Nur v Karam (Divorce Cause E010 of 2021) [2022] KEKC 149 (KLR)
The bottom line
#Kenya's Kadhi's Court confirmed it can jail people who ignore its orders, committing a landlord to four months in prison for disobeying orders.
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 Kadhi's Court has power to punish for contempt of its own orders
- 2.Whether the petitioner wilfully disobeyed the court orders of September 30, 2021 requiring rental proceeds of the fiat to be deposited into a joint account
- 3.Whether the pendency (or filing) of an appeal excuses non-compliance with the orders
- 4.What consequential orders should issue, including committal and preservation of the rental income
Key legal issues
#Jurisdiction of Kadhi's courts to punish for contempt
The Kadhi's court has power to enforce its own orders and punish for contempt; the suggestion that its orders must be filed elsewhere for enforcement is fallacious.
The court noted that rules under section 8 of the Kadhi's Court Act have now been promulgated, and rule 120 of the KCPPR 2020 expressly confers power to punish for contempt, including committal or fines, and deems the court a court of record. It adopted Onguto J's reasoning in Chandoo that a Kadhi's court, being of even status to the magistrates' court, cannot be hapless in execution of its own orders.
Whether the petitioner was in contempt and the consequence of non-compliance
The petitioner was in wilful contempt of the orders of September 30, 2021 and was committed to four months' imprisonment.
The court found the orders of September 30, 2021 were valid and undisputed, and that the petitioner had refused and/or neglected to open the joint account while continuing to collect rent unilaterally. The appeal against the ruling had been dismissed, so there was no excuse. Contempt attacks the rule of law under article 10 and judicial authority under article 159(1) of the Constitution.
Effect of a pending or concluded appeal on compliance with orders
Filing or pursuing an appeal does not act as a stay of execution or excuse disobedience of orders.
Counsel for the applicant submitted, and the court accepted, that an appeal is not a stay. The High Court (Maureen A. Odero J) had dismissed the petitioner's application for stay and injunction in its entirety, observing that the joint-account order would cause no substantial loss and funds would remain available if the appeal succeeded. The court also found the petitioner had been economical with the truth about the state of the appeal.
Legal principles established
#- A Kadhi's court has the power to enforce its own orders and to punish for contempt, including under rule 120 of the Kadhi's Court Procedure and Practice Rules 2020
- Willful disobedience of a judgment, decree or order of a court constitutes contempt of court
- A party cannot disobey a court order merely because an appeal is pending; filing an appeal is not a stay
- A party who knows of an order cannot be permitted to disobey it, whether the order is null or void, regular or irregular
Court orders
#- 1.The petitioner/respondent is found in contempt of court for wilful disobedience of valid court orders
- 2.The petitioner is committed to four (4) months jail for contempt; warrants for his arrest to issue
- 3.The petitioner or his agents are restrained from collecting rent of the suit property
- 4.The rent proceeds of the suit property be deposited in the respondent counsel's account, who shall account for the same upon determination of the matter
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 10 and Article 159(1) of the Constitution of Kenya (2010); section 3 of the Magistrates Courts Act (No. 26 of 2015); section 8 of the Kadhi's Court Act (Cap 11); rule 120 of the Kadhi's Court Procedure and Practice Rules (2020); section 6 of the Contempt of Court Act (No. 46 of 2016)
Relief refused
#Direction that the petitioner account for and pay the total rental income unilaterally collected from the date of the order
The court instead ordered prospective preservation - rent to be deposited in the respondent counsel's account going forward - and punished the contempt by committal rather than a retroactive accounting order
Costs
No express costs order recorded in the judgment, despite 'Costs' being sought in the Notice of Motion
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.
Accordingly, he is hereby committed to four (4) months jail for contempt under the provisions article 10 of the Constitution of Kenya (2010), section 3 of the Magistrates courts Act (no 26 of 2015), section 8 of the Kadhi’s court Act, cap 11 laws of Kenya, rule 120 of the Kadhi’s Court procedure and practice rules (2020) and section 6 of the contempt of court Act (no 46 of 2016). Warrants for his arrest to issue.
In furtherance of preservation of the suit property pending hearing and determination of this matter, we further order that the petitioner or his agents are hereby restrained from collecting rent of the suit property.
The rent proceeds of the suit property be now deposited in the respondent counsel’s account who shall account for same upon determination of the matter.
'the whole purpose of litigation as a process of judicial administration is lost if court orders are not complied with'
Issues in the judgment
#Costs were sought in the Notice of Motion but no express costs order appears in the final orders
The judgment inconsistently refers to 'section 3, Magistrates Court Act ... cap 10' in one passage while the disposition cites 'section 3 of the Magistrates courts Act (no 26 of 2015)'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nur v Karam (Divorce Cause E010 of 2021) [2022] KEKC 149 (KLR)", Case Analysis (2022). Not stated in the judgment (Kadhi's Court contempt application arising from ruling dated September 30, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2022/149/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.