Appeals Court overturns contempt rulings on Miguna detention saga 

The Court of Appeal overturned High Court rulings that found former Interior Cabinet Secretary Dr. Fred Matiang’i, former Immigration Principal Secretary Dr. Gordon Kihalangwa, and former Inspector General of Police Joseph Boinnet in contempt of court over the dramatic 2018 detention of lawyer and activist Miguna Miguna at Jomo Kenyatta International Airport.

A three-judge bench comprising of Justices Wanjiru Karanja, Lydia Achode and Joel Ngugi held that while the State officials were accused of defying valid court orders, the High Court erred by convicting and penalizing them without following proper procedure.

In March 2018, Justice George Odunga fined the three officials Sh200,000 each, to be deducted directly from their salaries, after finding them in contempt for failing to release Miguna and facilitate his re-entry into the country.

The judges also declared that they had breached the Constitution by violating the rule of law.

But in Friday’s judgment, the Court of Appeal ruled that contempt proceedings which carry quasi-criminal consequences must be initiated formally through a motion supported by affidavits and duly served on the alleged contemnors.

The judges found that in Miguna’s case, the orders were issued on the basis of an oral application during a court mention, which denied the officials due process.

“Our holding is narrow, the imposition of penal and declaratory sanctions for contempt on 28th–29th March 2018 could not, on the procedure employed, be sustained without a formal motion and due process safeguards,” the appellate court said.

The judges stressed, however, that their decision should not be interpreted as condoning disobedience of court orders.

They affirmed that the orders issued by Justices Aburili and Odunga requiring Miguna’s release and facilitation of entry into Kenya were binding and valid.

The ruling set aside only the contempt convictions, declarations of breach of Article 10, and the personal fines imposed on the three former officials.

“We stress that nothing in this 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,” said the judges

The Court clarified that Miguna or any other competent party is free to file a fresh, properly instituted contempt application.

“For the avoidance of doubt, nothing in this judgment precludes the 1st respondent 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 law,” ruled the court.