RULING
1.The court has been called upon to determine whether the defendant has complied with the orders of 10th February 2023 and 25th October 2021 requiring him to file and serve the accounts of the partnership known as J. LOUIS ONGUTO ADVOCATES for the period 2012 and 2018 and to disclose benefits due to the late Justice Joseph Louis Onguto, which were outstanding at the time of the dissolution of the firm.
2.The defendant filed the notice of motion dated 30.5.2025 seeking to be fully and unconditionally discharged for any or any alleged contempt of court and a declaration that the instant proceedings are terminated and/ or fully settled.
3.The defendant also seeks, in the alternative, the court issues additional directions, clarifications and guidance to him on the full and exact terms of the decree to enable him to comply to forestall any impeding and/ or inadvertent contemptuous actions.
4.The defendant further seeks leave to deposit into court Kshs. 702,940.00/-, being the half of the aggregate profit disclosed in the statement of account during the relevant period, pending the court’s direction or ruling on the examination of auditor’s exercise undertaken on 20.2.2025.
5.The application is made pursuant to Articles 50 (1) (a) (b) & (d) of the Constitution and Sections 3 and 4 of the Fair Administrations Act. It is supported by an affidavit sworn by the defendant on 30.5.2025.
6.The application is not opposed despite service of the application on the respondent’s advocates on 3.6.2025.
7.The applicant’s case is that he has performed all that he understands the decree and the subsequent orders of the court to demand of him but is willing to be guided further by the court.
8.The applicant asserted that the nature of the claim as pleaded led to an inexact decree that is subject to subjective interpretation and has frustrated his attempts to understand and settle his liability thereunder. He claimed that the respondent’s originating summons was inadvertently allowed by default consent denying him the opportunity to clarify the matter and that his attempt to set aside the consent was not successful.
9.The applicant highlighted that he filed the financial statements/ accounts for the years 2012-2018. That during trial, the respondent’s expert witness confirmed that he had filed the statement of accounts as envisaged. That the respondent contended that the statements for 2015 to 2018 were invisible. That he provided her with copies of the impugned statement of accounts, printed off in landscape format and annexed them to the correspondences dated 12th and 23rd May 2025.
10.The applicant also highlighted that he proposed two offers for settlement of the matter between the parties in the correspondences dated 12th and 23rd May 2025. In the correspondences he communicated the substantive efforts taken to ensure compliance with the orders such a furnishing the account statements as directed.
11.The applicant stated that as per the firm's balance sheet KES 1,405,881/= is the profit that was yet to be shared by the parties. That this amount represents: -
a. the value of the infrastructure of the office that had been liquidated, being comprised of KES 956, 699/= only;
b. the deposited rent totaling KES 315,000/=, which had not been received from the firm's erstwhile landlord; and
c. KES 134,182/=), which had been held in the Firm's Account.
12.The applicant explained that after the deceased resigned from his position as an Advocate to take up his duties as a Judge of the High Court of Kenya, the firm subsequently moved to new premises and the office infrastructure could neither be dissembled nor moved or sold to realize the monetary value as captured in the Statement of Accounts. Further, the firm's erstwhile landlord also indicated that because the structures were left at his premises, they would have no other recourse but to demolish the same to restore the premises for new tenants.
13.The applicant further stated that the cost of the process of restoration was, therefore, to be charged against the rent deposit and on this account the two items, viz, the value of the infrastructure of the office and the deposited rent became unavailable for distribution.
14.The applicant nevertheless indicated his willingness to pay half the profit to be shared, being KES 702,940/= to the respondent to settle the matter.
15.The applicant contended that the plaintiff/ respondent has become non-responsive to his overtures to agree on the exact terms of and the liability of the former under the decree to facilitate settlement of the matter. He suggested that the respondent is leveraging on the contempt orders to obtain more than the decree yields.
16.The applicant pointed out that his reputation as an honest officer of the court is at stake. He therefore submitted that it is in the interest of justice for the court to grant the prayers sought in the application as he has now complied. He added that there are no circumstances to suggest malice or bad faith on his part.
Analysis and Determination
Issues
17.The sticky issue is whether the applicant has purged the contempt for which he has been convicted.
18.The applicant’s notice of motion dated 30.5.2025 seeking to be fully and unconditionally discharged for any or any alleged contempt of court and a declaration that the instant proceedings are terminated and/ or fully settled, is inextricable to the main issue. Thus, will be considered and determined within this context.
