[1] The Notice of Motion dated 30 th May 2025 was filed by the ex parte applicant, Dr. William Nyakwada T/A Naksons Kenya Limited . It was filed pursuant to Articles 20, 47, 48 and 159 of the Constitution, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap 21 of the Laws of Kenya, Order 22 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law for the following orders:
[a] That warrants of arrest be issued against Prof. Benard Muok, County Secretary, Homa Bay County , Mr. Solomon Obiero, the County Executive Member for Finance, Homa Bay County, Mr. Denis Onyango, County Executive Member for Roads, Transport and Public Works, Homa Bay County; and Mr. Elijah Obiny Dede , the Chief Officer, Roads, Transport and Public Works with a view of their committal to civil jail for a period of 6 months or such time as the Court may deem fit.
[b] That the Court be pleased to order that Prof. Benard Muok, County Secretary, Homa Bay County , Solomon Obiero, County Executive Member for Finance, Homa Bay County, Mr. Denis Onyango, County Executive Member for Roads, Transport and Public Works, Homa Bay County; and Mr. Elijah Obiny Dede , the Chief Officer, Roads, Transport and Public Works, be arrested and brought before the Court for sentencing and/or committal to civil jail for a minimum of 6 months or such period of time as the Court may deem fit until they honour the Court Orders.
[2] The application was premised on the grounds that on the 1 st October 2024, the Court delivered judgment herein and ordered the respondents to settle the decree in Homa Bay Chief Magistrate’s Civil Suit No. E039 of 2022 with costs of the application within 60 days from the date of judgment. The applicant averred that the respondents have failed to comply with the said orders in spite of due service. The respondents did not file any response to the application.
[3] Directions were given herein on 16 th June 2025 that the application be canvassed by way of written submissions. It appears none of the parties complied as no submissions were filed herein. I have nevertheless considered the averments set out by the applicant in his Supporting Affidavit and the documents annexed thereto in the light of the applicable law.
[4] Following the nullification of the Contempt of Court Act, 2015, the applicable law governing such applications is set out in Section 5 of the Judicature Act . I am fortified in this stance by Republic v Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya, HCMCA No. 13 of 2008, in which it was held:
“The applicable law as regards contempt of court existing before the enactment of the Contempt of Court Act was restated by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others, [2014] eKLR. In that case the Court found that the English law on committal for contempt of court under Rule 81.4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertakings, was applied by virtue of section 5(1) of the Judicature Act which provided that:
“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.”
This section was repealed by section 38 of the Contempt of Act of 2016, and as the said Act has since been declared invalid, the consequential effect in law is that it had no legal effect on, and therefore did not repeal section 5 of the Judicature Act, which therefore continues to apply. In addition, the substance of the common law is still applicable under section 3 of the Judicature Act. This Court is in this regard guided by the applicable English Law which is Part 81 of the English Civil Procedure Rules of 1998 as variously amended...”
[5] Similarly in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the above position was endorsed thus:
“I agree with the above reasoning that since the act that repealed section 5 of the Judicature Act [17] has been declared unconstitutional, the effect is that section 5 of the Judicature Act [18] still stands.”
[6] Section 5 of the Judicature Act states:
(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.
(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.
[7] Court orders are not mere suggestions but are intended for strict obedience, unless reviewed or set aside. As was aptly stated by Romer LJ in Hadkinson v Hadkinson [1952] AllER 567:
"It is the plain and unqualified obligation of every person, against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.
For, a person who knows of an order, whether null or valid, regular or irregular cannot be permitted to disobey it. It would be most dangerous to hold that the suitors or their solicitors could themselves judge whether an order was null or valid. Whether it was regular or irregular, that they should come to the court and not take upon themselves to determine such question. That the course of a party knowing of an order which was null and irregular, and who might be affected by it, was plain, he should apply to court that it might be discharged. As long as it exists, it should not be disobeyed." (Also see Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] KLR 828)
[8] Accordingly, the issue for consideration is whether the applicant has met the threshold to warrant the issuance of the orders sought herein. It is now settled that in an application of this nature, an applicant must prove the following pre-requisites, namely:
[a] that the terms of the order are clear and unambiguous;
[b] That the alleged contemnor had knowledge or proper notice of the order;
[c] That the respondent has deliberately failed to obey the order;
(see Katsuri Limited v Kapurchand Depar Shah [2016] eKLR)
[9] In addition to the Decree and Certificate of Costs issued in Homa Bay Chief Magistrate’s Civil Case No. E039 of 2022 , the applicant annexed to his Supporting Affidavit a copy of the Decree issued herein on 15 th May 2025. The Court has also perused and considered the Judgment dated 1 st October 2024 by which the Court ordered the respondents to settle the Decree in Homa Bay Chief Magistrate’s Civil Case No. E039 of 2022 within 60 days.
