ENOCK OKERO OGORI VS NYAMIRA COUNTY ASSEMBLY AND CLERK NYAMIRA COUNTY ASSEMBLY AND 7 Others

Background

1. The Petitioner filed a Petition dated 10^th October 2024 seeking, inter alia, the following orders: -
   1. A DECLARATION that the Respondents in purporting to remove the petitioners from office in the manner pleaded herein acted in contravention of Articles: 1(1); 3; 10; 22; 23; 27; 28; 41(1); 47; 48; 50; 124; 159; 165; 178(3) and 258 of the Constitution of Kenya, 2010; Article 14 of the International Covenant on Civil and Political Rights and Sections: 3; 4; 6; 7 and 11 of the Fair Administrative Action Act [Cap. 7L – Laws of Kenya]; Sections: 8; 9 and 11 of the County Governments Act [Cap. 265 – Laws of Kenya]; Standing Orders No. 33; 60 and 65 of the Nyamira County Assembly Standing Orders and in contravention of fundamental rules of natural justice and fairness;
   2. A DECLARATION that the Respondents acts purporting to remove the Petitioner from office in the manner pleaded herein violated the Petitioners’ rights to due process, fair hearing and fair administrative action;
   3. A DECLARATION that the resolution by the 1^st Respondent made on 8^th October 2024 purporting to indefinitely suspend and, ipso facto, constructively remove the Petitioner from office as County Assembly Speaker is unconstitutional, unlawful, null and void and thus of no consequence and the same be and is hereby quashed.
   4. ORDERS of permanent injunction restraining the Respondents from attempting to remove the Petitioner from office as County Assembly Speaker in a manner and procedure other than the one articulated under Article 178 of the Constitution of Kenya, 2010 read in conjunction with section 11 of the County Governments Act [Cap. 265 – Laws of Kenya] and Standing Orders No. 33; 45; 60 and 65 of the Nyamira County Assembly Standing Orders;
   5. AN ORDER for compensation of the Petitioner by way of general damages for violation of the Petitioner's rights.
2. Concurrently with the Petition, the Petitioner also filed an Application, under Certificate of Urgency, seeking the following orders: -
3. Spent.
4. THAT, pending hearing and determination of the application herein, this Honourable Court be pleased to issue interim conservatory orders staying the effect and implementation of the purported resolution of the 1^st Respondent passed on 8th October 2024 purporting to suspend the Petitioner/Applicant from discharging his functions and duties as speaker of the 1st Respondent;
5. THAT, Pending the hearing and determination of the application herein, the Honourable Court be pleased to, issue interim temporary injunctive orders restraining the Respondents and the interested party or any other person acting on their behalf or otherwise, from stopping, barring or otherwise interfering with the Petitioner/Applicant discharge of his functions and duties as speaker of the 1^st Respondent;
6. THAT, Pending the hearing and determination of the instant Application, the Honourable Court be pleased to issue interim conservatory orders staying any steps, resolutions and decisions of the Respondents and the interested party, from removing or replacing the Petitioner/Applicant as County Assembly speaker of the 1^st Respondent;
7. THAT, pending hearing and determination of the Petition herein, this Honourable Court be pleased to issue interim conservatory orders staying the effect and implementation of the purported resolution of the 1st Respondent passed on 8th October 2024 purporting to suspend the Petitioner/Applicant from discharging his functions and duties as speaker of the 1st Respondent;
