[1] The Notice of Motion dated 24 th May 2024 was filed by the ex parte applicant, Magrose Security Services Ltd . It is was filed pursuant to Article 159(2)(d) of the Constitution, Section 5 of the Judicature Act, Chapter 8, Laws of Kenya and Sections 3, 3A and 63 of the Civil Procedure Act, Cap 21 of the Laws of Kenya and other enabling provisions of the law and procedures for the following orders:
[a] Spent
[b] That Mr. Solomon Obiero , the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay and Mr. Alphonse Werah, the Chief Officer, Ministry of Finance and Economic Planning, County Government of Homa Bay do appear before this Court and show cause why they should not be cited for contempt of court for failing to pay the ex parte applicant Kshs. 15,000,000/= being the amount due to the ex parte applicant as per the Order of the Court issued on 11 th October 2023.
[c] That the Court be pleased to find and hold that Mr. Solomon Obiero, the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay and Mr. Alphonse Werah , the Chief Officer, Ministry of Finance and Economic Planning, County Government of Homa Bay are in contempt and have disobeyed the Order dated 11 th October 2023.
[d] That Mr. Solomon Obiero , the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay and Mr. Alphonse Werah , the Chief Officer, Ministry of Finance and Economic Planning, County Government of Homa Bay be punished for contempt and be committed to civil jail for a period of not exceeding six (6) months.
[e] That the costs of the application be borne by the respondents.
[2] The application was premised on the grounds that the ex parte applicant (hereinafter, the applicant) filed a suit against the County Government of Homa bay vide Homa Bay High Court Civil Case No. 5 of 2017: Magrose Security Services Limited v The County Government of Homa Bay , seeking payment of Kshs. 43,569,368/= being the outstanding balance and due from the respondent in respect of the subject contract. The applicant averred that a consent judgment was entered in the said suit on 10 th November 2021 in its favour for the sum of Kshs. 15,000,000/= and a decree issued and served on the County Government of Homa Bay.
[3] It was the contention of the applicant that, as a result of the failure by the County Government of Homa Bay to satisfy the aforesaid decree, it was constrained to file the instant application to enforce the Order of Mandamus issued herein on 11 th October 2023. It seeks that Mr. Solomon Obiero , the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay and Mr. Alphonse Werah , the Chief Officer, Ministry of Finance and Economic Planning, County Government of Homa Bay, be cited and punished for contempt for having flagrantly disobeyed the Order dated 11 th October 2023.
[4] The application was supported by the affidavit sworn by the Managing Director of the applicant, Mr. Charles Otieno Odongo , sworn on 24 th May 2024 in which the factual background of the application was restated. The applicant also annexed copies of the subject decree as well as the Order dated 11 th October 2023 and posited that it is entitled to the orders sought as no other remedy exists to compel the respondents to carry out their public duty as ordered by the Court.
[5] In response to the application, the respondents filed a Notice of Preliminary Objection dated 10 th June 2024 as well as a Replying Affidavit. The Replying Affidavit was however presented in a format that was inaccessible. In their Preliminary Objection, the respondents contended that:
[a] The entire application dated 24 th May 2024 is an insult to the rules of procedure and therefore ought to be struck out with costs.
[b] That the application is incompetent, fatally and incurably defective for failure to obtain a Certificate of Costs and Certificate of Order against the Government contrary to Section 21 of the Government Proceedings Act.
[6] The Court (Hon. Kiarie, J.) had occasion to consider the points raised in the Notice of Preliminary Objection and made its determination vide the ruling dated 1 st October 2024. The same was dismissed with costs; paving way for the disposal on merits of the Notice of Motion dated 24 th May 2024.
[7] The application was canvassed by way of written submissions, pursuant to the directions given herein on 29 th October 2024. Accordingly, the applicant filed written submissions dated 15 th November 2024. It relied on Samuel M.N. Mweru & others v National Land Commission & others [2020] KEHC 9233 (KLR) (Judicial Review) (17 January 2020) (Ruling) in which the four elements of civil contempt were discussed. On that basis, the applicant submitted that it had demonstrated that:
[a] The terms of the order were clear and unambiguous and binding on the respondents;
[b] the respondents had knowledge or proper notice of the terms of the order;
[c] The respondents acted in breach of the terms of the order; and,
[d] The respondents’ conduct was deliberate.
