' [1] The Notice of Motion dated 14 th November 2024 was filed by the ex parte applicant, Neeta Permanent Builders Company Ltd, (hereinafter, “the applicant”). It was filed pursuant to Section 1A, 1B, 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules for the following orders:
[a] That the Court be pleased to order the 1 st and 3 rd respondents to appear before it and show cause why they should not be cited for contempt of court.
[b] The costs of the application be provided for.
[2] The application was premised on the grounds that on the 21 st May 2024, the court entered judgment in favour of the applicant against the respondents for the payment of Kshs. 1,865,053/= and costs of Kshs. 293,155/= together with interest. The respondents were duly served with Notice of the Judgment together with a demand for payment but the respondents have declined to make the payment despite several reminders.
[3] The application was supported by the affidavit sworn on 14 th November 2024 by Joshua Oreng on behalf of the applicant. The applicant reiterated the grounds relied on and attached copies of the Judgment dated 21 st May 2024 and the letters dated 3 rd July 2024, 21 st August 2024 and 21 st October 2024 in proof of its case. The applicant contended that the conduct of the respondents amounts to contempt of the court and ought to be punished accordingly.
[4] The respondents opposed the application vide a Notice of Preliminary Objection dated 3 rd December 2023 [sic] and filed on 5 th December 2024. They contended that:
[a] The application dated 14 th November 2024 offends the provisions of Section 21 of the Government Proceedings Act and the Civil Procedure Rules.
[b] The application contravenes the provisions of Section 147 of the Public Finance Management Act.
[c] The application offends the provisions of the Judicature Act and ought to be dismissed with costs.
[5] The application was canvassed by way of written submissions, pursuant to the directions given herein on 19 th February 2025. Accordingly, in the written submissions dated 20 th March 2025, the applicant proposed the following issues for determination:
[a] Whether the application offends the provisions of Section 21 of the Government Proceedings Act and the Civil Procedure Rules.
[b] Whether the application offends the provisions of Section 147 of the Public Finance Management Act.
[c] Whether the application offends the provisions of the Judicature Act.
[d] Whether the application is merited.
[6] In the applicant’s submission, it fully complied with the provisions of Section 21 of the Government Proceedings Act in that, after obtaining the Judgment, the applicant was issued with a Certificate of Costs dated 4 th March 2021 after 21 days. The applicant further submitted that, after unsuccessfully engaging the respondents with a view of payment, it obtained a Certificate of Order dated 5 th August 2023 and proceeded to file judicial review proceedings against the respondents, culminating in the judgment dated 21 st May 2024. The applicant pointed out that to date the Order of Mandamus issued on 5 th August 2023 has not been obeyed by the respondents; hence the instant application.
[7] The applicant quoted Section 147 of the Public Finance Management Act and urged the Court to find that it is the duty of the respondents to ensure that decrees are settled promptly. They submitted that the 1 st and 3 rd respondents have been enjoined as officers of the 2 nd respondent and urged the Court to find issues of non-joinder or misjoinder to be inconsequential. The applicant relied on Article 159(2)(d) of the Constitution as well as the cases of Republic v Charles Lutta Kasamani & another, Ex Parte Minister for Finance & Commissioner for Insurance [2006] eKLR and Consolata Kihara & 21 others v the Director of Kenya Trypanosomiasis Research Institute [2003] eKLR and urged the Court to administer judtice without undue regard to procedural technicalities.
[8] The applicant also submitted that the respondents’ contention that the application offends the provisions of the Civil Procedure Act and the Judicature Act is vague and therefore ought to be disregarded. They pointed out that no specific provisions of the two statutes were cited by the respondents and therefore it is not certain what provisions have been offended. The applicant submitted that it would require scrutiny of the factual basis of the application to determine whether or not the application offends the two statutes.
[9] On the merits of the application, the applicant relied on Cecil Miller v Jackson Njeru & another [2017] eKLR for an exposition as to the key elements of an applicant for contempt of court. It was the submission of the applicant that all those elements have been established in that it obtained and served clear and unambiguous orders of the Court; that the respondents have blatantly ignored and failed to make the requisite payment.
