REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW CASE NO. E155 OF 2022
BETWEEN
REPUBLIC…………………………………………………………. APPLICANT
VERSUS
THE COUNTY SECRETARY,
NAIROBI CITY COUNTY ………………………….…..1st RESPONDENT
THE COUNTY EXECUTIVE MEMBER IN CHARGE
OF FINANCE, NAIROBI COUNTY ………………..2ND RESPONDENT
THE CHIEF OFFICER FINANCE AND ECONOMIC PLANNING, NAIROBI CITY COUNTY …………………………….3RDRESPONDENT
NAIROBI CITY COUNTY ……………………………4TH RESPONDENT
LUED (A) CHEMICALS LIMITED ……..…. EX-PARTE APPLICANT
RULING
1. The application that is before the court is the Notice of Motion dated 30th September 2023 where in the applicant seeks the following orders;
a) THAT the Honourable Court be pleased to order the County Executive Committee Member in charge of Finance & Economic Affairs, one Mr. Charles Kerich, and the Chief Officer Finance & Economic Planning, one Mr. Wilson Njoroge Gakuya, be committed to civil jail and/or fined for contempt for disobedience of Court Orders issued on 28th July 2023 in JR Misc. Application No. E155 of 2022.
b) THAT the costs.
2. The application is unopposed.
3. The Respondents were duly served with the application by the Applicant’s advocates on 13th October 2023 and 30th November 2023. On 30th November 2023, the 4th Respondent’s County Solicitor General received the application on behalf of the Respondents.
4. The Applicant herein was the Plaintiff in Milimani Chief Magistrate Court, Civil Case No.3901 of 2018 whereby it had sued the Defendant therein, now the 4th Respondent when the latter failed to settle invoices after being supplied with medical supplies and equipment.
5. On 14th August 2020, a judgment was delivered in favour of the Applicant as against the 4th Respondent
6. Subsequently, a decree and certificate of stated costs were issued on 4th May 2021.
7. The 4th Respondent has never appealed against the said judgment or settled the decretal amount and costs
8. It is now the fourth(4th) year since the judgment was delivered in favour of the Applicant.
9. On 21st September 2022, a certificate of order against government was issued for a sum of Kshs. 19,188,568.96 in favour of the Applicant as against the 4th Respondent.
10. On 7th October 2022, the Respondents were served with a certificate of order against government for a sum of Kshs.19,188,568.96 vide a demand letter dated 6th October 2022.
11. An Order of Mandamus was issued by this Honourable Court on 28th July 2023 directed at the 1st, 2nd and 3rd Respondents as the accounting officers of 4th Respondent’s to the settle the sum of Kshs. 19,188,568.96.
12. On 16th August 2023, the Respondents were served with a court Order issued on 28th July 2023.
13. The 2nd Respondent, Mr Charles Kerich, 4th Respondent’s County Executive Committee Member in charge of Finance and Economic Affairs has deliberately refused to comply with the Court Order.
14. In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR it stated as follows: -
“It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) The terms of the order, (ii) Knowledge of these terms by the Respondent, (iii) Failure by the Respondent to comply with the terms of the order.”
15. The terms of the Court Order issued on 28th July 2023 were clear and unambiguous to the effect that the Applicant a sum of Kshs.19,188,568.96 in Milimani Chief Magistrate Court, Civil Case No.3901 of 2018, Leud(A) Chemicals Limited Vs Nairobi City County.
16. The Court of Appeal in (Karanja, Mwera & Mwilu JJA) in Shimmers Plaza Limited vs National Bank of Kenya Limited (2015) eKLR held as follows with respect to notice of court orders to litigants who are represented by Counsel: -
“Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behooves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.”
17. In the instant case I find that the applicant has satisfied the requirements for the grant of the orders sought and I so hold.
18. The failure by the Respondents and specifically Mr. Charles Kerich, and the Chief Officer Finance & Economic Planning, one Mr. Wilson Njoroge Gakuya contempt has been willful and deliberate.
19. The Respondents have acted in contempt of a valid Court Order issued on 28th July 2023 undermining the authority and the dignity of the Court.
20. Court Orders are not issued in vain and must be obeyed by all irrespective of status in the society. Willful and deliberate refusal by the Respondents to obey valid Court Orders undermines the rule of law in the country.
21. Costs will ordinarily follow event and are usually awarded to a successful party.
Disposition:
22. The application is merited and the Applicant is entitled to the reliefs sought.
Order:
1) The County Executive Committee Member in charge of Finance & Economic Affairs, one Mr. Charles Kerich, and the Chief Officer Finance & Economic Planning, one Mr. Wilson Njoroge Gakuya are hereby cited for contempt of the Court Orders issued on 28th July 2023 in JR Misc. Application No. E155 of 2022.
2) They shall appear in open court personally for mitigation and sentencing on 1.7.24 at 11 AM.
3) Costs to the Applicant.