[8] The applicant relied on the contents of the Order dated 11 th October 2023, marked as Annexure “COO-2” to its Verifying Affidavit to buttress their submission that the terms thereof are clear and unambiguous. It also relied on a copy of the forwarding letter dated 13 th December 2023 to prove that the Order was duly served on the respondents. In terms of deliberate disobedience, the applicant urged the Court to consider the tenor and effect of the averments a paragraphs 10 to 16 of the respondents’ Replying Affidavit. In its submission, the respondents set about impugning the contract as well as the predicate consent judgment and therefore have deliberately declined to pay. The applicant relied on Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR and urged the Court to grant the orders sought.
[9] On their part, the respondents proposed the following issues for determination:
[a] Whether the circumstances giving rise to the judgment upon which these proceedings are hinged are grossly irregular as the respondents never had a chance to present their defence.
[b] Whether the alleged consent entered by the then advocate for the respondents was with the authority of the respondents or just a scheme to siphon public funds.
[c] Whether the applicant has come to court with clean hands.
[d] Whether contempt proceedings can be merited in a scenario where the respondents have made part payment of the sums owing from the judgment.
[e] Whether the Court can set aside the ex parte proceedings and judgment issued on 10 th November 2021 and accord the respondents fair trial based on the glaring irregularities in the previous proceedings leading to the instant application.
[10] The respondents submitted that they have never had a chance to present their defence. They relied on Article 159 of the Constitution and the case of Githiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019 [2023] KESC 41 (KLR) (16 June 2023) as to the right to fair hearing. They further impugned the consent judgment whose payment is being sought by way of Mandamus and submitted that it was just a scheme to siphon public funds. The respondents accused their erstwhile advocate, Mr. Samuel Nyauke , of fraud in connection with the entry of the consent judgment. They relied on Brook Bond Liebig v Mallya [1975] EA 266 and Flora N. Wasike v Destimo Wamboko [1988] eKLR to underscore the principles applicable for setting aside consent judgments.
[11] Based on the foregoing allegations of fraud, the respondents accused the applicant of approaching the Court for a prerogative order with unclean hands. They relied on Caliph Properties Limited v Barbel Sharma & another [2015] eKLR, among other authorities, for an exposition of the maxim that he who comes to equity must do so with clean hands.
[12] On whether the contempt application is merited, granted that part payment has been made and conceded by the applicant, the respondents were of the submission that the instant application is misplaced as there is no proof that they have deliberately or willfully failed to pay. In their view, part payment was an indication of their willingness to obey the Order in issue. They also urged the Court to find that the applicant failed to serve them with the Certificate of Order against the Government as required by Section 21 of the Government Proceedings Act; and therefore the instant application is statute-barred. They prayed for its dismissal with costs.
[13] I have no hesitation in holding that the respondents’ submissions are largely misplaced. Misplaced because the judicial review process has nothing to do with the merits of civil disputes between parties. This was well-explicated in Municipal Council of Mombasa v Republic & Umoja Consultants Limited [2002] eKLR in which the Court of Appeal held that in such applications:
“The court would only be concerned with the process leading to the making of the decision…and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision – and that, as we have said, is not the province of judicial review.”
[14] Similarly, the Court has no jurisdiction to inquire into whether or not the consent judgment sought to be enforced was marred by fraud. Those are issues that ought to have been taken up by the respondents in the primary suit and have no place in the instant matter. In Emfil Limited v The Registrar of Titles Mombasa & 2 Others (2014) eKLR which was cited with approval in Republic v County Government of Mombasa, Ex parte Outdoor Advertising Association of Kenya [2018] eKLR, the court stated:
“Judicial Review proceedings, are proceedings of a sui generis nature subject to its own peculiar rules. While we appreciate Article 159 of the Constitution and the need to apply substantive justice, that article provides no justification for a court to ignore a specific procedure provided by law and deliberately chosen by a litigant, nor does it allow a court to bend backwards to accommodate persons who have deliberately failed to protect or assert their interest.”
[15] The respondents also addressed the Court on the alleged failure by the applicant to obtain or serve a Certificate of Order of Judgment or Costs against the Government pursuant to Section 21(1) of the Government Proceedings Act, contending, and rightly so, that it is a mandatory prerequisite. The issue is however res judicata , the same having been the subject of the Notice of Preliminary Objection dated 10 th June 2024 and the ruling dated 1 st October 2024. If the respondents were aggrieved by that decision, then their option ought to have been on appeal instead.