[10] The applicant relied on Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security, Ex Parte Fredrick Manoah Egunza [2012] eKLR to support its submission that Section 21(3) of the Government Proceedings Act does not condition payment on budgetary allocation or parliamentary approval of Government expenditure in the financial year subsequent to which liability accrues. Accordingly, the applicant prayed that its application be allowed with costs.
[11] On their part, the respondents conceded that there is a decree dated 21 st May 2024 against the 2 nd respondent issued by the Chief Magistrate’s Court, Homa Bay, for the payment of the decretal sum of Kshs.1,865,053/= and costs of Kshs. 293,155/=. They however relied on Section 30 of the Contempt of Court Act, 2016 and contended that there was need for a Notice to Show Cause to be issued before the respondents were impleaded for contempt of court. They submitted that the 1 st respondent is not the Accounting Officer of the 2 nd defendant and therefore ought not to have been joined to the instant application. In this regard, the respondents cited the case of Kungu v County Government of Nairobi (Judicial Review Miscellaneous Application E034 of 2023) [2024] KEHC 3265 (KLR).
[12] Although the respondents conceded that the 3 rd respondent is the Accounting Officer for the 2 nd respondent, they contended that he cannot act in isolation, but is bound by the provisions of Section 147 of the Public Finance Management Act. In their submission, the 3 rd respondent should not be held in contempt of court in the circumstances. They urged for the dismissal of the application with costs.
[13] Although the respondents placed reliance on Section 30 of the Contempt of Court Act, 2016, the entire legislation was declared unconstitutional on 9 th November 2018 by Hon. Mwita, J. in Kenya Human Rights Commission v Attorney General & another [2018] eKLR. The learned Judge held:
“Having considered the petition, the response, submissions, the constitution and the law, I am persuaded that sections, 30 and 35 of the Contempt of court Act are unconstitutional. I, however, find that the entire Act fails the constitutional test of validity for lack of public participation and for encroaching on the independence of the judiciary. Consequently, and for the above reasons, this petition succeeds and I make the following orders.
1. A declaration is hereby issued that Sections 30, and 35 of the impugned Contempt of Court Act No 46 of 2010 are inconsistent with the constitution and are therefore null void.
2. A declaration is hereby issued that the entire contempt of court Act No 46 of 2016 is invalid for lack of public participation as required by Articles 10 and 118(b) of the constitution and encroaches on the independence of the Judiciary.
3. No order as to costs.
[14] Needless to mention that the nullification of the Contempt of Court Act had the effect of reviving the Section 5 of the Judicature Act . In Republic v Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya, HCMCA No. 13 of 2008, for instance, the point was made as follows:
“The applicable law as regards contempt of court existing before the enactment of the Contempt of Court Act was restated by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others, [2014] eKLR. In that case the Court found that the English law on committal for contempt of court under Rule 81.4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertakings, was applied by virtue of section 5(1) of the Judicature Act which provided that:
“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.”
This section was repealed by section 38 of the Contempt of Act of 2016, and as the said Act has since been declared invalid, the consequential effect in law is that it had no legal effect on, and therefore did not repeal section 5 of the Judicature Act, which therefore continues to apply. In addition, the substance of the common law is still applicable under section 3 of the Judicature Act. This Court is in this regard guided by the applicable English Law which is Part 81 of the English Civil Procedure Rules of 1998 as variously amended...”
[15] Similarly in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the above position was endorsed thus:
“I agree with the above reasoning that since the act that repealed section 5 of the Judicature Act [17] has been declared unconstitutional, the effect is that section 5 of the Judicature Act [18] still stands.”
[16] Section 5 of the Judicature Act, states:
(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.
(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.
[17] That court orders must be strictly obeyed was explicated by Romer LJ in Hadkinson v Hadkinson [1952] AllER 567:
"It is the plain and unqualified obligation of every person, against, or in respect of whom 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.