8. THAT, Pending the hearing and determination of the Petition herein, the Honourable Court be pleased to, issue interim temporary injunctive orders restraining the Respondents and the interested party or any other person acting on their behalf or otherwise, from stopping, barring or otherwise interfering with the Petitioner/Applicant discharge of his functions and duties as speaker of the 1st Respondent;
9. THAT, Pending the hearing and determination of the instant Petition, the Honourable Court be pleased to issue interim conservatory orders staying any steps, resolutions and decisions of the Respondents and the interested party, from removing or replacing the Petitioner/Applicant as County Assembly speaker of the 1st Respondent;
10. THAT, the Honourable Court be pleased issue such other Orders as are just and expedient to preserve the substratum of and secure the ultimate just determination of the instant application and petition;
11. Costs of this Application be borne by the Respondents.
12. When the matter first came up for directions on 11^th October 2024, under certificate of urgency, this court issued conservatory orders in terms of prayers No. 2 and 3 of the Application in order to preserve the substratum of the Application and directed the Applicant to serve the pleadings on the Respondents and the Interested Party. The matter was then listed for mention on 14^th October 2024 for further directions.
13. At the mention on 14^th October 2024, counsel for the Respondents informed the Court that he had filed a Notice of Preliminary Objection (PO) challenging this Court’s jurisdiction to entertain the Petition. Counsel for the Petitioner however indicated that he was yet to be served with the PO. Parties were then directed to file and exchange submissions on the PO after which the matter was listed for mention on 23^rd October to confirm compliance with the said directions.
14. When the matter came up for mention on 23^rd October 2024, Counsel for the Petitioner informed this Court that the Conservatory Orders issued on 11^th October 2024 had been disobeyed and that he had filed an Application dated 22^nd October 2024 (Contempt Application) seeking, inter alia, an Order of Committal of the Respondents to Civil Jail for Contempt of Court. He urged this court to determine the Contempt Application first while counsel for the Respondents was of the view that the PO should be determined first as it touches on the court’s jurisdiction.
15. In a ruling delivered on the same date (23^rd October 2024) this court held that the contempt application would be determined first upon noting, among other factors, that a party found guilty of contempt would ordinarily not be entitled to audience before the same court. The court then directed parties to file and exchange pleadings on the contempt application after which the matter was listed for further mention for directions on 28^th October 2024.
16. When the matter came up for mention on 28^th October 2024, counsel informed this court that they had all complied with the directions on the filing of submissions on the PO and contempt application. Counsel for the Petitioner however informed the court that they were unable to proceed with the case as the Respondents had gone ahead and impeached the Petitioner despite the existence of the conservatory orders. They urged the court to grant the prayers sought in the Contempt Application in light of the continued disobedience of the conservatory orders. Mr. Mokua, learned counsel for the Respondent, on his part, submitted that the conservatory orders had not been disobeyed and maintained that the said orders only stayed the Petitioner’s suspension but did not stop his impeachment.
17. In line with this court’s orders of 23^rd October 2023, I will deliver a ruling on the contempt application first and depending on the outcome thereof, deliver the ruling on the PO.