[16] In Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others) Civil Appeal No. 36 of 1996), the Court of Appeal made it clear that:
"There is not one case cited to show that an application in a suit once decided by courts of competent jurisdiction can be filed once again for rehearing. This shows only one intention on the part of the legislature in India and our Civil Procedure Act. That is to say, there must be an end to applications of a similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention we can imagine that the courts could and would be inundated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation..."
[17] Turning now to the merits or otherwise of the contempt application, needless to mention that, following the nullification of the Contempt of Court Act, 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...”
[18] 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.”
[19] 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.
[20] 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)
[21] Accordingly, granted the issues raised by the respondents in their Grounds of Opposition, Replying Affidavit and submissions, 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 vs. Kapurchand Depar Shah [2016] eKLR)
[22] The applicant annexed copies of the order in question to its Supporting Affidavit. The terms are unambiguous and clear. The applicant also demonstrated that the respondents were served with the Order on 13 th December 2023 and therefore has all along had knowledge of the order. Such knowledge is demonstrated by the fact that the County Government of Homa Bay admittedly made part payment of the judgment debt and explained, at paragraphs 10 to 16 of the Replying Affidavit, why it has not been able to fully satisfy the decree. It is also notable that the decretal amount was the subject of a consent judgment.
[23] It is plain therefore that the respondents have been aware of the subject order since 13 th December 2023. No attempt has been made to comply therewith. While it is true that the County Government of Homa Bay relies on voted funds which must be approved annually, it failed to demonstrate that the judgment sum in issue was included in the budget cycles that followed the order. 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.
[24] In this instance it is plain that the only way of enforcement of the Order dated 11 th October 2023 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.”
[25] 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.
[26] 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.”
[27] 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.”
[28] In the premises, I am satisfied that the applicant has satisfied the conditions precedent to the issuance of the orders prayed for herein. In the result, the Notice of Motion dated 24 th May 2024 is hereby allowed and orders granted as follows:
[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 cited for contempt of court for failing to pay the ex parte applicant Kshs. 15,000,000/= being the amount due to the ex parte applicant as per the Order of the Court issued on 11 th October 2023.
[d] 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.
[e] 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 26 TH DAY OF JUNE 2025
[a] Spent
[b] That Mr. Solomon Obiero , the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay and Mr. Alphonse Werah, the Chief Officer, Ministry of Finance and Economic Planning, County Government of Homa Bay do appear before this Court and show cause why they should not be cited for contempt of court for failing to pay the ex parte applicant Kshs. 15,000,000/= being the amount due to the ex parte applicant as per the Order of the Court issued on 11 th October 2023.
[c] That the Court be pleased to find and hold that Mr. Solomon Obiero, the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay and Mr. Alphonse Werah , the Chief Officer, Ministry of Finance and Economic Planning, County Government of Homa Bay are in contempt and have disobeyed the Order dated 11 th October 2023.
[d] That Mr. Solomon Obiero , the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay and Mr. Alphonse Werah , the Chief Officer, Ministry of Finance and Economic Planning, County Government of Homa Bay be punished for contempt and be committed to civil jail for a period of not exceeding six (6) months.
[e] That the costs of the application be borne by the respondents.
[2] The application was premised on the grounds that the ex parte applicant (hereinafter, the applicant) filed a suit against the County Government of Homa bay vide Homa Bay High Court Civil Case No. 5 of 2017: Magrose Security Services Limited v The County Government of Homa Bay , seeking payment of Kshs. 43,569,368/= being the outstanding balance and due from the respondent in respect of the subject contract. The applicant averred that a consent judgment was entered in the said suit on 10 th November 2021 in its favour for the sum of Kshs. 15,000,000/= and a decree issued and served on the County Government of Homa Bay.
[3] It was the contention of the applicant that, as a result of the failure by the County Government of Homa Bay to satisfy the aforesaid decree, it was constrained to file the instant application to enforce the Order of Mandamus issued herein on 11 th October 2023. It seeks that Mr. Solomon Obiero , the County Executive Committee Member for Finance, Ministry of Finance and Economic Planning, County Government of Homa Bay and Mr. Alphonse Werah , the Chief Officer, Ministry of Finance and Economic Planning, County Government of Homa Bay, be cited and punished for contempt for having flagrantly disobeyed the Order dated 11 th October 2023.
