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ELRCDismissedPetition No. 198 of 2019· [2024] KEELRC 1170 (KLR)

Oiro v Nairobi City County Government (Judicial Review Cause E026 of 2021) [2024] KEELRC 1170 (KLR)

Environment and Land Court of Kenya
19 April 2024
SRStella Rutto
1,319 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail county officials for contempt because the applicant named their offices, not the individuals holding them.

What this practically means

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Executive summary

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The Applicant, who had obtained a decree in Petition No. 198 of 2019 against the Nairobi City County Government, moved the court by Notice of Motion dated 26th October 2023 under Sections 1A, 1B and 3A of the Civil Procedure Act. He sought a notice to show cause, a finding of contempt, and committal to civil jail of the Chief Officer Finance and the County Secretary of the County Government of Nairobi for willful disobedience of a decree dated 16th October 2023, which issued an order of mandamus compelling payment of Kshs 1,246,015.00 per a Certificate of Taxation dated 11th June 2021. The Respondent did not respond to the application. Counsel for the Applicant submitted, relying on among others Econet Wireless Kenya Ltd and Gatharia K. Mutikika v Baharini Farm Limited, that the officers were properly served with the decree on 27th October 2023 and had maliciously and deliberately disobeyed the orders. The court framed a single issue: whether the application was merited. It accepted that Section 5 of the Judicature Act confers contempt jurisdiction, that contempt is quasi-criminal and must be proved to a standard higher than balance of probability, and that willful and deliberate disobedience is an essential ingredient. However, the court found a fatal defect: the officers sought to be cited were identified only by office and not by name, and were not parties to the proceedings, so it was unclear who was being cited. The court held that the applicant bore the onus of clearly identifying the contemnors and effecting appropriate service. The application dated 26th October 2023 was accordingly disallowed with no orders as to costs.

Key legal issues

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Whether the Chief Officer Finance and County Secretary, County Government of Nairobi should be cited for contempt and committed to civil jail

Holding

The application was disallowed because the officers sought to be cited were not identified by name and were not parties to the proceedings.

Reasoning

The court accepted that contempt requires willful and deliberate disobedience proved to a standard higher than balance of probability. However, the applicant named only offices, not office-holders; the alleged contemnors were not parties to the proceedings and there was no proof of appropriate service on them. Given the quasi-criminal nature of contempt and the stake of personal liberty, the applicant bore the onus of clearly identifying the contemnors and effecting service, which he failed to discharge.

p. 3

Legal principles established

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  • Contempt of court is in the nature of criminal proceedings and the standard of proof is higher than balance of probability; the applicant must prove willful and deliberate disobedience of the court order
  • The onus is on the applicant in contempt proceedings to identify the contemnors clearly and effect service upon them appropriately

Court orders

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  1. 1.Application dated 26th October 2023 disallowed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Judicature ActSection 5
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (4)

  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another
    (2005) KLR 828
  • T.N Gadavarman Thiru Mulpad v Ashok Khot and Anor
    (2006) 5 SCC
  • Peter K Yego & Others v Pauline Wekesa Kode
    Acc. No. 194 of 2014
  • Gatharia K. Mutikika v Baharini Farm Limited
    [1985] KLR 227
Jurisdiction invoked
Section 5 of the Judicature 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, "Oiro v Nairobi City County Government (Judicial Review Cause E026 of 2021) [2024] KEELRC 1170 (KLR)", Case Analysis (2024). Petition No. 198 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1170/eng@2024-04-19

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