A simple interpretation by a court of law when a person decides against heeding directive by the court is regarded disrespectful to the court. In modern societies where the rule of law is practiced, courts are the arbiters in ensuring there is no anarchy. They do this by interpreting the law, using constitutional provisions, statutes and precedences from previous court decisions.
In the contempt of court case at blogger Nyakundi, Justice Njuguna remarked
It has been said time without number that whenever a court order is made such an order is binding and whoever has difficulty has the opening to come to court to seek an explanation rather than defy it.
The case against blogger Cyprian Nyakundi in which an arrest warrant was issued brings into focus contempt of court by litigants. The blogger was sued by Safaricom CEO Bob Collymore and former CEO Michael Joseph for defamation. The petitioners are relying on Defamation Act. They took issue with his online posts, on Facebook and his Twitter account, which they found inaccurate, demeaning and dragging their reputation to disrepute.
On June 17th 2016, the two found articles in his blog, serialized on his Twitter account to be defaming as they said the telecommunications giant is exploiting Kenyans. Part one of the series is titled ‘How Safaricom steals from Kenyans with third parties’, part two ‘Your privacy and Safaricom are two different things‘ and part three ‘Time to put Safaricom back in its box before it seriously hurts Kenyans‘.
One of the first things a litigant, in this case an applicant makes to the court is to stop the continuing actions of the defendants. In this case, the applicants asked the court that Nyakundi is barred from commenting directly and through his agents, anything dealing with the case and issues being discussed therein.
Justice Lucy Mwihaki Njuguna who is hearing the case accepted the request and gave orders to the defendant; Cyprian Nyakundi.
But a few months later, the blogger still continued to disregard this ruling. The petitioners filed for contempt. In September 2016, the Judge cautioned Nyakundi after her lawyer Anne Nderu pleaded for leniency.
But the blogger continued with his negative comments, forcing the petitioners hand to further file another contempt of court issue. This time, not only did the Judge find Nyakundi guilty, she also directed that on the day of the sentencing, he appears in person.
Sentencing was slated for January 19th, but the petitioners lawyers filed additional documents, meaning that Nyakundi’s lawyer could be adequately respond. She asked for time and was given 24 hours to file her responses.
The sentencing date was set for 5th February where the blogger was expected to appear in court. He failed to do it. A new date was set for 8th February where he was also supposed to appear but he did not. The Judge had no option but to issue an arrest warrant.
Contempt of court issues have varied sentencing ranging from fines to imprisonment or both. In a related defamation through the internet case in which lawyer Cecil Miller sued Jackson Njeru and Jackline Okuta, Justice Msagha Mbogholi sentenced them to three months imprisonment or fine of sh500, 000. Jackline paid the amount after a few days and was released while Jackson served the sentence to its completion. In another related case. Mr. Njeru was also sentenced to five days imprisonment with the option of a sh100, 000 fine, which he declined to pay and served his term.
When a hearing or mention date nears, there is always heightened activity against Safaricom and Bob Collymore on Nyakundi’s timeline. Sometimes, like after the arrest warrant were issued, there were also inaccurate posts against the petitioners by him, both directly and indirectly. Retweets are legally considered publishing hence when he retweets posts, he is legally liable for them as an independent publisher.
#CollymoresArrestWarrant was used after the court issued the arrest warrant, which is inaccurate because it is the High Court that issued it, not Bob Collymore.
— Kenya West© (@KinyanBoy) February 8, 2017
The Judge further argued that while Nyakundi said he did not mention Bob Collymore in his articles, she found that “the article has nexus to the 1st Plaintiff in relation to the matter before court. He therefore ought to have kept of commenting in the media. He further ought to have sought clarification from the court if he found any difficulty with the order. In the circumstances he is found to be in contempt.”
We are likely to see Cyprian Nyakundi being made an example on the extent to which freedom of expression online can either be permitted or restricted going by this case and several others he is also facing.
In equal measure, Nyakundi has also sued NTV journalist Larry Madowo for defamation. Last year, he also got court orders on contempt of court against him. This case comes up for sentencing this month.