Bob Collymore & another v Cyprian Nyakundi [2016] eKLR

Key Facts

Issues

• The court addressed whether the Defendant's publication of a defamatory article on 1st August 2016, titled 'Cheapstakes: CEO of Leading Telco Bribed Editors with 5k and a Powerbank,' constituted contempt of court for breaching the interim injunction issued on 18th July 2016. The Defendant argued the order was not served personally and lacked a penal notice, while the Plaintiffs contended the Defendant had knowledge of the order through his counsel's presence in court.
• The court examined the legal requirements for contempt proceedings under the Judicature Act and Civil Procedure Rules, particularly whether knowledge of a court order by the defendant's counsel suffices for service. The Defendant contended that personal service and a penal notice were mandatory, but the court referenced precedents affirming that knowledge, rather than personal service, is sufficient to establish contempt.

Holdings

• The court affirmed that a party cannot disobey a court order based on a belief it is irregular or void. Parties must seek discharge through the court, as per the Judicature Act and Ex parte Langley (1879) precedent. This principle was applied to reject the Defendant's argument that the order was invalid and thus not binding.
• The court found the Defendant in contempt for publishing a defamatory article titled 'Cheapstakes: CEO of Leading Telco Bribed Editors with 5k and a Powerbank' on 1st August 2016, which was linked to the matter before the court. The Defendant failed to apologize or withdraw the article despite interim orders from 18th July 2016. The court emphasized that parties must obey court orders unless seeking their discharge, citing the Judicature Act and precedents like Econet Wireless Kenya Ltd and Wildlife Lodges Ltd.
• The court determined that the interim orders made in the presence of the Defendant's advocates constituted sufficient service, even without personal delivery. This aligns with Kenya's jurisprudence and common law principles (e.g., Lenaola J in Basil Criticos v. AG and Bhatnager v. Canada), which accept knowledge of an order via legal representatives as valid notice for contempt proceedings.

Remedies

• The court found the Defendant in contempt of court for publishing a defamatory article in violation of the interim orders issued on 18th July 2016. The Defendant was required to attend court for mitigation on 19th January 2017.
• The Defendant was ordered to attend a mitigation hearing scheduled for 19th January 2017 to determine the appropriate punishment for contempt, including potential committal to civil jail or property attachment as initially sought by the Plaintiffs.

Legal Principles

• The court emphasized that parties must obey court orders unless they seek judicial clarification, as disobedience undermines the rule of law and court authority. This principle was central to finding the defendant in contempt for disregarding interim injunctions.
• In contempt proceedings, the breach must be proved to a standard higher than balance of probabilities but not as high as proof beyond reasonable doubt. The court confirmed this threshold to balance justice with protection of individual liberty.

Precedent Name

• Basil Criticos Vs Attorney General and 8 Others
• Shimmers Plaza Limited v. National Bank of Kenya Limited
• Christine Wangari Gachege v. Elizabeth Wanjiru Evans & 11 Others
• Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another
• Bhatnager v. Canada (Minister of Employment and Immigration)
• Wildlife Lodges Ltd vs. County Council of Narok and Another
• Ex parte Langley

Cited Statute

• Civil Procedure Amendment Rules No. 2 Rules 2012
• Civil Procedure Rules
• Judicature Act
• Civil Procedure Act

Judge Name

Passage Text

• "In this case, the interim orders were made in the presence of the Defendant's advocates and therefore suffices as service...He therefore ought to have kept off the matter so as not to hold this court in contempt."
• "...the law has changed and as it stands today knowledge supersedes personal service.....where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary"
• "It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times...The Court will not condone deliberate disobedience of its orders..."