Dated, signed and delivered at Nairobi this 4th Day of April 2024
……………………………………
J. CHIGITI (SC)
JUDGE
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW CASE NO. E155 OF 2022
BETWEEN
REPUBLIC…………………………………………………………. APPLICANT
VERSUS
THE COUNTY SECRETARY,
NAIROBI CITY COUNTY ………………………….…..1st RESPONDENT
THE COUNTY EXECUTIVE MEMBER IN CHARGE
OF FINANCE, NAIROBI COUNTY ………………..2ND RESPONDENT
THE CHIEF OFFICER FINANCE AND ECONOMIC PLANNING, NAIROBI CITY COUNTY …………………………….3RDRESPONDENT
NAIROBI CITY COUNTY ……………………………4TH RESPONDENT
LUED (A) CHEMICALS LIMITED ……..…. EX-PARTE APPLICANT
RULING
1. The application that is before the court is the Notice of Motion dated 30th September 2023 where in the applicant seeks the following orders;
a) THAT the Honourable Court be pleased to order the County Executive Committee Member in charge of Finance & Economic Affairs, one Mr. Charles Kerich, and the Chief Officer Finance & Economic Planning, one Mr. Wilson Njoroge Gakuya, be committed to civil jail and/or fined for contempt for disobedience of Court Orders issued on 28th July 2023 in JR Misc. Application No. E155 of 2022.
b) THAT the costs.
2. The application is unopposed.
3. The Respondents were duly served with the application by the Applicant’s advocates on 13th October 2023 and 30th November 2023. On 30th November 2023, the 4th Respondent’s County Solicitor General received the application on behalf of the Respondents.
4. The Applicant herein was the Plaintiff in Milimani Chief Magistrate Court, Civil Case No.3901 of 2018 whereby it had sued the Defendant therein, now the 4th Respondent when the latter failed to settle invoices after being supplied with medical supplies and equipment.
5. On 14th August 2020, a judgment was delivered in favour of the Applicant as against the 4th Respondent
6. Subsequently, a decree and certificate of stated costs were issued on 4th May 2021.
7. The 4th Respondent has never appealed against the said judgment or settled the decretal amount and costs
8. It is now the fourth(4th) year since the judgment was delivered in favour of the Applicant.
9. On 21st September 2022, a certificate of order against government was issued for a sum of Kshs. 19,188,568.96 in favour of the Applicant as against the 4th Respondent.
10. On 7th October 2022, the Respondents were served with a certificate of order against government for a sum of Kshs.19,188,568.96 vide a demand letter dated 6th October 2022.
11. An Order of Mandamus was issued by this Honourable Court on 28th July 2023 directed at the 1st, 2nd and 3rd Respondents as the accounting officers of 4th Respondent’s to the settle the sum of Kshs. 19,188,568.96.
12. On 16th August 2023, the Respondents were served with a court Order issued on 28th July 2023.
13. The 2nd Respondent, Mr Charles Kerich, 4th Respondent’s County Executive Committee Member in charge of Finance and Economic Affairs has deliberately refused to comply with the Court Order.
14. In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR it stated as follows: -
“It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) The terms of the order, (ii) Knowledge of these terms by the Respondent, (iii) Failure by the Respondent to comply with the terms of the order.”
15. The terms of the Court Order issued on 28th July 2023 were clear and unambiguous to the effect that the Applicant a sum of Kshs.19,188,568.96 in Milimani Chief Magistrate Court, Civil Case No.3901 of 2018, Leud(A) Chemicals Limited Vs Nairobi City County.
16. The Court of Appeal in (Karanja, Mwera & Mwilu JJA) in Shimmers Plaza Limited vs National Bank of Kenya Limited (2015) eKLR held as follows with respect to notice of court orders to litigants who are represented by Counsel: -
“Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behooves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.”
17. In the instant case I find that the applicant has satisfied the requirements for the grant of the orders sought and I so hold.
18. The failure by the Respondents and specifically Mr. Charles Kerich, and the Chief Officer Finance & Economic Planning, one Mr. Wilson Njoroge Gakuya contempt has been willful and deliberate.
19. The Respondents have acted in contempt of a valid Court Order issued on 28th July 2023 undermining the authority and the dignity of the Court.
20. Court Orders are not issued in vain and must be obeyed by all irrespective of status in the society. Willful and deliberate refusal by the Respondents to obey valid Court Orders undermines the rule of law in the country.
21. Costs will ordinarily follow event and are usually awarded to a successful party.
Disposition:
22. The application is merited and the Applicant is entitled to the reliefs sought.
Order:
1) The County Executive Committee Member in charge of Finance & Economic Affairs, one Mr. Charles Kerich, and the Chief Officer Finance & Economic Planning, one Mr. Wilson Njoroge Gakuya are hereby cited for contempt of the Court Orders issued on 28th July 2023 in JR Misc. Application No. E155 of 2022.
2) They shall appear in open court personally for mitigation and sentencing on 1.7.24 at 11 AM.
3) Costs to the Applicant.
Dated, signed and delivered at Nairobi this 4th Day of April 2024
……………………………………
J. CHIGITI (SC)
JUDGE