leaving that to the High Court. Costs were awarded to IEBC, the only party that attended the hearing.

Key legal issues

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01

Whether ODM's adoption of direct nomination, instead of a repeat nomination by universal suffrage, constituted contempt of the order of 24 May 2017

Holding

It did. The order required a repeat of the nomination exercise in the same manner it had been carried out in the first instance, leaving no room for discretion in mode of compliance.

Reasoning

The Court found that the order of 24 May 2017 obligated ODM to repeat the nomination in the same manner as the 29 April 2017 exercise. ODM's opting for direct nomination, as admitted by Dr. Arunga, was flagrant disobedience. If ODM doubted the mode of compliance it ought to have applied for variation rather than choose its own path.

p. 5
02

Whether the High Court was functus officio and its contempt directions null and void

Holding

No. The Judge was properly seized of the contempt proceedings.

Reasoning

All the case law reviewed indicates that the court which issued the orders allegedly disobeyed is better placed to gauge the veracity of the explanation for the alleged disobedience and accept or reject it. The contempt orders were therefore valid and not null and void.

p. 6
03

Whether knowledge of the orders required proof of personal service on the officials

Holding

No. Dr. Arunga's replying affidavit showed the officials were aware of the orders.

Reasoning

Contrary to the submission that there was no proof of personal service, the content of Dr. Arunga's replying affidavit was explicit that the officials were aware of the orders, elected to use direct nomination due to time constraints, and considered direct nomination the most ideal mode of compliance.

p. 5
04

Whether the nomination of 18 June 2017 purged the contempt

Holding

The Court declined to determine this, as the proper forum was the court that issued the orders.

Reasoning

The 18 June 2017 exercise postdated the 14 June 2017 directions to appear. The proper forum for interrogating the nature and extent of that supposed compliance was the court that issued the orders for appearance, not an appellate court. The Court was satisfied there was a proper basis for the orders of 14 June 2017.

p. 5

Legal principles established

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  • A party who is the addressee of a court order must obey it as directed and has no discretion to choose the mode of compliance; any doubt should be resolved by returning to court for variation.
  • The obligation to obey a court order extends even to orders the addressee believes to be irregular or void; the proper course is to apply for discharge, not to disobey.
  • The court that issued orders allegedly disobeyed is the proper forum, and is properly seized, of contempt proceedings arising from disobedience of those orders; functus officio is no bar.
  • Whether subsequent conduct purged a contempt is a matter for the court that issued the orders, not the appellate court.

Court orders

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  1. 1.The appeal is dismissed with costs to the 3rd respondent (IEBC)
On appeal from
High Court of Kenya at Nairobi
H.C.C.ELC. No. 56 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Appeal No. 216 of 2017); the judgment does not cite a specific constitutional or statutory provision for its jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Orange Democratic Movement v Fredrick Okolla Ojwang & 2 others [2018] KECA 646 (KLR)", Case Analysis (2018). Civil Appeal No. 216 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/646/eng@2018-05-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.