1. By a motion dated 7th November 2025, said to have been brought pursuant to the provisions of Article 47(1), 48, 159 and 160 of the Constitution of Kenya 2010, Section 4, 7, 8, 11 of the Fair Administrative Actions Act, Rule 7 of the Fair Administrative Actions Rules, 2024, Section 1A, 1B, 3A, 3B 34(1) and 63 of the Civil Procedure Act, sections 21 (3) & (5) of the Government Proceedings Act, Sections 103 & 104 of the Public Finance Management Act, Section 5(1) of the Judicature Act, Rule 39(4) of the High Court (Organization and Administration) (General) Rules 2016, plus all other enabling provisions of the Law, The applicant Drilling Africa Limited, herein after referred to as the qpplicant, moved the court and sought various reliefs against County Chief Officer Responsible For Finance and County Executive Committee Member Responsible For Finance, of Homa Bay County Government and County Government of Homa Bay itself. The two shall henceforth be referred to hereinafter, collectively, as the Respondents.
2. The prayers in in that application were crafted thus;
a) spent.
b) The Court be pleased to issue summons to a) County Chief Officer Responsible for Finance. b) County Executive Committee Member in Charge of Finance c) County Government of Homa Bay, all functionaries of the County of Homa Bay, and its the Accounting Officers and legal duty bearers to personally attend court, on a date to be determined by the court, and to show cause why they should not be cited and punished for contempt of court, for being in willful disobedience of the lawful order of Mandamus dated 15th December 2022, and the judgement, and decree of the subordinate court dated 3rd November 2021, and the resultant Certificate of order and certificate of order for costs dated 30th August 2023, issued against the County Government of Homabay, in Homabay CMCC No E 061 of 2021.
c) Upon complying with the summons, and personally attending before the court, on such date as the Court shall specify, the said a) County Chief Officer Responsible for Finance, b) County Executive Committee Member in Charge of Finance c) County Government of Homabay be directed to and be granted a period not exceeding fourteen (14) Days within which to purge the contempt by forthwith complying with the order of Mandamus dated 15th December 2022, by settling and satisfying the judgment and decree of the subordinate court dated 3rd November 2021 as directed by the said order of Mandamus.
d) The Respondents be directed to forthwith comply with this court’s order of mandamus dated and issued on the 15th December 2022 and to forthwith pay to the applicant the following sums namely:-
(i) The principal sum of Kshs 15,639, 595/=, due and owing on the decree as at 15th May 2023 and as specified in Clause 1 of the certificate of order against the government dated and issued on the 30th August 2023.
(ii) Kshs. 6,347,676 /= being interest thereon from 16th of May 2023, being the date of the Certificate of Order, and as specified in Clause 2 of the said certificate, and as issued pursuant to the order of mandamus herein, to 7th November 2025, being the date of this application.
(iii) Further interest accruing on the decretal sum as specified in the certificate of order from 7th November 2025 being the date of this application until the date when payment shall be made in full
e) The Respondents be denied audience before this court until and unless they comply and purge their contempt by complying with the Order of mandamus dated 15th December 2022 and as issued by this court by paying to the applicant the said sums and as certified in the said Certificate of Order against the government issued on 30th August 2023.
f) In the event of failure to comply as directed and to purge the contempt, this court be pleased to issue orders citing a) County Chief Officer Responsible for Finance, b) County Executive Committee Member in Charge of Finance, c) County Government of Homabay for being in contempt of court for willfully disobeying the lawful order of mandamus issued by this court on the 15th December 2022, and upon conviction and subject to mitigation be punished in accordance with the law, and as the court shall in its discretion determine.
g) Such further orders and directions be issued in the interest of justice, as would further the interest of justice and as would aid in the administration of justice and to ensure the fulfilment of the applicant’s right of access to justice, by ensuring compliance with the decree of both the subordinate court and this court’s order of mandamus, and to vindicate the rule of law.
h) The current office holders of the public offices in the County Government of Homabay, namely the County Chief Officer Responsible for Finance, County Executive Committee Member in Charge of Finance, be condemned to bear the applicant’s costs of this application personally.
3. The grounds on which the motion was sought are on its body and need not be reproduce here but suffices to say that the motion was supported by the affidavit of David Yamo Ademba, a director of the applicant.
4. The court considered the certificate of urgency question as had been raised in the certificate, and was satisfied that indeed the motion was urgent and, on that basis, issued directions as to service of the motion on the respondents, the filing of responses and fixed the motion for hearing on 26th November 2025. The court then ordered that summons as had been sought be issued and that the Chief Officer Finance and the County Executive Committee member responsible for Finance be served and to personally appear in open court at the hearing. In issuing such summons the court was informed by its own record which confirms the applicant’s contention, among others that it sought, in the motion to enforce lawful order of mandamus issued by this Court way back on the 15th December 2022, which was extracted and served thereafter on 23rd December 2022 with a penal notice, and which to date remain not complied with, and the judgment of the subordinate court delivered way back on 3rd November 2021, that it has no other way of enforcing the subordinate Court judgement, as well as the decree and the order for costs, the taxed costs and the order of Mandamus which this court granted in its favor and remain non complied with since 15th December 2022, unless the Court assists in enforcing its decision. There is also the uncontroverted contention by the applicant that lawful and binding orders of this court, issued in these proceedings on 15th December 2022 to enforce a lawful decree of the Court, which was itself issued on 3rd November 2021, in Homabay Chief Magistrate Court, Civil Suit No E061 of 2021 and which the Respondents have been fully aware of, continue being disobeyed and contravened by the County Government of Homa Bay and specifically by its functionaries, the named Respondents as had been sought to be summoned, and who needed to be directed to purge the contempt and only in the event of continued disobedience, were they to be cited for such contempt and if convicted, appropriately punished.