For, a person who knows of an order, whether null or valid, regular or irregular cannot be permitted to disobey it. It would be most dangerous to hold that the suitors or their solicitors could themselves judge whether an order was null or valid. Whether it was regular or irregular, that they should come to the court and not take upon themselves to determine such question. That the course of a party knowing of an order which was null and irregular, and who might be affected by it, was plain, he should apply to court that it might be discharged. As long as it exists, it should not be disobeyed." (Also see Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] KLR 828)
[18] Accordingly, granted the issues raised by the respondents in their Notice of Preliminary Objection and submissions, the issue for consideration is whether the applicant has met the threshold to warrant the issuance of the orders sought herein.
[19] I t is now settled that in an application of this nature, an applicant must prove the following pre-requisites, namely:
[a] that the terms of the order are clear and unambiguous;
[b] That the alleged contemnor had knowledge or proper notice of the order;
[c] That the respondent has deliberately failed to obey the order;
(see Katsuri Limited vs. Kapurchand Depar Shah [2016] eKLR)
[20] The issuance of the order in question was conceded to by the respondents. The order is plain, unambiguous and capable of compliance. It is plain therefore that the respondents have been aware of the order since 21 st May 2024. No attempt has been made to comply therewith. There has been no communication exhibited to demonstrate the constraints the County Government has been operating under. Therefore, it is my finding that the 2 nd respondent’s failure to pay, in the absence of justifiable cause flies in the face of Section 21(1) and (2) of the Government Proceedings Act, which state:
(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.
[21] It is plain that the only way of enforcement of the order of 21 st May 2024 is by compelling compliance by the accounting officer of the County Government of Homa Bay, for Section 21(4) of the Government Proceedings Act is explicit that:
(4) …no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.”
[22] To activate compliance , Section 21(1) and (2) of the Government Proceedings Act require that:
(1) Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:
Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.
[23] In addition, Order 29 Rule 3 of the Civil Procedure Rules provides that:
“Any application for a certificate under section 21 of the Government Proceedings Act (which relates to satisfaction of orders against the Government) shall be made to a registrar or, in the case of a subordinate court, to the court; and any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicant shall be made to the court and may be made ex parte without a summons, and such certificate shall be in one of Form Nos. 22 and 23 of Appendix A with such variations as circumstances may require.”
[24] The applicant demonstrated that it applied for and obtained a Certificate of Order against the Government as required by Section 21 of the Government Proceedings Act. The rationale for this stringent procedure was well captured in Kisya Investments Ltd v Attorney General & Another [2005] 1 KLR 74 thus:
“History and rationale of Government’s immunity from execution arises from the following:- Firstly, there has been a policy in respect of Parliamentary control over revenue and this is threefold and is exercised in respect of (i). The raising of revenue- (by taxation or borrowing); (ii). its expenditure; and (iii). The audit of public accounts. The satisfaction of decrees or judgements is deemed to be an expenditure by Parliament and as a result of this must be justified in law and provided for in the Government’s expenditure. It is for this reason that section 32 of the Government Proceedings Act provides that any expenditure incurred by or on behalf of the Government by reason of this Act shall be defrayed out of the moneys provided by Parliament. Parliamentary control over expenditure is based upon the principle that all expenditure must rest upon legislative authority and no payment out of public funds is legal unless it is authorised by statute, and any unauthorised payment may be recovered. SEE HALSBURY’S LAWS OF ENGALAND 4 TH EDN VOL. 11 PARA 970, 971 AND 1370. As a result of the foregoing, which was borrowed from the Crown Proceedings Act, 1947 (section 37) of England, this is a warning that any payment by Government must be covered by some appropriation. It is said that Parliament is very jealous of its control over the expenditure and this is as it should be. No Ministry or Department has any ready funds at all times to satisfy decrees or judgements. While existence of claims and decrees may be known to the Ministries and Departments, they have to notify the Ministry of Finance and Treasury of the same so that payment is arranged for or provisions made in the Government expenditure. SEE AUCKLAND HARBOUR BOARD VS.R (1924) AC 318, 326. The second situation, which arises from the above, is that once a decree or judgement is obtained against the Government, it would require some reasonable time to have it forwarded to the ministry of Finance, Treasury, Comptroller and Auditor General etc. for scrutiny and approvals for it to be paid from the Consolidated Fund. The Ministries and Departments do not have their “own” funds to settle such decrees or payments and considering the nature of the Government structure, procedures, red tape and large number of claims, this could take a long time. If execution and/or attachment against the Government were allowed, there is no doubt that the Government will not be able to pay immediately upon passing of decrees and judgements and will be inundated with executions and attachments of its assets day in, day out. Its buildings will be attached and its plants and equipment will be attached, its furniture and office equipment will be attached, its vehicles, aircraft, ship and boats will be attached. There will be no end to the list of likely assets to be attached and auctioned by the auctioneer’s hammer. No Government can possibly survive such an onslaught. The Government and therefore the state operations will ground to a halt and paralyzed and soon the Government will not only be bankrupt but it’s Constitutional and Statutory duties will not be capable of performance and this will lead to chaos, anarchy and the breakdown of the Rule of Law. This is the rationale or the objective of the Law that prohibits execution against and attachment of the Government assets and property.” (also see Republic v Permanent Secretary Office of the President Ministry of Internal Security & Another, Ex Parte Nassir Mwandihi, supra)
[25] That the above provisions are equally applicable to County Governments is explicit in Subsection (5). It states:
(5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.
