1. The application before court is a motion dated 24 April 2024 expressed to be brought under Rules 39,40 and 41 of the High Court (Organisation and Administration) General Rules. The applicant seeks the following orders:
“1. THAT this application be certified urgent service be dispensed with and heard ex-parte in the 1ˢᵗ instance.
2. THAT this Honourable Court be pleased to issue Notice to Show cause Order against the Chief Officer Finance-Aisha Abdi And County Secretary, Patricia Akivaga Analo County Government of Nairobi to attend Court and show cause why he should not be cited for contempt of court order issued on the 17th December 2020.
3. THAT the Honourable Court be pleased to find the Chief Officer Finance-Aisha Abdi And County Secretary, Patricia Akivaga Analo in contempt of Court for willful and deliberate disobedience of the court's Decree dated 17ᵗʰ December 2020.
4. THAT the Chief Officer Finance-Aisha Abdi And County Secretary, Patricia Akivaga Analo County Government of Nairobi be committed to civil jail on such terms as the Honurable Court may deem fit unless and until they purge the contempt by honoring the court's order dated 17ᵗʰ December 2020”
2. The motion is supported by an affidavit by Mr. Seth Ojienda who has sworn that he is an advocate of this Honourable Court and the proprietor of M/s. Ojienda & Company Advocates. According to Mr. Ojienda’s affidavit, this Honourable Court issued a decree on 17 December 2020 compelling the Chief Officer, Finance and County Secretary, County Government of Nairobi, to effect payment of One Hundred and Sixteen Thousand One hundred and ninety-two shillings (Ksh. 116,192.00) to his firm of Advocates. The decree was issued in High Court Misc. Case no. 130 of 2015; Ojienda & Co. Advocates versus City County of Nairobi, on 15 April 2016.
3. The respondent’s officers who are alleged to have been directed to make the payments are those who have been identified in the prayers in the application as Aisha Abdi and Patricia Akivaga Analo. It is the applicant’s case that despite the decree endorsed with the penal notice having been extracted and served upon these officers, they have failed to settle the decretal amount and hence disobeyed the decree.
4. The applicant contends that the respondent’s Chief Officer Finance and the County Secretary, have connived to ignore the court order and failed to take necessary steps to settle the decree of 17 December 2020. It is for this reason that the applicant is seeking an order to find the two officers in contempt of court and, therefore, they ought to be committed to civil jail on such terms as this Honourable Court may deem fit unless the contempt is purged.
5. No response was filed to the application and when the application came up for hearing on 10 July 2004, Mr. Ayugi, the learned counsel for the applicant submitted as follows:
“There were problems of serving the officers cited for contempt. The application is dated 24 April 2024. The officers have been served with the orders issued on 17 December 2020. The order was served on…. It is not clear on the face of the application. We have not indicated when the order was served. There are just letters. No affidavit of service is attached.”
6. An application similar to the one before court and more particularly dated 16 November 2023 was dismissed in a ruling I rendered on 19 April 2024. The only difference in this application is that it is now stated to have been brought under Rules 39,40 and 41 of the High Court (Organisation and Administration) General Rules. The previous application was filed under sections 1A, 1B, 3A of the Civil Procedure Act, cap. 21. Another addition to this application is the names of the officers who are alleged to have disobeyed the court decree.
7. In dismissing the application of 16 November 2023, I noted that there was no proof that the alleged contemnors were served with the order or decree they are said to be in contempt of. I also noted that the alleged contemnors had not even been named in the application as respondents. In these proceedings, they have been named in the prayers and in the affidavit in support of the application but they have not yet been named as parties in the application. Naming the alleged contemnors in the prayers without them being named as parties in the proceedings is not sufficient.
8. More importantly, even if the alleged contemnors had been named as parties, it has been admitted by the applicant’s learned counsel that they were not served with the decree.
9. The other reason for dismissal of the applicant’s previous application was that it was apparent on the face of the decree that, the decree was not indorsed with the penal notice, warning the alleged contemnors that disobedience of the decree would be in contempt of court and would attract penal consequences. In the absence of this indorsement, I noted, service of the decree, would have been of no consequence as far as contempt of court proceedings are concerned.
10. Nothing has changed in this application. The order has not been served and it is also lacking in indorsement of the penal notice. The applicant seems not to have taken any cue from the ruling of 19 April 2024. It follows that this application has to fall for the same reasons the application dated 16 November 2023 fell. It is hereby dismissed for being incompetent. I make no order as to costs. It is so ordered.