5. It is apparent that the applicant had been kept out of the fruits of its litigation for a period of over 4 years after the subordinate court order granted to it a lawful decree, and for 3 years after this court itself issued a lawful order of mandamus, that requires compliance, and which order of mandamus was served and demand for compliance by making the specified payments made, but has since then been largely ignored, and no reasons for such conduct has been given by the Respondents.
6. The court was thus convinced, and was in agreement with the applicant that the continued disobedience of the order of mandamus issued by this court, for the enforcement of the decree of the subordinate court, undermines the rule of law and the very foundation on which ordered and predictable systems of governance survive; affects the applicants who now appear helpless and has no alternative remedy of realizing the fruits of the judgment and decree in its favor and as pronounced by the courts so far in vindication of its rights which were violated by the County Government of Homa Bay.
7. I was thus satisfied that the justice of the matter raised in the said motion dictated then that the application be heard expeditiously, and it is on that basis that I granted an order, in terms of prayer 2, of that motion, and directed that summons as had been sought be issued to the 1st and 2nd Respondents in that motion, and further issued express directions as to service of the application, filing of responses, and gave a hearing date on priority for 26th November 2026. In doing so, I was entirely convinced that the court jurisdiction, given the provisions of the law on which the application had been anchored, was appropriately invoked, given the allegations of the violation of Article 47(1) rights as implicated, which were said to have crystalized, and the need to interrogate the issues, so as to vindicate the rule of law, meet the ends of justice and to prevent continued disobedience of the orders of this court and to sooner investigate the allegations by the applicant of the continued violation of its rights under the decrees and the order of mandamus that it contended, was being disobeyed by the Respondents.
The Motion dated 12th November 2025.
8. Upon being served, the Respondents without responding to the Motion, equally moved the court and filed its own motion dated 12th November 2025, in which the following prayers were sought:
a) THAT the application be certified as urgent, service thereof be dispensed with, and the same be heard ex parte in the first instance
b) THAT pending hearing and determination of the application the court do issue interim orders of staying the execution of the orders of the court issued on the 10th November 2025
c) THAT the ex parte orders issued on the 10th November 2025 be set aside in their entirety
d) THAT the ex parte application dated 7th November 2025 be struck out/and or be dismissed with costs for being frivolous vexatious and an abuse of the court process
e) THAT this court do issue such further and or other orders just and expedient in the circumstances
f) THAT the costs of the application be awarded to the applicant.
9. The motion is said to be anchored on the grounds stated on its body, which I need not reproduce in full, save to say that I have fully considered and taken the same into account and also of note is the fact that it is supported by the affidavit of one SOLOMON OBIERO, who described himself as the Executive Committee Member for Finance and Economic Planning in the County Government of Homa Bay. He swore the affidavit in that capacity and on behalf of the 1st Respondent in support of the motion dated 12th November 2025.
10. Upon perusal of the Respondents motion dated 12th November 2025, I was not convinced that it demonstrated such express urgency as warranted the issuance of the orders as had been sought therein, ex parte, in view of the directions that the court had previously given with respect to the motion dated 7th November 2025. In the court’s view, the two motions could be handled together and inter partes, and thus I directed that the same be served, and responses be filed and that it be heard together with the one dated 7th November 2025 on the scheduled date, 26th November 2025. The rationale is that since by this time the applicant had already filed grounds of opposition dated 17th November 2025 and a replying affidavit sworn on the same day by its Director, David Yamo Ademba in opposition thereto.
11. On the 26th November 2025, Mr. Okongo Advocate on behalf of the applicant was physically present in court and was ready to proceed. On behalf of the Respondents, Mr. Mboya on behalf of the County Attorney, Homa Bay, who was present on the virtual platform indicated that he was ready to proceed for and on behalf of the Respondents, who had filed the said motion, together with Mr. Oteng whom he indicated would be appearing physically together with him. I heard Mr. Mboya first who addressed me on the Motion dated 12th November 2025 which he urged me to allow. I then heard Mr. Okongo for the applicant who opposed the said motion and addressed me on the motion dated 7th November 2025 by the applicant. On the virtual platform was also Mr. Rono who informed the court that he was also acting for the Respondents since 2023, despite being on record for the Respondents, they had never been served. This however was coming after Mr. Mboya had informed the court that he was appearing on behalf of the Office of the County Attorney of Homa Bay who was on record for the Respondents and who had in fact filed the motion dated 12th November 2025 on which the court had just taken submissions on from him - Mr. Mboya. In their oral submissions, the parties’ respective counsel essentially reiterated their pleadings and depositions on oath.
12. The court has carefully perused the record of the court, and have read the two motions, the affidavits in support of both and that in opposition to the latter application as well as the submissions by counsel in urging the prayers sought therein. In my consideration of the two motions, I have treated the latter motion as an opposition to the former. In that scheme, the two applications become flip sides of each other. A determination of one will have a direct bearing on the outcome of the other. That scheme thus informs how the issues for determination have isolated and presented to the court.
