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Court of AppealAllowedCourt of Appeal, Civil Appeal (Nairobi) - Memorandum of Appeal dated March 29, 2019 (number not stated in judgment)· [2023] KECA 808 (KLR)

Joe Muganda & 16 others v Peter Nyabuti

Court of Appeal of Kenya
7 July 2023
3,260 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal quashed contempt findings against 17 Nation Media Group directors because they were never named as defendants or personally served.

What this practically means

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Executive summary

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Seventeen directors of Nation Media Group Limited appealed against a ruling of Njuguna, J delivered on October 25, 2018, by which the judge reviewed her own ruling of September 22, 2017 and found the seventeen directors guilty of contempt, fining each Kshs 200,000 in default of three months' imprisonment. The contempt proceedings arose from a defamation suit by the 1st respondent over publication of an article on the 'Tanzanian Big Loan Scandal', in which an injunction restraining further publication was issued. The directors were not defendants in the suit; the 1st respondent sought to extend the contempt finding to them through a motion for 'review and/or variation'. The Court of Appeal, in a first appeal, allowed the appeal in full. It held that the non-inclusion of the directors as defendants was not an error apparent on the face of the record capable of correction by review; that a party cannot be brought into a suit by way of joinder through a review application; that review cannot be equated to variation; and that, given the gravity of contempt consequences, the rule requiring personal service of the order holds, so that imputed knowledge through service on the company's legal officer was not conclusive where the alleged contemnors were not parties. The court set aside the review orders of October 25, 2018, dismissed the 1st respondent's application with costs, ordered refund of the Kshs 3,400,000 fine paid by the appellants, and awarded the appellants the costs of the appeal.

Key legal issues

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01

Whether a party not named as a defendant in a suit can be found in contempt and added to the proceedings via a review application

Holding

No. The appellants were not defendants in the 1st respondent's suit; the judge could not bring them in by reviewing her own ruling. They should have been named as defendants and served with summons to enter appearance and given an opportunity to defend themselves.

Reasoning

The court noted that although the contempt motion of June 21, 2016 named the appellants, the ruling of September 22, 2017 found only the 'defendants' guilty. The appellants were not defendants. The subsequent motion of October 2, 2017 sought to 'review and/or vary' the ruling to extend it to the appellants. The court held that review cannot operate as joinder, and that a party cannot be subjected to contempt sanctions without being a properly joined party served with process and afforded a defence.

p. 7
02

Whether review and variation are interchangeable remedies

Holding

No. Review corrects an error apparent on the face of the record; it is not a means of varying an order, and the two cannot be used interchangeably.

Reasoning

The 1st respondent's motion of October 2, 2017 sought a 'review and/or variation' of the ruling of September 22, 2017. The court stated it was not aware of any situation in law where review is equated to variation. Review is confined to the grounds in Order 45 of the Civil Procedure Rules (new and important matter, error apparent on the face of the record, or other sufficient reason), and using it to vary an order would circumvent appellate jurisdiction.

p. 5
03

Whether knowledge of an order can dispense with personal service for contempt purposes

Holding

While authorities recognise that personal service may be dispensed with where there is notice, given the gravity of contempt consequences the personal-service rule holds; knowledge imputed from service on a company's legal officer, where the alleged contemnors were not parties, was not conclusive proof of knowledge.

Reasoning

The 1st respondent relied on Wambora and Shimmers Plaza to argue that knowledge suffices. The court acknowledged those authorities but held that where the appellants were not parties to the suit, possible knowledge could not be full proof, and that in view of the gravity of contempt, the traditional rule in Ochino v Okombo requiring personal service of the order endorsed with a penal notice prevails.

p. 7

Legal principles established

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  • A party who was not a defendant in a suit cannot be made a party to it, or brought in by way of joinder, through a review application; non-joinder cannot be cured by review.
  • An order for review is meant to correct an error apparent on the face of the record; it is not a vehicle for variation of an order.
  • Given the gravity of the consequences of contempt, personal service of the order, endorsed with a penal notice, is required before a person may be committed for contempt; knowledge alone, where the person is not a party to the suit, is insufficient.

Court orders

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  1. 1.The appeal is allowed in terms of prayers 1, 2 and 3 of the Memorandum of Appeal dated March 29, 2019
  2. 2.The orders of review issued on October 25, 2018 are set aside and the respondent's application dated October 2, 2017 in the superior court is dismissed with costs
  3. 3.The sum of Kshs 3,400,000 paid by the appellants to the Court as a fine for contempt on November 7, 2018 is to be refunded to the appellants
  4. 4.Costs of the appeal awarded to the appellants
On appeal from
High Court of Kenya
Not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal jurisdiction (the judgment describes it as 'a first appeal'); no specific constitutional/statutory provision quoted.

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, "Joe Muganda & 16 others v Peter Nyabuti", Case Analysis (2023). Court of Appeal, Civil Appeal (Nairobi) - Memorandum of Appeal dated March 29, 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/808/eng@2023-07-07

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