Republic VS County Secretary, Kisumu County AND Chief Officer Finance, Kisumu County AND 1 Others

IN THE MATTER OF AN APPLICATION BY ELYCO MOTORS LIMITED FOR A JUDICIAL REVIEW ORDER OF MANDAMUS

AND

IN THE MATTER OF SCTION 21(3) OF THE GOVERNMENT PROCEEDINGS ACT CAP 40

AND

IN THE MATTER OF SECTIONS 8 &9 OF THHE LAW REFORM ACT, CHAPTER 26 LAWS OF KENYS

AND

IN THE MATTER OF SECTIONS 7, 8 & 9 OF THE FAIR ADMIISTRATIVE ACTION ACT NO. 4 OF 2015

AND

IN THE MATTER OF ORDER 22 AND 29 OF THE CIVIL PROCEDURE ACT CAP 21

AND

IN THE MATTER OF ORDER 53(1) OF THE CIVIL PROCEDURE RULES, 2010

AND

IN THEATTER OF EXECUTION OF THE DECRETAL SUM OF Ksh,1,380,116/=

AND

IN THE MATTER OF ARTICLES 2, 0, 22, 23(1), 27(1), 47, 48, 50(1), 73, 156, 162 AND 165(3) AND 232 OF THE CONSTITUTION OF KENYA 2010

AND IN THE MATTER OF CONTEMPT APPLICATION

1. I have considered the ex parte Applicant’s notice of motion dated 2^nd June, 2022 brought under the provisions of Order 40 Rule 3 of the Civil Procedure Rules 2010 and Section 5 of the Judicature Act and the affidavit in support thereof sworn by Elly Otieno on even date, wherein the Applicant seeks the following orders:
2. Both the holders of the offices of the County Secretary, Kisumu County and Chief Officer Finance, Kisumu County be cited for contempt and be committed to civil jail for a period of 6 months for willful disobedience of the order of this Honourable Court issued on 30^th March 2022 requiring them to pay Ksh,1,380,116 (Kenya Shillings one million three hundred and eighty thousands one hundred and sixteen only) together with Ksh.724,560 (Kenya Shillings seven hundred and twenty four thousands, five hundred and sixty only) being interest thereon at 14% per annum from 1^st October 2018 to-date, together with costa taxed and certified costs of Ksh.163,000 (Kenya Shillings one hundred and sixty three thousands only) plus Ksh.20,856 being interest payable on the said costs from 29^th July, 2021 to-date.
3. In the alternative, this court to issue an order of sequestration of the personal properties of the holders of the office of the County Secretary Kisumu County and the Chief Officer Finance, Kisumu County in order to satisfy the decree/certificate of costs order against the Government issued on 30^th July, 2021.
4. The said officers be ordered to purge the contempt.
5. The County Government of Kisumu be ordered to meet the costs of this application
6. Whereas this application was duly served upon the Respondent and directions given on 4^th July, 2023, the Respondent had adopted not to resist this application.
7. The ex parte Applicant has duly complied with the directions of this court made on the aforestated date and has duly filed its submissions.
8. The genesis of this application is a judgment entered in favour of the ex parte Applicant in Kisumu CMCC No. 238 of 2021:  Elyco Motors Limited –versus- County Government of Kisumu for a sum of Ksh.1,380,116 plus interest at the rate of 14% per annum calculated from 1^st October 2018 until payment in full, costs and interest on costs from 29^th July 2021 until payment in full.
9. Upon delivery of judgment the trial court duly complied with the provisions of Section 21 of the Government Proceedings Act (CAP 40 Laws of Kenya) and issued in ex parte Applicant with a certificate of order against the Government dated 30^th July, 2021.
10. The Respondents were duly served through the County Attorney with the certificate of order against Government on 4^th August 2021 but failed to settle the decretal sum whereafter the ex parte Applicant obtained leave of court on 8/12/2021 to seek orders of judicial review vide Kisumu High Court J. R. Misc. A. No. 007 of 2021, and it thus filed this Judicial review application seeking orders of mandamus.
11. On 22^nd March 2022 this court allowed the ex parte Applicants said application and orders of mandamus were issued against the Respondents jointly and severally, yet to-date they have failed to settle the judgment sum, certified costs and interest.
12. Given the existence of a valid court order which has been duly served upon the Respondents and given their continued failure to comply with the order of mandamus I do hereby find the Respondent in contempt of court.
13. Mention on 11/6/2024 for sentencing.

Dated, signed and delivered at Kisumu this 31^st day of May, 2024