1. A Decree was issued by this court on 30th July 2024. It was served upon the Respondents on 10th September 2024. The decree was re-served on 11th December 2024, alongside a certificate of Taxation.
2. The lack of response has precipitated the filing of the Application dated 19thDecember 2024 wherein the applicant seeks the following orders:
1) ….spent.
2) That this Honourable Court be pleased to cite the County Secretary Nairobi City County and the Chief Officer, Finance/County Treasurer Nairobi City County for being in contempt of court of the judgment and orders dated 30th July 2024 and punish them for having deliberately disobeyed the order of this Honourable Court.
3) That Summons be issued against the said County Secretary Nairobi City County and the Chief Officer, Finance/County Treasurer Nairobi City County to appear before this court and show cause why they should not be committed to civil jail.
4) That the County Secretary – Nairobi City County and The Chief Officer – Finance Nairobi City County be punished for contempt of court and be committed to civil jail for a period not exceeding six (6) months.
5) That the costs be borne by the Respondents.
6) That this Honourable Court do give any other or further order that this Honourable Court may deem fit and just.
3. In opposing the application, the respondent raised the following grounds:
1) That the Applicants have not shown that they served the decree and orders sought to be enforced herewith upon the officers that they now want this honorable court to summons for purposes of showing cause. The rules of Natural justice presuppose that a person against whom an order is sought is first served and made aware of an order before proceedings can be instituted and carried on against them.
2) That the Application is misconceived in so far as it is directed upon the County Secretary as the County Secretary is not an accounting officer and neither is he the contemplated accounting officer under the provisions of Section 148 of the Public Finance Management Act. The County Secretary should hence be struck out from these proceedings as he is non-suited.
3) That the Respondents oppose the Application herewith as there is no evidence provided to this Honorable court to show that there has been a deliberate failure and /or refusal by the Respondents to pay the decretal sum herein.
4) That the Applicants have failed to give sufficient time to the Respondents to first obtain the funds as decreed in the matter to enable any payment to them.
5) That the 1st Respondent does not have money available for payment of decrees immediately they are issued but can only provide for the same in its annual budgets once they have crystallized.
6) That all payments are from the taxpayer’s funds and this is only payable upon allocation for the specific function first in the annual budget and secondly upon disbursement by the exchequer.
7) That as things stand, the exchequer has not yet provided the sums claimed herein and the same can only be paid once the monies for the same are availed from the treasury.
Analysis and determination:
The court finds the following to be the issue for determination;
1. Whether the orders sought can be granted.
2. Who shall be the costs.
Whether the orders sought can be granted.
4. The court is satisfied that the Applicants served upon the Respondents, the Decree dated 13th August 2024, emanating from a Judgment delivered on 30th July 2024, and a certificate of costs and a covering letter dated 10/9/2024 with instructions from the Applicant’s firm of Advocates to effect the service on the Respondents.
5. This is gleaned from the Affidavit of service sworn by one Dismas Mutinda, dated 17th December 2024. The court is further satisfied that the Respondents are aware of the Decree since they cannot be asking for time to settle what they didn’t know about.
6. Ibrahim J (as he then was) in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KEHC 1767 (KLR) cited with approval the Court of Appeal decision in Gulabchand Popatlal Shah & Another Civil Application No. 39 Of 1990, (unreported) in stating as follows:
“…… It is essential for the maintenance of the Rule of Law and good order that the authority and dignity of our courts are upheld at all times. This court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors ……”
In HADKINSON –V- HADKINSON (1952) 2 All ER. 567, it was held that: “It is plain and unqualified obligation of every person against or in respect of, who 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.”
7. Court orders have to be obeyed at all times.
8. The Respondents relied on the defence that the Applicants have failed to give sufficient time to the Respondents to first obtain the funds as decreed in the matter to enable any payment to them.
9. The Respondent further raised the ground that the 1st Respondent does not have money available for payment of decrees immediately they are issued but can only provide for the same in its annual budgets once they have crystallized.
10. They further advanced the ground that all payments are from the taxpayer’s funds and this is only payable upon allocation for the specific function first in the annual budget and secondly upon disbursement by the exchequer.