[26] The respondents took issue with the fact of joinder of the 2 nd respondent’s Chief Officer, Ministry of Water as the 1 st respondent. It this regard, Section 103 of the Public Finance Management Act states:
(1) There is established for each county government, an entity to be known as County Treasury.
(2) The County Treasury shall comprise—
(a) the County Executive Committee member for finance;
(b) the Chief Officer; and
(c) the department or departments of the County Treasury responsible for financial and fiscal matters.
(3) The County Executive Committee member for finance shall be the head of the County Treasury.
[27] Subsection (3) is explicit that the County Executive Member for Finance, as opposed to the Chief Officer, Finance, is the head of the County Treasury. In Council of Governors & Others v The Senate [2015] eKLR, at paragraphs 134 to 137, a three judge bench of the High Court had the following to say in this regard:
“134. The Petitioners have also sought the interpretation of the term “Accounting Officer”. In that regard, Article 226 of the Constitution provides;
(1) Act of Parliament shall provide for –
(a) ….
(b) The designation of an accounting officer in every public entity at the national and county level of government
(2) The accounting officer of a national public entity is accountable to the national assembly for its financial management, and the accounting officer of a county public entity is accountable to the county assembly for its financial management.
Pursuant to this provision, Parliament enacted the Public Finance Management Act. The appointment and designation of a County Government Accounting Officer is provided for under Section 148 of that Act, as follows;
1. A County Executive Committee member for finance shall, except as otherwise provided by law, in writing designate accounting officers to be responsible for managing the finances of the county government entities as is specified in the designation.
2. Except as otherwise stated in other legislation, the person responsible for the administration of a county government entity, shall be the accounting officer responsible for managing the finances of that entity.
135. It therefore follows that “an accounting officer” for a County Government entity is the person so appointed and designated as such by the County Executive Committee Member for Finance under Section 148 of the Public Finance Management Act. Indeed, Section 148 (3) of the Public Finance Management Act mandates the County Executive Committee Member for Finance to ensure that each County government entity has an accounting officer as provided for under Article 226(2) of the Constitution.”
[28] Similarly, in Republic v County Secretary, Nairobi City County & Chief Officer, Finance/Nairobi City County Treasurer ex-parte Mohamed Tariq Khan (supra ) it was held: -
“8. It must however be remembered always that a judicial review application is neither a criminal case nor a civil suit hence the application ought to be brought against the person who is bound to comply with the orders sought therein. In this case the Respondent ought to have been the Accounting Officer who is the County Executive Member for Finance.”
[29] In the premises, the misjoinder of the County Secretary is inconsequential, granted that the applicant also impleaded the County Executive Committee Member for Finance as the 3 rd respondent.
[30] I therefore find merit in the application. The same is hereby allowed and orders granted as follows:
[a] that the 3 rd respondent, as the County Executive Committee Member for Finance be and is hereby cited for contempt.
[b] That the said officer be summoned to attend court for purposes of showing cause why he should not be imprisoned for contempt of court for failing to comply with the order of Mandamus issued herein on 21 st May 2024.