Pleadings and orders and disobedience
19.The respondent filed this suit through originating summons (OS) dated 3.8.2021 seeking, in the main, that the applicant: -
a. Do render a true and correct statement of accounts of the firm of J. Loius Onguto Advocates from inception to March 2018.
b. Releases to the respondent whatever is due to the estate of the Deceased from the partnership.
20.On 25.10.2021 Hon. Mabeya J. directed the applicant to file the subject account statements within 21 days. He further directed that the matter be mentioned before Hon. Mwita J. (as he then was) on 2.12.2021. Ms. Mwangi informed the court that the defendant was not opposed to the application and that there was no need to respond.
21.The applicant did not comply with the order for accounts and on 22.6.2022, he applied to set aside the order. On 28.6.2022, the respondent applied to cite the applicant for contempt.
22.Through the ruling of 10.2.2023, the court declined the applicant’s and allowed the respondent’s application. The orders of 10.2.2023 read as follows: -
“(a) The defendant is held in contempt of the court order of 25.10.2021 but is granted time to comply therewith as follows: -
(i) He is to file and serve the accounts of the partnership known as J. Louis Onguto Advocates for the period between 2012 and 2018 within 21 days of the date hereof.
(ii) He is to disclose to the court the benefits due to the late Justice Louis Onguto that were outstanding at the time of the dissolution of the firm of J. Louis Onguto Advocates within 21 days.”
(iii) In default, the defendant shall stand convicted of being in contempt of the order of 25/10/2021 and shall be liable to punishment which shall be meted out on a day to be fixed.
(iv) The costs of the application to the plaintiff in any event.”
23.The foundational, yet of a functional impetus for the overall compliance of the orders made on10.2.2023 by the applicant, is that:
He is to file and serve the accounts of the partnership known as J. Louis Onguto Advocates for the period between 2012 and 2018 within 21 days of the date hereof. [underlining mine]
24.The applicant now seeks to be fully and unconditionally discharged for any or any alleged contempt of court and a declaration that the instant proceedings are terminated and/ or fully settled.
25.The applicant exhibited financial statements or accounts for the years 2012, 2013, 2014, 2015, 2016, 2017 and 2018.
26.At the hearing on 20.2.2025, the respondent called Simon Ndung’u Githutha, an accountant registered with Institute of Certified Public Accountants Kenya (ICPAK). He considered the accounts for 2012 to 2014 prepared by Mwengei & Associates for the subject firm.
27.At cross examination, he confirmed that the late Justice Onguto signed the accounts for 2012 to 2014 as the proprietor. He also confirmed that the accounts showed capital of over KES. 1,000,000/-. That the firm was on rented premises and that the landlord held a deposit which was recoverable depending on their agreement. He confirmed that the firm’s account held KES. 134,182/-. He stated that the 2018 accounts were not visible, but he did not seek for a clear copy.
28.The applicant called Julius Ngumbau Mwengei, a certified public accountant, who was the auditor for the firm from 2010-2013. He produced the report dated 13.6.2023. He indicated that in preparing the report he relied on the accounts for 2012 and 2013 that he prepared and the accounts for 2014 prepared by Mr. Mumo.
29.Mr. Mwengei stated that he did not audit reports for 2015 to 2018 as they were not part of his instructions.
30.In re-examination, he stated that if the firm was to be wound up on 31.12.2014, the shareable profit would be as stated in the report - Kshs. 1,405,881.
31.The only issue arising from the hearing was with respect to the audited accounts for 2015-2018. The applicant stated that he subsequently provided the respondent with accounts for 2015-2018.
32.But, from the record and evidence by the applicant’s witnesses who were professionals in accounts and audit, the accounts for 2015-2018, were not provided to them and did not form part of their audit reports filed in court. Notably, the accounts for 2018 were not visible. Of curiosity, the witnesses did not seek for a clear copy.
33.Julius Ngumbau Mwengei, stated that he did not audit reports for 2015 to 2018 as they were not part of his instructions.
34.The applicant appears to have limited the accounts to the period between 2012 and 2014. This is by design and deliberate because even the purported accounts for 2015 to 2028 were not clear and were indecipherable.
35.The applicant has kept on arguing that he has performed all that he understands the decree and the subsequent orders of the court to demand of him but is willing to be guided further by the court.
