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ELRCDismissedPetition No. 11 of 2013· [2018] KEELRC 1102 (KLR)

Nasibo Dabaso Jillo v Principal Secretary Ministry of Defence & another [2018] KEELRC 1102 (KLR)

High Court of Kenya
28 September 2018
OMOnesmus N. Makau
1,529 words in judgment
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The bottom line

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The High Court refused to punish the Defence Ministry's accounting officer for unpaid court-awarded compensation because the strict legal steps before a contempt case were never proved.

What this practically means

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Executive summary

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The applicant moved the court by Notice of Motion dated 15 February 2018 seeking to have Saitoti Torome, the Principal Secretary and Accounting Officer in the Ministry of Defence, summoned to show cause why he should not be cited for contempt and committed to prison for up to six months for failing to satisfy a judgment of Kshs.3,000,000 entered on 19 June 2015 in the underlying petition for unlawful dismissal, together with taxed costs, and a mandamus issued on 7 December 2017 compelling payment of Kshs.3,990,398. The applicant argued that non-compliance was wilful, contrary to section 21(3) of the Government Proceedings Act and Article 10 of the Constitution, and that payment of decreed sums is not subject to budgetary allocation. The respondent acknowledged the judgment and mandamus but stated he had instructed counsel to appeal, and contended that no budgetary allocation had been made, that the decree had not been served on him, and that contempt proceedings could not lie because the statutory procedure had not been followed and he could not be personally committed for acts done in good faith. The court framed the sole issue as whether the orders sought should be granted. Relying on section 30(2) of the Contempt of Court Act, 2016, which mandates notice of not less than thirty days to an accounting officer before contempt proceedings, and noting the applicant's failure to prove service of the decree or of a certificate of order against the Government under section 21(3) of the GPA, the court declined to grant the orders. The motion was dismissed for lack of merits with each party bearing their own costs.

Key legal issues

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01

Whether the 1st Respondent, the Accounting Officer, was in contempt of the judgment and order of mandamus

Holding

The application was dismissed; contempt was not established because the statutory preconditions were not proved

Reasoning

The court applied section 30(2) of the Contempt of Court Act which mandates a notice of not less than thirty days before commencing contempt proceedings against an accounting officer. Even treating the motion itself as the notice, the applicant failed to prove service of the decree or of a certificate of order against the Government under section 21(3) of the GPA. Absent proof of those statutory steps, the court could not summon the respondent to answer a contempt charge.

p. 2

Legal principles established

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  • Contempt proceedings against an accounting officer of a state organ require prior statutory notice of not less than thirty days under section 30(2) of the Contempt of Court Act
  • Before an accounting officer can be summoned to show cause for contempt, the applicant must prove service of the decree and of the certificate of order against the Government under section 21(3) of the Government Proceedings Act

Court orders

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  1. 1.The notice of motion dated 15.2.2018 is dismissed for lack of merits
  2. 2.Each party to bear his own costs

Authorities

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Legislation

  • Contempt of Court Actsection 30(2), section 30(6)
  • Government Proceedings Actsection 21(3), section 21(4)
  • Constitution of KenyaArticle 10, Article 159

Cases cited (8)

  • Republic Vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security & Another exparte Fredrick Manaoah Egunza
  • Estate of Harun Thungu Wakaba vs Attorney General & Another
    [2015] eKLR
  • Board of Governors Moi High School Kabarak Vs Malcom Bell & Another
  • Replic v Town Clerk Kisumu Municipality, Exparte East African Engineering Consultants
    [2007] 2 EA 441
  • Africa Management International Communication Limited vs Joseph Mathenge Mugo & Another
  • Ziporah Wambui Mathara
    [2010] eKLR
  • R vs Attorney General & Another exparte James Alfred Koroso
    [2013] eKLR
  • Jacob Zedekiah Ochino & Another vs George Aora Okombo & 34 Others
Jurisdiction invoked
Inherent jurisdiction to punish contempt; section 30 of the Contempt of Court Act, 2016

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, "Nasibo Dabaso Jillo v Principal Secretary Ministry of Defence & another [2018] KEELRC 1102 (KLR)", Case Analysis (2018). Petition No. 11 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1102/eng@2018-09-28

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