[c] Costs of the application be borne by the 2 nd respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 27 TH DAY OF JUNE 2025
'
[a] That the Court be pleased to order the 1 st and 3 rd respondents to appear before it and show cause why they should not be cited for contempt of court.
[b] The costs of the application be provided for.
[2] The application was premised on the grounds that on the 21 st May 2024, the court entered judgment in favour of the applicant against the respondents for the payment of Kshs. 1,865,053/= and costs of Kshs. 293,155/= together with interest. The respondents were duly served with Notice of the Judgment together with a demand for payment but the respondents have declined to make the payment despite several reminders.
[3] The application was supported by the affidavit sworn on 14 th November 2024 by Joshua Oreng on behalf of the applicant. The applicant reiterated the grounds relied on and attached copies of the Judgment dated 21 st May 2024 and the letters dated 3 rd July 2024, 21 st August 2024 and 21 st October 2024 in proof of its case. The applicant contended that the conduct of the respondents amounts to contempt of the court and ought to be punished accordingly.
[4] The respondents opposed the application vide a Notice of Preliminary Objection dated 3 rd December 2023 [sic] and filed on 5 th December 2024. They contended that:
[a] The application dated 14 th November 2024 offends the provisions of Section 21 of the Government Proceedings Act and the Civil Procedure Rules.
[b] The application contravenes the provisions of Section 147 of the Public Finance Management Act.
[c] The application offends the provisions of the Judicature Act and ought to be dismissed with costs.
[5] The application was canvassed by way of written submissions, pursuant to the directions given herein on 19 th February 2025. Accordingly, in the written submissions dated 20 th March 2025, the applicant proposed the following issues for determination:
[a] Whether the application offends the provisions of Section 21 of the Government Proceedings Act and the Civil Procedure Rules.
[b] Whether the application offends the provisions of Section 147 of the Public Finance Management Act.
[c] Whether the application offends the provisions of the Judicature Act.
[d] Whether the application is merited.
[6] In the applicant’s submission, it fully complied with the provisions of Section 21 of the Government Proceedings Act in that, after obtaining the Judgment, the applicant was issued with a Certificate of Costs dated 4 th March 2021 after 21 days. The applicant further submitted that, after unsuccessfully engaging the respondents with a view of payment, it obtained a Certificate of Order dated 5 th August 2023 and proceeded to file judicial review proceedings against the respondents, culminating in the judgment dated 21 st May 2024. The applicant pointed out that to date the Order of Mandamus issued on 5 th August 2023 has not been obeyed by the respondents; hence the instant application.
[7] The applicant quoted Section 147 of the Public Finance Management Act and urged the Court to find that it is the duty of the respondents to ensure that decrees are settled promptly. They submitted that the 1 st and 3 rd respondents have been enjoined as officers of the 2 nd respondent and urged the Court to find issues of non-joinder or misjoinder to be inconsequential. The applicant relied on Article 159(2)(d) of the Constitution as well as the cases of Republic v Charles Lutta Kasamani & another, Ex Parte Minister for Finance & Commissioner for Insurance [2006] eKLR and Consolata Kihara & 21 others v the Director of Kenya Trypanosomiasis Research Institute [2003] eKLR and urged the Court to administer judtice without undue regard to procedural technicalities.
[8] The applicant also submitted that the respondents’ contention that the application offends the provisions of the Civil Procedure Act and the Judicature Act is vague and therefore ought to be disregarded. They pointed out that no specific provisions of the two statutes were cited by the respondents and therefore it is not certain what provisions have been offended. The applicant submitted that it would require scrutiny of the factual basis of the application to determine whether or not the application offends the two statutes.
[9] On the merits of the application, the applicant relied on Cecil Miller v Jackson Njeru & another [2017] eKLR for an exposition as to the key elements of an applicant for contempt of court. It was the submission of the applicant that all those elements have been established in that it obtained and served clear and unambiguous orders of the Court; that the respondents have blatantly ignored and failed to make the requisite payment.