Contempt Application

1. Vide the Application dated 22^nd October 2024, the Petitioner/Applicant seeks the following orders: -
2. THAT, the Honourable Court do issue a notice/summons upon the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th Respondents to attend this Court in person and show cause why they should not be cited for contempt against orders issued on 11^th October 2024.
3. THAT, this Honourable Court finds the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th Respondents herein in contempt of Court for disobeying the Court order made on 11^th October 2024.
4. THAT, the Honourable Court do order that 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th Respondents herein be committed to civil jail for a period to be determined until the contempt is purged.
5. THAT, Costs of this Application be borne by the Respondents.
6. The Application is supported by the Petitioner’s affidavit and is premised on main ground that this court issued conservatory orders on 11^th October 2024 which orders were served upon all the Respondents but that in blatant disregard of the said orders the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th Respondents proceeded to occupy the Assembly with goons in a bid to block him from accessing his chambers.  The Applicant contends that having been barred from accessing his chambers, the Respondents proceeded to conduct the house business on 17^th October 2024 and moved a motion for his removal from the office of the Speaker despite the existence of the conservatory orders.
7. The Petitioner filed a further affidavit dated 26^th October 2024 wherein he avers that Respondents’ Replying affidavit sworn on 25^th October 2025 wherein he states that the averments contained in the said replying affidavit are misplaced as the deponent did not demonstrate that he had been authorized by the other Respondents to swear the replying affidavit on their behalf. He maintains that the court order of 11^th October 2024 had been disobeyed by all the Respondents who proceeded to conduct impeachment proceedings against him following the contested resolution to suspend him from office.
8. The Applicant further states that the Respondents have gone ahead to advertise a vacancy in the office of the speaker in clear violation of the conservatory orders issued on 11^th October 2024.
9. The Respondents opposed the application through the replying affidavit of the Acting Clerk of Nyamira County Assembly, Mr. Duke Onyari, who avers that he is authorized by all the Respondents to swear the affidavit in opposition to the application. He states that none of the Respondents have disobeyed the court order as alleged by the applicant and adds that the Contempt Application does not meet the threshold of proof expected in such an application.
10. The Acting Clerk states that the conservatory orders were not extended on 14^th October 2024 when the matter came up for mention and confirms that the Respondents and other members of the County Assembly of Nyamira were at the County Assembly on 15^th October 2024. He states that the photographs that the Applicant has relied on in his affidavit are inadmissible in evidence for lack of Certificate of Electronic Record. He contends that the conservatory orders issued on 11^th October 2024 did not expressly bar the Respondents from removing the Applicant from office.
11. He blames the Applicant for the chaos that erupted at the County Assembly precincts on 15^th October 2024 and attached video clips depicting the events of the said day, He states that the Applicant was duly served with the motion for his impeachment but did not attend the proceedings at the County Assembly on 17^th October 2024. He contends that the suspension of the Applicant is different from his removal from office and that the court did not issue any order to stop the Members of the County Assembly from tabling and debating the removal motion. He adds that a copy of the County Assembly Hansard was not presented before this court to show the person who presided over the County Assembly sittings and that the motion was moved by one Hon. Thomas Vincent Benecha who is not a party to these proceedings.
12. The Application was canvassed by way of written submissions which I have considered. The parties raised several issues for determination, namely; the admissibility of the photographs attached to the Applicant’s affidavit in support of the Application, the import and validity of the replying affidavit sworn without the written authority of the respondents, and most importantly, whether the Respondents are in contempt of the Court Orders issued on 11^th October 2024.
13. The Respondents argued that the photographs attached to the Applicant’s replying affidavit are not admissible for lack of Certificate of Electronic Records. The Applicant did not address the issue of the said certificate. The issue of certificate for electronic evidence is now a prerequisite in our legal system when a party seeks to rely on electronic evidence. In this case, I note that since it was not disputed that chaos erupted in the County Assembly on the date in question I find that failure to avail the said certificate is not fatal to the application.
14. Turning to the claim that the deponent of the replying affidavit did not demonstrate that he had the Respondents’ authority to swear the said affidavit on their behalf, I find that while this is a valid concern considering the nature of the instant application, the said deponent was still qualified to swear the said affidavit by virtue of the position as the clerk of the Nyamira County Assembly.
15. On whether the Respondents disobeyed the court order, the Applicant submitted that the Respondents were required to comply with the orders issued on 11^th October 2024 since the said orders had not been reviewed, vacated or set aside. The Applicant maintained that the Respondents openly disregarded the said orders without any lawful justification. Reference was made to the decision in Siokwei Tarita Limited vs. The Commission of University Education & Another [2017] eKLR and Republic vs. County Government of Kitui Ex Parte Fairplan Systems Limited [2022] eKLR, where it was held that Court orders are not made in vain and are meant to be complied with; that if for any reason a party has difficulty in complying with the said orders, they were expected to come back to court and explain the difficulties they faced in complying with the order and that once a Court order was made in a suit, it remained valid unless set aside on review or on appeal.
16. The Respondents, on the other hand, reiterated the averments made in the replying affidavit and submitted that the Applicant has not made out a case for the granting of the orders sought in the Contempt Application. It was submitted that the Application does not meet the test for disobedience of a civil order and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt.
17. It was the Respondents’ case that there was no evidence to show that they were in contempt.
18. It was not disputed that this court issued conservatory orders on 11^th October 2024 which orders were in the following terms: -

“2. THAT, pending hearing and determination of the application herein, this Honourable Court be pleased to issue interim conservatory orders staying the effect and implementation of the purported resolution of the 1^st Respondent passed on 8^th October 2024 purporting to suspend the Petitioner/Applicant from discharging his functions and duties as speaker of the 1^st Respondent;

  3. THAT, Pending the hearing and determination of the application herein, the Honourable Court be pleased to, issue interim temporary injunctive orders restraining the Respondents and the interested party or any other person acting on their behalf or otherwise, from stopping, barring or otherwise interfering with the Petitioner/Applicant discharge of his functions and duties as speaker of the 1^st Respondent.”