11. They finally advanced the ground that as things stand, the exchequer has not yet provided the sums claimed herein and the same can only be paid once the monies for the same are availed from the treasury.
12. No evidence was advanced by the respondents to demonstrate to the court that they have revenue challenges in whatsoever.
13. In the case of Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR held as follows on the issue of budgetary allocation;
“The defence of non-allocation of funds by Parliament was also raised by the Respondent in the present application in his replying affidavit. Odunga J. in his ruling of 12th February 2018 extensively dealt with the defence as follows:
“As regards lack of budgetary allocation, Githua, J in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR expressed herself as follows:
“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, Section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.” [Emphasis mine].
26. I associate with the said decision and it is therefore my view that settlement of decretal sum by the Government whether National or County does not necessarily depend on the availability of funds. This position was appreciated by this Court in Wachira Nderitu, Ngugi & Co. Advocates vs. The Town Clerk, City Council of Nairobi Miscellaneous Application No. 354 of 2012 in which this Court pronounced itself as follows:
“I have however considered the other issues raised by the respondent with respect to its debt portfolio as against its financial resources. It is neither in the interest of this Court nor that of the ex parte applicant that the respondent should be brought to its knees. The Court appreciates and it is a matter of judicial notice that most of the local authorities are reeling under the weight of the debts accrued by their predecessors and that they are trying to find their footing in the current governmental set up. Accordingly, I am satisfied based on the material on record that the respondent ought to be given some breathing space to arrange its finances and settle the sum due herein.”
27. In my view a party facing financial constraints is at liberty to move the Court for appropriate orders which would enable it to settle its obligations while staying afloat. That however, is not a reason for one to evade its responsibility to settle such obligations. In other words, financial difficulty is only a consideration when it comes to determining the mode of settlement of a decree but is not a basis for declining to compel the Respondent to settle a sum decreed by the Court to be due from it. That objection therefore fails.”
48. Non-allocation of funds by Parliament is not an acceptable defence or justifiable excuse for non-payment of decretal sums ordered to be paid by Government officials, in the absence of any evidence of any attempts made by the responsible Government official to commence the process of such allocation. In the present case, this is particularly relevant given that the present contempt of Court proceedings commenced in April 2017, and the Respondent did not indicate what steps if any, have been taken since then to effect payment of the monies due to the Applicant.”
14. This court is in agreement with the above findings. The Respondents’ grounds that they lacks budgetary allocation without proof is not a valid reason for failing to comply with this court’s orders and I so hold.
15. The argument that they lack resources cannot come to the respondent’s aid.
16. In Republic V County Secretary Nairobi City County 2 Others Ex Parte Koceyo And Co advocates 2018KEHC6445 (KLR) the learned Judge, in finding the County Secretary obligated to satisfy a decree, had the following to say:
19. As regards who the accounting officers of the Nairobi City County, section 44 of the County Government Act establishes the office of the County Secretary who is secretary to the County executive Committee, and is answerable for the operations of the County Executive, and whose functions include being head of the county public service. Section 103 of the Public Finance Management Act No 18 of 2012 also establishes the County Treasury comprising of the County Executive member of Finance, the Chief Officer and the departments of the County Treasury responsible for finance and fiscal matters.
20. Under section 103(3) the County Executive Committee Member for Finance is the head of Treasury and is thus the responsible for finance matters in the County. Therefore, both the 1st and 2nd Respondents are jointly responsible for the satisfaction of Court orders and decrees on payment of money owed by the 3rd Respondent by virtue of their roles and functions.
Costs:
17. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:
“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
Disposition;
18. The application is partly successful.
Order;
1) The County Secretary Nairobi City County and the Chief Officer, Finance/County Treasurer Nairobi City County are hereby cited for being in contempt of court of the judgment and orders dated 30th July 2024.
2) Summons are hereby issued against the said County Secretary Nairobi City County and the Chief Officer, Finance/County Treasurer Nairobi City County to appear before this court and show cause on 15.4.26 to Show cause why they should not be committed to civil jail.
3) The prayer that the County Secretary – Nairobi City County and The Chief Officer – Finance Nairobi City County be punished for contempt of court and be committed to civil jail for a period not exceeding six (6) months will abide the outcome of order 2.