13. The court discerns the issues presented for determination by this court on the two applications to be five and fairly straight forward. They are; -
a) Whether there is in place and exists a judgement and decree of the subordinate court dated 3rd November 2021 issued in Homa Bay CMCC No E061 of 2021 against the County Government of Homa Bay, which to date has not been settled and satisfied?
b) Whether there exists an order of mandamus issued by this court on the 15th December 2022 in these proceedings and which order has not been complied with and three, on who lies the legal duty to comply with the previous orders of this court and the decree of the subordinate court?
c) Whether or not the applicant’s motion dated 7th November 2025 is res judicata and therefore frivolous vexatious and constitutes abuse of the court process?
d) What orders should the court issue in the circumstances?
e) Who should bear the costs of the respective motions?
14. It is however, of interest that the court considers the gravamen of the respondents motion dated 12.11.2005 as a mirror of what challenges faces the applicant’s motion . It is apt to note that the facts of this matter are not in dispute. A decree in favour of the applicant was issued by the trial court on 3rd November 2021 for the sum of Kshs 5,578,355/ as had been sought in the plaint, Kshs 1, 000,000/= exemplary damages, costs of the suit, together with interest at 14% per annum with effect from 9th June 2015, until payment in full. Various demands were made to the County Government of Homa Bay and its functionaries, including the County Executive Committee Member in Charge of Finance to settle the decretal debt but no payment was forthcoming. Those basic facts have not been controverted.
15. On 15th March 2022, the applicant, armed with the said decree of the subordinate court and desirous of enforcing it, commenced the judicial review proceedings in this matter and by a judgement dated 15th December 2022, this Court agreed with it and an order of mandamus was issued. The respondents have not disputed the existence of the trial court decree, the order of mandamus by this court and the respective certificates of Orders against the Government, which have all been extracted and as issued by the courts in favor of the applicant, which are all exhibited and these demonstrate full compliance with the requirement of section 21(3) of the Government Proceedings Act.
16. It is thus indubitable that the County Government of Homa Bay owes the applicant, the said amounts as specified in the previous court decisions, decrees and orders. The application dated 7th November 2025 simply seeks to have the court recognize that there is a decree of the trial court and an Order of Mandamus issued by this court which have not been complied with. The said motion therefore cannot be said to be frivolous vexatious and or to constitute abuse of the process of the court as contended by the Respondents.
17. It is evident and the record shows that there have been previous attempts by the applicant to enforce the order of mandamus which evidently had not been successful. The court retains the learning that Mandamus is the only remedy that the applicant has, since the law does not permit execution of decrees against the government by way of attachment of government assets, and this being the case, The applicant cannot continue holding a barren decree as the respondents seem not to be moved by not only the demands for settlement, but also this Court’s order of mandamus, three years after the order was issued by this court and four years after the subordinate court delivered a judgement in its favour of the County Government which demands compliance by the respondents. such a sad state of affairs cannot be allowed to continue as court orders are not mere suggestions but are issued for compliance .
18. This court views the prayer for issuance summons, made at prayer b) of the applicant’s motion, to portend the only effect of simply giving the respondents an opportunity to purge their contempt. Only upon continued disobedience, that a prayer to commit the Respondents to civil jail for contempt of court, may issue but after a merit hearing.
19. Summons were issued to the Respondents but they failed to attend Court as had been directed. This court views this as an act of blatant and persistent disobedience. Instead of answering to the summons, the Respondents filed the motion dated 12th November 2025, in which they contend, quite untruthfully, that they were condemned unheard. As said before, the object of the summons was to simply facilitate their coming to court so that they could be heard, otherwise there would have been no way the Respondents would have known that their presence in court was required. The court had a duty to consider the motion dated 7th November 2025 on the issue of urgency and it did. Nothing thus turns on the Respondents complaints in that regard as the court in its absolute discretion had jurisdiction to issue summons and the same caused no prejudice to any of the Respondents, either at all or in the manner as they purport in the said motion.
20. From the address by Mr. Mboya, advocate, the Respondents appear to have made a proposal for payment, to the applicant through its Counsel on record, which he say was rejected but again the terms of such proposals were never revealed to the court. To this court, it goes to the very root of the administration of justice, that every motion seeking to protect the integrity and respect of court processes should be determined on merit, fairly and proportionately.
21. The Respondents in their motion raises an issue that the County Executive Committee Member for Finance, then in office, when the application that gave rise to the order of Mandamus was filed, had left office by the time the order of Mandamus was issued by this Court on the 15th December 2022. That to this court is not a serious position to be taken by any public officer bound by the values and principles of governance who ought to know that public offices are perpetual and are never personal to the holder’s tenure.
22. However, Mr. Mboya and the Respondents failed to disclose to the court is the fact that the current County Executive Committee Member, responsible for finance and the Chief Officer in that docket were the same holder in the offices when the mandamus order was issued. Being public and state officers, they have no option but to act in accordance with the law is.
23. The rule of law, a foundational value of the Constitution, requires that the dignity and authority of the courts be upheld at all times . This is crucial, as the capacity of the courts to carry out their functions depends upon it. As the Constitution commands, orders and decisions issued by a court bind all persons to whom it is issued , directed and the organs of state to which they apply. All are thus subject to the law including orders by the court.
24. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced. Courts have the power to ensure that their decisions or orders are complied with by all and sundry, including organs of state. In doing so, courts are not only giving effect to the rights of the successful litigant but also and more importantly, by acting as guardians of the Constitution, asserting their authority in the public interest.
25. It is thus unsurprising that courts may, as is the position in this case, raise the issue of civil contempt of their own accord. This matter unequivocally engages this court’s jurisdiction since a court that grants an order retains jurisdiction to ensure its compliance, thereby to vindicate its authority which is now at stake consequence of disobedience.