36.The applicant claimed that the nature of the claim as pleaded led to an inexact decree that is subject to subjective interpretation and has frustrated his attempts to understand and settle his liability thereunder.
37.I have perused the pleadings. The originating summons (OS) dated 3.8.2021 sought, inter alia, that the applicant: -
c. Do render a true and correct statement of accounts of the firm of J. Loius Onguto Advocates from inception to March 2018.
38.The period of accounts was clearly stated and was relevant to the taking of the partnership accounts.
39.Similarly, the order of the court was clear without any ambiguity. It required him; ‘to file and serve the accounts of the partnership known as J. Louis Onguto Advocates for the period between 2012 and 2018 within 21 days of the date hereof.’ [underlining mine]
40.His arguments that he has done all that the decree required of him and attacking the pleadings at this stage are red herrings. The period of accounts was designated by the court, is material and relevant to these proceedings and it was not within his power to choose the period for which he would file proper accounts whilst pretending to file indecipherable accounts for the period between 2015 and 2018 contrary to the court order. It is a fair conclusion that, failure to give instructions to the accountants and auditors he called as witnesses to prepare accounts for the said period is a manifestation of craftiness, design and deliberate attempt to hoodwink the court and the respondent. A party is not at liberty to choose which part of a court order to obey or not to obey.
41.From the record and the indecipherable state of accounts filed, the court finds and holds that he did not file and serve accounts of the partnership for the period between 2012 and 2018 as was ordered.
42.The course taken by the applicant puts him in total disobedience with the orders that were issued on 10.2.203 which gave him an opportunity to purge the contempt. His overtures to pay money that he thinks is due to the estate of the deceased is merely a gimmick to conceal his contempt. The partnership accounts ordered was to produce the accurate status of the partnership accounts informing the parties’ entitlement.
43.Accordingly, the applicant is in contempt of the court order of 25.10.2021 and continues to be in contempt of court having not complied with order issued on 10.2.23 which provided him an opportunity to purge the contempt.
Disposal
44.Therefore, his application dated 30.5.2025 is dismissed. He is in contempt of court. The court will fix a date for sentencing.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 12th day February, 2026
----------------------
F. Gikonyo M
Judge
In the presence of: -
Kisila for Respondent
Opole for Applicant
1.The court has been called upon to determine whether the defendant has complied with the orders of 10th February 2023 and 25th October 2021 requiring him to file and serve the accounts of the partnership known as J. LOUIS ONGUTO ADVOCATES for the period 2012 and 2018 and to disclose benefits due to the late Justice Joseph Louis Onguto, which were outstanding at the time of the dissolution of the firm.
2.The defendant filed the notice of motion dated 30.5.2025 seeking to be fully and unconditionally discharged for any or any alleged contempt of court and a declaration that the instant proceedings are terminated and/ or fully settled.
3.The defendant also seeks, in the alternative, the court issues additional directions, clarifications and guidance to him on the full and exact terms of the decree to enable him to comply to forestall any impeding and/ or inadvertent contemptuous actions.
4.The defendant further seeks leave to deposit into court Kshs. 702,940.00/-, being the half of the aggregate profit disclosed in the statement of account during the relevant period, pending the court’s direction or ruling on the examination of auditor’s exercise undertaken on 20.2.2025.
5.The application is made pursuant to Articles 50 (1) (a) (b) & (d) of the Constitution and Sections 3 and 4 of the Fair Administrations Act. It is supported by an affidavit sworn by the defendant on 30.5.2025.
6.The application is not opposed despite service of the application on the respondent’s advocates on 3.6.2025.
7.The applicant’s case is that he has performed all that he understands the decree and the subsequent orders of the court to demand of him but is willing to be guided further by the court.
8.The applicant asserted that the nature of the claim as pleaded led to an inexact decree that is subject to subjective interpretation and has frustrated his attempts to understand and settle his liability thereunder. He claimed that the respondent’s originating summons was inadvertently allowed by default consent denying him the opportunity to clarify the matter and that his attempt to set aside the consent was not successful.
9.The applicant highlighted that he filed the financial statements/ accounts for the years 2012-2018. That during trial, the respondent’s expert witness confirmed that he had filed the statement of accounts as envisaged. That the respondent contended that the statements for 2015 to 2018 were invisible. That he provided her with copies of the impugned statement of accounts, printed off in landscape format and annexed them to the correspondences dated 12th and 23rd May 2025.
