Contempt of Court Act

Section 1. Short title Section This Act may be cited as the Contempt of Court Act*. * This Act was declared unconstituonal by Kenya Human Rights Commission vs Attorney-General & another Constitutional Petition No 87 of 2017

Section 2. Interpretation Section In this Act, unless the context otherwise requires— "Chief Justice" means the Chief Justice appointed under Article 166 of the Constitution; "contempt of court" has the meaning assigned to it under section 4 ; "corporation" means any corporation, council, board, committee or other body which has power to act under and for the purposes of any written law relating to undertakings of public utility or otherwise to administer funds belonging to or granted by the Government or money raised by rates, taxes or charges in pursuance of any such law; "judge" means any person appointed under Article 166(1) of the Constitution; "judicial officer" has the meaning assigned to it by Article 260 of the Constitution; "Order" has the meaning assigned to it under section 2 of the Civil Procedure Act (Cap. 21); "Rules" means rules made by the Chief Justice pursuant to this Act; "State organ" has the meaning assigned to it by Article 260 of the Constitution; "subordinate court" has the meaning assigned to it by Article 169(1) of the Constitution; "superior court" has the meaning assigned to it by Article 162(1) of the Constitution and includes the Employment and Labour...

Section 3. Objectives of this Act Section uphold the dignity and authority of the court;

Section 4. Contempt of Court Section 4(1)(a) civil contempt which means willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court; Section 4(1)(b) scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court; Section 4(1)(b)(i) scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court; Section 4(1)(b)(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or Section 4(1)(b)(iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice. Section 4(2) In any case not relating to civil or criminal proceedings as contemplated under subsection (1), an act that is willfully committed to interfere, obstruct or interrupt the due process of the administration of justice in relation to any court, or to lower the authority of a court, or to scandalize a judge, judicial officer in relation to any proceedings before the court, on any other manner constitutes contempt of court.

Section 5. Jurisdiction of superior Courts Section punish for contempt of court on the face of the court;

Section 6. Jurisdiction of subordinate courts to punish for contempt of court Section assaults, threatens, intimidates, or willfully insults a judicial officer or a witness, during a sitting or attendance in a court, or in going to or returning from the court to whom any relevant proceedings relate;

Section 7. Summary proceedings Section 7(1) An offence of contempt of court shall be tried summarily and the court shall keep a record of the proceedings. Section 7(2)(a) transfer of proceedings from a subordinate court to a superior court; Section 7(2)(b) proceedings in camera and prohibition of publication of proceedings; and Section 7(2)(c) appeals and limitation for appeals. Section 7(3) Notwithstanding subsection (1), any proceedings to try an offence of contempt of court provided for under any other written law shall not take away the right of any person to a fair trial and fair administrative action in accordance with Articles 47 and 50 of the Constitution.

Section 8. Institution of proceedings Section Proceedings for criminal contempt of court shall not be instituted except by or with the consent of the Director of Public Prosecutions, with the leave of the court or on the motion of a court having jurisdiction to deal with criminal contempt of court.

Section 9. Defence to Contempt of court Section is a fair comment on the general working of the court made in good faith, in the public interest and in temperate language;

Section 10. The strict liability rule Section 10(1) In this Act "the strict liability rule" means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so. Section 10(2) The strict liability rule applies only in relation to publication, and for this purpose "publication" includes any speech, writing, broadcast or other communication in whatever form, which is addressed to the public at large or any section of the public. Section 10(3) A person shall be strictly liable for contempt of court in any case where the person does any act which interferes or tends to interfere with the course of justice in relation to any judicial proceedings. Section 10(4) For purposes of subsection (3), it shall be immaterial whether the interference was not intentional.

Section 11. Limitation of scope of strict liability rule Section 11(1)(a) which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced; and Section 11(1)(b) only if the proceedings in question are active within the meaning of this section at the time of the publication. Section 11(2) The Schedule applies in determining the times at which proceedings are to be treated as active within the meaning of this section.