26. The Respondents conduct constitutes a particularly egregious affront on judicial integrity, the rule of law and the Constitution itself. On this issue, the court is the rightful guardian of the Constitution and the Judiciary, and it is therefore appropriate for it to respond to the Respondents calculated efforts to undermine the administration of justice and public trust in the Tribunal and Judiciary as a whole. These orders are appropriate, as they will play the dual role of vindicating the dignity of the court, the rights violated and compelling compliance with the impugned court order.
27. The orders now sought in the motion dated 7th November 2025 in my respectful view, are purposely to enforce the order of mandamus, which itself was to enforce the decree of the subordinate court as sought by the applicant, which if and when complied with, and not disobeyed, shall serve to ensure a step towards compliance, thus serve a coercive purpose.
28. There is therefore great constitutional and public value in compelling the Respondents to comply, and which cannot be ignored, and a view The applicant adopted to move this court, based on the disobedience so far exhibited by the Respondents. It follows from this that disobedience towards court orders or decisions risks rendering our courts impotent and judicial authority a mere mockery.
29. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced. Courts have the power to ensure that their decisions or orders are complied with by all and sundry, including organs of State. In doing so, courts are not only giving effect to the rights of the successful litigant but also and more importantly, by acting as guardians of the Constitution, asserting their authority in the public interest. Thus the authority of courts and obedience of their orders to me are the very foundation of a constitutional order founded on the rule of law and largely depends on public trust and respect for the courts.
30. The Court in my view, must assist in having its orders enforced and complied with and any disregard for this court’s order and the judicial process requires the court to intervene as the situation involves the vindication of the Constitution. Thus, the issues at the heart of this matter are irrefutably constitutional and legal issues that engage this court’s jurisdiction as urged by the applicant, and I thus proceed to allow the Motion, but on terms, and to award costs.
31. In any event in the present motion, the applicant has invoked the provisions of the constitution and several statutes, the effect of which is that there is a public duty conferred on the Respondents in relation to the issue, which the need to comply fully with previous court decrees and orders which in my view is an administrative action.
32. This court thus finds that the Respondents as named in the motion dated 7th November 2025, the County Chief Officer and the County Executive Committee Member responsible for finance, being public offices serving in the County Government of Homa Bay, the judgement debtor, are public duty bearers who owe a duty conferred by Article 47(1) of the constitution, the prescriptions of the Fair Administrative Actions Act, section 21(3) of the Government Proceedings Act as read with section 103 and 104 of the Public Finance Management Act. That duty, in the circumstances of this case is owed to the applicant and the respondents are liable to settle the decree on behalf of the County Government of Homa Bay. That duty has demonstratively remained undischarged since 3rd November, 2021. That is to court a brazen disobedience by the respondents of decree of the lower court as ringfenced by the Order of Mandamus issued by this court and dated 15th December 2022. The court views the disobedience willful and deliberate.
33. The court’s finding is that County Chief Officer Responsible for Finance, County Executive Committee Member for Finance, of the County Government of Homa Bay, holds public offices and have been named in these proceedings in their official capacities as Public Officers and not in their individual capacities and the duties they are required to perform are conferred on them and required by a statute.
34. There is evidence on record and sufficient basis has been laid to demonstrate that since 3rd November 2021, the County Government of Homa Bay, the judgement debtor, has declined to settle the decree of the subordinate Court and its functionaries have declined to comply with this Court’s order of mandamus. Failure to comply with and settle a lawful decree of a court is contempt of court.
35. It is on the basis of the aforesaid that this court in clear exercise of its mandate to enforce its orders and those of the subordinate court that it supervises summoned the current office holders of the two public offices, namely County Chief Officer Responsible for Finance, and County Executive Committee Member in Charge of Finance, in County Government of Homa Bay County, to personally appear in court so as to show cause why previous orders of the Court have not been complied with. The two public officials again disobeyed the summons and never appeared on 26th November 2025, at 9.30 am as had been directed, a circumstance that clearly show and demonstrate open disobedience to the orders and directions of this court.
36. The applicant contends that at the time of filing the Notice of Motion dated 7th November 2025, the total amount due and payable under the decrees flowing from the Order of Mandamus and the Certificate of Order is therefore Kshs. 21,987,272 which amount continues to attract interest until payment shall be made in full as more particularly specified in the Certificate of Order dated 30th August 2023 on record. This figure was never disputed by the Respondents and I have no reason to doubt it and it is my finding that the County Government of Homa Bay owe to the applicant, under the decrees and as specified in the respective certificate of costs the said sum of Kshs 21, 987,272/- as at 7th November 2025 when the said present Motion was filed and the amount shall and continue to attract interest as previously held by the previous orders of the court until payment shall be made in full.
37. Settlement of Court Decrees, and in the circumstances as raised in the present motion, is a statutory obligation that must be performed, under the Fair Administrative Actions Act, as invoked, by County Public Officers. The County Chief Officer for Finance, and County Executive Committee Member responsible for Finance are all Public Officers at the County Treasury and bears the statutory responsibility and obligation to settle Court decrees and to ensure compliance with Court orders and directions in their ordinary course of duty, and it is obvious that due to their failure to perform their duties, as implicated herein, further litigation, which would have been avoided and Interest continue to accumulate and shall continue to accrue on the decree from the dates of the last certificate of order.
38. There is no contention that the order of mandamus issued by the court was served on the Respondents and that they are fully aware of it, and that the said order requires and demands that it be complied with, as ignoring it is not an option. The order is clearly endorsed with a penal notice but they have disregarded the same, failed to comply with section 21(3) of the Government Proceedings Act in relation to that order and sadly continue to willfully, in disobedience, and in contempt of court.
