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ELRCPartially AllowedPetition No E011 of 2025· [2025] KEELRC 2097 (KLR)

Kimani v Mombasa County Public Service Board & 2 others; Mombasa Water supply and Sanitation Company Limited & another (Interested Parties); Marafa (Contemnor) (Petition E011 of 2025) [2025] KEELRC 2097 (KLR)

Environment and Land Court / High Court (Mombasa)
17 July 2025
MMM. Mbarũ
2,529 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 found two directors guilty of contempt for discussing and ratifying a decision that the court had stayed, warning they face civil jail.

What this practically means

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Executive summary

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The petitioner applied for leave to institute contempt proceedings against Abdirahim Mohamed Farah and Edith Kwekwe Marafa for disobeying orders issued on 4 April 2025, which stayed a letter dated 7 March 2025 by the 1st respondent appointing a Managing Director effective 2 May 2025. The orders, served with a penal notice, were admittedly received by the respondents and interested parties. The petitioner alleged that on 2 May 2025 the board of the 1st interested party, chaired by the 2nd contemnor, met, discussed the stayed letter at Minute No. 3/02.05.2025 and resolved to recommend renewal of the Managing Director's contract for a further three-year term, thereby breaching the stay. In reply, Kwekwe admitted the ratification but contended it was in good faith, merely acknowledged the 1st respondent's decision, and that no implementation or enforcement steps followed; no renewal contract was executed. She also cited operational paralysis and the appointment of an interim Managing Director. The court held that acting on a stayed letter in any manner - ratification, discussion or administrative steps - was a direct breach of the orders, that the obligation to obey court orders is plain and unqualified, and that justifying disobedience by inviting the court to vacate its orders compounded the breach. Applying the Mweru elements (clear orders, service, breach, deliberateness), the court found contempt of the highest order. It ordered the contemnors to purge the contempt, failing which they were to appear on 31 July 2025 to show cause why they should not be committed, denied them right of audience until purging, and awarded the petitioner costs of the application.

Key legal issues

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01

Whether ratification of a stayed decision amounts to contempt

Holding

Yes - acting on a stayed letter through ratification, discussion or administrative steps directly breaches the stay order

Reasoning

The 4 April 2025 orders stayed the letter of 7 March 2025 appointing the Managing Director. The board, chaired by the 2nd contemnor, met on 2 May 2025, discussed and ratified the renewal. The court held that any action on the letter, not merely implementation, breached the orders, and that the conduct was deliberate since the orders had been served with a penal notice.

p. 5
02

Whether elements of contempt were proved

Holding

Yes - the orders were clear, served with a penal notice, and the breach was deliberate

Reasoning

Applying the test in Samuel M N Mweru v National Land Commission, the court found the terms of the order clear and binding, the contemnors served and aware, and the conduct deliberate. The claimed good faith and absence of implementation did not excuse the breach; the interim orders were themselves prolonged by the board's conduct.

p. 5

Legal principles established

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  • There is a plain and unqualified obligation to obey court orders unless and until discharged
  • Acting on a stayed letter in any manner, including ratification or discussion, breaches the stay order

Court orders

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  1. 1.Finding that Abdirahim Mohamed Farah and Edith Kwekwe Marafa are in contempt of the court's orders of 4 April 2025
  2. 2.The contemnors are required to purge the contempt
  3. 3.In the alternative, they shall attend court on 31 July 2025 to show cause why they should not be committed for contempt of court
  4. 4.The contemnors shall have no right of audience before the court until the contempt is purged
  5. 5.The contemnors shall meet the costs due to the petitioner for this application

Authorities

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Legislation

  • Judicature ActSection 5
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 169(1)(d)
  • High Court (Organization and Administration) (General) RulesRule 39

Cases cited (7)

  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Amuga & Company Advocates v Kisumu Concrete Products Limited
    [2021] eKLR
  • Samuel M N Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
  • Kenya National Union of Teachers & 2 others v Teachers Service Commission
    [2018] KECA 214 (KLR)
  • Commercial Bank of Africa Limited v Isaac Kamau Ndirangu
    [1992] eKLR
  • Firestone South Africa (Pty) Ltd v Genticuro AG
  • Taita Taveta County Government & another v Mwakungu & 12 others
    [2022] KECA 1125 (KLR)
Jurisdiction invoked
Article 169(1)(d) of the Constitution; Section 5 of the Judicature Act; Section 3A of the Civil Procedure Act; Rule 39 of the High Court (Organization and Administration) (General) Rules

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, "Kimani v Mombasa County Public Service Board & 2 others; Mombasa Water supply and Sanitation Company Limited & another (Interested Parties); Marafa (Contemnor) (Petition E011 of 2025) [2025] KEELRC 2097 (KLR)", Case Analysis (2025). Petition No E011 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2097/eng@2025-07-17

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