[2017] KEHC 4682 (KLR)
The High Court determined that, under the Contempt of Court Act No. 46 of 2016, the power to punish for contempt of court is vested in the superior court whose orders have allegedly been disobeyed. Since the orders in question were issued by the Court of Appeal, it is the Court of Appeal that has the jurisdiction to...
Source-derived case information.
- Citation
- [2017] KEHC 4682 (KLR)
- Parties
- Appellant: Emmanuel O Achayo; Respondent: Orange Democratic Movement; Respondent: County Appeals Tribunal (ODM); Respondent: Abigaiel Perpetua Awino; Respondent: Independent Electoral and Boundaries Commission; Respondent: Registrar of Political Parties
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Appeal 46 of 2017
- Procedural Posture
- Election Petition Appeal / Ruling on Application for Contempt of Court
- Outcome
- Application dismissed for want of jurisdiction; applicant directed to file in the Court of Appeal.
- Judges
- SN Riechi
- Legal Topics
- Contempt of Court, Enforcement of Court Orders, Jurisdiction of High Court, Election Nominations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel O Achayo
Appellant
Orange Democratic Movement
Respondent
County Appeals Tribunal (ODM)
Respondent
Abigaiel Perpetua Awino
Respondent
Independent Electoral and Boundaries Commission
Respondent
Registrar of Political Parties
Respondent
Procedural Posture
Election Petition Appeal / Ruling on Application for Contempt of Court
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain an application for contempt of orders issued by the Court of Appeal.
- 2 Whether the proper forum for contempt proceedings for disobedience of Court of Appeal orders is the Court of Appeal itself.
Ratio Decidendi
The High Court determined that, under the Contempt of Court Act No. 46 of 2016, the power to punish for contempt of court is vested in the superior court whose orders have allegedly been disobeyed. Since the orders in question were issued by the Court of Appeal, it is the Court of Appeal that has the jurisdiction to entertain and determine contempt proceedings arising from non-compliance with its orders. The High Court therefore lacks jurisdiction to hear and determine the present application for contempt, and the application should be filed before the Court of Appeal.
Court Disposition
Application dismissed for want of jurisdiction; applicant directed to file in the Court of Appeal.
Orders
- The application for contempt is dismissed for want of jurisdiction.
- The applicant is directed to file the application before the Court of Appeal for hearing and determination.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELECTION PETITION APPEAL NUMBER 46 OF 2017
EMMANUEL O ACHAYO. …………………………......…APPELLANT
VERSUS
ORANGE DEMOCRATIC MOVEMENT………......1ST RESPONDENT
COUNTY APPEALS TRIBUNAL (ODM).……......2ND RESPONDENT
ABIGAIEL PERPETUA AWINO. ……………....…3RD RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION. ……….......1ST INTERESTED PARTY
REGISTRAR OF POLITICAL PARTIES. …2ND INTERESTED PARTY
(An Appeal from the Decision of the Political Parties Dispute Tribunal in Case No. 98 of 2017 delivered on 13th May, 2017 by M. Lwanga, D. Nungo, P. Ngotho and Dr. A Mbithi)
REPUBLIC OF KENYA
IN THE POLITICAL PARTIES DISPUTE TRIBUNAL
CASE NUMBER 98 OF 2017
ISSUE IN DISPUTE: UNLAWFUL AND IRREGULAR NOMINAITON IN SIAYA COUNTY (GEM CENTRAL WARD) MCA NOMINATIONS
EMMANUEL O ACHAYO. ……………………………COMPLAINANT
VERSUS
ORANGE DEMOCRATIC MOVEMENT………......1ST RESPONDENT
COUNTY APPEALS TRIBUNAL (ODM). ……….2ND RESPONDENT
ABIGAIEL PERPETUA AWINO. ………………....3RD RESPONDENT
R U L I N G
This is an application dated 7th June, 2017 by the Applicant Emmanuel O Achayo seeking citation for contempt of Judy Pareno and Robert Arunga being chairperson and Secretary respectively of the National Election Board of Orange Democratic Movement Party. The contempt arises from the decision and order of the Court of Appeal dated 6th June, 2017 which directed the 1st Respondent Orange Democratic Movement Party to conduct fresh nominations for Gem Central Ward member of the County Assembly within 48 hours from 4 p.m. 6th June, 2017.
The applicant contends that the said Judy Pareno and Robert Arunga have failed to comply with the order and therefore in contempt of court.
The court indicated to counsel for the applicant, whether this being an application for contempt of the orders of the court of appeal, can this court handle the same. Mr. Kanjama in response urged the court that it has powers to handle contempt proceedings in respect of non-compliance of court of Appeal orders. He submitted that Section 4 of the Appellate Jurisdiction Act confer the powers both to the Court of Appeal and this High Court.
The contempt of court Act No. 46 of 2016 which is an act of Parliament to define and limit the powers of courts in pushing for contempt of court and related purposes came into force on 13th January, 2017. It defines Superior court to include; Supreme Court, Court of Appeal and Employment and Labour Relations court and the Land and Environment Court.
Section 5 of the Act provides that: -
“5. Every superior court has power to: -
a) Punish for contempt of court on the face of the cases.
b) Punish for contempt of court.
c) Uphold the dignity and authority of subordinate court.”
The Contempt Of Court Act which is the recent legislation providing for Contempt of Court, gives power to the superior courts to punish for contempt any person disobeying their orders. In the present application, the orders the basis of the application were delivered by the Court of Appeal. The court of appeal has powers to punish for contempt of their orders.
I, therefore find that this application should properly be filed and determined by the Court of Appeal because it is their orders that are being disobeyed and under the Contempt of Court Act, they have powers to do so. I consequently direct that the application be filed in the Court of appeal for hearing and determination.
Dated, signed and delivered at Nairobi this 9th day of June, 2017.
……………
S N RIECHI
JUDGE