1. It was also not disputed that the said order was served on the Respondents who instructed the law firm of Mokua Ndubi & Co Advocates to act for them in the matter.
2. Article 23 of the Constitution grants this Court the authority to issue conservatory in any proceedings brought under Article 22 thereof where a party institutes a suit claiming that a right or fundamental freedom in the Bill of Rights has been denied violated or infringed or is threatened. The said Article stipulates as follows: -

23. Authority of courts to uphold and enforce the Bill of Rights

(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—

(a) a declaration of rights;

(b) an injunction;

(c) a conservatory order;

(d) ………

1. The principles governing the granting of conservatory orders and their import/purpose thereof were stated by the Supreme Court in the case of Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others [2014] eKLR where it was held that a conservatory order aims at preserving the substratum of a suit and that the ultimate beneficiary of a conservatory order is the court granting it and not the parties in whose favour the same is issued. Similarly, in Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR it was held: -

“Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”

1. In Invesco Assurance Co. Ltd vs. MW (Minor suing thro' next friend and mother (HW) [2016] eKLR a conservatory order was defined as follows: -

“5.  A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard.  It is an order of status quo for the preservation of the subject matter.”

1. In Samuel M. N. Mweru & Others vs. National Land Commission & 2 Others [2020] eKLR Mativo J. (as he then was) highlighted the parameters for establishing if a party is guilty of contempt of court as follows: -

“40. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove: -

(i)    the terms of the order,

(ii)   Knowledge of these terms by the Respondent,

(iii)  Failure by the Respondent to comply with the terms of the order.

Upon proof of these requirements the presence of wilfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated:-

"There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-

(a) The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;

(b)  The defendant had knowledge of or proper notice of the terms of the order;

(c)  The defendant has acted in breach of the terms of the order; and

(d)   The defendant's conduct was deliberate...”

