Kalenga v County Executive Committee Member for Finance, County Government of Mombasa & another (Application E018 of 2023) [2026] KEHC 10361 (KLR) (10 July 2026) (Ruling)

Kalenga v County Executive Committee Member for Finance, County Government of Mombasa & another (Application E018 of 2023) [2026] KEHC 10361 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10361 (KLR) Republic of Kenya In the High Court at Mombasa Application E018 of 2023 J Ngaah, J July 10, 2026 Between Bernard K Kalenga Applicant and The County Executive Committee Member for Finance, County Government of Mombasa Respondent and The County Government of Mombasa Interested Party Ruling 1.By a motion dated 6 October, 2025, Bernard K. Kalenga, the ex parte applicant in the primary judicial review cause against the County Government of Mombasa, moved this Honourable Court seeking to cite Evans Oanda, the County Executive Committee Member for Finance, County Government of Mombasa, for contempt of the judgment and decree of this Court dated 27 February, 2025. 2.The background to this application is that on 29 March, 2017, the Chief Magistrate's Court at Mombasa entered judgment for the applicant against the County Government of Mombasa in Chief Magistrates Civil Case No. 1119 of 2012; Bernard K. Kalenga versus Municipal Council of Mombasa, in the sum of Kshs. 1,154,500.00 together with costs and interest. The decree for this amount was extracted on 19 July, 2017. 3.On 29 May, 2023, a Certificate of Order against the Government was issued for a total sum of Kshs. 2,088,927.20; it was subsequently served upon the County Government of Mombasa on 2 June, 2023. The decree not having been settled, the Applicant successfully applied for an order of mandamus against the responsible officers of the County Government to satisfy the decree. The court granted the order on 27 February, 2025; in particular, this Honourable Court, directed the County Executive Committee Member for Finance to forthwith satisfy the decree. The formal decree was extracted by the Deputy Registrar on 1April, 2025, and served upon the Respondent's advocates on 8 April, 2025. 4.According to the applicant, the order for mandamus was not only granted in the presence of the Respondent's advocates but it was also served upon them. It is contended that, Evans Oanda, the officer holding the office of County Executive Committee Member for Finance, has refused or neglected to comply with the said order. 5.In written submissions filed on behalf of applicant, it is urged that all the ingredients of civil contempt have been established beyond reasonable doubt: that a lawful and unambiguous order was made; that the Respondent had notice of it; that the Respondent has not complied with it; and that no explanation whatsoever has been offered for the default, more than a year after the decree was extracted and almost a decade after the original decree was issued in 2017. 6.In support of his case, the applicant’s learned counsel has cited, among other legal precedents, Lena Chemoiwo v Bomas of Kenya (2021) eKLR, Shimmers Plaza Limited v National Bank of Kenya Limited (2015] eKLR, Council of Governors v Seth Panyako & 4 Others (2019) eKLR, Republic v County Government of Kitui Ex Parte Fairplan Systems Limited (2022) eKLR, and the Mombasa decision of Mativo J. (as he then was) in Judicial Review Application No. E003 of 2020, Mwinyi Swaleh Mwarika v The County Government of Mombasa. In this last decision, two officers of the same County Government — the Executive Committee Member for Finance and the Chief Officer — were found in contempt on materially similar facts and ordered to pay within thirty days, failing which they would be committed to imprisonment for six months. 7.A Replying Affidavit opposing the application was sworn and filed by the County Attorney for the County Government of Mombasa. The County Attorney admits that indeed there exists a decree that is yet to be settled; however, the application is resisted entirely on procedural and evidential grounds that go to the propriety of the contempt proceedings. To this end, it has been deposed that:(a)the application is quasi-criminal in nature, given that it seeks the committal of a named individual, and the Court must accordingly satisfy itself of three matters — whether the Respondent was personally served, whether the officer concerned was served with or made aware of the order alleged to have been disobeyed, and whether the disobedience was willful;(b)the office of the County Executive Committee Member for Finance and Economic Planning was neither served with the Application Notice nor with the order alleged to have been disobeyed, no evidence of personal service having been tendered by the Applicant;(c)in the absence of personal service, the officer risks being condemned unheard in a matter that threatens deprivation of personal liberty; and(d)the Applicant has, in any event, failed to prove that any disobedience was willful, and the application is accordingly incompetent, bad in law, and does not meet the threshold for the grant of the orders sought. 8.Rule 85.5 of the Civil Procedure (Amendment No. 3) Rules 2020 of England which would apply to contempt of court proceedings in this country by dint of section 5 of the Judicature Act, cap. 8 provides what an application for contempt entails; it reads as follows:81.4. —(1)Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.(2)A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—a)the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);(b)the date and terms of any order allegedly breached or disobeyed;(c)confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;(d)if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;(e)confirmation that any order allegedly breached or disobeyed included a penal notice;(f)the date and terms of any undertaking allegedly breached;(g)confirmation of the claimant’s belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;(h)a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;(i)that the defendant has the right to be legally represented in the contempt proceedings;(j)that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;(k)that the defendant may be entitled to the services of an interpreter;(l)that the defendant is entitled to a reasonable time to prepare for the hearing;(m)that the defendant is entitled but not obliged to give written and oral evidence in their defence;(n)that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;(o)that the court may proceed in the defendant’s absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;(p)that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;(q)that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;(r)that the court’s findings will be provided in writing as soon as practicable after the hearing; and(s)that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public. 