[10] The applicant relied on Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security, Ex Parte Fredrick Manoah Egunza [2012] eKLR to support its submission that Section 21(3) of the Government Proceedings Act does not condition payment on budgetary allocation or parliamentary approval of Government expenditure in the financial year subsequent to which liability accrues. Accordingly, the applicant prayed that its application be allowed with costs.
[11] On their part, the respondents conceded that there is a decree dated 21 st May 2024 against the 2 nd respondent issued by the Chief Magistrate’s Court, Homa Bay, for the payment of the decretal sum of Kshs.1,865,053/= and costs of Kshs. 293,155/=. They however relied on Section 30 of the Contempt of Court Act, 2016 and contended that there was need for a Notice to Show Cause to be issued before the respondents were impleaded for contempt of court. They submitted that the 1 st respondent is not the Accounting Officer of the 2 nd defendant and therefore ought not to have been joined to the instant application. In this regard, the respondents cited the case of Kungu v County Government of Nairobi (Judicial Review Miscellaneous Application E034 of 2023) [2024] KEHC 3265 (KLR).
[12] Although the respondents conceded that the 3 rd respondent is the Accounting Officer for the 2 nd respondent, they contended that he cannot act in isolation, but is bound by the provisions of Section 147 of the Public Finance Management Act. In their submission, the 3 rd respondent should not be held in contempt of court in the circumstances. They urged for the dismissal of the application with costs.
[13] Although the respondents placed reliance on Section 30 of the Contempt of Court Act, 2016, the entire legislation was declared unconstitutional on 9 th November 2018 by Hon. Mwita, J. in Kenya Human Rights Commission v Attorney General & another [2018] eKLR. The learned Judge held:
“Having considered the petition, the response, submissions, the constitution and the law, I am persuaded that sections, 30 and 35 of the Contempt of court Act are unconstitutional. I, however, find that the entire Act fails the constitutional test of validity for lack of public participation and for encroaching on the independence of the judiciary. Consequently, and for the above reasons, this petition succeeds and I make the following orders.
1. A declaration is hereby issued that Sections 30, and 35 of the impugned Contempt of Court Act No 46 of 2010 are inconsistent with the constitution and are therefore null void.
2. A declaration is hereby issued that the entire contempt of court Act No 46 of 2016 is invalid for lack of public participation as required by Articles 10 and 118(b) of the constitution and encroaches on the independence of the Judiciary.
3. No order as to costs.
[14] Needless to mention that the nullification of the Contempt of Court Act had the effect of reviving the Section 5 of the Judicature Act . In Republic v Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya, HCMCA No. 13 of 2008, for instance, the point was made as follows:
“The applicable law as regards contempt of court existing before the enactment of the Contempt of Court Act was restated by the Court of Appeal in Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others, [2014] eKLR. In that case the Court found that the English law on committal for contempt of court under Rule 81.4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertakings, was applied by virtue of section 5(1) of the Judicature Act which provided that:
“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.”
This section was repealed by section 38 of the Contempt of Act of 2016, and as the said Act has since been declared invalid, the consequential effect in law is that it had no legal effect on, and therefore did not repeal section 5 of the Judicature Act, which therefore continues to apply. In addition, the substance of the common law is still applicable under section 3 of the Judicature Act. This Court is in this regard guided by the applicable English Law which is Part 81 of the English Civil Procedure Rules of 1998 as variously amended...”
[15] Similarly in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the above position was endorsed thus:
“I agree with the above reasoning that since the act that repealed section 5 of the Judicature Act [17] has been declared unconstitutional, the effect is that section 5 of the Judicature Act [18] still stands.”
[16] Section 5 of the Judicature Act, states:
(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.
(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.
[17] That court orders must be strictly obeyed was explicated by Romer LJ in Hadkinson v Hadkinson [1952] AllER 567:
"It is the plain and unqualified obligation of every person, against, or in respect of whom 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.
For, a person who knows of an order, whether null or valid, regular or irregular cannot be permitted to disobey it. It would be most dangerous to hold that the suitors or their solicitors could themselves judge whether an order was null or valid. Whether it was regular or irregular, that they should come to the court and not take upon themselves to determine such question. That the course of a party knowing of an order which was null and irregular, and who might be affected by it, was plain, he should apply to court that it might be discharged. As long as it exists, it should not be disobeyed." (Also see Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] KLR 828)
[18] Accordingly, granted the issues raised by the respondents in their Notice of Preliminary Objection and submissions, the issue for consideration is whether the applicant has met the threshold to warrant the issuance of the orders sought herein.
