[2013] KEHC 4278 (KLR)
The court found that the applicant failed to demonstrate that the respondent's advocate was responsible for the publication of the allegedly prejudicial articles, as the decision to publish rests with the newspapers. Furthermore, the court noted that an application to exclude the applicant's advocate from the...
Source-derived case information.
- Citation
- [2013] KEHC 4278 (KLR)
- Parties
- Applicant: Cosimo Polcino; Respondent: Macharia Ng'aru
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 31 of 2006
- Procedural Posture
- Succession Cause / Ruling on Application for Leave to Institute Contempt Proceedings
- Outcome
- Application for leave to institute contempt proceedings declined.
- Judges
- JV Juma
- Legal Topics
- Contempt of Court, Media Reporting, Leave to Institute Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cosimo Polcino
Applicant
Macharia Ng'aru
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Leave to Institute Contempt Proceedings
Legal Issues
- 1 Whether leave should be granted to institute contempt proceedings against the respondent's advocate for alleged prejudicial media publications during the pendency of the case.
- 2 Whether the respondent's advocate can be held responsible for the publication of articles in the media regarding the ongoing proceedings.
Ratio Decidendi
The court found that the applicant failed to demonstrate that the respondent's advocate was responsible for the publication of the allegedly prejudicial articles, as the decision to publish rests with the newspapers. Furthermore, the court noted that an application to exclude the applicant's advocate from the proceedings was still pending, and it would be inappropriate to allow contempt proceedings that touch on a matter yet to be determined. The court concluded that the articles, while possibly misguided, appeared to be standard reporting on court proceedings and not influenced by the respondent's advocate. Therefore, leave to institute contempt proceedings was declined.
Court Disposition
Application for leave to institute contempt proceedings declined.
Orders
- Leave to institute contempt proceedings is declined.
- No orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Succession Cause 31 of 2006 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
IN THE MATTER OF ESTATE OF NICOLA POLCINO
RULING
By this chamber summons brought under certificate of urgency, the applicant COSIMO POLCINO and his advocate MR. INAMDAR seek to be granted leave to institute contempt proceedings against MACHARIA NG’ARU the respondent’s advocate in respect of a series of articles published in the local media. It is alleged that during the pendency of these proceedings the respondent has caused to be published in several newspapers a series of articles giving his own opinion and that of his clients regarding the matter in dispute. It is further alleged that the said opinions/articles have been prejudicial to the legal practice of the Applicant Advocate and his law firm.
I have considered the submissions made by MR. INAMDAR in support of the application. I have also perused the annexed newspaper articles as well as the cited authorities. I note that the application seeks leave to institute contempt proceedings only as against the respondent advocate. No mention is made of the newspapers who have printed the said articles. The allegation is made that the Respondent Advocate caused said articles to be published. Surely the decision of whether or not to publish any article or opinion piece rests squarely with the Managing Editor of the Newspaper in question. I fail to see how the respondent, a legal practitioner would be in a position to influence what is to be published in any newspaper. If anyone was to be held responsible for the publication of these articles it would be the newspapers yet the applicant does not seek leave to institute any action against them.
An application to have Mr. Inamdar excluded from continuing to act in this matter is pending before this court. It is yet to be heard and determined. It would be injudicious to allow these contempt proceedings to be instituted as they touch on a matter which is yet to be determined by the court. The court ought not allow a multiplicity of applications over the same matter.
In my opinion the newspaper articles may be misguided but are simply the reporters’ attempt to provide coverage of the court proceedings. I do not find evidence to suggest that the publication of those articles were in any way influenced by the Respondent Advocate.
As such I hereby decline to grant the leave sought. No orders on costs. In addition I do direct that the press report only factually on court proceedings and in addition, I do further direct that both counsel desist from giving any interviews and/or engaging the media over this case.
Dated and delivered in Mombasa this 15th day of April, 2013.
M. ODERO
JUDGE
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