4) The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 23rd day of March, 2026.
2. The lack of response has precipitated the filing of the Application dated 19thDecember 2024 wherein the applicant seeks the following orders:
1) ….spent.
2) That this Honourable Court be pleased to cite the County Secretary Nairobi City County and the Chief Officer, Finance/County Treasurer Nairobi City County for being in contempt of court of the judgment and orders dated 30th July 2024 and punish them for having deliberately disobeyed the order of this Honourable Court.
3) That Summons be issued against the said County Secretary Nairobi City County and the Chief Officer, Finance/County Treasurer Nairobi City County to appear before this court and show cause why they should not be committed to civil jail.
4) That the County Secretary – Nairobi City County and The Chief Officer – Finance Nairobi City County be punished for contempt of court and be committed to civil jail for a period not exceeding six (6) months.
5) That the costs be borne by the Respondents.
6) That this Honourable Court do give any other or further order that this Honourable Court may deem fit and just.
3. In opposing the application, the respondent raised the following grounds:
1) That the Applicants have not shown that they served the decree and orders sought to be enforced herewith upon the officers that they now want this honorable court to summons for purposes of showing cause. The rules of Natural justice presuppose that a person against whom an order is sought is first served and made aware of an order before proceedings can be instituted and carried on against them.
2) That the Application is misconceived in so far as it is directed upon the County Secretary as the County Secretary is not an accounting officer and neither is he the contemplated accounting officer under the provisions of Section 148 of the Public Finance Management Act. The County Secretary should hence be struck out from these proceedings as he is non-suited.
3) That the Respondents oppose the Application herewith as there is no evidence provided to this Honorable court to show that there has been a deliberate failure and /or refusal by the Respondents to pay the decretal sum herein.
4) That the Applicants have failed to give sufficient time to the Respondents to first obtain the funds as decreed in the matter to enable any payment to them.
5) That the 1st Respondent does not have money available for payment of decrees immediately they are issued but can only provide for the same in its annual budgets once they have crystallized.
6) That all payments are from the taxpayer’s funds and this is only payable upon allocation for the specific function first in the annual budget and secondly upon disbursement by the exchequer.
7) That as things stand, the exchequer has not yet provided the sums claimed herein and the same can only be paid once the monies for the same are availed from the treasury.
Analysis and determination:
The court finds the following to be the issue for determination;
1. Whether the orders sought can be granted.
2. Who shall be the costs.
Whether the orders sought can be granted.
4. The court is satisfied that the Applicants served upon the Respondents, the Decree dated 13th August 2024, emanating from a Judgment delivered on 30th July 2024, and a certificate of costs and a covering letter dated 10/9/2024 with instructions from the Applicant’s firm of Advocates to effect the service on the Respondents.
5. This is gleaned from the Affidavit of service sworn by one Dismas Mutinda, dated 17th December 2024. The court is further satisfied that the Respondents are aware of the Decree since they cannot be asking for time to settle what they didn’t know about.
6. Ibrahim J (as he then was) in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KEHC 1767 (KLR) cited with approval the Court of Appeal decision in Gulabchand Popatlal Shah & Another Civil Application No. 39 Of 1990, (unreported) in stating as follows:
“…… It is essential for the maintenance of the Rule of Law and good order that the authority and dignity of our courts are upheld at all times. This court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors ……”
In HADKINSON –V- HADKINSON (1952) 2 All ER. 567, it was held that: “It is plain and unqualified obligation of every person against or in respect of, who 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.”
7. Court orders have to be obeyed at all times.
8. The Respondents relied on the defence that the Applicants have failed to give sufficient time to the Respondents to first obtain the funds as decreed in the matter to enable any payment to them.
9. The Respondent further raised the ground that the 1st Respondent does not have money available for payment of decrees immediately they are issued but can only provide for the same in its annual budgets once they have crystallized.
10. They further advanced the ground that all payments are from the taxpayer’s funds and this is only payable upon allocation for the specific function first in the annual budget and secondly upon disbursement by the exchequer.
11. They finally advanced the ground that as things stand, the exchequer has not yet provided the sums claimed herein and the same can only be paid once the monies for the same are availed from the treasury.