[10] It is plain therefore that the respondents, who were well represented by counsel throughout these proceedings, have been aware of the subject order. It is equally plaint that no attempt has been made by the accounting officer to comply therewith. There was absolutely no attempt by the respondents to demonstrate efforts made towards settlement of the said decree. Such inaction flies in the face of Section 21(1) and (2) of the Government Proceedings Act, which state:
.
(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.
[11] In this instance it is plain that the only way of enforcement of the Judgment and Order dated 1 st October 2024 is by compelling compliance by the accounting officer of the County Government of Homa Bay, for Section 21(4) of the Government Proceedings Act is explicit that:
(4) …no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.”
[12] Section 103 of the Public Finance Management Act states:
(1) There is established for each county government, an entity to be known as County Treasury.
(2) The County Treasury shall comprise—
(a) the County Executive Committee member for finance;
(b) the Chief Officer; and
(c) the department or departments of the County Treasury responsible for financial and fiscal matters.
(3) The County Executive Committee member for finance shall be the head of the County Treasury.
[13] Subsection (3) is explicit that the County Executive Member for Finance, and not the Chief Officer, Finance, is the head of the County Treasury. In Council of Governors & Others v The Senate [2015] eKLR, at paragraphs 134 to 137, a three judge bench of the High Court had the following to say in this regard:
“134. The Petitioners have also sought the interpretation of the term “Accounting Officer”. In that regard, Article 226 of the Constitution provides;
(1) Act of Parliament shall provide for –
(a) ….
(b) The designation of an accounting officer in every public entity at the national and county level of government
(2) The accounting officer of a national public entity is accountable to the national assembly for its financial management, and the accounting officer of a county public entity is accountable to the county assembly for its financial management.
Pursuant to this provision, Parliament enacted the Public Finance Management Act. The appointment and designation of a County Government Accounting Officer is provided for under Section 148 of that Act, as follows;
1. A County Executive Committee member for finance shall, except as otherwise provided by law, in writing designate accounting officers to be responsible for managing the finances of the county government entities as is specified in the designation.
2. Except as otherwise stated in other legislation, the person responsible for the administration of a county government entity, shall be the accounting officer responsible for managing the finances of that entity.
135. It therefore follows that “an accounting officer” for a County Government entity is the person so appointed and designated as such by the County Executive Committee Member for Finance under Section 148 of the Public Finance Management Act. Indeed, Section 148 (3) of the Public Finance Management Act mandates the County Executive Committee Member for Finance to ensure that each County government entity has an accounting officer as provided for under Article 226(2) of the Constitution.”
[14] Similarly, in Republic v County Secretary, Nairobi City County & Chief Officer, Finance/Nairobi City County Treasurer ex-parte Mohamed Tariq Khan (supra ) it was held: -
“8. It must however be remembered always that a judicial review application is neither a criminal case nor a civil suit hence the application ought to be brought against the person who is bound to comply with the orders sought therein. In this case the Respondent ought to have been the Accounting Officer who is the County Executive Member for Finance .”
[15] In the premises, it is my finding that the applicant has satisfied the conditions precedent to the issuance of the orders prayed for herein. Although the other respondents were improperly impleaded herein, their joinder is inconsequential in this instance where the Accounting Officer has been sued. In the result, the Notice of Motion dated 30 th May 2025 is hereby allowed and orders granted as follows:
[a] That Mr. Solomon Obiero , the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay be and is hereby cited for contempt of court for failing to satisfy the and Decree and Certificate of Costs issued in Homa Bay Civil Case No. E039 of 2022: Dr. William Nyakwada T/A Naksons Kenya Limited v The County Government of Homa Bay & others.
[b] That Mr. Solomon Obiero , the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay, be and is hereby summoned to attend court to show cause why he should not be punished for contempt by committal to civil jail as prayed.
