Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 9 of 2018· [2019] KECA 439 (KLR)

Geoffrey Chege Kirundi & 2 others v Stephen Maina Githiga & 3 others

Court of Appeal
6 August 2019
PWP. WakiMohamed Abdulahi WarsameM. WarsameFSF. Sichale
2,677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that courts cannot punish contempt of ex parte orders before hearing applications to stay or discharge those orders.

What this practically means

#

Executive summary

#
This was an appeal against a ruling of Sergon J delivered on 13th December 2017 in H.C.C.C No. 230 of 2017, by which the learned judge found the appellants, directors of a tea factory, prima facie in contempt of ex parte orders issued on 16th November 2017 restraining publication and circulation of an AGM booklet and the convening of the AGM. The AGM was nonetheless held on 17th November 2017, prompting a contempt motion. On 4th December 2017 three applications were pending: the respondents' injunction application, the contempt application, and the appellants' application to discharge the ex parte orders. The judge directed that the contempt application be heard first and ordered the appellants to show cause why they should not be cited for contempt. Allowing the appeal, the Court of Appeal, applying the Indian authority Shiv Lal v Ram Babu Dwivedi by parity of reasoning, held that where contempt arises from ex parte orders, the stay or discharge application and the inter partes injunction application should be heard before, or back to back with, the contempt application. Prioritising contempt in those circumstances was a gross misdirection, since a contemnor could be punished before the court had heard the applicants. The Court expressly declined to determine the merits of the underlying disputes, remitting the three applications to be heard back to back before any High Court judge other than Sergon J. Costs of the appeal were awarded to the appellants, jointly and severally, against the respondents. The decision binds subordinate courts on the sequencing of contempt proceedings arising from ex parte orders.

Key legal issues

#
01

Sequencing of contempt application against ex parte orders

Holding

Hearing a contempt application before the underlying stay/discharge and injunction applications, where the orders breached were ex parte, is a misdirection

Reasoning

Applying by analogy the Indian authority Shiv Lal v Ram Babu Dwivedi, the Court held there is a real possibility that a contemnor will be punished before the court has heard the application for stay and before the injunction application is heard inter partes. Fairness required hearing the stay application first or back to back with the contempt application. The trial judge's prioritisation of contempt was a gross misdirection warranting the setting aside of his order.

p. 4

Legal principles established

#
  • Where contempt proceedings arise from ex parte orders, the application for stay or discharge of those orders, and the inter partes injunction application, should be heard before or at the same time as the contempt application

Court orders

#
  1. 1.The order of Sergon J made on 13th December 2017 was set aside
  2. 2.The three pending applications are to be heard and determined back to back before any judge of the High Court, other than Sergon J
  3. 3.Costs of the appeal to the appellants as against the respondents, jointly and severally
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 230 of 2017
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal against an interlocutory ruling of the High Court (the judgment does not cite a specific constitutional or statutory provision)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Geoffrey Chege Kirundi & 2 others v Stephen Maina Githiga & 3 others", Case Analysis (2019). Civil Appeal No. 9 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/439/eng@2019-08-06

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