12. No evidence was advanced by the respondents to demonstrate to the court that they have revenue challenges in whatsoever.
13. In the case of Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR held as follows on the issue of budgetary allocation;
“The defence of non-allocation of funds by Parliament was also raised by the Respondent in the present application in his replying affidavit. Odunga J. in his ruling of 12th February 2018 extensively dealt with the defence as follows:
“As regards lack of budgetary allocation, Githua, J in Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR expressed herself as follows:
“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, Section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.” [Emphasis mine].
26. I associate with the said decision and it is therefore my view that settlement of decretal sum by the Government whether National or County does not necessarily depend on the availability of funds. This position was appreciated by this Court in Wachira Nderitu, Ngugi & Co. Advocates vs. The Town Clerk, City Council of Nairobi Miscellaneous Application No. 354 of 2012 in which this Court pronounced itself as follows:
“I have however considered the other issues raised by the respondent with respect to its debt portfolio as against its financial resources. It is neither in the interest of this Court nor that of the ex parte applicant that the respondent should be brought to its knees. The Court appreciates and it is a matter of judicial notice that most of the local authorities are reeling under the weight of the debts accrued by their predecessors and that they are trying to find their footing in the current governmental set up. Accordingly, I am satisfied based on the material on record that the respondent ought to be given some breathing space to arrange its finances and settle the sum due herein.”
27. In my view a party facing financial constraints is at liberty to move the Court for appropriate orders which would enable it to settle its obligations while staying afloat. That however, is not a reason for one to evade its responsibility to settle such obligations. In other words, financial difficulty is only a consideration when it comes to determining the mode of settlement of a decree but is not a basis for declining to compel the Respondent to settle a sum decreed by the Court to be due from it. That objection therefore fails.”
48. Non-allocation of funds by Parliament is not an acceptable defence or justifiable excuse for non-payment of decretal sums ordered to be paid by Government officials, in the absence of any evidence of any attempts made by the responsible Government official to commence the process of such allocation. In the present case, this is particularly relevant given that the present contempt of Court proceedings commenced in April 2017, and the Respondent did not indicate what steps if any, have been taken since then to effect payment of the monies due to the Applicant.”
14. This court is in agreement with the above findings. The Respondents’ grounds that they lacks budgetary allocation without proof is not a valid reason for failing to comply with this court’s orders and I so hold.
15. The argument that they lack resources cannot come to the respondent’s aid.
16. In Republic V County Secretary Nairobi City County 2 Others Ex Parte Koceyo And Co advocates 2018KEHC6445 (KLR) the learned Judge, in finding the County Secretary obligated to satisfy a decree, had the following to say:
19. As regards who the accounting officers of the Nairobi City County, section 44 of the County Government Act establishes the office of the County Secretary who is secretary to the County executive Committee, and is answerable for the operations of the County Executive, and whose functions include being head of the county public service. Section 103 of the Public Finance Management Act No 18 of 2012 also establishes the County Treasury comprising of the County Executive member of Finance, the Chief Officer and the departments of the County Treasury responsible for finance and fiscal matters.
20. Under section 103(3) the County Executive Committee Member for Finance is the head of Treasury and is thus the responsible for finance matters in the County. Therefore, both the 1st and 2nd Respondents are jointly responsible for the satisfaction of Court orders and decrees on payment of money owed by the 3rd Respondent by virtue of their roles and functions.
Costs:
17. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:
“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
Disposition;
18. The application is partly successful.
Order;
1) The County Secretary Nairobi City County and the Chief Officer, Finance/County Treasurer Nairobi City County are hereby cited for being in contempt of court of the judgment and orders dated 30th July 2024.
2) Summons are hereby issued against the said County Secretary Nairobi City County and the Chief Officer, Finance/County Treasurer Nairobi City County to appear before this court and show cause on 15.4.26 to Show cause why they should not be committed to civil jail.
3) The prayer that the County Secretary – Nairobi City County and The Chief Officer – Finance Nairobi City County be punished for contempt of court and be committed to civil jail for a period not exceeding six (6) months will abide the outcome of order 2.
4) The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 23rd day of March, 2026.