[c] That the costs of the application be borne by the County Government of Homa Bay.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4 TH DAY OF JUNE 2026
[a] That warrants of arrest be issued against Prof. Benard Muok, County Secretary, Homa Bay County , Mr. Solomon Obiero, the County Executive Member for Finance, Homa Bay County, Mr. Denis Onyango, County Executive Member for Roads, Transport and Public Works, Homa Bay County; and Mr. Elijah Obiny Dede , the Chief Officer, Roads, Transport and Public Works with a view of their committal to civil jail for a period of 6 months or such time as the Court may deem fit.
[b] That the Court be pleased to order that Prof. Benard Muok, County Secretary, Homa Bay County , Solomon Obiero, County Executive Member for Finance, Homa Bay County, Mr. Denis Onyango, County Executive Member for Roads, Transport and Public Works, Homa Bay County; and Mr. Elijah Obiny Dede , the Chief Officer, Roads, Transport and Public Works, be arrested and brought before the Court for sentencing and/or committal to civil jail for a minimum of 6 months or such period of time as the Court may deem fit until they honour the Court Orders.
[2] The application was premised on the grounds that on the 1 st October 2024, the Court delivered judgment herein and ordered the respondents to settle the decree in Homa Bay Chief Magistrate’s Civil Suit No. E039 of 2022 with costs of the application within 60 days from the date of judgment. The applicant averred that the respondents have failed to comply with the said orders in spite of due service. The respondents did not file any response to the application.
[3] Directions were given herein on 16 th June 2025 that the application be canvassed by way of written submissions. It appears none of the parties complied as no submissions were filed herein. I have nevertheless considered the averments set out by the applicant in his Supporting Affidavit and the documents annexed thereto in the light of the applicable law.
[4] Following the nullification of the Contempt of Court Act, 2015, the applicable law governing such applications is set out in Section 5 of the Judicature Act . I am fortified in this stance by Republic v Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya, HCMCA No. 13 of 2008, in which it was held:
“The applicable law as regards contempt of court existing before the enactment of the Contempt of Court Act was restated by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others, [2014] eKLR. In that case the Court found that the English law on committal for contempt of court under Rule 81.4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertakings, was applied by virtue of section 5(1) of the Judicature Act which provided that:
“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.”
This section was repealed by section 38 of the Contempt of Act of 2016, and as the said Act has since been declared invalid, the consequential effect in law is that it had no legal effect on, and therefore did not repeal section 5 of the Judicature Act, which therefore continues to apply. In addition, the substance of the common law is still applicable under section 3 of the Judicature Act. This Court is in this regard guided by the applicable English Law which is Part 81 of the English Civil Procedure Rules of 1998 as variously amended...”
[5] Similarly in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the above position was endorsed thus:
“I agree with the above reasoning that since the act that repealed section 5 of the Judicature Act [17] has been declared unconstitutional, the effect is that section 5 of the Judicature Act [18] still stands.”
[6] Section 5 of the Judicature Act states:
(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.
(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.
[7] Court orders are not mere suggestions but are intended for strict obedience, unless reviewed or set aside. As was aptly stated by Romer LJ in Hadkinson v Hadkinson [1952] AllER 567:
"It is the plain and unqualified obligation of every person, against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.
For, a person who knows of an order, whether null or valid, regular or irregular cannot be permitted to disobey it. It would be most dangerous to hold that the suitors or their solicitors could themselves judge whether an order was null or valid. Whether it was regular or irregular, that they should come to the court and not take upon themselves to determine such question. That the course of a party knowing of an order which was null and irregular, and who might be affected by it, was plain, he should apply to court that it might be discharged. As long as it exists, it should not be disobeyed." (Also see Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] KLR 828)
[8] Accordingly, the issue for consideration is whether the applicant has met the threshold to warrant the issuance of the orders sought herein. It is now settled that in an application of this nature, an applicant must prove the following pre-requisites, namely:
[a] that the terms of the order are clear and unambiguous;
[b] That the alleged contemnor had knowledge or proper notice of the order;
[c] That the respondent has deliberately failed to obey the order;
(see Katsuri Limited v Kapurchand Depar Shah [2016] eKLR)
[9] In addition to the Decree and Certificate of Costs issued in Homa Bay Chief Magistrate’s Civil Case No. E039 of 2022 , the applicant annexed to his Supporting Affidavit a copy of the Decree issued herein on 15 th May 2025. The Court has also perused and considered the Judgment dated 1 st October 2024 by which the Court ordered the respondents to settle the Decree in Homa Bay Chief Magistrate’s Civil Case No. E039 of 2022 within 60 days.
