By JV Law
THE SUB JUDICE RULE IS NO LONGER AN AUTOMATIC BAR TO PUBLIC DISCUSSION ON MATTERS PENDING BEFORE THE COURT
The Sub Judice Rule is not a Permissible Limitation on the Freedom of Expression Guaranteed under Article 33 as Provided under Article 24 of the Constitution of Kenya, 2010.
“7… The sub judice rule is a common law principle that generally prohibits public discussion on matters pending before the court. At common law, the principle was particularly appropriate in cases of trial by jury where there was genuine fear that lay jury members would be swayed by public opinion. The repealed Constitution of Kenya at section 79 (2) secured the common law position on sub judice. However, under the Constitution of Kenya, 2010 any limitation on the freedom of expression guaranteed under Article 33 must be justified. I share the same view as the one in Okiya Omtatah Okoiti v Attorney General & 2 Others [2013] eKLR, that it is no longer enough to front sub judice as an automatic bar to public discussion on matters pending before the court.
8. Kenyan courts are manned by apt judicial officers who are capable of rising above the discordance of public debate to render objective and just decisions based on the facts before the court and the applicable law. The only permissible limitation on the freedom of expression guaranteed under Article 33 must be as provided under Article 24. The Respondents did not advance any arguments on this score…”
High Court of Kenya at Nairobi (L. Njuguna, J) in KIAMBU COUNTY PUBLIC SERVICE BOARD & 5 OTHERS vs. KARUNGO WA THANGWA (Civil Suit 449 of 2015); [2016] eKLR.
Contempt of Court: Sub Judice Rule
“Fair and Accurate Report of Judicial Proceeding not Contempt
(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.
(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 14 of the Contempt of Court Act, No. 46 of 2016.