39. No compelling reason has been advanced by the Respondents as to why the said amounts have not been cleared to date and there is nothing before this court to show that the said decree has been set aside or varied by this Court or on Appeal, or that the Order of Mandamus issued by this Court has been stayed or set aside.
40. The threshold for contempt of court was laid down in the case of Samuel M.N Mweru & Another vs National Lands Commission (2020) KEHC 9233 (KLR) . where the court cited the the book Contempt in Modern New Zealand[ where the author stated:- "There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:- (a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defend
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2. The prayers in in that application were crafted thus;
a) spent.
b) The Court be pleased to issue summons to a) County Chief Officer Responsible for Finance. b) County Executive Committee Member in Charge of Finance c) County Government of Homa Bay, all functionaries of the County of Homa Bay, and its the Accounting Officers and legal duty bearers to personally attend court, on a date to be determined by the court, and to show cause why they should not be cited and punished for contempt of court, for being in willful disobedience of the lawful order of Mandamus dated 15th December 2022, and the judgement, and decree of the subordinate court dated 3rd November 2021, and the resultant Certificate of order and certificate of order for costs dated 30th August 2023, issued against the County Government of Homabay, in Homabay CMCC No E 061 of 2021.
c) Upon complying with the summons, and personally attending before the court, on such date as the Court shall specify, the said a) County Chief Officer Responsible for Finance, b) County Executive Committee Member in Charge of Finance c) County Government of Homabay be directed to and be granted a period not exceeding fourteen (14) Days within which to purge the contempt by forthwith complying with the order of Mandamus dated 15th December 2022, by settling and satisfying the judgment and decree of the subordinate court dated 3rd November 2021 as directed by the said order of Mandamus.
d) The Respondents be directed to forthwith comply with this court’s order of mandamus dated and issued on the 15th December 2022 and to forthwith pay to the applicant the following sums namely:-
(i) The principal sum of Kshs 15,639, 595/=, due and owing on the decree as at 15th May 2023 and as specified in Clause 1 of the certificate of order against the government dated and issued on the 30th August 2023.
(ii) Kshs. 6,347,676 /= being interest thereon from 16th of May 2023, being the date of the Certificate of Order, and as specified in Clause 2 of the said certificate, and as issued pursuant to the order of mandamus herein, to 7th November 2025, being the date of this application.
(iii) Further interest accruing on the decretal sum as specified in the certificate of order from 7th November 2025 being the date of this application until the date when payment shall be made in full
e) The Respondents be denied audience before this court until and unless they comply and purge their contempt by complying with the Order of mandamus dated 15th December 2022 and as issued by this court by paying to the applicant the said sums and as certified in the said Certificate of Order against the government issued on 30th August 2023.
f) In the event of failure to comply as directed and to purge the contempt, this court be pleased to issue orders citing a) County Chief Officer Responsible for Finance, b) County Executive Committee Member in Charge of Finance, c) County Government of Homabay for being in contempt of court for willfully disobeying the lawful order of mandamus issued by this court on the 15th December 2022, and upon conviction and subject to mitigation be punished in accordance with the law, and as the court shall in its discretion determine.
g) Such further orders and directions be issued in the interest of justice, as would further the interest of justice and as would aid in the administration of justice and to ensure the fulfilment of the applicant’s right of access to justice, by ensuring compliance with the decree of both the subordinate court and this court’s order of mandamus, and to vindicate the rule of law.
h) The current office holders of the public offices in the County Government of Homabay, namely the County Chief Officer Responsible for Finance, County Executive Committee Member in Charge of Finance, be condemned to bear the applicant’s costs of this application personally.
3. The grounds on which the motion was sought are on its body and need not be reproduce here but suffices to say that the motion was supported by the affidavit of David Yamo Ademba, a director of the applicant.
4. The court considered the certificate of urgency question as had been raised in the certificate, and was satisfied that indeed the motion was urgent and, on that basis, issued directions as to service of the motion on the respondents, the filing of responses and fixed the motion for hearing on 26th November 2025. The court then ordered that summons as had been sought be issued and that the Chief Officer Finance and the County Executive Committee member responsible for Finance be served and to personally appear in open court at the hearing. In issuing such summons the court was informed by its own record which confirms the applicant’s contention, among others that it sought, in the motion to enforce lawful order of mandamus issued by this Court way back on the 15th December 2022, which was extracted and served thereafter on 23rd December 2022 with a penal notice, and which to date remain not complied with, and the judgment of the subordinate court delivered way back on 3rd November 2021, that it has no other way of enforcing the subordinate Court judgement, as well as the decree and the order for costs, the taxed costs and the order of Mandamus which this court granted in its favor and remain non complied with since 15th December 2022, unless the Court assists in enforcing its decision. There is also the uncontroverted contention by the applicant that lawful and binding orders of this court, issued in these proceedings on 15th December 2022 to enforce a lawful decree of the Court, which was itself issued on 3rd November 2021, in Homabay Chief Magistrate Court, Civil Suit No E061 of 2021 and which the Respondents have been fully aware of, continue being disobeyed and contravened by the County Government of Homa Bay and specifically by its functionaries, the named Respondents as had been sought to be summoned, and who needed to be directed to purge the contempt and only in the event of continued disobedience, were they to be cited for such contempt and if convicted, appropriately punished.
5. It is apparent that the applicant had been kept out of the fruits of its litigation for a period of over 4 years after the subordinate court order granted to it a lawful decree, and for 3 years after this court itself issued a lawful order of mandamus, that requires compliance, and which order of mandamus was served and demand for compliance by making the specified payments made, but has since then been largely ignored, and no reasons for such conduct has been given by the Respondents.