“1. THAT this application be certified urgent service be dispensed with and heard ex-parte in the 1ˢᵗ instance.
2. THAT this Honourable Court be pleased to issue Notice to Show cause Order against the Chief Officer Finance-Aisha Abdi And County Secretary, Patricia Akivaga Analo County Government of Nairobi to attend Court and show cause why he should not be cited for contempt of court order issued on the 17th December 2020.
3. THAT the Honourable Court be pleased to find the Chief Officer Finance-Aisha Abdi And County Secretary, Patricia Akivaga Analo in contempt of Court for willful and deliberate disobedience of the court's Decree dated 17ᵗʰ December 2020.
4. THAT the Chief Officer Finance-Aisha Abdi And County Secretary, Patricia Akivaga Analo County Government of Nairobi be committed to civil jail on such terms as the Honurable Court may deem fit unless and until they purge the contempt by honoring the court's order dated 17ᵗʰ December 2020”
2. The motion is supported by an affidavit by Mr. Seth Ojienda who has sworn that he is an advocate of this Honourable Court and the proprietor of M/s. Ojienda & Company Advocates. According to Mr. Ojienda’s affidavit, this Honourable Court issued a decree on 17 December 2020 compelling the Chief Officer, Finance and County Secretary, County Government of Nairobi, to effect payment of One Hundred and Sixteen Thousand One hundred and ninety-two shillings (Ksh. 116,192.00) to his firm of Advocates. The decree was issued in High Court Misc. Case no. 130 of 2015; Ojienda & Co. Advocates versus City County of Nairobi, on 15 April 2016.
3. The respondent’s officers who are alleged to have been directed to make the payments are those who have been identified in the prayers in the application as Aisha Abdi and Patricia Akivaga Analo. It is the applicant’s case that despite the decree endorsed with the penal notice having been extracted and served upon these officers, they have failed to settle the decretal amount and hence disobeyed the decree.
4. The applicant contends that the respondent’s Chief Officer Finance and the County Secretary, have connived to ignore the court order and failed to take necessary steps to settle the decree of 17 December 2020. It is for this reason that the applicant is seeking an order to find the two officers in contempt of court and, therefore, they ought to be committed to civil jail on such terms as this Honourable Court may deem fit unless the contempt is purged.
5. No response was filed to the application and when the application came up for hearing on 10 July 2004, Mr. Ayugi, the learned counsel for the applicant submitted as follows:
“There were problems of serving the officers cited for contempt. The application is dated 24 April 2024. The officers have been served with the orders issued on 17 December 2020. The order was served on…. It is not clear on the face of the application. We have not indicated when the order was served. There are just letters. No affidavit of service is attached.”
6. An application similar to the one before court and more particularly dated 16 November 2023 was dismissed in a ruling I rendered on 19 April 2024. The only difference in this application is that it is now stated to have been brought under Rules 39,40 and 41 of the High Court (Organisation and Administration) General Rules. The previous application was filed under sections 1A, 1B, 3A of the Civil Procedure Act, cap. 21. Another addition to this application is the names of the officers who are alleged to have disobeyed the court decree.
7. In dismissing the application of 16 November 2023, I noted that there was no proof that the alleged contemnors were served with the order or decree they are said to be in contempt of. I also noted that the alleged contemnors had not even been named in the application as respondents. In these proceedings, they have been named in the prayers and in the affidavit in support of the application but they have not yet been named as parties in the application. Naming the alleged contemnors in the prayers without them being named as parties in the proceedings is not sufficient.
8. More importantly, even if the alleged contemnors had been named as parties, it has been admitted by the applicant’s learned counsel that they were not served with the decree.
9. The other reason for dismissal of the applicant’s previous application was that it was apparent on the face of the decree that, the decree was not indorsed with the penal notice, warning the alleged contemnors that disobedience of the decree would be in contempt of court and would attract penal consequences. In the absence of this indorsement, I noted, service of the decree, would have been of no consequence as far as contempt of court proceedings are concerned.
10. Nothing has changed in this application. The order has not been served and it is also lacking in indorsement of the penal notice. The applicant seems not to have taken any cue from the ruling of 19 April 2024. It follows that this application has to fall for the same reasons the application dated 16 November 2023 fell. It is hereby dismissed for being incompetent. I make no order as to costs. It is so ordered.