Muganda & 16 others v Nyabuti & 2 others (Civil Appeal 115 of 2019) [2023] KECA 808 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the non-inclusion of the appellants as defendants in the defamation suit was an error apparent on the face of the record justifying review of the ruling of September 22, 2017
- 2.Whether a party can be brought into a suit through a review application in the nature of a joinder
- 3.Whether 'review' can be equated to 'variation' of an order
- 4.Whether the appellants had knowledge of the order of December 23, 2015, and whether such knowledge could substitute for personal service as a basis for a contempt finding
Key legal issues
#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
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.
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.
Whether review and variation are interchangeable remedies
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.
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.
Whether knowledge of an order can dispense with personal service for contempt purposes
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.
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.
Legal principles established
#- 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
#- 1.The appeal is allowed in terms of prayers 1, 2 and 3 of the Memorandum of Appeal dated March 29, 2019
- 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.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.Costs of the appeal awarded to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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.
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.
We are not aware of any provisions in law where one is brought into a suit by way of joinder in a review application on the basis that there was an error in not naming him/her in the suit filed by a claimant.
An order for review is meant amongst other grounds to correct an error apparent on the face of the record but it is never meant for purposes of variation of an order.
If parties were allowed to seek review of decisions on grounds that the decisions are erroneous in law, either because a Judge has failed to apply the law correctly or at all, a dangerous precedent would be set in which court decisions that ought to be examined on appeal would be exposed to attacks in the courts in which they were made under the guise of review when such courts are functus oficio and have no appellate jurisdiction
As a general rule, no order or court requiring a person to do or to abstain from doing any act may be enforced (by committing him for contempt) unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question.
It is in view of the above that we have come to the conclusion that the appeal herein is meritorious. It is hereby allowed in terms of prayers 1, 2 and 3 of the Memorandum of Appeal dated March 29, 2019.
Issues in the judgment
#The prayer in the Memorandum of Appeal contains an internal date discrepancy ('dated October 2, June, (sic)2017') reproduced verbatim from the record.
The judgment inconsistently refers to the injunction order as being 'issued on December 23, 2015' in some passages and as the 'order of September 8, 2016' / 'order of February 23, 2015' / 'orders of December 23, 2016' in others, without reconciling the dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muganda & 16 others v Nyabuti & 2 others (Civil Appeal 115 of 2019) [2023] KECA 808 (KLR)", 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.