6. The court was thus convinced, and was in agreement with the applicant that the continued disobedience of the order of mandamus issued by this court, for the enforcement of the decree of the subordinate court, undermines the rule of law and the very foundation on which ordered and predictable systems of governance survive; affects the applicants who now appear helpless and has no alternative remedy of realizing the fruits of the judgment and decree in its favor and as pronounced by the courts so far in vindication of its rights which were violated by the County Government of Homa Bay.
7. I was thus satisfied that the justice of the matter raised in the said motion dictated then that the application be heard expeditiously, and it is on that basis that I granted an order, in terms of prayer 2, of that motion, and directed that summons as had been sought be issued to the 1st and 2nd Respondents in that motion, and further issued express directions as to service of the application, filing of responses, and gave a hearing date on priority for 26th November 2026. In doing so, I was entirely convinced that the court jurisdiction, given the provisions of the law on which the application had been anchored, was appropriately invoked, given the allegations of the violation of Article 47(1) rights as implicated, which were said to have crystalized, and the need to interrogate the issues, so as to vindicate the rule of law, meet the ends of justice and to prevent continued disobedience of the orders of this court and to sooner investigate the allegations by the applicant of the continued violation of its rights under the decrees and the order of mandamus that it contended, was being disobeyed by the Respondents.
The Motion dated 12th November 2025.
8. Upon being served, the Respondents without responding to the Motion, equally moved the court and filed its own motion dated 12th November 2025, in which the following prayers were sought:
a) THAT the application be certified as urgent, service thereof be dispensed with, and the same be heard ex parte in the first instance
b) THAT pending hearing and determination of the application the court do issue interim orders of staying the execution of the orders of the court issued on the 10th November 2025
c) THAT the ex parte orders issued on the 10th November 2025 be set aside in their entirety
d) THAT the ex parte application dated 7th November 2025 be struck out/and or be dismissed with costs for being frivolous vexatious and an abuse of the court process
e) THAT this court do issue such further and or other orders just and expedient in the circumstances
f) THAT the costs of the application be awarded to the applicant.
9. The motion is said to be anchored on the grounds stated on its body, which I need not reproduce in full, save to say that I have fully considered and taken the same into account and also of note is the fact that it is supported by the affidavit of one SOLOMON OBIERO, who described himself as the Executive Committee Member for Finance and Economic Planning in the County Government of Homa Bay. He swore the affidavit in that capacity and on behalf of the 1st Respondent in support of the motion dated 12th November 2025.
10. Upon perusal of the Respondents motion dated 12th November 2025, I was not convinced that it demonstrated such express urgency as warranted the issuance of the orders as had been sought therein, ex parte, in view of the directions that the court had previously given with respect to the motion dated 7th November 2025. In the court’s view, the two motions could be handled together and inter partes, and thus I directed that the same be served, and responses be filed and that it be heard together with the one dated 7th November 2025 on the scheduled date, 26th November 2025. The rationale is that since by this time the applicant had already filed grounds of opposition dated 17th November 2025 and a replying affidavit sworn on the same day by its Director, David Yamo Ademba in opposition thereto.
11. On the 26th November 2025, Mr. Okongo Advocate on behalf of the applicant was physically present in court and was ready to proceed. On behalf of the Respondents, Mr. Mboya on behalf of the County Attorney, Homa Bay, who was present on the virtual platform indicated that he was ready to proceed for and on behalf of the Respondents, who had filed the said motion, together with Mr. Oteng whom he indicated would be appearing physically together with him. I heard Mr. Mboya first who addressed me on the Motion dated 12th November 2025 which he urged me to allow. I then heard Mr. Okongo for the applicant who opposed the said motion and addressed me on the motion dated 7th November 2025 by the applicant. On the virtual platform was also Mr. Rono who informed the court that he was also acting for the Respondents since 2023, despite being on record for the Respondents, they had never been served. This however was coming after Mr. Mboya had informed the court that he was appearing on behalf of the Office of the County Attorney of Homa Bay who was on record for the Respondents and who had in fact filed the motion dated 12th November 2025 on which the court had just taken submissions on from him - Mr. Mboya. In their oral submissions, the parties’ respective counsel essentially reiterated their pleadings and depositions on oath.
12. The court has carefully perused the record of the court, and have read the two motions, the affidavits in support of both and that in opposition to the latter application as well as the submissions by counsel in urging the prayers sought therein. In my consideration of the two motions, I have treated the latter motion as an opposition to the former. In that scheme, the two applications become flip sides of each other. A determination of one will have a direct bearing on the outcome of the other. That scheme thus informs how the issues for determination have isolated and presented to the court.
13. The court discerns the issues presented for determination by this court on the two applications to be five and fairly straight forward. They are; -
a) Whether there is in place and exists a judgement and decree of the subordinate court dated 3rd November 2021 issued in Homa Bay CMCC No E061 of 2021 against the County Government of Homa Bay, which to date has not been settled and satisfied?
b) Whether there exists an order of mandamus issued by this court on the 15th December 2022 in these proceedings and which order has not been complied with and three, on who lies the legal duty to comply with the previous orders of this court and the decree of the subordinate court?
c) Whether or not the applicant’s motion dated 7th November 2025 is res judicata and therefore frivolous vexatious and constitutes abuse of the court process?
d) What orders should the court issue in the circumstances?
e) Who should bear the costs of the respective motions?