[19] I t is now settled that in an application of this nature, an applicant must prove the following pre-requisites, namely:
[a] that the terms of the order are clear and unambiguous;
[b] That the alleged contemnor had knowledge or proper notice of the order;
[c] That the respondent has deliberately failed to obey the order;
(see Katsuri Limited vs. Kapurchand Depar Shah [2016] eKLR)
[20] The issuance of the order in question was conceded to by the respondents. The order is plain, unambiguous and capable of compliance. It is plain therefore that the respondents have been aware of the order since 21 st May 2024. No attempt has been made to comply therewith. There has been no communication exhibited to demonstrate the constraints the County Government has been operating under. Therefore, it is my finding that the 2 nd respondent’s failure to pay, in the absence of justifiable cause flies in the face of Section 21(1) and (2) of the Government Proceedings Act, which state:
(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.
[21] It is plain that the only way of enforcement of the order of 21 st May 2024 is by compelling compliance by the accounting officer of the County Government of Homa Bay, for Section 21(4) of the Government Proceedings Act is explicit that:
(4) …no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.”
[22] To activate compliance , Section 21(1) and (2) of the Government Proceedings Act require that:
(1) Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:
Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.
[23] In addition, Order 29 Rule 3 of the Civil Procedure Rules provides that:
“Any application for a certificate under section 21 of the Government Proceedings Act (which relates to satisfaction of orders against the Government) shall be made to a registrar or, in the case of a subordinate court, to the court; and any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicant shall be made to the court and may be made ex parte without a summons, and such certificate shall be in one of Form Nos. 22 and 23 of Appendix A with such variations as circumstances may require.”
[24] The applicant demonstrated that it applied for and obtained a Certificate of Order against the Government as required by Section 21 of the Government Proceedings Act. The rationale for this stringent procedure was well captured in Kisya Investments Ltd v Attorney General & Another [2005] 1 KLR 74 thus:
“History and rationale of Government’s immunity from execution arises from the following:- Firstly, there has been a policy in respect of Parliamentary control over revenue and this is threefold and is exercised in respect of (i). The raising of revenue- (by taxation or borrowing); (ii). its expenditure; and (iii). The audit of public accounts. The satisfaction of decrees or judgements is deemed to be an expenditure by Parliament and as a result of this must be justified in law and provided for in the Government’s expenditure. It is for this reason that section 32 of the Government Proceedings Act provides that any expenditure incurred by or on behalf of the Government by reason of this Act shall be defrayed out of the moneys provided by Parliament. Parliamentary control over expenditure is based upon the principle that all expenditure must rest upon legislative authority and no payment out of public funds is legal unless it is authorised by statute, and any unauthorised payment may be recovered. SEE HALSBURY’S LAWS OF ENGALAND 4 TH EDN VOL. 11 PARA 970, 971 AND 1370. As a result of the foregoing, which was borrowed from the Crown Proceedings Act, 1947 (section 37) of England, this is a warning that any payment by Government must be covered by some appropriation. It is said that Parliament is very jealous of its control over the expenditure and this is as it should be. No Ministry or Department has any ready funds at all times to satisfy decrees or judgements. While existence of claims and decrees may be known to the Ministries and Departments, they have to notify the Ministry of Finance and Treasury of the same so that payment is arranged for or provisions made in the Government expenditure. SEE AUCKLAND HARBOUR BOARD VS.R (1924) AC 318, 326. The second situation, which arises from the above, is that once a decree or judgement is obtained against the Government, it would require some reasonable time to have it forwarded to the ministry of Finance, Treasury, Comptroller and Auditor General etc. for scrutiny and approvals for it to be paid from the Consolidated Fund. The Ministries and Departments do not have their “own” funds to settle such decrees or payments and considering the nature of the Government structure, procedures, red tape and large number of claims, this could take a long time. If execution and/or attachment against the Government were allowed, there is no doubt that the Government will not be able to pay immediately upon passing of decrees and judgements and will be inundated with executions and attachments of its assets day in, day out. Its buildings will be attached and its plants and equipment will be attached, its furniture and office equipment will be attached, its vehicles, aircraft, ship and boats will be attached. There will be no end to the list of likely assets to be attached and auctioned by the auctioneer’s hammer. No Government can possibly survive such an onslaught. The Government and therefore the state operations will ground to a halt and paralyzed and soon the Government will not only be bankrupt but it’s Constitutional and Statutory duties will not be capable of performance and this will lead to chaos, anarchy and the breakdown of the Rule of Law. This is the rationale or the objective of the Law that prohibits execution against and attachment of the Government assets and property.” (also see Republic v Permanent Secretary Office of the President Ministry of Internal Security & Another, Ex Parte Nassir Mwandihi, supra)
[25] That the above provisions are equally applicable to County Governments is explicit in Subsection (5). It states:
(5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.