[4] The application was supported by the affidavit sworn by the Managing Director of the applicant, Mr. Charles Otieno Odongo , sworn on 24 th May 2024 in which the factual background of the application was restated. The applicant also annexed copies of the subject decree as well as the Order dated 11 th October 2023 and posited that it is entitled to the orders sought as no other remedy exists to compel the respondents to carry out their public duty as ordered by the Court.
[5] In response to the application, the respondents filed a Notice of Preliminary Objection dated 10 th June 2024 as well as a Replying Affidavit. The Replying Affidavit was however presented in a format that was inaccessible. In their Preliminary Objection, the respondents contended that:
[a] The entire application dated 24 th May 2024 is an insult to the rules of procedure and therefore ought to be struck out with costs.
[b] That the application is incompetent, fatally and incurably defective for failure to obtain a Certificate of Costs and Certificate of Order against the Government contrary to Section 21 of the Government Proceedings Act.
[6] The Court (Hon. Kiarie, J.) had occasion to consider the points raised in the Notice of Preliminary Objection and made its determination vide the ruling dated 1 st October 2024. The same was dismissed with costs; paving way for the disposal on merits of the Notice of Motion dated 24 th May 2024.
[7] The application was canvassed by way of written submissions, pursuant to the directions given herein on 29 th October 2024. Accordingly, the applicant filed written submissions dated 15 th November 2024. It relied on Samuel M.N. Mweru & others v National Land Commission & others [2020] KEHC 9233 (KLR) (Judicial Review) (17 January 2020) (Ruling) in which the four elements of civil contempt were discussed. On that basis, the applicant submitted that it had demonstrated that:
[a] The terms of the order were clear and unambiguous and binding on the respondents;
[b] the respondents had knowledge or proper notice of the terms of the order;
[c] The respondents acted in breach of the terms of the order; and,
[d] The respondents’ conduct was deliberate.
[8] The applicant relied on the contents of the Order dated 11 th October 2023, marked as Annexure “COO-2” to its Verifying Affidavit to buttress their submission that the terms thereof are clear and unambiguous. It also relied on a copy of the forwarding letter dated 13 th December 2023 to prove that the Order was duly served on the respondents. In terms of deliberate disobedience, the applicant urged the Court to consider the tenor and effect of the averments a paragraphs 10 to 16 of the respondents’ Replying Affidavit. In its submission, the respondents set about impugning the contract as well as the predicate consent judgment and therefore have deliberately declined to pay. The applicant relied on Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR and urged the Court to grant the orders sought.
[9] On their part, the respondents proposed the following issues for determination:
[a] Whether the circumstances giving rise to the judgment upon which these proceedings are hinged are grossly irregular as the respondents never had a chance to present their defence.
[b] Whether the alleged consent entered by the then advocate for the respondents was with the authority of the respondents or just a scheme to siphon public funds.
[c] Whether the applicant has come to court with clean hands.
[d] Whether contempt proceedings can be merited in a scenario where the respondents have made part payment of the sums owing from the judgment.
[e] Whether the Court can set aside the ex parte proceedings and judgment issued on 10 th November 2021 and accord the respondents fair trial based on the glaring irregularities in the previous proceedings leading to the instant application.
[10] The respondents submitted that they have never had a chance to present their defence. They relied on Article 159 of the Constitution and the case of Githiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019 [2023] KESC 41 (KLR) (16 June 2023) as to the right to fair hearing. They further impugned the consent judgment whose payment is being sought by way of Mandamus and submitted that it was just a scheme to siphon public funds. The respondents accused their erstwhile advocate, Mr. Samuel Nyauke , of fraud in connection with the entry of the consent judgment. They relied on Brook Bond Liebig v Mallya [1975] EA 266 and Flora N. Wasike v Destimo Wamboko [1988] eKLR to underscore the principles applicable for setting aside consent judgments.
[11] Based on the foregoing allegations of fraud, the respondents accused the applicant of approaching the Court for a prerogative order with unclean hands. They relied on Caliph Properties Limited v Barbel Sharma & another [2015] eKLR, among other authorities, for an exposition of the maxim that he who comes to equity must do so with clean hands.