1. In the present case, a perusal of the pleadings reveals that the Applicant instituted the instant petition citing the violation of his constitutional rights to fair administrative action, access to justice and fair hearing under Articles 47, 48 and 50 of the Constitution respectively. As can be noted from the prayers sought in the Petition, the particulars of which I have already highlighted hereinabove in this ruling, the Petitioner was apprehensive that the Respondents had embarked on a journey to remove him from his office, as the Nyamira County Assembly, in violation of his rights under the Constitution. The Applicant stated that a resolution had already been passed, on 8^th October 2024, to indefinitely suspend him from office in an unconstitutional manner.
2. It is against the above backdrop that this court granted the conservatory orders on 11^th October 2024 pending the hearing and determination of the application, in order to preserve the substratum of the matter. Needless to say, the conservatory orders were meant to halt whatever actions the Respondents intended to take against the Applicant and to allow him to continue discharging his functions as the Speaker of the County Assembly pending the outcome of the Application.
3. I find that the orders issued on 11^th October 2024 were clear, straightforward and unambiguous and that the Respondents, who were the intended recipients of the said Orders, were fully aware of their existence as their advocate appeared in court on 14^th October 2024 when they did not challenge the said orders or ask the court to vacate them but merely concentrated on persuading the court to determine their Preliminary Objection.
4. It has also come out clearly, from the parties’ pleadings, that the Respondents eventually conducted proceedings that culminated in the removal of the Applicant from the office of the County Assembly Speaker and that a vacancy in the said office was advertised by the 2^nd Respondent.
5. The Respondents admitted that they participated in proceedings that resulted in the Petitioner/Applicants’ impeachment despite being aware of the existing Court Orders but justified their actions by arguing that they were merely discharging their mandate when the motion impeachment motion was presented by a different person. The Respondents justified their decision to remove the Applicant from office by arguing that the impugned conservatory orders were only in respect to suspension of the Applicant from office as the court did not issue any orders stopping the tabling and debating of the motion for his removal.
6. My finding is that the Respondents’ argument and explanation for their actions portrays them as parties who were hellbent on removing the Applicant from office and that they therefore deliberately chose to disobey/ignore/disregard clear court orders by adopting a selective interpretation of the said orders to suit their own actions. A simple reading of the said orders shows that the intention of the court was to stay the implementation a resolution to suspend the Applicant from discharging his functions and duties as speaker of the 1^st Respondent; and to restrain the Respondents and the interested party from stopping, barring or otherwise interfering with the Petitioner/Applicant discharge of his functions and duties as speaker of the 1^st Respondent.
7. I find that the act of removing the Petitioner/Applicant from office as Speaker of the County Assembly whether through suspension or impeachment, with the full knowledge of the existence of the Conservatory Orders, amounted to interference with the discharge of his duties as the Speaker. I therefore find that the Respondents are guilty of blatant disobedience of the said Orders, a conduct which this court cannot countenance.
8. Contempt of court orders not only turns the court processes and orders into a mockery but is also an assault on the court’s authority. It is trite that this authority is derived from the Constitution and Statute and thus binding upon every citizen, without exception, based on the assurance that court decisions will and must be enforced. In other words, contempt of court goes to the root of the integrity of the justice system and, if left unchecked, may result in an erosion of the entire administration of justice thus leading to anarchy. In Nthabiseng Pheko vs. Ekurhuleni Metropolitan Municipality & Another CCT 19/11(75/2015), Nkabinde, J. observed that:-

“The rule of law, a foundational value of the constitution, requires that the dignity and authority of the courts be upheld. This is crucial, as the capacity of courts to carry out their functions depends upon it. As the constitution commands, orders and decisions issued by a court bind all persons to whom and organs of state to which they apply, and no person or organ of state may interfere in any matter, with the functioning of the courts. It follows from this that disobedience towards courts orders or decisions risks rendering our courts impotent and judicial authority a mere mockery. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced.”

1. Similarly, in Canadian Metal Co. Ltd vs. Canadian Broadcasting Corp (N0.2) [1975] 48 D.LR(30), it was held thus:-

“To allow court orders to be disobeyed would be to tread the road toward anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn… if the remedies that the courts grant to correct… wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the courts will quickly result into the destruction of our society.”

1. Stemming from the principles outlined in the above cited cases, it cannot be gainsaid that obedience to court orders is a grave matter and that the sacrosanct authority of our courts is to be jealously guarded through the courts’ ability to enforce their decisions in order to maintain their dignity and respect. This means that parties who disobey court orders must be called to account by requiring them show cause why they must not be punished for such contempt. I find guidance in James Francis Oswald, Oswald’s Contempt of Court: Committal, Attachment, and Arrest upon Civil Process (Butterworth & Company, 1910 at page 9 where it is stated that: -

“Punishing through contempt of court is the means by which courts sanction non-compliance with its orders, judgments and decrees, and a court of justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are entrusted to its care, would be an anomaly which could not be permitted to exist in any civilized community. Without such protection, courts of justice would soon lose their hold upon the public respect, and the maintenance of law and order would be rendered impossible.”

1. For the reasons that I have stated in this ruling, I find that the Contempt Application is merited and I therefore allow it by issuing summons to 2^nd – 8^th Respondents to show cause why they should not be committed to civil jail for such contempt.
2. Mention on 7^th November for Notice to Show Cause and ruling on the Preliminary Objection.
3. It is so ordered.

Ruling dated, signed and delivered virtually via Microsoft Teams this 4^th day of November 2024.

W. A. OKWANY

JUDGE

In the Presence of: -

Mr. Ombui Ratemo & Mr. Bonuke for the Petitioner

Mr. Ndubi for the Respondents

C/A – Anita