[26] The respondents took issue with the fact of joinder of the 2 nd respondent’s Chief Officer, Ministry of Water as the 1 st respondent. It this regard, Section 103 of the Public Finance Management Act states:
(1) There is established for each county government, an entity to be known as County Treasury.
(2) The County Treasury shall comprise—
(a) the County Executive Committee member for finance;
(b) the Chief Officer; and
(c) the department or departments of the County Treasury responsible for financial and fiscal matters.
(3) The County Executive Committee member for finance shall be the head of the County Treasury.
[27] Subsection (3) is explicit that the County Executive Member for Finance, as opposed to the Chief Officer, Finance, is the head of the County Treasury. In Council of Governors & Others v The Senate [2015] eKLR, at paragraphs 134 to 137, a three judge bench of the High Court had the following to say in this regard:
“134. The Petitioners have also sought the interpretation of the term “Accounting Officer”. In that regard, Article 226 of the Constitution provides;
(1) Act of Parliament shall provide for –
(a) ….
(b) The designation of an accounting officer in every public entity at the national and county level of government
(2) The accounting officer of a national public entity is accountable to the national assembly for its financial management, and the accounting officer of a county public entity is accountable to the county assembly for its financial management.
Pursuant to this provision, Parliament enacted the Public Finance Management Act. The appointment and designation of a County Government Accounting Officer is provided for under Section 148 of that Act, as follows;
1. A County Executive Committee member for finance shall, except as otherwise provided by law, in writing designate accounting officers to be responsible for managing the finances of the county government entities as is specified in the designation.
2. Except as otherwise stated in other legislation, the person responsible for the administration of a county government entity, shall be the accounting officer responsible for managing the finances of that entity.
135. It therefore follows that “an accounting officer” for a County Government entity is the person so appointed and designated as such by the County Executive Committee Member for Finance under Section 148 of the Public Finance Management Act. Indeed, Section 148 (3) of the Public Finance Management Act mandates the County Executive Committee Member for Finance to ensure that each County government entity has an accounting officer as provided for under Article 226(2) of the Constitution.”
[28] Similarly, in Republic v County Secretary, Nairobi City County & Chief Officer, Finance/Nairobi City County Treasurer ex-parte Mohamed Tariq Khan (supra ) it was held: -
“8. It must however be remembered always that a judicial review application is neither a criminal case nor a civil suit hence the application ought to be brought against the person who is bound to comply with the orders sought therein. In this case the Respondent ought to have been the Accounting Officer who is the County Executive Member for Finance.”
[29] In the premises, the misjoinder of the County Secretary is inconsequential, granted that the applicant also impleaded the County Executive Committee Member for Finance as the 3 rd respondent.
[30] I therefore find merit in the application. The same is hereby allowed and orders granted as follows:
[a] that the 3 rd respondent, as the County Executive Committee Member for Finance be and is hereby cited for contempt.
[b] That the said officer be summoned to attend court for purposes of showing cause why he should not be imprisoned for contempt of court for failing to comply with the order of Mandamus issued herein on 21 st May 2024.
[c] Costs of the application be borne by the 2 nd respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 27 TH DAY OF JUNE 2025
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