10.The applicant also highlighted that he proposed two offers for settlement of the matter between the parties in the correspondences dated 12th and 23rd May 2025. In the correspondences he communicated the substantive efforts taken to ensure compliance with the orders such a furnishing the account statements as directed.
11.The applicant stated that as per the firm's balance sheet KES 1,405,881/= is the profit that was yet to be shared by the parties. That this amount represents: -
a. the value of the infrastructure of the office that had been liquidated, being comprised of KES 956, 699/= only;
b. the deposited rent totaling KES 315,000/=, which had not been received from the firm's erstwhile landlord; and
c. KES 134,182/=), which had been held in the Firm's Account.
12.The applicant explained that after the deceased resigned from his position as an Advocate to take up his duties as a Judge of the High Court of Kenya, the firm subsequently moved to new premises and the office infrastructure could neither be dissembled nor moved or sold to realize the monetary value as captured in the Statement of Accounts. Further, the firm's erstwhile landlord also indicated that because the structures were left at his premises, they would have no other recourse but to demolish the same to restore the premises for new tenants.
13.The applicant further stated that the cost of the process of restoration was, therefore, to be charged against the rent deposit and on this account the two items, viz, the value of the infrastructure of the office and the deposited rent became unavailable for distribution.
14.The applicant nevertheless indicated his willingness to pay half the profit to be shared, being KES 702,940/= to the respondent to settle the matter.
15.The applicant contended that the plaintiff/ respondent has become non-responsive to his overtures to agree on the exact terms of and the liability of the former under the decree to facilitate settlement of the matter. He suggested that the respondent is leveraging on the contempt orders to obtain more than the decree yields.
16.The applicant pointed out that his reputation as an honest officer of the court is at stake. He therefore submitted that it is in the interest of justice for the court to grant the prayers sought in the application as he has now complied. He added that there are no circumstances to suggest malice or bad faith on his part.
Analysis and Determination
Issues
17.The sticky issue is whether the applicant has purged the contempt for which he has been convicted.
18.The applicant’s notice of motion dated 30.5.2025 seeking to be fully and unconditionally discharged for any or any alleged contempt of court and a declaration that the instant proceedings are terminated and/ or fully settled, is inextricable to the main issue. Thus, will be considered and determined within this context.
Pleadings and orders and disobedience
19.The respondent filed this suit through originating summons (OS) dated 3.8.2021 seeking, in the main, that the applicant: -
a. Do render a true and correct statement of accounts of the firm of J. Loius Onguto Advocates from inception to March 2018.
b. Releases to the respondent whatever is due to the estate of the Deceased from the partnership.
20.On 25.10.2021 Hon. Mabeya J. directed the applicant to file the subject account statements within 21 days. He further directed that the matter be mentioned before Hon. Mwita J. (as he then was) on 2.12.2021. Ms. Mwangi informed the court that the defendant was not opposed to the application and that there was no need to respond.
21.The applicant did not comply with the order for accounts and on 22.6.2022, he applied to set aside the order. On 28.6.2022, the respondent applied to cite the applicant for contempt.
22.Through the ruling of 10.2.2023, the court declined the applicant’s and allowed the respondent’s application. The orders of 10.2.2023 read as follows: -
“(a) The defendant is held in contempt of the court order of 25.10.2021 but is granted time to comply therewith as follows: -
(i) He is to file and serve the accounts of the partnership known as J. Louis Onguto Advocates for the period between 2012 and 2018 within 21 days of the date hereof.
(ii) He is to disclose to the court the benefits due to the late Justice Louis Onguto that were outstanding at the time of the dissolution of the firm of J. Louis Onguto Advocates within 21 days.”
(iii) In default, the defendant shall stand convicted of being in contempt of the order of 25/10/2021 and shall be liable to punishment which shall be meted out on a day to be fixed.
(iv) The costs of the application to the plaintiff in any event.”
23.The foundational, yet of a functional impetus for the overall compliance of the orders made on10.2.2023 by the applicant, is that:
He is to file and serve the accounts of the partnership known as J. Louis Onguto Advocates for the period between 2012 and 2018 within 21 days of the date hereof. [underlining mine]
24.The applicant now seeks to be fully and unconditionally discharged for any or any alleged contempt of court and a declaration that the instant proceedings are terminated and/ or fully settled.
25.The applicant exhibited financial statements or accounts for the years 2012, 2013, 2014, 2015, 2016, 2017 and 2018.
