Rose Kavita Mwivithi & 2 others v . Commissioner of Lands & 5 others [2021] KEELC 3479 (KLR)
The bottom line
#A Kenyan court ordered the Lands Principal Secretary to explain his non-payment of a court-ordered compensation, ruling budget shortages don't excuse ignoring judgments.
What this practically means
#Executive summary
#Key legal issues
#Whether the Government may plead lack of budgetary allocation as a defence to non-payment of a decretal sum
No. Payment under Section 21(3) is not conditioned on budgetary allocation or Parliamentary approval, and the Government had six years since judgment to budget for the decretal sum.
The Court noted that judgment was entered on 25 September 2015 and the Government neither paid nor appealed. Section 21(3) imposes a statutory duty on the accounting officer to pay sums specified in the certificate of order, without conditioning payment on budgetary processes. The Respondents offered no cogent or sufficient reason for non-payment six years after judgment, so the Court rejected the budgeting defence.
Whether the contempt application against the Principal Secretary was procedurally defective for want of service of a Penal Notice
The objection did not defeat the application; the Court was satisfied there was merit and issued summons to show cause.
The Respondents argued the application was a non-starter for failure to serve a Penal Notice and the mandamus order on the Principal Secretary. The Court found the Principal Secretary had had notice of the matter since judgment, the Certificate of Order had been served, and no basis existed for the claim that a new certificate and fresh mandamus were required before enforcement. It accordingly granted prayer 1 for summons to show cause.
Allegations of corruption against the firm of Susan Kahoya & Company Advocates in the settlement payments
The Court declined to make findings, noting the firm was not shown in the consent as representing any party, but left the Applicants free to complain to investigative agencies.
The consent provided that settlement sums be paid to a joint account of three advocates, yet the only payment was made to the sole account of Susan Kahoya & Company Advocates, contrary to Clause 7. The Court observed the claim that the firm represented other interests 'may not be far-fetched', but finding no evidence of service on the firm, it made no orders against it and directed the Applicants to the relevant corruption investigation agencies.
Legal principles established
#- A decree against the Government can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant Ministry to pay, the Government being immune from execution and attachment under Section 21(4) of the Government Proceedings Act
- Section 21 of the Government Proceedings Act does not condition payment of decretal sums to budgetary allocation or Parliamentary approval of Government expenditure
- A decree holder's right to enjoy the fruits of judgment must not be thwarted; the Court should favour an interpretation that secures enforcement and accrued rights
Court orders
#- 1.Prayer No. 1 of the Notice of Motion granted: Summons do issue to Dr. Nicholas Muraguri in person to appear before the Court and show cause why he should not be punished by way of imprisonment for failing to comply with the orders of the Court
- 2.The Court to make other orders as appropriate once the Summons are effected and the Principal Secretary responds thereto
- 3.The Applicants to have the costs of the application
- Jurisdiction invoked
- Inherent powers of the Court to enforce its decrees, read with Sections 21(1), (3) and (4) of the Government Proceedings Act (Cap 40)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Kavita Mwivithi & 2 others v . Commissioner of Lands & 5 others [2021] KEELC 3479 (KLR)", Case Analysis (2021). ELC Civil Case No. 107 of 2008 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3479/eng@2021-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.