[10] It is plain therefore that the respondents, who were well represented by counsel throughout these proceedings, have been aware of the subject order. It is equally plaint that no attempt has been made by the accounting officer to comply therewith. There was absolutely no attempt by the respondents to demonstrate efforts made towards settlement of the said decree. Such inaction flies in the face of Section 21(1) and (2) of the Government Proceedings Act, which state:
.
(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.
[11] In this instance it is plain that the only way of enforcement of the Judgment and Order dated 1 st October 2024 is by compelling compliance by the accounting officer of the County Government of Homa Bay, for Section 21(4) of the Government Proceedings Act is explicit that:
(4) …no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.”
[12] Section 103 of the Public Finance Management Act states:
(1) There is established for each county government, an entity to be known as County Treasury.
(2) The County Treasury shall comprise—
(a) the County Executive Committee member for finance;
(b) the Chief Officer; and
(c) the department or departments of the County Treasury responsible for financial and fiscal matters.
(3) The County Executive Committee member for finance shall be the head of the County Treasury.
[13] Subsection (3) is explicit that the County Executive Member for Finance, and not the Chief Officer, Finance, is the head of the County Treasury. In Council of Governors & Others v The Senate [2015] eKLR, at paragraphs 134 to 137, a three judge bench of the High Court had the following to say in this regard:
“134. The Petitioners have also sought the interpretation of the term “Accounting Officer”. In that regard, Article 226 of the Constitution provides;
(1) Act of Parliament shall provide for –
(a) ….
(b) The designation of an accounting officer in every public entity at the national and county level of government
(2) The accounting officer of a national public entity is accountable to the national assembly for its financial management, and the accounting officer of a county public entity is accountable to the county assembly for its financial management.
Pursuant to this provision, Parliament enacted the Public Finance Management Act. The appointment and designation of a County Government Accounting Officer is provided for under Section 148 of that Act, as follows;
1. A County Executive Committee member for finance shall, except as otherwise provided by law, in writing designate accounting officers to be responsible for managing the finances of the county government entities as is specified in the designation.
2. Except as otherwise stated in other legislation, the person responsible for the administration of a county government entity, shall be the accounting officer responsible for managing the finances of that entity.
135. It therefore follows that “an accounting officer” for a County Government entity is the person so appointed and designated as such by the County Executive Committee Member for Finance under Section 148 of the Public Finance Management Act. Indeed, Section 148 (3) of the Public Finance Management Act mandates the County Executive Committee Member for Finance to ensure that each County government entity has an accounting officer as provided for under Article 226(2) of the Constitution.”
[14] Similarly, in Republic v County Secretary, Nairobi City County & Chief Officer, Finance/Nairobi City County Treasurer ex-parte Mohamed Tariq Khan (supra ) it was held: -
“8. It must however be remembered always that a judicial review application is neither a criminal case nor a civil suit hence the application ought to be brought against the person who is bound to comply with the orders sought therein. In this case the Respondent ought to have been the Accounting Officer who is the County Executive Member for Finance .”
[15] In the premises, it is my finding that the applicant has satisfied the conditions precedent to the issuance of the orders prayed for herein. Although the other respondents were improperly impleaded herein, their joinder is inconsequential in this instance where the Accounting Officer has been sued. In the result, the Notice of Motion dated 30 th May 2025 is hereby allowed and orders granted as follows:
[a] That Mr. Solomon Obiero , the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay be and is hereby cited for contempt of court for failing to satisfy the and Decree and Certificate of Costs issued in Homa Bay Civil Case No. E039 of 2022: Dr. William Nyakwada T/A Naksons Kenya Limited v The County Government of Homa Bay & others.
[b] That Mr. Solomon Obiero , the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay, be and is hereby summoned to attend court to show cause why he should not be punished for contempt by committal to civil jail as prayed.
[c] That the costs of the application be borne by the County Government of Homa Bay.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4 TH DAY OF JUNE 2026