Section 12. Defence to strict liability rule Section prejudice any defence available at common law to a charge of contempt of court under the strict liability rule;

Section 13. Defence of innocent publication or distribution Section 13(1) A person is not guilty of contempt of court under the strict liability rule if that person has published any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceedings pending at the time of publication, if at that time, that person had no reason to believe that the proceedings were pending. Section 13(2) Notwithstanding anything to the contrary contained in this Act or any other law, the publication of any matter referred to in subsection (1) in connection with any civil or criminal proceeding which is not pending at the time of publication does not constitute contempt of court. Section 13(3) A person shall not be guilty of contempt of court under the strict liability rule if that person distributed a publication containing any matter referred to in subsection (1), if at the time of distribution that person did not know or had no reason to believe that it contained such matter or was likely to contain any such matter. Section 13(4) The burden of proof of any fact tending to establish a defence under this se...

Section 14. Fair and accurate report of judicial proceeding not contempt Section 14(1) A person is not guilty of contempt of court for publishing a fair and accurate report of judicial proceedings held in open court if the report is published in good faith. Section 14(2) In any judicial proceedings held in open court, the court may, where it appears necessary to avoid the risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court determines is necessary for that purpose.

Section 15. Fair criticism of judicial act not contempt Section A person is not guilty of contempt of court for publishing any fair comment on the merits of any case, which has been heard and determined.

Section 16. Complaint against presiding officers of subordinate courts not contempt Section a competent authority;

Section 17. Publication of information relating to proceedings in chambers or in camera not contempt except in certain cases Section 17(1)(a) where the publication is contrary to any law; Section 17(1)(b) where the court, on grounds of public policy or in exercise of any power vested in it, expressly prohibits the publication of all publication of all information relating to the proceedings or of information of the description which is published; Section 17(1)(c) where the court sits in chambers or in camera for reasons relating to public order or national security, the publication of information relating to those proceedings; Section 17(1)(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings. Section 17(2)(a) on the grounds of public policy or interest; Section 17(2)(b) for reasons connected with public order or national security; Section 17(2)(c) on the ground that it contains information relating to a secret process, discovery or invention, or in exercise of any power vested in it.

Section 18. Discussion of public affairs Section A publication made as part of a discussion in good faith of public affairs or other matters of general public interest is not contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.

Section 19. Use of recording devices Section 19(1)(a) use in court any recording device or instrument for recording proceedings, a tape recorder or other instrument for recording sound, except with the leave of the court; Section 19(1)(b) publish a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or disposes of it or any recording so derived, with a view to such publication; or Section 19(1)(c) use any such recording in contravention of any conditions granted under paragraph (a). Section 19(2) Leave under subsection (1)(a) may be granted or refused by the court, and where such leave is granted, it may be subject to such reasonable conditions as the court considers necessary. Section 19(3) Without prejudice to any other power to deal with an act of contempt under subsection (1) (a), the court may order the instrument, device or any recording made with it, or both, to be forfeited, and any object so forfeited shall, unless the court otherwise determines on application by a person appearing to be the owner, be sold or otherwise disposed...

Section 20. Sources of information Section A person is not guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which the person is responsible, unless it is established to the satisfaction of the court that such disclosure is necessary in the interests of justice, national security, or for the prevention of disorder crime.

Section 21. Publication of matters exempted from disclosure in court Section Where a court, having power to do so, allows a name or other matter to be withheld from publication in relation to proceedings before the court, the court may give such directions prohibiting the publication of that name or matter as appear to the court to be necessary for the purpose for which it was so withheld.

Section 22. Other defences not affected Section Nothing contained in this Act shall be construed as implying that any other defence which would be a valid defence in any proceedings for contempt of court has ceased to be available merely by reason of the provisions of this Act.

Section 23. Trial for contempt of court shall not constitute double jeopardy Section a court from trying a person for any other related criminal offence or adjudicating a civil matter; or

Section 24. Power of High Court to punish contempt of subordinate courts Section The High Court has the same jurisdiction, power and authority, in accordance with the same procedure and practice, in respect of contempt of subordinate courts as it has and exercises in respect of contempt of the High Court.

Section 25. Procedure where contempt is in superior court Section cause the person to be informed in writing of the contempt of court with which he or she is charged;

Section 26. Cognizance of criminal contempt in other cases Section 26(1) In the case of criminal contempt, a superior court may take action on its own motion or on an application made by any person. Section 26(2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Director of Public Prosecutions. Section 26(3) Every motion or reference made under this section shall specify the contempt of court the person is charged with.