[12] On whether the contempt application is merited, granted that part payment has been made and conceded by the applicant, the respondents were of the submission that the instant application is misplaced as there is no proof that they have deliberately or willfully failed to pay. In their view, part payment was an indication of their willingness to obey the Order in issue. They also urged the Court to find that the applicant failed to serve them with the Certificate of Order against the Government as required by Section 21 of the Government Proceedings Act; and therefore the instant application is statute-barred. They prayed for its dismissal with costs.
[13] I have no hesitation in holding that the respondents’ submissions are largely misplaced. Misplaced because the judicial review process has nothing to do with the merits of civil disputes between parties. This was well-explicated in Municipal Council of Mombasa v Republic & Umoja Consultants Limited [2002] eKLR in which the Court of Appeal held that in such applications:
“The court would only be concerned with the process leading to the making of the decision…and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision – and that, as we have said, is not the province of judicial review.”
[14] Similarly, the Court has no jurisdiction to inquire into whether or not the consent judgment sought to be enforced was marred by fraud. Those are issues that ought to have been taken up by the respondents in the primary suit and have no place in the instant matter. In Emfil Limited v The Registrar of Titles Mombasa & 2 Others (2014) eKLR which was cited with approval in Republic v County Government of Mombasa, Ex parte Outdoor Advertising Association of Kenya [2018] eKLR, the court stated:
“Judicial Review proceedings, are proceedings of a sui generis nature subject to its own peculiar rules. While we appreciate Article 159 of the Constitution and the need to apply substantive justice, that article provides no justification for a court to ignore a specific procedure provided by law and deliberately chosen by a litigant, nor does it allow a court to bend backwards to accommodate persons who have deliberately failed to protect or assert their interest.”
[15] The respondents also addressed the Court on the alleged failure by the applicant to obtain or serve a Certificate of Order of Judgment or Costs against the Government pursuant to Section 21(1) of the Government Proceedings Act, contending, and rightly so, that it is a mandatory prerequisite. The issue is however res judicata , the same having been the subject of the Notice of Preliminary Objection dated 10 th June 2024 and the ruling dated 1 st October 2024. If the respondents were aggrieved by that decision, then their option ought to have been on appeal instead.
[16] In Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others) Civil Appeal No. 36 of 1996), the Court of Appeal made it clear that:
"There is not one case cited to show that an application in a suit once decided by courts of competent jurisdiction can be filed once again for rehearing. This shows only one intention on the part of the legislature in India and our Civil Procedure Act. That is to say, there must be an end to applications of a similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention we can imagine that the courts could and would be inundated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation..."
[17] Turning now to the merits or otherwise of the contempt application, needless to mention that, following the nullification of the Contempt of Court Act, 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...”
[18] 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.”
[19] 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.
[20] 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)
[21] Accordingly, granted the issues raised by the respondents in their Grounds of Opposition, Replying Affidavit and submissions, 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 vs. Kapurchand Depar Shah [2016] eKLR)
[22] The applicant annexed copies of the order in question to its Supporting Affidavit. The terms are unambiguous and clear. The applicant also demonstrated that the respondents were served with the Order on 13 th December 2023 and therefore has all along had knowledge of the order. Such knowledge is demonstrated by the fact that the County Government of Homa Bay admittedly made part payment of the judgment debt and explained, at paragraphs 10 to 16 of the Replying Affidavit, why it has not been able to fully satisfy the decree. It is also notable that the decretal amount was the subject of a consent judgment.
[23] It is plain therefore that the respondents have been aware of the subject order since 13 th December 2023. No attempt has been made to comply therewith. While it is true that the County Government of Homa Bay relies on voted funds which must be approved annually, it failed to demonstrate that the judgment sum in issue was included in the budget cycles that followed the order. 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.
[24] In this instance it is plain that the only way of enforcement of the Order dated 11 th October 2023 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.”
[25] 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.
[26] 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.”
[27] 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.”
[28] In the premises, I am satisfied that the applicant has satisfied the conditions precedent to the issuance of the orders prayed for herein. In the result, the Notice of Motion dated 24 th May 2024 is hereby allowed and orders granted as follows:
[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 cited for contempt of court for failing to pay the ex parte applicant Kshs. 15,000,000/= being the amount due to the ex parte applicant as per the Order of the Court issued on 11 th October 2023.
[d] 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.
[e] 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 26 TH DAY OF JUNE 2025