https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5324

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELCLJR NO. E001 OF 2024** **IN THE MATTER OF: EXECUTION OF THE CERTIFICATE OF ORDER AGAINST THE GOVERNMENT DATED 20TH JUNE 2023** **DOMINIC ODONDI AUMADECREE HOLDER** **-VERSUS-** **THE COUNTY GOVERNMENT OF KISUMUCONTEMNOR** **RULING** 1. This ruling concerns what ought to have been the simplest of exercises being the payment by a county government of a modest sum of money decreed against it by a court of competent jurisdiction. That the exercise has instead generated a judicial review, an order of mandamus, two contempt applications, a taxation, a supplementary affidavit, a replying affidavit and now this ruling is a matter which the court records with some regret. 2. The decree holder, Dominic Odondi Auma, sued Victor Sande and the County Government of Kisumu in Kisumu Chief Magistrate's Court Environment and Land Case No. E034 of 2021. Judgment was entered in his favour, whereupon he was awarded special damages of Kshs. 188,384/= together with the costs of the suit, which were assessed at Kshs. 302,245/=. 3. On 20th June 2023 the trial court issued a Certificate of Order against the Government in favour of the decree holder in the aggregate sum of Kshs. 490,629/=, comprising the principal sum and the costs of the suit. Payment was demanded but was not forthcoming. 4. By a Notice of Motion dated 2nd January 2024 the decree holder moved this court for an order of mandamus. On 8th July 2024 Okong'o, J. issued an order of mandamus compelling the Respondent to pay the said sum of Kshs. 490,629/=, and awarded the decree holder the costs of that application. Those costs were taxed on 21st November 2024 and certified on 27th November 2024 in the sum of Kshs. 87,555/=. 5. Payment still not having been made, the decree holder filed a Notice of Motion dated 16th December 2024 seeking to have the Governor of Kisumu County committed to civil jail for contempt. By a ruling delivered on 18th September 2025 Okong'o, J. struck out that application for non-joinder, holding, upon a review of the authorities including **Council of Governors & Others v. The Senate [2015] eKLR**, that the accounting officer of a county government for the purposes of **section 21(3) of the Government Proceedings Act** is the Chief Officer for Finance and not the Governor or the County Executive Committee Member for Finance. 6. A further application followed. On 27th October 2025 this court declared that the Respondent had wilfully disobeyed the lawful court order issued on 8th July 2024 and consequently found it to be in contempt of court. The court directed that the Chief Officer, Finance, Kisumu County be served with summons to appear in court on 11th November 2025 for sentencing, and awarded the decree holder the costs of that application. A penal notice was endorsed on the order. 7. Sentencing did not proceed on 11th November 2025. The court has been furnished with a letter dated 6th November 2025 from the County Attorney to the decree holder's advocates. Because that letter is expressed to be “without prejudice”, I say nothing more of it than this: at no stage in these proceedings has the Respondent disputed that it is obliged to settle the decree. 8. On 18th December 2025 the Respondent caused the sum of Kshs. 457,491.24 to be remitted, through the Central Bank of Kenya, to the decree holder's advocates. That figure was arrived at by deducting from the decretal sum of Kshs. 490,629/= three amounts, namely Value Added Tax of Kshs. 8,459.12, withholding tax of Kshs. 24,531.45 and a Public Procurement Regulatory Authority levy of Kshs. 147.19, aggregating Kshs. 33,137.76. A withholding tax certificate dated 17th December 2025 was issued in respect of the second of those deductions. 9. By a letter dated 15th January 2026 the decree holder's advocates demanded the balance, which they computed at Kshs. 120,693/=, being the deductions together with the taxed costs of Kshs. 87,555/=. The Respondent declined to pay. 10. On 19th February 2026 Asati, J. granted the decree holder leave to file a supplementary affidavit and allowed the Respondent seven days thereafter within which to file an affidavit explaining its position. The supplementary affidavit of Edwin Omulama Onditi, advocate, is dated 18th March 2026. The replying affidavit of Martin Opiyo Okode, Chief Officer, Finance, County Government of Kisumu, was sworn on 9th April 2026. 11. The matter has since been placed before me. What now falls for determination is whether the contempt found by this court on 27th October 2025 has been purged and what consequential orders, if any, ought to issue. 