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ELCPartially AllowedJudicial Review Motion dated 6th July, 2023 (arising from NRB ELC No 506 of 2008, formerly Thika ELC No 35 of 2017)· [2025] KEELC 579 (KLR)

Republic v County Government of Nairobi & 2 others; Kingpost Limited (Exparte Applicant) (Environment and Land Judicial Review Case 10 of 2020) [2025] KEELC 579 (KLR)

Environment and Land Court of Kenya
13 February 2025
4,015 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court found Nairobi County's Finance Executive in contempt for refusing to pay a court-ordered debt, rejecting the county's lack of budget as an excuse.

What this practically means

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Executive summary

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The Ex-Parte Applicant moved the court under Section 5 of the Judicature Act and Order 51 Rule 1 of the Civil Procedure Rules seeking leave to cite the County Government of Nairobi and the County Executive Committee Member (CECM) for Finance in contempt of a mandamus issued on 11th November, 2021 compelling satisfaction of a decree of Kshs 7,250,138.67 arising from a judgment of 19th June, 2018 in ELC No 506 of 2008 (formerly Thika ELC No 35 of 2017) awarding general damages for trespass and nuisance of Kshs 4,500,000 plus costs and interest. The Respondents opposed, contending that payment was a matter for the CECM Finance under the Public Finance Management Act, that Sections 196 and 197 prohibit unauthorised expenditure, and that the decree should be factored into a future budget approved by the County Assembly. The court framed two issues: competence of the Motion and proof of contempt against the 2nd Respondent. It held that leave is unnecessary where committal is sought for breach of a judgment or order, rendering prayer 1 superfluous, and that the 2nd Respondent was correctly cited as no other accounting officer was demonstrated. Applying the test in Samuel M.N Mweru and the quasi-criminal standard from Mutitika v Baharini Farm, the court found the orders clear, service proved, non-payment admitted, and held that non-allocation of budgetary funds is no defence, following the Egunza decision. The 2nd Respondent was found in contempt and directed to appear and show cause why he should not be detained in prison for six months or such other sentence; costs were awarded against the 1st Respondent.

Key legal issues

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01

Competence of the Motion and correct identification of the accounting officer

Holding

The Motion is competent; the 2nd Respondent, being the CECM for Finance with no demonstrated designate, was correctly cited

Reasoning

The Respondents argued that responsibility for public finance management lies with the CECM Finance and not the named contemnors. The court traced the term 'accounting officer' through Article 226 of the Constitution, Section 148 of the Public Finance Management Act and precedent. Since the Applicant specifically cited the CECM Finance and the 2nd Respondent did not demonstrate that another officer was designated to handle the county's financial affairs, the citation was correct and the objection failed.

p. 5
02

Whether contempt was proved against the 2nd Respondent

Holding

Contempt was established: the orders were clear, service was demonstrated, the decree remains unpaid, and non-allocation of funds is no excuse

Reasoning

Applying the test for civil contempt, the court found the mandamus orders of 11th November 2021 clear and precise; service was demonstrated by stamped letters from the Office of the County Attorney and the Office of the CECM Finance; and non-payment was admitted. The plea of non-allocation of funds was rejected on the authority of the Egunza decision, Section 21(3) of the Government Proceedings Act imposing an unqualified statutory duty on the accounting officer, and the lapse of more than three financial cycles since the mandamus.

p. 8

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities but below proof beyond reasonable doubt
  • Non-allocation of funds by Parliament or a County Assembly is not a defence to non-payment of decretal sums against a government entity
  • The accounting officer of a County Government entity is the person designated under Section 148 of the Public Finance Management Act; failing designation, the responsibility falls on the County Executive Committee Member for Finance
  • To establish civil contempt, the applicant must prove clear and binding order terms, the respondent's knowledge, failure to comply, and deliberate conduct

Court orders

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  1. 1.The 2nd Respondent, The County Executive Committee Member for Finance, County Government of Nairobi, is found to be in contempt of the Court's orders given on 11th November, 2021
  2. 2.The 2nd Respondent to appear before the court to show cause why he should not be detained in prison for a period of six months or such period that the court may please for contempt of court, or to mete out any other appropriate sentence
  3. 3.Costs of the Motion to be borne by the 1st Respondent

Authorities

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Legislation

  • Judicature Act, Cap 8Section 5
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Government Proceedings ActSections 21(1), (2), (3) and (4)
  • Public Finance Management Act, 2012Sections 103(2)(a) and (3), 125, 148(2) and (3), 196 and 197
  • Constitution of Kenya, 2010Article 226(1) and (2)
  • Environment and Land Court ActSection 29
  • Contempt of Court Act, 2016repealed in its entirety

Cases cited (15)

  • Hadkinson vs Hadkinson
    (1952) 2 ALL ER 56
  • Republic vs County Chief Officer, Finance and Economic Planning, Nairobi City County Ex-parte Stanley Muturi
    [2018] eKLR
  • Solo Worldwide Inter-Enterprises vs County Secretary, Nairobi County and Another
    [2016] eKLR
  • Samuel M.N Mweru & Others vs National Land Commission and 2 Ors
    [2020] eKLR
  • Gatharia K Mutitika vs Baharini Farm Limited
    [1958] KLR 227 (also cited as [1985] KLR 229, 234)
  • Re: Vinay Chandra Mishra
    (1995) 2 SCC 584
  • Christine Wangari Gachege vs Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Council of Governors & Others vs The Senate
    Petition No. 413 of 2014 [2015] eKLR
  • Republic vs Kisii County Government Ex-Parte Peter Kaunda Nyamosi & 2 Others
    [2018] eKLR
  • Consolata Kihara & 21 Others v Director of Kenya Trypanosomiasis Research Institute
    [2003] KLR 582
  • Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County (Ex Parte David Mugo Mwangi)
    NBI HC Misc. App. 222 of 2016 [2018] eKLR
  • Republic vs Ahmad Abolfathi Mohammed & Another
    [2019] eKLR (also cited as [2018] eKLR)
  • The Kenya Human Rights Commission vs Attorney General & Another
    [2018] eKLR
  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    [2015] eKLR
  • Republic vs Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza
    [2012] eKLR
Jurisdiction invoked
Section 5 of the Judicature Act, Cap 8; Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules; Section 29 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v County Government of Nairobi & 2 others; Kingpost Limited (Exparte Applicant) (Environment and Land Judicial Review Case 10 of 2020) [2025] KEELC 579 (KLR)", Case Analysis (2025). Judicial Review Motion dated 6th July, 2023 (arising from NRB ELC No 506 of 2008, formerly Thika ELC No 35 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/579/eng@2025-02-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.