HMI v KBH (Civil Appeal (Application) E109 of 2022) [2026] KECA 1498 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed courts can punish contempt of their own orders, but struck out a mother's application because she could not locate the child or father.
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 Court should cite the respondent for disobedience of this Court's orders of 23rd February 2024
- 2.Whether the Court is functus officio having rendered its judgment on 23rd February 2024 and cannot therefore hear the contempt application
- 3.Whether service of the order with a penal notice was necessary, or whether the respondent's knowledge of the order suffices
- 4.Whether the applicant has met the threshold for a finding of contempt against the respondent
Key legal issues
#Whether the Court of Appeal is functus officio after delivering judgment and cannot entertain a contempt application concerning its own orders
The functus officio objection fails: the court that issues orders retains power to punish for their disobedience, and this power does not conflict with functus officio.
The respondent's preliminary objection was that the Court had finalized its mandate as a second appellate court and was functus officio. The Court held the objection was not based on any law. Since the Court itself issued the orders said to have been disobeyed, it is the court conferred with power to punish the alleged contemnor; enforcement of orders is distinct from reopening the decided appeal.
The statutory basis of contempt jurisdiction and the applicable procedural law
The Contempt of Court Act is unconstitutional; contempt jurisdiction of the Court of Appeal and High Court rests on Section 5 of the Judicature Act and Section 63(c) of the Civil Procedure Act, with English law under the Contempt of Court Act 1981 and Part 81 of the CPR 2012 as the fallback.
The applicant cited the (struck-down) Contempt of Court Act. The Court noted its declaration of unconstitutionality by Chacha Mwita, J. in 2018 remains undisturbed on appeal. Section 5 of the Judicature Act incorporates English contempt law; the Court traced the transition from Order 52 of the Rules of the Supreme Court to Part 81 of the Civil Procedure (Amendment No. 2) Rules 2012, making Rule 81.4 (breach of a judgment or order) applicable.
Whether personal service of the order with a penal notice was required, or whether the respondent's knowledge of the order sufficed
Sufficient knowledge of the order dispenses with personal service and the penal notice; the respondent, having filed the appeal and been represented throughout and having filed a response to the application, had sufficient knowledge.
The Court distinguished the earlier position in Ochino v Okombo requiring personal service with penal notice. Rule 81.8 permits dispensation where the person had notice. Counsel's presence and the duty to report back to clients mean the respondent knew the outcome; the outcome was in fact more favourable to him. Knowledge of the order was therefore established and the evidential burden shifts to the respondent on wilfulness.
Whether contempt was established and whether the Court should punish the respondent
Although knowledge of the order was established, the application was premature and incompetent because the applicant could not locate the respondent or the child, and orders in vain would serve no purpose in a matter involving a vulnerable child.
Counsel conceded the applicant did not know the whereabouts of the respondent or the minor. Issuing adverse orders would defeat their purpose. Guided by Article 53(2) of the Constitution on the paramountcy of the child's best interests, the Court declined to punish and instead gave the applicant leave to first locate the respondent and child before any fresh application. The application was struck out with no order as to costs.
Legal principles established
#- The court that issues orders is, unless exceptional circumstances exist, the court conferred with power to punish whoever disobeys those orders; a court is not functus officio in respect of enforcing its own orders
- Where there is sufficient knowledge of a court order, personal service with a penal notice is dispensed with for contempt purposes unless the party was not a party to the proceedings or unaware of them
- Knowledge of a judgment or order by a party's advocate, who was present or acting in the proceedings, suffices as notice of the order for contempt purposes
- The standard of proof in contempt proceedings, though on a balance of probabilities, is higher than in ordinary civil proceedings because contempt is criminal in nature
- There is a plain and unqualified obligation on every person against whom an order is made by a court of competent jurisdiction to obey it unless and until it is discharged
- To establish contempt, the applicant must prove the order was clear and unambiguous, the respondent knew its terms, the respondent breached it, and the breach was wilful
Court orders
#- 1.The applicant's Notice of Motion dated 24th April 2024 is found to be premature and incompetent and is struck out
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Section 5 of the Judicature Act, Cap. 8 (contempt jurisdiction of the Court of Appeal) read with Section 63(c) of the Civil Procedure Act, Cap. 21; the judgment of 23rd February 2024 in Mombasa High Court Family Appeal No. E010 of 2022 arose from the Court of Appeal's appellate jurisdiction
Relief refused
#Citation of the respondent for contempt and punishment for breach of the orders of 23rd February 2024
The application was premature and incompetent; the applicant could not establish the whereabouts of the respondent and the child, and punitive orders would serve no purpose
Review of the orders on physical custody and grant of physical custody to the applicant; hearing of the matter afresh at Tononoka Children's Court
The application was struck out in its entirety as premature and incompetent; the applicant was advised to first locate the respondent and the minor before filing any fresh contempt application
Costs
The application is struck out with no order as to costs. (The substantive judgment of 23rd February 2024 in the underlying appeal had ordered, 'This being a case brought on behalf of the child minor, each party do bear their own costs of the appeal.')
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.
Consequently, we find that the application is premature and incompetent. It is hereby struck out with no order as to costs.
this Court having issued the orders arising from its judgment, is conferred with powers to punish whoever it is alleged disobeyed those orders.
where there is suficient knowledge of a court order, it sufices to dispense with personal service for purposes of contempt proceedings unless the party was not a party to the proceedings, or was unaware of the court proceedings.
In contempt proceedings, the standard of proof, which is on a balance of probabilities, is higher than in civil proceedings. This is because contempt proceedings are in the nature of criminal proceedings.
It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged.
We would frown upon the audacious moves of one parent to deprive the other of this right to access and visitation even where there is a clear and unambiguous court order.
This remains to be the position to date as our research does not lead us to any decision that overturned this Judgment on appeal.
Issues in the judgment
#The judgment recites that the Court of Appeal judgment in the underlying appeal was delivered on 23rd February 2024 and the hearing of this application took place on 28th January 2026, while the operative reinstated orders quoted reproduce a trial court judgment of 21st February 2022 that itself refers to 'the judgment of the High Court delivered on the 21st October 2022' in a manner suggesting conflation of the two levels of court in the quotation
The respondent's preliminary objection refers to 'the Court's orders given on 30th September 2021', a date earlier than both the trial court judgment of 21st February 2022 and the Court of Appeal judgment of 23rd February 2024, without explanation in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "HMI v KBH (Civil Appeal (Application) E109 of 2022) [2026] KECA 1498 (KLR)", Case Analysis (2026). Civil Application (Mombasa) - Notice of Motion dated 24th April 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1498/eng@2026-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.