Yatani v Raso (Civil Suit E029 of 2021) [2024] KEHC 3513 (KLR) (Civ) (20 March 2024) (Ruling)

Key Facts

Issues

• The court examined whether the MP's statements, made in the interest of his constituents' security, could be justified under constitutional rights (Articles 33 and 29). The Respondent argued that imprisonment would disenfranchise his constituents, but the court emphasized the need to uphold judicial authority and the rule of law, rejecting the justification for non-compliance under public duty.
• The court had to determine the appropriate punishment for Hon. Dido Ali Raso, who was found in contempt for disobeying orders issued on 21.09.2021. The Applicant sought a six-month committal to civil jail, while the Respondent argued for damages instead. The court considered the MP's public duties, the impact on constituents, and constitutional principles, ultimately imposing a fine with a possible jail term if unpaid.

Holdings

• All costs of the proceedings arising from the court's finding of contempt against the Contemnor were ordered to be borne by the Contemnor.
• The court condemned the Contemnor to pay a fine of Kes. 100,000/- within 14 days, with a default of 21 days in civil jail if the fine is not paid.
• The court issued a warning to the Contemnor (Hon. Dido Ali Raso) to cease and desist from further acts of contempt in relation to the orders issued on 21.09.2021, pending the determination of the case.

Remedies

• The court condemns the Contemnor to pay a fine of Kes. 100,000/- within 14 days, with a default of 21 days in civil jail if the fine is not paid.
• The court issues a warning to the Contemnor to henceforth cease and desist from any further acts of contempt in relation to the orders issued on 21.09.2021, pending the determination of the case.
• All costs occasioned by the proceedings related to the court's finding of contempt shall be borne by the Contemnor.

Monetary Damages

Legal Principles

• The court emphasized the importance of upholding the rule of law and the authority of judicial orders, referencing Section 5 of the Judicature Act which grants the High Court discretion to punish contempt. It highlighted the need to maintain judicial dignity while balancing constitutional rights, particularly under Article 10 (national values and principles of governance) and Article 24(1)(d) (balancing rights and freedoms).
• The court considered the interplay between the right to freedom of expression (Article 33) and the obligation to obey court orders, noting that such rights are not absolute. It also referenced the right to liberty (Articles 29 and 39) in assessing the appropriateness of imprisonment as a contempt sanction.

Precedent Name

• Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others
• Kenya Human Rights Commission v Attorney General & another
• MNN v JMM
• B vs. Attorney General
• Cleophas Wakhungu Malala v Speaker Kakamega County Assembly & 2 others
• Miguna Miguna v Fred Matiang'i, Cabinet Secretary Ministry of Interior and Co-ordination of National Government & 8 others
• Alfred Mutua v Boniface Mwangi
• Voi Development Company Limited (supra)
• Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui
• Simon Kamau & 19 others v Director of Pensions & another
• Samuel M. N. Mweru & Others v National Land Commission & 2 Others

Cited Statute

• Judicature Act
• Contempt of Court Act

Judge Name

Passage Text

• The court hereby condemns the Contemnor to pay a fine in the sum of Kes. 100,000/- (One Hundred Thousand) within 14 days, in default of which he will be committed to serve a term of 21 (twenty-one) days in civil jail.
• The Court hereby issues a warning to the Contemnor to henceforth cease and desist from any further acts of contempt in relation to the orders issued herein on 21.09.2021, pending the determination of this case.
• Contempt of court is no doubt an affront to judicial authority and therefore is not a remedy chosen by a party but is invoked to uphold the dignity of the court...