14. It is however, of interest that the court considers the gravamen of the respondents motion dated 12.11.2005 as a mirror of what challenges faces the applicant’s motion . It is apt to note that the facts of this matter are not in dispute. A decree in favour of the applicant was issued by the trial court on 3rd November 2021 for the sum of Kshs 5,578,355/ as had been sought in the plaint, Kshs 1, 000,000/= exemplary damages, costs of the suit, together with interest at 14% per annum with effect from 9th June 2015, until payment in full. Various demands were made to the County Government of Homa Bay and its functionaries, including the County Executive Committee Member in Charge of Finance to settle the decretal debt but no payment was forthcoming. Those basic facts have not been controverted.
15. On 15th March 2022, the applicant, armed with the said decree of the subordinate court and desirous of enforcing it, commenced the judicial review proceedings in this matter and by a judgement dated 15th December 2022, this Court agreed with it and an order of mandamus was issued. The respondents have not disputed the existence of the trial court decree, the order of mandamus by this court and the respective certificates of Orders against the Government, which have all been extracted and as issued by the courts in favor of the applicant, which are all exhibited and these demonstrate full compliance with the requirement of section 21(3) of the Government Proceedings Act.
16. It is thus indubitable that the County Government of Homa Bay owes the applicant, the said amounts as specified in the previous court decisions, decrees and orders. The application dated 7th November 2025 simply seeks to have the court recognize that there is a decree of the trial court and an Order of Mandamus issued by this court which have not been complied with. The said motion therefore cannot be said to be frivolous vexatious and or to constitute abuse of the process of the court as contended by the Respondents.
17. It is evident and the record shows that there have been previous attempts by the applicant to enforce the order of mandamus which evidently had not been successful. The court retains the learning that Mandamus is the only remedy that the applicant has, since the law does not permit execution of decrees against the government by way of attachment of government assets, and this being the case, The applicant cannot continue holding a barren decree as the respondents seem not to be moved by not only the demands for settlement, but also this Court’s order of mandamus, three years after the order was issued by this court and four years after the subordinate court delivered a judgement in its favour of the County Government which demands compliance by the respondents. such a sad state of affairs cannot be allowed to continue as court orders are not mere suggestions but are issued for compliance .
18. This court views the prayer for issuance summons, made at prayer b) of the applicant’s motion, to portend the only effect of simply giving the respondents an opportunity to purge their contempt. Only upon continued disobedience, that a prayer to commit the Respondents to civil jail for contempt of court, may issue but after a merit hearing.
19. Summons were issued to the Respondents but they failed to attend Court as had been directed. This court views this as an act of blatant and persistent disobedience. Instead of answering to the summons, the Respondents filed the motion dated 12th November 2025, in which they contend, quite untruthfully, that they were condemned unheard. As said before, the object of the summons was to simply facilitate their coming to court so that they could be heard, otherwise there would have been no way the Respondents would have known that their presence in court was required. The court had a duty to consider the motion dated 7th November 2025 on the issue of urgency and it did. Nothing thus turns on the Respondents complaints in that regard as the court in its absolute discretion had jurisdiction to issue summons and the same caused no prejudice to any of the Respondents, either at all or in the manner as they purport in the said motion.
20. From the address by Mr. Mboya, advocate, the Respondents appear to have made a proposal for payment, to the applicant through its Counsel on record, which he say was rejected but again the terms of such proposals were never revealed to the court. To this court, it goes to the very root of the administration of justice, that every motion seeking to protect the integrity and respect of court processes should be determined on merit, fairly and proportionately.
21. The Respondents in their motion raises an issue that the County Executive Committee Member for Finance, then in office, when the application that gave rise to the order of Mandamus was filed, had left office by the time the order of Mandamus was issued by this Court on the 15th December 2022. That to this court is not a serious position to be taken by any public officer bound by the values and principles of governance who ought to know that public offices are perpetual and are never personal to the holder’s tenure.
22. However, Mr. Mboya and the Respondents failed to disclose to the court is the fact that the current County Executive Committee Member, responsible for finance and the Chief Officer in that docket were the same holder in the offices when the mandamus order was issued. Being public and state officers, they have no option but to act in accordance with the law is.
23. The rule of law, a foundational value of the Constitution, requires that the dignity and authority of the courts be upheld at all times . This is crucial, as the capacity of the courts to carry out their functions depends upon it. As the Constitution commands, orders and decisions issued by a court bind all persons to whom it is issued , directed and the organs of state to which they apply. All are thus subject to the law including orders by the court.
24. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced. Courts have the power to ensure that their decisions or orders are complied with by all and sundry, including organs of state. In doing so, courts are not only giving effect to the rights of the successful litigant but also and more importantly, by acting as guardians of the Constitution, asserting their authority in the public interest.
25. It is thus unsurprising that courts may, as is the position in this case, raise the issue of civil contempt of their own accord. This matter unequivocally engages this court’s jurisdiction since a court that grants an order retains jurisdiction to ensure its compliance, thereby to vindicate its authority which is now at stake consequence of disobedience.
26. The Respondents conduct constitutes a particularly egregious affront on judicial integrity, the rule of law and the Constitution itself. On this issue, the court is the rightful guardian of the Constitution and the Judiciary, and it is therefore appropriate for it to respond to the Respondents calculated efforts to undermine the administration of justice and public trust in the Tribunal and Judiciary as a whole. These orders are appropriate, as they will play the dual role of vindicating the dignity of the court, the rights violated and compelling compliance with the impugned court order.
27. The orders now sought in the motion dated 7th November 2025 in my respectful view, are purposely to enforce the order of mandamus, which itself was to enforce the decree of the subordinate court as sought by the applicant, which if and when complied with, and not disobeyed, shall serve to ensure a step towards compliance, thus serve a coercive purpose.