26.At the hearing on 20.2.2025, the respondent called Simon Ndung’u Githutha, an accountant registered with Institute of Certified Public Accountants Kenya (ICPAK). He considered the accounts for 2012 to 2014 prepared by Mwengei & Associates for the subject firm.
27.At cross examination, he confirmed that the late Justice Onguto signed the accounts for 2012 to 2014 as the proprietor. He also confirmed that the accounts showed capital of over KES. 1,000,000/-. That the firm was on rented premises and that the landlord held a deposit which was recoverable depending on their agreement. He confirmed that the firm’s account held KES. 134,182/-. He stated that the 2018 accounts were not visible, but he did not seek for a clear copy.
28.The applicant called Julius Ngumbau Mwengei, a certified public accountant, who was the auditor for the firm from 2010-2013. He produced the report dated 13.6.2023. He indicated that in preparing the report he relied on the accounts for 2012 and 2013 that he prepared and the accounts for 2014 prepared by Mr. Mumo.
29.Mr. Mwengei stated that he did not audit reports for 2015 to 2018 as they were not part of his instructions.
30.In re-examination, he stated that if the firm was to be wound up on 31.12.2014, the shareable profit would be as stated in the report - Kshs. 1,405,881.
31.The only issue arising from the hearing was with respect to the audited accounts for 2015-2018. The applicant stated that he subsequently provided the respondent with accounts for 2015-2018.
32.But, from the record and evidence by the applicant’s witnesses who were professionals in accounts and audit, the accounts for 2015-2018, were not provided to them and did not form part of their audit reports filed in court. Notably, the accounts for 2018 were not visible. Of curiosity, the witnesses did not seek for a clear copy.
33.Julius Ngumbau Mwengei, stated that he did not audit reports for 2015 to 2018 as they were not part of his instructions.
34.The applicant appears to have limited the accounts to the period between 2012 and 2014. This is by design and deliberate because even the purported accounts for 2015 to 2028 were not clear and were indecipherable.
35.The applicant has kept on arguing that he has performed all that he understands the decree and the subsequent orders of the court to demand of him but is willing to be guided further by the court.
36.The applicant claimed that the nature of the claim as pleaded led to an inexact decree that is subject to subjective interpretation and has frustrated his attempts to understand and settle his liability thereunder.
37.I have perused the pleadings. The originating summons (OS) dated 3.8.2021 sought, inter alia, that the applicant: -
c. Do render a true and correct statement of accounts of the firm of J. Loius Onguto Advocates from inception to March 2018.
38.The period of accounts was clearly stated and was relevant to the taking of the partnership accounts.
39.Similarly, the order of the court was clear without any ambiguity. It required him; ‘to file and serve the accounts of the partnership known as J. Louis Onguto Advocates for the period between 2012 and 2018 within 21 days of the date hereof.’ [underlining mine]
40.His arguments that he has done all that the decree required of him and attacking the pleadings at this stage are red herrings. The period of accounts was designated by the court, is material and relevant to these proceedings and it was not within his power to choose the period for which he would file proper accounts whilst pretending to file indecipherable accounts for the period between 2015 and 2018 contrary to the court order. It is a fair conclusion that, failure to give instructions to the accountants and auditors he called as witnesses to prepare accounts for the said period is a manifestation of craftiness, design and deliberate attempt to hoodwink the court and the respondent. A party is not at liberty to choose which part of a court order to obey or not to obey.
41.From the record and the indecipherable state of accounts filed, the court finds and holds that he did not file and serve accounts of the partnership for the period between 2012 and 2018 as was ordered.
42.The course taken by the applicant puts him in total disobedience with the orders that were issued on 10.2.203 which gave him an opportunity to purge the contempt. His overtures to pay money that he thinks is due to the estate of the deceased is merely a gimmick to conceal his contempt. The partnership accounts ordered was to produce the accurate status of the partnership accounts informing the parties’ entitlement.
43.Accordingly, the applicant is in contempt of the court order of 25.10.2021 and continues to be in contempt of court having not complied with order issued on 10.2.23 which provided him an opportunity to purge the contempt.
Disposal
44.Therefore, his application dated 30.5.2025 is dismissed. He is in contempt of court. The court will fix a date for sentencing.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 12th day February, 2026
----------------------
F. Gikonyo M
Judge
In the presence of: -
Kisila for Respondent
Opole for Applicant