12. The gravamen of the supplementary affidavit is that the Respondent has paid part only of what it was ordered to pay, and that the shortfall is the product of deductions which it was not entitled in law to make. 13. The deponent avers that the sum properly payable was Kshs. 578,184/=, being the decretal sum of Kshs. 490,629/= together with the taxed costs of Kshs. 87,555/=; that the Respondent unilaterally treated Kshs. 490,629/= as a gross taxable amount; and that it withheld Kshs. 24,531.45 as withholding tax and remitted the same to the Collector of Income Tax. 14. He further deposes that when the parties appeared before the court on 18th December 2025 he drew the Respondent's attention to the decision in **A.M. Bahaji & Company Limited v. Kenya Ports Authority [2020] eKLR,** in which the High Court at Mombasa held that a decretal sum is not “income” for the purposes of the Income Tax Act and is therefore not subject to withholding tax; that opposing counsel acknowledged receipt of that authority and confirmed that she had read and understood it, but explained that the decision had been taken by her superiors. 15. The deponent avers that he wrote to the Respondent on 15th January 2026 reminding it of its obligation, but that by 19th February 2026 the Respondent had hardened its position, asserting that the Controller of Budget had advised that such payment would be contrary to law. 16. Finally, and relying on **Shimmers Plaza Limited v. National Bank of Kenya Limited [2015] eKLR and Cecil Miller v. Jackson Njeru & Another [2017] eKLR**, the deponent contends that a court order must be obeyed until it is varied or set aside, and that the Respondent, having formed its own view of the lawfulness of the payment, was not at liberty to act upon that view in place of the order. 17. Mr. Okode deposes that he is the Chief Officer, Finance of the County Government of Kisumu, responsible for the preparation of financial requisitions for payment, and thus competent to swear the affidavit. 18. He explains that all county requisitions to the Controller of Budget must be supported by prescribed documentation, including the certificate of costs, the decree and a copy of the judgment, in line with the Public Finance Management Act, 2012. He annexes a letter from the Controller of Budget dated 9th December 2024 in that regard, together with a copy of the Certificate of Order and the payment voucher. 19. He sets out the deductions in tabular form and asserts that the Respondent is a tax withholding agent of the Kenya Revenue Authority, duly required to make deductions at source for onward remittance to that authority; that the Authority has made it mandatory for institutions to collect taxes at the point of transaction; and that persons aggrieved by such deductions may pursue refunds from the Kenya Revenue Authority directly. 20. As to the taxed costs of Kshs. 87,555/=, he deposes that he is advised by counsel that the same ought to be pursued “through a different process altogether”, and that the documents required to support a requisition are “single-use” in nature. 21. Having considered the supplementary affidavit, the replying affidavit and the annextures to each, together with the record of these proceedings, I take the view that three issues arise for determination at this stage; **(i) whether the Respondent was entitled in law to deduct Value Added Tax, withholding tax and the procurement levy from the decretal sum;** **(ii) whether the taxed costs of Kshs. 87,555/= form part of the sum for the non-payment of which the Respondent stands in contempt; and** **(iii) whether the contempt found on 27th October 2025 has been purged, and what consequential orders ought to issue.** 22. I turn to the substance. Three deductions were made. I consider each in turn, but it is convenient to begin with a proposition which applies to all three. 23. An order of this court commanding the payment of a specified sum of money is not an invoice. It is not a negotiable proposition. A party against whom such an order is made is not at liberty to satisfy it in part, to net it down according to its own view of its fiscal obligations, or to substitute for the sum ordered a lesser sum which it considers appropriate. If the Respondent genuinely believed that it was obliged by law to withhold a portion of the decretal sum, the proper course was to move this court for directions before payment fell due. It did not do so. It simply paid what it thought fit. That approach is corrosive of the authority of the court and cannot be countenanced. 