9.Thus, unless contempt is committed in the face of the court, there must, among other conditions, be in existence the order the contemnor is alleged to be in contempt of and, most importantly, the order must have been personally served unless, of course, personal service has been dispensed with. 10.It is not in dispute that indeed there exists a court order issued by this Honourable Court for settlement of a decree issued by a court of competent jurisdiction. The Respondent's principal objection is that Mr. Evans Oanda was not personally served with either the order alleged to have been disobeyed or the present Application, and that, this being a quasi-criminal proceeding capable of resulting in committal, nothing short of personal service on the individual officer will suffice. 11.This objection must be tested against the correct procedural law. As the authorities relied upon by the Applicant themselves recognise, contempt of court proceedings in Kenya, following the decision in Kenya Human Rights Commission v The Attorney General & Another [2018] eKLR, reverted to section 5 of the Judicature Act, which imports the practice and procedure applicable to contempt in England — see Lena Chemoiwo v Bomas of Kenya (supra), citing what was then Rule 81 of the Civil Procedure (Amendment No. 2) Rules of 2012. 12.That English contempt procedure has since been recast as Part 81 of the Civil Procedure Rules, in force from 1st October, 2020 which, as noted, personal service of the judgment or order said to have been breached is, in principle, a precondition for its enforcement by committal, unless the court has dispensed with personal service by an order made for that purpose. That requirement is not satisfied merely because the party's advocate was present when the order was made, or because the order was thereafter served only upon the advocates on record; dispensation is a matter for a specific order of the court, whether granted in advance or, exceptionally, retrospectively upon proof that the alleged contemnor in fact had knowledge of the order. This position has been affirmed in Business Mortgage Finance 4 Plc & Ors v Hussain (2022) EWCA Civ 1264). 13.In that case, the England and Wales Court of Appeal emphasised the need for personal service; Lord Justice Nugee, held as follows:“In general an application for committal for breach of an injunction can only be brought where there has been personal service of the injunction which is sought to be enforced. That is not expressly provided for by Part 81, or anywhere else in the rules, but it is recognised by CPR r 81.4(2)(c) which presupposes that this is the general rule. As Arnold LJ pointed out in the course of argument this must be because of the underlying requirement for due process before a person is committed to prison; that requirement for due process means that there are certain procedural safeguards required for the benefit of the respondent; one of those safeguards is that the respondent should have proper notice of the injunction before he is at risk of being committed for breach of it; and in general proper notice requires personal service of the injunction. This requirement appears to long pre-date the CPR, and indeed the Judicature Acts: see the detailed historical survey by Nicklin J in MBR Acres Ltd v Maher [2022] EWHC 1123 (QB) at [67]-[97], who came to the same conclusion.” 14.And while addressing the power of the court to dispense with personal service under part 81.4 (2) (c) (d) of the Rules, the Court held that:“…the requirement for personal service was never an absolute one if it could be shown that the respondent had actual knowledge of the terms of the order: see for example at [74] where Nicklin J refers to such cases as Hearn v Tennant (1808) 14 Ves 136 where Lord Eldon LC held that it was sufficient if the respondent was present when the order was made, and ex parte Langley (1879) 13 Ch D 110 where this Court accepted that a telegram might in a suitable case be sufficient notice of an injunction to sustain proceedings for contempt. We were not taken to any of these old cases but CPR r 81.4(2)(c) clearly presupposes that the Court has power to dispense with personal service, and in my judgment that is a reflection of the long-standing practice of the Court under which the Court would not insist on personal service where it could be shown that the respondent had actual knowledge of the injunction”. 15.Where the court has to dispense with service whether prospectively or retrospectively, rule 81. 4(d) is to the effect that there has to be an express order to that effect, stating the terms and the date of the order; for emphasis the rule reads as follows:“(d)if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;”It is implied that the court will have to be moved to make the order to dispense with personal service. 16.Turning back to the application before court, Mr. Evans Oanda was not personally served with the order of 27 February, 2025, the decree of 1 April, 2025, or the Application Notice dated 6th October, 2025. What was done was service upon the Respondent's advocates, coupled with reliance on the fact that counsel then representing the Respondent was present when judgment was delivered. Neither step, however probative it may be of actual knowledge within the Respondent's camp, amounts to personal service, and no application has been made by the Ex-Parte Applicant, whether in advance or after the fact, for an order dispensing with personal service. In the absence of such an order, I am unable to treat the notice requirement as satisfied for purposes of committal, however strong the inference of actual knowledge may otherwise be on these facts. 17.Without proof that the mandatory precondition of personal service under Part 81 of the Civil Procedure Rules — applicable to these proceedings by dint of section 5 of the Judicature Act — has been met, or that this Court has been asked to, or has, dispensed with that requirement, the applicant’s application falls short of the threshold for an order of committal. In the circumstances, the application is dismissed; however, considering that the decree remains unsatisfied, I make no order as to costs.It is so ordered. DATED, SIGNED, AND DELIVERED AT MOMBASA ON 10 JULY 2026 NGAAH JAIRUSJUDGE