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ELRCAllowedMisc Application No E004 of 2023· [2024] KEELRC 1498 (KLR)
Otieno, Ragot & Company Advocates v Clerk, Homabay County Assembly & 2 others (Miscellaneous Application E004 of 2023) [2024] KEELRC 1498 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#The High Court found Homa-Bay County Assembly officials guilty of contempt for ignoring a payment order and threatened the Clerk with civil jail if she does not pay within 30 days.
What this practically means
#Executive summary
#This is a first-instance contempt application by Otieno, Ragot & Company Advocates against the Clerk of the Homa-Bay County Assembly, the County Assembly Service Board Homa-Bay County, and the Homa-Bay County Assembly. The motion dated 14th November 2023 sought punishment for contempt of a mandamus order issued by the High Court on 18th April 2023 compelling the Respondents to pay the Applicant Kshs.1,437,520.60 with interest at 14% per annum, together with Judicial Review costs assessed at Kshs.158,755.41, totalling approximately Kshs.2,846,290.80. The Applicant alleged the order and a certificate of costs, with penal notices endorsed, were served on the Respondents, who made no payment and gave no explanation, and who did not oppose the motion despite proof of service. The court, per Christine N. Baari J, framed one issue: whether the Applicant proved contempt. Relying on the Samuel M. N. Mweru test, Section 5 of the Judicature Act (as the Contempt of Court Act, 2016 had been declared unconstitutional in the Kenya Human Rights Commission case), and Republic v. Attorney General Ex Parte Mike Maina Kamau, the court held the order clear and binding, service proved, and the Applicant's evidence uncontroverted. The Respondents were found guilty of contempt; the Clerk, as accounting officer, was given 30 days to purge the contempt by complying with the 18.04.2023 orders, failing which she was to appear on 2nd July 2024 to show cause why she should not be committed to civil jail. The Respondents were ordered to bear the costs of the application.
Key legal issues
#01
Whether the Applicant proved contempt of the mandamus order of 18.04.2023
Holding
Yes. The order was clear, served with a penal notice, uncontroverted, and deliberately disobeyed; the Respondents were found guilty of contempt.
Reasoning
The court found the mandamus order required payment of Kshs.1,437,520.60 plus interest and assessed costs. An affidavit of service showed the order was served with a penal notice endorsed. The Respondents did not oppose the motion despite proof of service, leaving the Applicant's evidence uncontroverted. The order was clear on what the Respondents were required to do, which they did not do.
p. 3
Legal principles established
#- To succeed in contempt, an applicant must prove the order was clear, unambiguous and binding, that the defendant had notice or knowledge of it, breached it deliberately.
- Following the declaration of unconstitutionality of the Contempt of Court Act, 2016, the applicable law on contempt remains Section 5 of the Judicature Act.
- A court order remains valid and binding until set aside and intentional disobedience is an offence; courts must deal decisively with contemnors.
Court orders
#- 1.The Respondents (Clerk Homa-Bay County Assembly; County Assembly Service Board Homa-Bay County; and Homa-Bay County Assembly) are found guilty of contempt of court for having been and continuing to act in contempt of the orders of the court issued on 18.04.2023.
- 2.The 1st Respondent, the Clerk Homabay County, as accounting officer, is allowed 30 days to purge the contempt by complying with the orders of the court issued on 18.04.2023.
- 3.Notice to show cause issued to the 1st Respondent to personally appear before the court on 2nd July, 2024, to show cause why she should not be committed to civil jail for contempt of court should order (b) not be complied with.
- 4.The costs of the application shall be borne by the Respondents.
- Jurisdiction invoked
- Section 5(1) of the Judicature Act, Chapter 8, Laws of Kenya; Sections 1A, 3 and 3A of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno, Ragot & Company Advocates v Clerk, Homabay County Assembly & 2 others (Miscellaneous Application E004 of 2023) [2024] KEELRC 1498 (KLR)", Case Analysis (2024). Misc Application No E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1498/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.