Republic v County Secretary, Nairobi County Government & 2 others

1. That this Honourable Court be pleased to punish the 1st ,2nd and 3rd Respondents herein by imposing a fine to be determined by the Honourable Court upon the 1st 2nd and 3rd Respondents for willful disobedience of the orders and decree of this Honourable Court issued on 20th December 2023 in this cause. 2. That an order for the arrest and committal to civil jail of the holders of the office of the 1st, 2nd and 3rd Respondents respectively and or any other officer who is in charge of the said offices be issued for their willful disobedience of the order, judgement and decree of this Honourable Court issued on 20th December 2023. 3. That the costs of these contempt proceedings be borne by the Respondents. 3. It is the Applicant’s case that judgement was delivered on 20th December 2023 wherein the court issued an order of Mandamus directed against the Respondents to comply and pay the Applicant a sum of Kshs. 539,557 ,548.69 as well as interest at the court rate of 12% per annum from 15.8.2022 until payment in full. 4. That the Respondents were duly served with the decree issuing Mandamus Orders on 7.03.2024 and due demand for payment of the amount made. 5. It is the Applicant’s case that the Respondents continue to blatantly and with contemptuous impunity, continue to disregard and disobey the orders of this court. 6. It argues that court orders are not issued in vain and therefore for the Respondents to disregard and disobey orders directed to them is tantamount to undermining this Honourable Court's authority and the rule of law. 7. The Applicant believes that this Court has the requisite authority and power to punish for contempt and or willful disobedience and disregard of its orders and 8. The Application has been brought in the interest of justice and fairness. The Applicant’s Submissions; ISSUE 1: Whether the Respondents are in contempt pf court for failing to comply with a clear and unequivocal court order? 9. The Applicant submits that there is an implied refusal to pay the ex parte Applicant through unreasonable delay and thus contempt of court by the 1st, 2nd, and 3d Respondents. 10. Reliance is placed in the Supreme Court of India in Mahinderjit Singh Bitta v Union of India Others IA No.10 of 2010, the court held that: “ In exercise of its contempt jurisdiction, the courts are primarily concerned with whether the contemnor is guilty of intentional and willful violation of the orders of the court, even to constitute a civil contempt. Every party is before the court, and even otherwise, is expected to obey the orders of the court in its true spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution...” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16561/eng@2025-10-23 2

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11. The Applicant relies on Section 5 of the Judicature Act (Cap. 8), which provides that: “ A person who disobeys a lawful order or judgment of a Court is guilty of contempt of court.” 12. It submits that court orders are not issued in vain; they must be meant to be complied with and obeyed. 13. The Applicant herein has diligently pursued legal recourse, obtained, extracted and served the Certificate of Order against government from the court, dated 15th August 2022. Despite the Applicant's persistent efforts, including numerous requests, meetings, and formal letters to urge the Respondents to fulfill their obligation, there has been a steadfast refusal to comply. 14. The Respondents contempt undermines the very foundation of our judicial system. Compliance is a cornerstone of justice; every individual is bound to honor court directives with the utmost respect for the institution. 15. In the case of Attorney General v. Times Newspapers Ltd [2005] eKLR the court held that noncompliance with a clear and unambiguous court Older is a breach of a party's duty to uphold the rule of law and is thus punishable by contempt proceedings. 16. It also relies in the case of Hadkinson v. Hadkinson [1952] 2 All ER 567, the Court of Appeal held that to prove contempt, the following elements must be established: 17. 18. i. A clear and unequivocal order by the Court: The Court must have issued a clear, unambiguous order that is capable of being understood and followed. ii. Non-compliance with the order: There must be evidence that the Respondents have not complied with the order. In this case, the failure to pay the amount due to the Applicant is a clear breach of the Court's order. iii. Willful disobedience: The Respondents must willfully disregard the Court's order. The claim that the funds have been "allocated in the budget" is irrelevant if no action has been taken to pay the Applicant or show any good faith effort to comply. It also relies on Cromwell J, writing for the Supreme of Canada in Carey v Laiken, 2015 SCC 17 (16th April 2015), expounding on the three elements of civil contempt of court the Applicant avers the following; i. The order, directions, and court judgment delivered on 20th December 2023 by this Honourable court have been breached by the Respondents herein, despite clearly outlining what actions should and should not be taken. ii. The Respondents herein have actual knowledge of this judgment. iii. Furthermore, they have jointly and severally denied, failed, refused, of declined to pay the amount owed to the claimant as per the court's directions. Under Section 30 of the Civil Procedure Act (Cap. 21), stipulates that: “ A party who fails to comply with any order or judgment of the Court may be committed to civil jail.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16561/eng@2025-10-23 3