Section 27. Offence of contempt of court Section assaults, threatens, intimidates, or willfully insults a judge or judicial officer or a witness, during a sitting or attendance in a court, or in going to or returning from the court;

Section 28. Punishment for contempt of court Section 28(1) Save as otherwise expressly provided in this Act or in any other written law, a person who is convicted of contempt of court is liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding six months, or to both. Section 28(2) Without prejudice to subsection (1), the court may order that the accused person be detained in police custody until the rising of the court. Section 28(3) A court may at any time revoke an order of committal made under subsection (2) and, if the offender is in custody, order his discharge. Section 28(4) Subject to subsection (1), the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Section 28(5) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in subsection (1) for any contempt either in respect of that court or of a court subordinate to it. Section 28(6) Notwithstanding anything contained in this section, where a person is found guilty of civil contempt, the court may if it considers that the fin...

Section 29. Punishment against management of company Section 29(1) Where a company is guilty of contempt of court in respect of any undertaking given to a court by the company, every person who, at the time the contempt was committed, was in charge of and was responsible to the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and such person may with the leave of the court be committed to civil jail: Provided that nothing in this subsection shall render any such person liable to punishment if the person proves to the satisfaction of the court that the contempt was committed without his or her knowledge or that he or she exercised all due diligence to prevent its commission. Section 29(2) Where the contempt of court is committed by a company and it is proved to the satisfaction of the court that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and may, with the leave of the court be...

Section 30. Punishment against management of State organ, government department, ministry or corporation Section 30(1) Where a State organ, government department, ministry or corporation is guilty of contempt of court in respect of any undertaking given to a court by the State organ, government department, ministry or corporation, the court shall serve a notice of not less than thirty days on the accounting officer, requiring the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer. Section 30(2) No contempt of court proceedings shall be commenced against the accounting officer of a State organ, government department, ministry or corporation, unless the court has issued a notice of not less than thirty days to the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer. Section 30(3) A notice issued under subsection (1) shall be served on the accounting officer and the Attorney-General. Section 30(4) If the accounting officer does not respond to the notice to show cause issued under subsection (1) within thirty days of the receipt of the notice, the...

Section 31. Revision of order Section 31(1)(a) uphold the order of the subordinate court; or Section 31(1)(b) release the applicant with or without conditions. Section 31(2)(a) an error apparent on the face of record; or Section 31(2)(b) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant and could not be produced by him or her at the time when the order was passed. Section 31(3) The procedure for revision of an order for contempt of court shall be as set out in Criminal Procedure Code (Cap. 75).

Section 32. Review of order Section 32(1) The High Court shall have power to review its own orders. Section 32(2)(a) the execution of the punishment or order to be reviewed be suspended; and Section 32(2)(b) if the subject of the order or decision is in confinement, the subject be released on bail.

Section 33. Appeals Section 33(1) An appeal shall lie from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt to the Court of Appeal, only on points of law. Section 33(2)(a) the execution of the punishment or order appealed against be suspended; and Section 33(2)(b) if the appellant is in confinement, the appellant be released on bail. Section 33(3) Where a person aggrieved by any order against which an appeal may be filed satisfies the High Court that he or she intends to file an appeal, the High Court may also exercise all or any of the powers conferred by subsection (2). Section 33(4)(a) in the case of an appeal to the High Court, within thirty days; Section 33(4)(b) in the case of an appeal to the Court of Appeal, within sixty days, from the date of the order appealed against.

Section 34. Limitations of actions for contempt Section No court shall initiate any proceedings for contempt of court either on its own motion or otherwise after the expiry of a period of six months from the date on which the contempt of court is alleged to have been committed.

Section 35. Proceedings not to issue against a Speaker of Parliament Section A Court shall not initiate proceedings for contempt of court in relation to a decision made or directions given by a Speaker of a House of Parliament in the performance of his or her official responsibilities.

Section 36. Act to be in addition to and not in derogation of other laws relating to contempt Section The provisions of this Act shall supersede any other written law relating to contempt of court.

Section 37. Rules Section The Chief Justice may make rules for the better carrying out of the purposes of this Act.

Section 38. Repeal of Section 5 of Cap. 8 Section The Judicature Act (Cap. 8) is amended by deleting section 5.

Section 39. Repeal of section 36 of Cap. 8C Section The High Court (Organization and Administration) Act (Cap. 8C) is amended by deleting section 36.

Section 40. Repeal of section 35 of Cap. 9A Section The Court of Appeal (Organization and Administration) Act (Cap. 9A) is amended by deleting section 35.