'
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
HCJR MISC. CASE NO. E001 OF 2025
NJERI LOWASA KASULA (Suing as the Legal Representative and Administrator of the estate of ANDREA INGALALO
(Deceased)…….………………………….... ……………APPLICANT
VERSUS
COUNTY GOVERNMENT OF
MARSABIT……………………………………………...RESPONDENT
RULING
INTRODUCTION
The application before court for determination is the one dated 22.10.2025 filed under the provisions of Section 3A of the Civil Procedure Act, Order 22 Rule 8, Order 34 Rule 5, Order 51 Rule1 of the Civil Procedure Rules and all other enabling provisions of law. The applicant seeks for orders that the County Executive Committee in charge of Finance, Marsabit County Government to show cause why he should not be committed to Civil jail for not settling the Consent judgment obtained herein, and that if the said officer fails to show cause he be committed to Civil jail until such a time that he settles the said decree.
The said Application is supported by the grounds stated on the face of the said Application and the supporting affidavit of the Applicant, Njeri Lowasa Kasula , who depones that the parties herein did record a consent on 21 st May 2025, where the respondent expressly agreed to pay her a sum of Kshs. 3,359,816.00/= on or before 15 th October 2025, which amount includes the decretal sum, costs and interest of the suit filed before the Magistrates court and cost of the Judicial Review Application.
The respondent had failed to settle the said sum within the agreed period and thus they had to file this Application to enforce the said consent.
This Application was opposed by the respondent, through the replying affidavit dated 3 rd November, 2025 sworn by the CEC for Finance and Economic Development Mr. Fundi Hussein Hussein , who deponed that the said application was incompetent, incurably defective, premature and constituted an abuse of the process of the court as the prayers sought were not anchored in law and/or that the provisions of the law cited were irrelevant and inapplicable in the present case.
Further he did aver that, as at the time the consent judgment was entered into, he was not the CEC Finance and Economic Planning and had assumed office in July, 2025 and was subsequently brief by the County Attorney of the pending decrees, which needed to be settled. He noted that though they had all the intentions of settling the said decree, he had experienced a challenge as his predecessor had not factored in the same in the Financial year 2025/2026 budget, which commenced on 1 st July, 2025 before he assumed office.
He had also been advised by the County Attorney, that the consent dated 20 th May 2025, merely granted the applicant liberty to pursue contempt proceedings in event of default, and not to have him committed to civil jail outright, without due process. The applicant had also failed to personally serve him with the court order nor had they particularized the acts and/or omissions of contempt attributed to him to justify his committal to civil jail. He thus urged the court to find that the said application was misconceived and urged the court to dismiss the same.
B . DETERMINATION .
The terms of the consent dated 21 st May 2025, were clear on the sums due, timelines for payment and who was responsible for settling the same. The respondent has not honored their part of the bargain and the excuse proffered that no budgetary allocation was made hold no water, as it is common knowledge that County Governments do time and again forward supplementary budgets to the Assembly for approval.
Secondly, the issue of personal service of the consent order upon the CEC Finance and Economic Planning does not arise, as the consent was jointly signed by both counsels and adopted in court in their presence. Be that as it may before the NTSC can issue, the applicant must show that they have complied with provisions of Section by Section 21(3) of the Government Proceedings Act, Cap 40, which are mandatory in nature and apply to both levels of government. See the holding in Republic v Attorney General & another ex-parte Stephen Wanyee Roki [2016] Eklr .
The Applicant will therefore extract and serve the respondent with the certificate of order against the government within the next fourteen (14) days and in the interest of justice the respondent is granted a further sixty (60) days from the date of being served with the said documents to settle this decree, failure of which N.T.S.C will issue.
It is so Ordered
READ, SIGNED, and DELIVERED virtually at MARSABIT on this ……………. day of NOVEMBER 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this ………day of NOVEMBER 2025.