24. As to withholding tax, the position is settled and it is against the Respondent. **Section 3(1) of the Income Tax Act** charges tax upon the income of a person. **Section 10** provides for the taxation of management or professional fees, royalties, interest and rent. A decree of a court is none of these things. In **A.M. Bahaji & Company Limited v. Kenya Ports Authority (supra), Chepkwony, J. held, following Ibrahim Manyara v. Registered Trustees of Agricultural Society of Kenya [2014] eKLR, that:** ***“… under no circumstances does any of the definitions include a Decree of a court as a taxable item under the Income Tax Law. If the intendment of the Income Tax Law was to have a Decree of court taxable under its provision, the legislature would have come out clearly and provided for this.”*** 25. That reasoning is fortified by the canon of construction restated in **Cape Brandy Syndicate v. Inland Revenue Commissioners [1921] 1 KB 64 and applied in Ocean Freight (E.A.) Limited v. Commissioner of Domestic Taxes [2020] eKLR,** that in a taxing statute one looks merely at what is clearly said, that there is no equity about a tax, and that nothing is to be implied. A liability to tax must be found in the words of the statute. It cannot be conjured from administrative convenience. 26. The withholding tax certificate annexed to the record is, if anything, more damaging to the Respondent's position than the general principle. It records the withholdee as “Edwin Omulama Onditi” and describes the nature of the transaction as “Management, Professional Training or Consultancy Fees Which Is Over 24,000 In A Month”. Two things are wrong with that. First, the person entitled to the decretal sum is the decree holder, Dominic Odondi Auma, and not his advocate; the advocate's account was merely the conduit prescribed by **section 21(3) of the Government Proceedings Act.** Secondly, Mr. Omulama rendered no management, training or consultancy services to the County Government of Kisumu. He was its opponent. The Respondent has characterised a court-ordered payment to its adversary as a professional fee paid to its own consultant. That characterisation is not merely mistaken; it is untenable on its face. 27. As to the deduction of Kshs. 8,459.12 described as Value Added Tax, the difficulty is conceptual. Value added tax under **section 5 of the Value Added Tax Act, 2013** is chargeable on taxable supplies made by a registered person, and withholding VAT under section 25A applies to appointed agents in respect of such supplies. The decree holder made no supply, taxable or otherwise, to the Respondent. Further, and as a matter of elementary arithmetic, value added tax is added to a consideration; it is not subtracted from a court award. The deduction proceeds upon the premise that a decree of court is a taxable supply. It is not. 28. As to the deduction of Kshs. 147.19 described as a Public Procurement Regulatory Authority levy, the answer is shorter still. That levy attaches to public procurement contracts. There was no procurement here. There was no tender, no evaluation, no award and no contract. There was a judgment. The Respondent appears to have processed a court decree through its ordinary supplier-payment machinery, and the levy is simply what that machinery produced. That is an administrative failing, not a legal justification. 29. I should deal briefly with three subsidiary points urged by Mr. Okode. First, he says that the Respondent is a withholding agent of the Kenya Revenue Authority and is obliged to deduct at source. Appointment as a withholding agent obliges a person to withhold on payments of the character specified in the empowering provision. It confers no roving licence to withhold on payments falling outside those categories. The premise, not the mechanism, is what fails here. 30. Secondly, he says that persons aggrieved may pursue refunds directly from the Kenya Revenue Authority. With respect, that will not do. A decree holder who has obtained an order of mandamus after two years of litigation cannot be told to commence a fresh fiscal odyssey against a third party in order to recover money which the judgment debtor was never entitled to withhold. Where a deduction has been made without lawful basis, the burden of undoing it rests upon the party who made it. 31. Thirdly, it was asserted before Asati, J. that the Controller of Budget had advised that payment would be contrary to law. The letter from the Controller of Budget annexed as “MOO-1” says nothing of the kind. It is dated 9th December 2024, it relates to a bulk requisition of Kshs. 16,945,345/=, and it does no more than call for the supporting documentation required by **Article 228(5) of the Constitution**. It contains not one word about deductions from decretal sums. An assertion made from the bar which the annexed document flatly fails to support is a serious matter, and I trust it will not be repeated. 