Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 26 of 2018· [2021] KEELRC 1927 (KLR)

Kennedy David Mwaniki Nyaga v County Government of Tharaka Nithi [2021] KEELRC 1927 (KLR)

Employment and Labour Relations Court of Kenya
23 March 2021
DMD.K. Njagi Marete
2,096 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that county officials can be summoned to explain why they should not be jailed for ignoring a court judgment against their government.

What this practically means

#

Executive summary

#
The Claimant/Applicant, who had obtained judgment against a County Government Respondent on 3rd July 2018 and served the decree and certificate of costs dated 21st March 2019, moved the court by notice of motion dated 23rd April 2019 seeking that the Respondent's County Secretary, County Executive Member Finance and/or County Chief Accountant be personally summoned to show cause why they should not be committed to civil jail for disobeying the decree. The Respondent opposed via grounds of opposition dated 19th June 2020, contending that the application offended Section 21 of the Government Proceedings Act, that the officers had not wilfully disobeyed any order, and that they could not be held personally liable for a public debt given lack of county funds. The court framed the issue as the place of mandamus in execution against governments, and whether Section 21 could serve as a cover for impunity or inertia. Applying the overriding objective and Article 159(2)(d), and following Francis Atanasio Kithure v County Government of Meru, the court held that while Section 21 applies to county governments, it was intended to aid, not frustrate, good governance, and the mandamus requirement must be justified by the circumstances of each case. The application was allowed: the named officers were ordered to be personally summoned to show cause why they should not be committed to civil jail for disobedience of the decree, with costs of the application borne by the Respondent.

Key legal issues

#
01

Whether county government officers can be summoned to show cause for contempt despite Section 21(4) of the Government Proceedings Act shielding them from individual liability

Holding

Yes - the officers may be summoned to show cause why they should not be committed to civil jail; Section 21 cannot shield inertia or impunity in satisfying decrees

Reasoning

The court distinguished between personal liability for the debt and accountability for disobedience of court orders. The applicant sought only that the accounting officers show cause, not immediate jailing. The court, guided by the overriding objective and Article 159(2)(d), held that Section 21 was meant to aid good governance and should not frustrate execution of decrees against county governments, especially where service of the decree was acknowledged.

p. 3
02

The applicability of Section 21 of the Government Proceedings Act to county governments

Holding

Section 21 applies to county governments, but it does not justify failure to satisfy decrees

Reasoning

Relying on Josphat Gathee Kibuchi v Kirinyaga County Council (2015) eKLR, the court accepted that a county government is part of the state and Section 21 applies to it. However, following Francis Atanasio Kithure v County Government of Meru, the court held that the mandamus requirement under Section 21 must be weighed against the overriding objective and should not operate as undue hardship.

p. 3

Legal principles established

#
  • Section 21 of the Government Proceedings Act was intended to aid good governance, not to be used as a cover for impunity or inertia by governments in satisfying decrees against them
  • The overriding objective and Article 159(2)(d) of the Constitution require courts to do justice between parties without undue regard to procedural technicalities, including the mandatory mandamus route in government decrees
  • The requirement of a writ of mandamus before execution against government must be justified by the circumstances of each case, particularly given devolution and the resulting multiplicity of governments

Court orders

#
  1. 1.That the Respondent's County Secretary, its County Executive Member Finance and/or its County Chief Accountant be personally summoned to show cause why they should not be committed to Civil Jail for the disobedience of the court order/decree dated 21st March, 2019
  2. 2.That the cost of this application shall be borne by the respondent

Authorities

#

Legislation

  • Government Proceedings ActSection 21 (including 21(3) and 21(4))
  • Civil Procedure ActSections 1A (including 1A(3)), 1B and 3A
  • Judicature ActSection 5(1)
  • Employment and Labour Relations ActSections 12(3)(viii) and 13
  • Civil Procedure RulesOrder 51 rule 14(2)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (3)

  • Josphat Gathee Kibuchi v Kirinyaga County Council (2015)
    eKLR
  • Francis Atanasio Kithure v County Government of Meru and Another, 2021
    eKLR
  • Abdirahman Abdi also known as Abdirahman Muhumed Abdi V. Safi Petroleum Products Ltd. & 6 others
    Civil Application No. Nai. 173 of 2010
Jurisdiction invoked
Section 5(1) Judicature Act Cap 8 (power to punish for contempt); Sections 12(3)(viii) and 13 Employment and Labour Relations Act No. 20 of 2011; Sections 1A, 1B and 3A Civil Procedure Act Cap 21

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kennedy David Mwaniki Nyaga v County Government of Tharaka Nithi [2021] KEELRC 1927 (KLR)", Case Analysis (2021). Cause No 26 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1927/eng@2021-03-23

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