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19. The Applicant submits that the Respondents argue that they have not violated the Court's order. However, their failure to effect any payments, either partial or full, constitutes a violation of the Court's order. 20. In the case of Avnet Wireless Kenya Ltd % Minister for Information & Communication of Kenya & Another [21V5] 1 KLR 828: The court underscored that it is essential for the maintenance of the rule of law and order that the authority and dignity of our courts are upheld at all times. 21. In the case of Shimmers Plaza Limited v. National Bank of Kenya Limited [2015] eKLR: The court reiterated that obedience to court orders is mandatory, and disobedience can lead to contempt proceedings. 22. In the case of Kipkorir, Tito Kiara Advocates v. The Industrial Court Another [2008] eKLR, the Court held that failure to make any payment in compliance with a court order is a clear indication of contempt. 23. It submits that The Respondents claim that the payment was allocated in the budget but has not been paid due to procedural delays. However, the allocation of funds in a budget does not absolve the Respondents of their obligation to comply with the Court's order. 24. In Republic v. Permanent Secretary Ministry of State for Provincial Administration and Internal Security [2012] eKLR, the court stated: “ Pleading budgetary constraints cannot excuse non-compliance with a court order. Once a decree has been made, it is binding and enforceable. Government departments are not above the law.” 25. To buttress this argument, it relies in the case of Teachers Service Commission v. Kenya Union of Teachers 3 others [2015] eKLR in, the Court of Appeal. 26. The Respondents have failed to make any partial payments or provide evidence of steps taken to implement the Court’s order. As per the case of Kenya Ports Authority v. Dierk Neumann [2018] eKLR, the Court held that if a party does not take any action, such as partial payments or providing a valid reason for non-compliance, this amounts to contempt. 27. The Applicant submits that interest is an automatic consequence of the judgment, and the Respondents' failure to pay the sum owed should result in continued interest accrual as stipulated. 28. Under Section 26 of the Civil Procedure Act, interest accrues on money decreed by the Court at the rate the Court deems just, typically calculated from the date of judgment until the payment is made. 29. Reliance is placed in Kenya Commercial Bank Ltd v. Specialized Engineering Company Ltd [1982] KLR 485, the Court held that interest on a judgment debt is due from the date the judgment is delivered until payment is made. The Respondents Case; 30. In opposing the Application, the Respondents raised the grounds that: 1. The Applicant seeks to enforce orders of the court that the Respondents jointly and severally have not violated and or willfully disobeyed. 2. The exparte Applicant seeks orders meant to violate the liberty of the Respondent’s jointly and severally for no justifiable cause. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16561/eng@2025-10-23 4

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3. The exparte Applicant well aware of government operations by dint of his position has made depositions that are meant to misrepresent the question of payment of the decretal sum whereas the Respondents jointly and severally have not denied, failed, refused and or declined to pay the same. 4. The Application is frivolous, vexatious, an abuse of the court process and does not raise a reasonable cause of action. The Respondents’ Submissions; 31. The decree was not served on any of the Respondents personally. 32. The decree was signed on 3/6/2024 and the preceding letter to the Respondents was forwarding a draft decree. It was dated 5/3/2024 and received on 7/3/2024. 33. The signed decree is not contained in the annexures filed by the Exparte Applicant together with the Application. The draft decree if even forwarded to the Respondents was never attached to the Application. 34. What was availed was the final decree which was never received by the Respondents either jointly or severally. Further the Affidavit of service disclosed that service was undertaken to the 2ndRespondent on 7/3/2024 this has to have been the draft decree. 35. There was no service on the 1st and 3rd Respondents save for a deposition by the process server of having served on the County Attorney who has not received any documents on behalf of the 1st and 3rd Respondent. 36. There was no evidence of authority by the said County Attorney of receiving the draft decree on behalf of the 1st and 3rdRespondents. 37. There was no note that the said County Attorney received any documents on behalf of the 1st and 3rd Respondents. 38. Order 5 rule 12 of the Civil Procedure Rules provides for service on an agent. They require to be empowered. In the present case no evidence was adduced that the County Attorney was authorised/ empowered to accept service of the draft decree and or the letter forwarding the same dated 5/3/2024. 39. It then follows that there was no service on the part of the 1st and 3rd Respondents. In Ochino & Another v Okombo & 4 others [1989] eKLR the Court of Appeal held that no court order requiring a person to do or abstain from doing any act may be enforced by committing him for contempt unless a copy of the order has been served personally on the person to do or abstain from doing. In the present case there has been no proof that service of the signed decree was undertaken on any of the Respondents. 40. They submit that the burden of proof that service was undertaken is on the Applicant in contempt proceedings. 41. In Githiga & 5 others v Kin Tec Factory Ltd [2023] KESC 41 (KLR) the court held that due to the quasi-criminal nature of contempt proceedings and the gravity of the consequence that flow from them there is need to adhere to principles of natural justice procedure, fairness and the right to a fair hearing. 42. In the present case there was no service of the order on the Respondents. What was allegedly forwarded was a draft decree. This then means no formal order capable of being obeyed was/ had been served as at the time of filing of the present Application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16561/eng@2025-10-23 5

