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ELRCDismissedNotice of Motion dated March 30, 2022· [2023] KEELRC 1014 (KLR)

Republic v Principal Secretary Ministry of Defence & another; Jillo (Decree holder) (Miscellaneous Case 134 of 2017) [2023] KEELRC 1014 (KLR)

High Court of Kenya
2 May 2023
JGJacob Gakeri
2,678 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's High Court refused to jail a former Defence PS for unpaid court-ordered damages, finding the delay was not deliberate defiance—but the debt must still be paid.

What this practically means

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Executive summary

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This was a contempt application arising from a judgment of June 19, 2015 awarding the applicant Kshs 3,000,000 plus taxed costs, and a mandamus order issued on December 7, 2017 in judicial review directing the Principal Secretary, Ministry of Defence to pay Kshs 3,990,398. An earlier contempt application filed in February 2018 had failed because of Section 30(2) of the then Contempt of Court Act, 2016, later declared unconstitutional in Kenya Human Rights Commission v Attorney General. The applicant therefore revived the contempt proceedings by a Notice of Motion dated March 30, 2022, seeking a declaration that the 1st Respondent, Dr Ibrahim M. Mohamed CBS, was in contempt and committal to civil jail for six months. The Respondents, through a Replying Affidavit by the Acting Chief Financial Officer, attributed the non-payment to financial constraints, austerity measures and lack of parliamentary allocation, and asserted good faith through settlement overtures. The court identified a single issue: whether the motion was merited. It accepted that the order was clear, unambiguous, served and binding, satisfying the first three conditions for contempt. However, applying the wilfulness and bad-faith test from Republic v Attorney General Ex Parte Mike Maina Kamau, it found the applicant had not proved deliberate and mala fides conduct on a balance of probabilities. The lack of budgetary allocation was held to be no excuse for non-payment, but the bona fide reliance on financial constraints defeated the contempt charge. Further, the court took judicial notice that Dr Ibrahim M. Mohamed ceased to be Principal Secretary on December 2, 2022, so no personal order could issue against him. The motion was disallowed with no orders as to costs, the court stressing that the Respondent's duty to honour the 2017 decision remained non-negotiable.

Key legal issues

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01

Whether the 1st Respondent was in contempt of the mandamus order requiring payment of Kshs 3,990,398

Holding

The application failed because the applicant did not prove the fourth element — that the non-compliance was deliberate and mala fides — and because the order was sought personally against a former office holder

Reasoning

The court accepted that the order was clear, unambiguous and served, satisfying the first three conditions for contempt. However, applying the test from Republic v Attorney General Ex Parte Mike Maina Kamau, bad faith denotes dishonesty of belief, purpose or motive. The Respondents filed a notice of appeal, invited the applicant to negotiations and deponed to financial constraints and an intention to settle, evidencing bona fides rather than deliberate defiance. Additionally, judicial notice was taken that Dr Ibrahim M. Mohamed left office on 2nd December 2022, so the committal order could not issue against him personally.

p. 6
02

Whether lack of budgetary allocation and austerity measures excuse non-payment of a decretal sum against the Government

Holding

No — payment of decretal sums by the Government is not dependent on budgetary allocation or Parliamentary approval

Reasoning

Relying on Githua J in Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex Parte Fredrick Manoah Egunza, the court held that the Respondent's plea of financial constraints and lack of parliamentary allocation was of no moment. Nonetheless, the bona fide reliance on financial constraints supported the finding that non-compliance was not deliberate, so the argument failed as a defence to contempt while preserving the underlying duty to pay.

p. 6

Legal principles established

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  • For contempt to be established, the breach of a court order must be both wilful and mala fides; unreasonable but bona fide non-compliance does not constitute contempt
  • Non-allocation of funds by Parliament is not an acceptable defence or excuse for non-payment of decretal sums against the Government
  • A contempt order cannot issue personally against an officer who has ceased to hold the office against which the order was directed

Court orders

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  1. 1.The Notice of Motion dated 30th March, 2022 is disallowed with no orders as to costs

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Contempt of Court Act, 2016Section 30(2)
  • Government Proceedings ActSection 21(4)
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 159(2)(d); Article 48

Cases cited (9)

  • Republic v Attorney General & another Ex Parte Mike Maina Kamau
    (2020) eKLR
  • Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security, Ex Parte Fredrick Manoah Egunza
    (2012) eKLR
  • Lochab Transport Ltd v Kenya Arab Orient Insurance Ltd
    (1986) eKLR
  • Braeburn Ltd v Gachoka & another
    (2007) 2 EA 67
  • Republic v Town Clerk, Kisumu Municipality Ex Parte East Africa Engineering Consultants
    (2007) eKLR
  • Kiarie Mbugua v Njoki Mbugua
  • Wachira Karani V Bildad
    (2016) eKLR
  • Kenya Human Rights Commission v Attorney General & another
    (2018) eKLR
  • Canadian Metal Co Ltd v Canadian Broadcasting Corp (No 2)
    (1975) 48 DLR (30)
Jurisdiction invoked
High Court's power to punish for contempt, Section 5(1) of the Judicature Act; enforcement of the court's own mandamus order in judicial review

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 Principal Secretary Ministry of Defence & another; Jillo (Decree holder) (Miscellaneous Case 134 of 2017) [2023] KEELRC 1014 (KLR)", Case Analysis (2023). Notice of Motion dated March 30, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1014/eng@2023-05-02

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