32. I accordingly find and hold that the deductions of Kshs. 8,459.12, Kshs. 24,531.45 and Kshs. 147.19, aggregating Kshs. 33,137.76, were made without lawful basis and are of no legal effect as against the decree holder. To that extent the order of 8th July 2024 remains unsatisfied. Nothing in this ruling prevents the Respondent from pursuing the recovery of any sum it has in fact remitted to the Kenya Revenue Authority; that is a matter between the Respondent and the Authority, and it is no concern of the decree holder. 33. The decree holder computes the outstanding balance at Kshs. 120,692.76, being the unlawful deductions of Kshs. 33,137.76 together with the taxed costs of Kshs. 87,555/=. The Respondent says that the costs must be pursued “through a different process altogether” and that the supporting documents are “single-use” in nature. I am unable to accept that contention, for four reasons. 34. First, the scope of the contempt already found is not open to redefinition at this stage. The order of 8th July 2024 had two limbs: an order of mandamus for the payment of Kshs. 490,629/=, and an order that the Respondent bear the costs of the application. On 27th October 2025 this court declared that the Respondent had wilfully disobeyed “the lawful court order issued on 8/7/2024”. That declaration was made in respect of the order entire. It was not confined to the first limb. This court is functus officio in respect of that finding, and it would not be open to me now to narrow its reach so as to relieve the Respondent of a part of what it was found to have disobeyed. 35. Secondly, the statutory scheme is satisfied in substance. **Section 21(1) of the Government Proceedings Act** requires the proper officer of the court to issue a certificate containing the particulars of the order, and the proviso to that subsection expressly contemplates that a separate certificate may be issued in respect of costs. The Certificate of Taxation dated 27th November 2024 was issued under the hand of the Deputy Registrar of this court, who is the proper officer. It identifies the suit, the parties and the advocates, records that the bill of costs dated 17th September 2024 was taxed on a party and party basis on 21st November 2024, and certifies the sum of Kshs. 87,555/= as allowed against the Respondent. It contains, in short, every particular that **section 21(3)** requires the accounting officer to act upon. **Article 159(2)(d) of the Constitution** enjoins this court to administer justice without undue regard to procedural technicality, and I decline to hold that a document which does all that the statute requires is ineffective because of the title it bears. 36. Thirdly, the Respondent’s own evidence tells against it. At paragraph 4 of his replying affidavit Mr. Okode deposes that requisitions to the Controller of Budget must be supported by the “CERTIFICATE OF COSTS, DECREES, AND COPY OF JUDGEMENT”, and the letter from the Controller of Budget annexed as “MOO-1” lists “the certificate of costs” among the documents required. The Respondent therefore knew, on its own case, that a certificate of costs is the operative instrument for the settlement of a taxed sum. It has held this certificate since November 2024. 37. Fourthly, the objection comes far too late and from the wrong quarter. The Respondent has never disputed its liability for these costs, has never challenged the taxation, and did not raise this point when the contempt application was heard, when the finding of contempt was made, when sentencing was listed, or when it made part payment in December 2025. It was raised for the first time on 9th April 2026, some sixteen months after the certificate issued, by a party already adjudged to be in contempt. A judgment debtor in contempt of court cannot be permitted to prolong its default by a purely formal objection which it never took at the time when it mattered. 38. I therefore find and hold that the taxed costs of Kshs. 87,555/= form part of the sum for the non-payment of which the Respondent stands in contempt. The aggregate sum presently outstanding is accordingly Kshs. 120,692.76, being the unlawful deductions of Kshs. 33,137.76 together with the said taxed costs of Kshs. 87,555/=. 