Fred Matiang'i, a former Interior Cabinet Secretary in the Uhuru Kenyatta administration, has been granted a reprieve after the Court of Appeal overturned a Sh200,000 personal fine imposed on him seven years ago for allegedly failing to release lawyer Miguna Miguna as ordered by the court.
Justices Wanjiru Karanja, Lydia Achode and Joel Ngugi said the High Court imposed the punishment on them without formal institution of contempt application.
The judges added that nothing in the judgment prevents Dr Miguna, or any other competent party, from moving the High Court by a properly instituted application for contempt, to be heard and determined on the merits in accordance with the law.
“The appeal is allowed on the narrow ground that the High Court punished the appellants for contempt without a formally instituted contempt application and attendant due process safeguards,” said the judges.
Dr Miguna had moved to court in February 2018, seeking his unconditional release and for the government to facilitate his return into the country.
The lawyer accused the then government officials of refusing him re‑entry when he arrived at Jomo Kenyatta International Airport (JKIA) on March 26, 2018.
He also stated that they seized his travel documents and attempted to remove him from Kenya. He was eventually removed from the country and his Kenyan passport destroyed.
But before that, he said he had been held incommunicado within Terminal 2 at JKIA, in breach of his rights.
High Court judge Roselyn Aburili then directed his unconditional release and ordered that he be presented before the duty judge on March 28, 2018.
The case was then mentioned before Justice George Odunga (now Court of Appeal judge) who insisted that the government must comply with the orders of the court.
When the court reconvened later, the government stated that Dr Miguna had arrived on a Canadian passport and refused to present it for immigration clearance.
The court heard that Dr Miguna insisted on being “processed” on a national identity card and that amid a stalemate at the baggage area, he was confined as an undocumented person pending resolution of the issue.
Further, statutory “regaining citizenship” forms were offered to him on March 27, 2018 but he allegedly tore them up.
The judge then directed the three former officials to appear before him the next morning and explain why they should not be punished for disobeying court orders.
Justice Odunga then fined each of them Sh200,000, which he said should be deducted from their following month’s salary.
In the appeal, the three former officials faulted the judge for proceeding with an oral application rather than a formal motion for contempt. They also said they were denied audience and fair hearing and the court issued orders that could not be enforced because of Dr Miguna’s conduct at the airport.
The Court of Appeal said the record showed that no formal charge or motion for committal was personally served on the three for alleged breaches.
“In our view, on these facts, the better—and fairer—course was to require a properly instituted contempt application supported by an affidavit, with notice, and to then hear the parties before pronouncing penal or declaratory sanctions,” said the Court of Appeal judges.
The court said that nothing in the judgment should be read as diluting the seriousness of the alleged disobedience of court orders at JKIA or the court’s authority to insist on obedience.
“Indeed, as we have restated, contempt undermines the rule of law. Our holding is narrow: that the imposition of penal and declaratory sanctions for contempt on March 28- 29, 2018 could not, on the procedure employed, be sustained without a formal motion and due process safeguards,” said the judges.
