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ELRCDismissedNot stated in the judgment· [2025] KEELRC 692 (KLR)

Odindo & 13 others v County Government of Kisumu (Judicial Review E024 of 2024) [2025] KEELRC 692 (KLR)

High Court of Kenya, Kisumu
6 March 2025
4,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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The High Court dismissed an attempt to jail Kisumu County officials for unpaid decrees because the applicants skipped mandatory enforcement steps against government.

What this practically means

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Executive summary

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The applicants moved the court by Notice of Motion dated 12th December 2024 seeking to have Mr. George Omondi Okongo (CEC Member for Finance) and Mr. Martin Okode (Chief Finance Officer) of the County Government of Kisumu cited and committed to civil jail for contempt of an order of mandamus issued on 5th December 2024 compelling payment of Kshs. 16,000,000 to retirees of a former defunct local authority. The respondents opposed, contending the application was premature because costs had not been taxed and no certificate of order against the Government had been extracted and served as required by Section 21 of the Government Proceedings Act, and that the ingredients of contempt, including deliberateness, were not proved. The court found that the ruling and order were served on 12th December 2024 and the motion filed the following day, giving the respondents no reasonable time to comply; that the certificate of order dated 3rd February 2025 was issued long after the application was filed and Form 22 was never served; and that Section 21 is a condition precedent to enforcement of money decrees against government. The court also held the standard of proof in contempt is intermediate, higher than balance of probabilities but short of beyond reasonable doubt (Mutitika v Baharini Farm), and that the applicants failed to prove breach and deliberate conduct. The application was dismissed with no orders as to costs, the court suggesting the decretal sum could be factored into the next budget cycle.

Key legal issues

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01

Prematurity of the contempt application for non-compliance with Section 21 of the Government Proceedings Act

Holding

The application was premature because the certificate of order against the Government had not been obtained or served before the application was filed

Reasoning

Section 21(1) requires an application for a certificate of order against the Government 21 days after judgment or after taxation of costs. The certificate on record was dated 3rd February 2025, long after the motion filed on 13th December 2024. Form 22 was never served on the respondents or County Attorney. Service of the certificate is a condition precedent to enforcement, so the contempt application failed on this score.

p. 6
02

Ingredients and standard of proof of civil contempt

Holding

The applicant failed to prove the ingredients of contempt, particularly breach and deliberateness, to the applicable elevated standard

Reasoning

Citing Samuel Mweru v National Land Commission, the court required proof of the terms of the order, knowledge, breach and deliberate conduct. The court found the respondents had not been accorded reasonable time to pay and that Form 22 had not been served, so there was no proper service of the terms. The standard of proof is intermediate, closer to beyond reasonable doubt, per Mutitika v Baharini Farm.

p. 9

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities but not quite beyond reasonable doubt
  • A certificate of order against the Government, obtained after 21 days of judgment and served on the Attorney-General/County Attorney, is a condition precedent to enforcement of money decrees against government

Court orders

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  1. 1.The applicant's Notice of Motion dated 12th December, 2024 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Judicature ActNot specified
  • Government Proceedings ActSection 21(1), (2), (3), (4)
  • Public Finance Management ActNot specified
  • Civil Procedure ActSection 1B
  • Civil Procedure Rules, 2010Order 29 Rule 3; Order 21 Rule 1; Forms 22 and 23 of Appendix A
  • Constitution of KenyaArticle 159(2)(d), Article 48
  • Evidence ActSections 107, 108

Cases cited (16)

  • Kotoine Koilel & Another v Kanini Krsai Koilel & Another
    Narok HCC Civil Appeal E002/2021
  • Hadkinson v Hadkinson
    [1952] ALLER 567
  • Teachers Service Commission v Kenya National Union of Teachers & 2 Others
    Petition No. 23 of 2013
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others
    [2013] eKLR
  • Republic v Permanent Secretary Ministry of State for Provincial Administration and Internal Security Ex Parte Fredrick Manoah Egunza
    [2012] eKLR
  • Republic v County Government of Trans Nzoia & 2 Others; Grandway S. Ventures Ltd (Interested Party)
    JR 003 OF 2022 [2022] KEHC 17123 KLR
  • Samuel M. N. Mweru & Others v The National Land Commission & 2 Others
    No. 443 of 2017
  • Amos Mathenge Kabuthu v Simon Peter Mwangi
    [2015] eKLR
  • St. Mary Academic Ltd & Another v Grace Njeri Mukura & Another; Yvonne Jeruto & Another (Contemnors)
    [2021] eKLR
  • Econet Wireless Kenya Ltd v Ministry of Information and Communication of Kenya & Another
    [2005] eKLR
  • Republic v Ahmed Aburfathi Mohamed & Another
    [2018] eKLR
  • Gulabchand v Popatlal & Another
    Civil Appeal No. 39 of 1990
  • Josephine Mueni Mutunga v Energy Regulatory Commission & Another
    [2016] eKLR
  • Praxes Namoni Sisi v Geothermal Development Co. Ltd & Another
    [2016] eKLR
  • Mwaniki Silas Ngare v John Akama & Another
    [2016] eKLR
  • Mutitika v Baharini Farm Ltd
    [1985] KLR
Jurisdiction invoked
Judicature Act, Government Proceedings Act, Public Finance Management Act, Civil Procedure Act and Rules, and Article 159 of the Constitution (as cited in the Notice of Motion)

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, "Odindo & 13 others v County Government of Kisumu (Judicial Review E024 of 2024) [2025] KEELRC 692 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/692/eng@2025-03-06

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