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43. The Respondents cannot be blamed for the non-service of the court order. 44. The exparte Applicant did not serve the signed decree. We maintain that the Application for contempt is premature as against the Respondents jointly and severally. 45. The Respondents from the grounds of opposition dated 20/9/2024 have expressed that they have not violated any orders that the ex parte Applicant have alleged to. 46. There having been service of the orders the Respondents are said to be in contempt there can be no finding of them being in contempt. In the end the Application dated 1/7/2024 for contempt is unmerited and should be dismissed with costs. Analysis and Determination; 47. The Respondents argue that in about admission, this court notes that the Respondent alleged that they were not personally served with the order that the Applicant seeks to enforce. 48. This was not pleaded anywhere and submissions do not amount pleadings. The Respondent did not apply affidavit. Parties are guided by their pleadings. A failure being raised submissions has no place in guiding the court, seeing the same amount of evidence. 49. In any event, there is a presumption of service and the grounds of opposition this court is of the view that they are aware of the decree. 50. This can be seen from the grounds of opposition where they argue that the Exparte Applicant seeks orders meant to violate the liberty of the Respondent’s jointly and severally for no justifiable cause. 51. The Exparte Applicant well aware of government operations by dint of his position has made depositions that are meant to misrepresent the question of payment of the decretal sum whereas the Respondents jointly and severally have not denied, failed, refused and or declined to pay the same. 52. Submission to major tools that are used by advocates to persuade the court and argue the law as they advance the facts in a bit achieve a favorable judgment. 53. Submissions on their own, not capable of achieving any judgment. They lean on and depend the evidence whether it was produced in affidavit, ground of opposition, witness testimony or any form of admissible evidence. 54. A litigant who purports to depend on submissions to advance their case which have no foundation of either a preliminary objection or a replying or an affidavit or grounds of opposition must not expect a finding that is favorable from the court. The burden of proof always lies with he who moves the court. 55. The Respondents’ arguments that there was no service guided by entries that are referred to the affidavit of service or a draft order have no evidential value at all. There is Counsel who has been attending courts and for the Respondent and there is no doubt that this is possible want to the knowledge of the existence of the decree. The Respondents submissions amount to hearsay given that they are not predicated to any evidence and I so hold. 56. In so holding, I am guided by In Re Tuck Murch v Loose More (1906) Ch 692 it was observed that, “...knowledge is higher than service...service is unnecessary where there is knowledge” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16561/eng@2025-10-23 6

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57. The issue of knowledge of orders as being sufficient was until recently, alien in our jurisprudence. In Kariuki and Others v Minister for Gender, Sports, Culture and Social Services and Others, (2004) I KLR 588, it was held; “ ...but in our law, service is higher than knowledge and since the service here was frustrated…I shall hold in accord with the existing law that there was no service”. This was made following the decision in Wangondu (supra). However the law has changed and as it stands today knowledge supersedes personal service and for good reason. This has recently been held in Kenya Tea Growers Association vs Francis Atwoli & 5 Others, Petition No.64 of 2010 where I opined as follows; “In the case before me, I am more than satisfied that even at the higher level of beyond reasonable doubt, when an individual has been served with and/or has knowledge of a court order but not only ignores it but in fact incites others to do the same, the threshold for contempt has been met. Francis Atwoli in fact went further to arrogate himself the decision to determine when the strike should end despite the fact that the Court Order had stopped it. He went further to interpret it as made without jurisdiction and that only the “Workers Court”, (the Industrial Court) had jurisdiction to determine the matter. He did not do so once but on a number of occasion as he flew by helicopter from place to place on 18th October 2012. His contempt was obvious and his conduct and words can attract no other finding.” The point above is that where a party clearly acts and shows that he had knowledge of a Court order, the strict requirement that personal service must be proved is rendered unnecessary. That should be the correct legal position and I subscribe to it.” 58. The court has had the occasion to look at the Applicants’ supporting documents. There is a decree dated that June 2024 that is duly signed by the deputy registrar of the High Court. This is amongst the documents that are Marked and annexed as HELJR 1. 59. It is clear that the 1st 2nd and 3rd Respondents have willfully disobedience of the orders and decree of this Honourable Court issued on 20th December 2023 in this cause. 60. The Applicant seeks for orders to arrest, fine and commit the Respondents to Civil Jail. The Applicant secured a judgment and a decree on 29.7.21 in Civil Case No. E140 of 2020. 61. The Applicant was subsequently granted leave to institute judicial review proceedings by this court. An order of Mandamus was then issued on 20.12.23. 62. This court is aware that the Respondents are entitled to the right to fair hearing. 63. The Applicant did not seek for an order to cite the Respondents for contempt of the orders 20th December 2023. They cannot be sentenced by way of a fine or committal to civil jail without citing them for contempt and before giving them an opportunity to mitigate. 64. Article 47 and 50 of the Constitution must be complied with before such orders are issued. Determination: 65. The Applicant has proven that the Respondents are aware of the decree and that the Decree remains unsettled. However, the Applicants have not made any Application to this court to have https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16561/eng@2025-10-23 7

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the Respondents cited for contempt of court before mitigation and sentencing can take place. The Application is prematurely before the court. Order: The Application is dismissed with costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23 RD DAY OF OCTOBER, 2025. … .……………….………………. J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16561/eng@2025-10-23 8

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