39. The finding of contempt made on 27th October 2025 stands. It is not before me for review and this court is functus officio in respect of it. The question is one of purging and of sanction. 40. It is well settled that the primary purpose of the civil contempt jurisdiction is coercive rather than punitive. The court's concern is to secure compliance with its orders and thereby to vindicate the rule of law, not to punish for punishment's sake. As was said in **Hadkinson v. Hadkinson [1952] P 285,** obedience to an order of the court is not optional; it binds until it is discharged. The corollary is that where a contemnor takes real steps towards compliance, the court will ordinarily give him the opportunity to complete them before the coercive power is exercised. 41. Weighing the matter, I take into account the following. In the Respondent's favour: the greater part of the decretal sum, Kshs. 457,491.24, has now been paid; the payment was made before the present round of affidavits; and the shortfall arises not from defiance of the court's authority but from an erroneous, if obstinate, view of the Respondent's fiscal obligations, taken within an institutional payment system not designed for decrees of court. Against the Respondent: the order of 8th July 2024 was disobeyed for some seventeen months before any payment was made at all; the Respondent was furnished with the authority in A.M. Bahaji as long ago as 18th December 2025 and has never sought to distinguish it; and it has offered no explanation whatever for its failure to comply with the directions of 19th February 2026. 42. The balance, in my view, favours affording the Respondent one final opportunity to purge the contempt, coupled with a clear statement of what will follow if that opportunity is not taken. The sum now outstanding is Kshs. 120,692.76. Measured against the resources of a county government it is a trifling sum, and there is no reason whatever why it should not be paid at once. Should it remain unpaid at the expiry of the period I shall allow, the Chief Officer, Finance will be required to attend before this court in person, and the court will proceed to sentence. 43. I have also considered whether to make any observation on the wider difficulty which this matter has exposed. I think I should. A claim for Kshs. 188,384/= has now generated costs, at two levels of taxation, of Kshs. 389,800/=, and has occupied the time of this court on numerous occasions across more than two years. The County Government of Kisumu would be well advised to examine how decrees of court are processed within its finance department, and in particular to ensure that they are not routed through machinery designed for the payment of suppliers. Payments made in satisfaction of court decrees are not procurement payments and ought not to be treated as such. 44. On costs, I bear in mind that each party has succeeded in part and failed in part, and that the accumulation of costs is itself the principal mischief which this file discloses. A further award of costs would only add to a burden which is already out of all proportion to the sum originally decreed. I decline to make one. 45. In the result, I make the following orders: **(i) A declaration be and is hereby issued that the deductions of Kshs. 8,459.12 on account of Value Added Tax, Kshs. 24,531.45 on account of withholding tax and Kshs. 147.19 on account of the procurement levy, aggregating Kshs. 33,137.76, made by the Respondent from the decretal sum of Kshs. 490,629/=, were made without lawful basis and are of no legal effect as against the decree holder.** **(ii) The court finds that the contempt declared on 27th October 2025 has been purged in part only, and that the sum of Kshs. 120,692.76 remains outstanding under the order issued on 8th July 2024, made up of the unlawful deductions of Kshs. 33,137.76 and the taxed costs of Kshs. 87,555/= certified on 27th November 2024.** **(iii) The Chief Officer, Finance, County Government of Kisumu shall, within thirty days (30) days of the date hereof, cause the sum of Kshs. 120,692.76 to be paid to the decree holder.** **(iv) In default of compliance with order (iii), the Chief Officer, Finance, County Government of Kisumu shall attend this court in person and the court shall proceed to sentence without further notice.** **(v) Each party shall bear its own costs of these further proceedings.** **DELIVERED, DATED and SIGNED at KISUMU this 21st day of August 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of** **Mr. Omulama for the Decree Holder.** **N/A for the Contemnor.** **Court Assistant; Joanne Omondi.**