In the presence of : -
………………………………………………….Appellant
………………………………………………..Respondent
…………………………………………… Court Assistant
'
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
HCJR MISC. CASE NO. E001 OF 2025
NJERI LOWASA KASULA (Suing as the Legal Representative and Administrator of the estate of ANDREA INGALALO
(Deceased)…….………………………….... ……………APPLICANT
VERSUS
COUNTY GOVERNMENT OF
MARSABIT……………………………………………...RESPONDENT
RULING
INTRODUCTION
The application before court for determination is the one dated 22.10.2025 filed under the provisions of Section 3A of the Civil Procedure Act, Order 22 Rule 8, Order 34 Rule 5, Order 51 Rule1 of the Civil Procedure Rules and all other enabling provisions of law. The applicant seeks for orders that the County Executive Committee in charge of Finance, Marsabit County Government to show cause why he should not be committed to Civil jail for not settling the Consent judgment obtained herein, and that if the said officer fails to show cause he be committed to Civil jail until such a time that he settles the said decree.
The said Application is supported by the grounds stated on the face of the said Application and the supporting affidavit of the Applicant, Njeri Lowasa Kasula , who depones that the parties herein did record a consent on 21 st May 2025, where the respondent expressly agreed to pay her a sum of Kshs. 3,359,816.00/= on or before 15 th October 2025, which amount includes the decretal sum, costs and interest of the suit filed before the Magistrates court and cost of the Judicial Review Application.
The respondent had failed to settle the said sum within the agreed period and thus they had to file this Application to enforce the said consent.
This Application was opposed by the respondent, through the replying affidavit dated 3 rd November, 2025 sworn by the CEC for Finance and Economic Development Mr. Fundi Hussein Hussein , who deponed that the said application was incompetent, incurably defective, premature and constituted an abuse of the process of the court as the prayers sought were not anchored in law and/or that the provisions of the law cited were irrelevant and inapplicable in the present case.
Further he did aver that, as at the time the consent judgment was entered into, he was not the CEC Finance and Economic Planning and had assumed office in July, 2025 and was subsequently brief by the County Attorney of the pending decrees, which needed to be settled. He noted that though they had all the intentions of settling the said decree, he had experienced a challenge as his predecessor had not factored in the same in the Financial year 2025/2026 budget, which commenced on 1 st July, 2025 before he assumed office.
He had also been advised by the County Attorney, that the consent dated 20 th May 2025, merely granted the applicant liberty to pursue contempt proceedings in event of default, and not to have him committed to civil jail outright, without due process. The applicant had also failed to personally serve him with the court order nor had they particularized the acts and/or omissions of contempt attributed to him to justify his committal to civil jail. He thus urged the court to find that the said application was misconceived and urged the court to dismiss the same.
B . DETERMINATION .
The terms of the consent dated 21 st May 2025, were clear on the sums due, timelines for payment and who was responsible for settling the same. The respondent has not honored their part of the bargain and the excuse proffered that no budgetary allocation was made hold no water, as it is common knowledge that County Governments do time and again forward supplementary budgets to the Assembly for approval.
Secondly, the issue of personal service of the consent order upon the CEC Finance and Economic Planning does not arise, as the consent was jointly signed by both counsels and adopted in court in their presence. Be that as it may before the NTSC can issue, the applicant must show that they have complied with provisions of Section by Section 21(3) of the Government Proceedings Act, Cap 40, which are mandatory in nature and apply to both levels of government. See the holding in Republic v Attorney General & another ex-parte Stephen Wanyee Roki [2016] Eklr .
The Applicant will therefore extract and serve the respondent with the certificate of order against the government within the next fourteen (14) days and in the interest of justice the respondent is granted a further sixty (60) days from the date of being served with the said documents to settle this decree, failure of which N.T.S.C will issue.
It is so Ordered
READ, SIGNED, and DELIVERED virtually at MARSABIT on this ……………. day of NOVEMBER 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this ………day of NOVEMBER 2025.
In the presence of : -
………………………………………………….Appellant
………………………………………………..Respondent
…………………………………………… Court Assistant
'