28. There is therefore great constitutional and public value in compelling the Respondents to comply, and which cannot be ignored, and a view The applicant adopted to move this court, based on the disobedience so far exhibited by the Respondents. It follows from this that disobedience towards court orders or decisions risks rendering our courts impotent and judicial authority a mere mockery.
29. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced. Courts have the power to ensure that their decisions or orders are complied with by all and sundry, including organs of State. In doing so, courts are not only giving effect to the rights of the successful litigant but also and more importantly, by acting as guardians of the Constitution, asserting their authority in the public interest. Thus the authority of courts and obedience of their orders to me are the very foundation of a constitutional order founded on the rule of law and largely depends on public trust and respect for the courts.
30. The Court in my view, must assist in having its orders enforced and complied with and any disregard for this court’s order and the judicial process requires the court to intervene as the situation involves the vindication of the Constitution. Thus, the issues at the heart of this matter are irrefutably constitutional and legal issues that engage this court’s jurisdiction as urged by the applicant, and I thus proceed to allow the Motion, but on terms, and to award costs.
31. In any event in the present motion, the applicant has invoked the provisions of the constitution and several statutes, the effect of which is that there is a public duty conferred on the Respondents in relation to the issue, which the need to comply fully with previous court decrees and orders which in my view is an administrative action.
32. This court thus finds that the Respondents as named in the motion dated 7th November 2025, the County Chief Officer and the County Executive Committee Member responsible for finance, being public offices serving in the County Government of Homa Bay, the judgement debtor, are public duty bearers who owe a duty conferred by Article 47(1) of the constitution, the prescriptions of the Fair Administrative Actions Act, section 21(3) of the Government Proceedings Act as read with section 103 and 104 of the Public Finance Management Act. That duty, in the circumstances of this case is owed to the applicant and the respondents are liable to settle the decree on behalf of the County Government of Homa Bay. That duty has demonstratively remained undischarged since 3rd November, 2021. That is to court a brazen disobedience by the respondents of decree of the lower court as ringfenced by the Order of Mandamus issued by this court and dated 15th December 2022. The court views the disobedience willful and deliberate.
33. The court’s finding is that County Chief Officer Responsible for Finance, County Executive Committee Member for Finance, of the County Government of Homa Bay, holds public offices and have been named in these proceedings in their official capacities as Public Officers and not in their individual capacities and the duties they are required to perform are conferred on them and required by a statute.
34. There is evidence on record and sufficient basis has been laid to demonstrate that since 3rd November 2021, the County Government of Homa Bay, the judgement debtor, has declined to settle the decree of the subordinate Court and its functionaries have declined to comply with this Court’s order of mandamus. Failure to comply with and settle a lawful decree of a court is contempt of court.
35. It is on the basis of the aforesaid that this court in clear exercise of its mandate to enforce its orders and those of the subordinate court that it supervises summoned the current office holders of the two public offices, namely County Chief Officer Responsible for Finance, and County Executive Committee Member in Charge of Finance, in County Government of Homa Bay County, to personally appear in court so as to show cause why previous orders of the Court have not been complied with. The two public officials again disobeyed the summons and never appeared on 26th November 2025, at 9.30 am as had been directed, a circumstance that clearly show and demonstrate open disobedience to the orders and directions of this court.
36. The applicant contends that at the time of filing the Notice of Motion dated 7th November 2025, the total amount due and payable under the decrees flowing from the Order of Mandamus and the Certificate of Order is therefore Kshs. 21,987,272 which amount continues to attract interest until payment shall be made in full as more particularly specified in the Certificate of Order dated 30th August 2023 on record. This figure was never disputed by the Respondents and I have no reason to doubt it and it is my finding that the County Government of Homa Bay owe to the applicant, under the decrees and as specified in the respective certificate of costs the said sum of Kshs 21, 987,272/- as at 7th November 2025 when the said present Motion was filed and the amount shall and continue to attract interest as previously held by the previous orders of the court until payment shall be made in full.
37. Settlement of Court Decrees, and in the circumstances as raised in the present motion, is a statutory obligation that must be performed, under the Fair Administrative Actions Act, as invoked, by County Public Officers. The County Chief Officer for Finance, and County Executive Committee Member responsible for Finance are all Public Officers at the County Treasury and bears the statutory responsibility and obligation to settle Court decrees and to ensure compliance with Court orders and directions in their ordinary course of duty, and it is obvious that due to their failure to perform their duties, as implicated herein, further litigation, which would have been avoided and Interest continue to accumulate and shall continue to accrue on the decree from the dates of the last certificate of order.
38. There is no contention that the order of mandamus issued by the court was served on the Respondents and that they are fully aware of it, and that the said order requires and demands that it be complied with, as ignoring it is not an option. The order is clearly endorsed with a penal notice but they have disregarded the same, failed to comply with section 21(3) of the Government Proceedings Act in relation to that order and sadly continue to willfully, in disobedience, and in contempt of court.
39. No compelling reason has been advanced by the Respondents as to why the said amounts have not been cleared to date and there is nothing before this court to show that the said decree has been set aside or varied by this Court or on Appeal, or that the Order of Mandamus issued by this Court has been stayed or set aside.
40. The threshold for contempt of court was laid down in the case of Samuel M.N Mweru & Another vs National Lands Commission (2020) KEHC 9233 (KLR) . where the court cited the the book Contempt in Modern New Zealand[ where the author stated:- "There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:- (a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defend
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