The court has ordered a company to stop using a supplier’s name, or to deliver up documents, or to release an interim amount. Months pass and nothing changes. A court order is only as effective as the consequences that follow disobedience, and the law on contempt supplies those consequences for commercial litigants on both sides of a breached order.
When is a party in contempt?
Contempt arises where a party disobeys an order that is clear in its terms, has been served on it or otherwise brought to its attention, and has then been deliberately breached. The jurisdiction protects the authority of the court rather than the applicant alone, which is why judges treat it seriously. Because the consequences are grave, the order and the disobedience must both be established precisely, and the party in breach is given an opportunity to comply before the severest outcomes are imposed.
How is disobedience addressed?
The usual vehicle is an application for committal or for other coercive orders, supported by an affidavit setting out the order, its service and each act of breach. A respondent who purges the contempt by complying before the hearing can often avoid the harshest outcomes. Penalties include fines, and persistent or deliberate defiance can lead to the imprisonment of the individual responsible, including a director acting for a company. The jurisdiction rests on the courts’ powers under statute and the common law, traceable through Kenya Law.
What should each party do in practice?
- Keep proof of service of the order and a dated record of each act of disobedience.
- Write to the defaulter setting out exactly what compliance requires, with a deadline.
- Where you are the respondent, comply first and argue the merits afterwards.
- Take advice before the application is heard, when options are still open.
Enforcement applications reward preparation and punish improvisation. The firm applies for and resists such applications for commercial clients through its commercial practice, and the firm’s practice areas page sets out the litigation services behind that work.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.