https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11286

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **JUDICIAL REVIEW NO. E132 OF 2024** **FARAM EAST AFRICA LIMITED………………………………………………. APPLICANT** **AND** **COUNTY SECRETARY,** **COUNTY GOVERNMENT OF NAIROBI………..…..……………..…1ST RESPONDENT** **COUNTY EXECUTIVE COMMITTEE MEMBER FOR FINANCE,** **COUNTY GOVERNMENT OF NAIROBI…………………………..…2ND RESPONDENT** **CHIEF FINANCE OFFICER,** **GOVERNMENT OF NAIROBI COUNTY………………………..……3RD RESPONDENT** **COUNTY GOVERNMENT OF NAIROBI……………………….…….4TH RESPONDENT** **THE GOVERNMENT NAIROBI COUNTY………………….………..5TH RESPONDENT** **THE CHIEF OFFICER,** **DEPARTMENT OF HEALTH AND EMERGENCY SERVICES...6TH RESPONDENT** **RULING** 1. The applicant moved this court by way of a motion, dated 11th March 2026, in which it seeks that the 1st, 2nd and 3rd respondents be cited for contempt of court, for wilful disobedience of the order of *mandamus* that was made by this court, in the judgement delivered in 8th August 2025. It is also sought that, upon being cited, the 1st, 2nd and 3rd respondents be committed to civil jail, for a period of 6 months, as punishment for being in contempt of court; and that the court be pleased to make any other order or orders to compel compliance with the order of *mandamus*, directing payment of the decretal sum of Kshs. 7,055,119.00, together with costs of Kshs. 283,433.48, and interests. It is prayed that the costs of the application be borne by the respondents personally. 2. The application is supported by the grounds on the face of the motion, and the supporting affidavit of Mr. Erastus Momanyi Moruri, sworn on 11th March 2026. The case by the applicant is that, following a ruling that was delivered by Hon. EM Kagoni, Principal Magistrate, on 21st January 2022, in Milimani MCCC No. 2026 of 2018, the respondent had been ordered to pay the applicant the decretal sum, plus the costs of the suit. The respondents failed to comply with the said orders, which precipitated the commencement of the judicial review proceedings herein, to compel the respondents to satisfy the decree of 19th January 2022. The order of *mandamus* was made, compelling the accounting officer of the 4th respondent to pay the applicant a sum of Kshs. 7,055,119.00, together with costs of Kshs. 283,433.48, and interest at the rate of 12% per annum. The respondents are yet to comply with that *mandamus* order. 3. The respondents reacted to the motion for the contempt of court order, through an affidavit, sworn on 7th April 2026, by Mr. WS Ogola, the Acting Solicitor of the 4th respondent. It is averred that no officer of the Government can be held personally liable for a debt owed by the Government, and committal to civil jail, is, therefore, not available. It is asserted that the Government Proceedings Act, Cap. 40, Laws of Kenya, does not provide for it. Articles 201(d)(e) and 207(2)(b) of the Constitution, sections 21(4) and 32 of the Government Proceedings Act, *Republic vs. The Attorney General & another ex parte James Alfred Koroso* and *Maggy Agulo Construction Co. Limited vs. Ministry of Public Health & 4 others* [2020] eKLR are cited. 4. The application was canvassed by way of written submissions. The applicant submits that the respondents have wilfully and deliberately failed to comply with the judgement on *mandamus*, and seeks that the court finds them in contempt of court, and commits to civil jail for 6 months in satisfaction of the decree. The respondents did not file written submissions. 5. The only issue for determination is whether the application for contempt of court is merited. 6. The main prayer is for the court to find the respondents in breach of the obligation to settle a decree, that had commanded them to settle, by way of the *mandamus* order of 8th August 2025, and for imposition of appropriate punishment, until the said orders are complied with. In *Refrigeration and Kitchen Utensils Ltd vs. Gulabchand Popatlal Shah & Another*, Nairobi CACA No.39 of 1990 (unreported), it was said that, “*It is essential for the maintenance of the Rule of Law and good order that the authority and dignity of our courts are upheld at all times. This court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors.’’* 7. Similar remarks had been made earlier, in the English decision in *Hadkinson vs. Hadkinson* (1952) 2 All ER 567, where it was stated that, “*It is plain and unqualified obligation of every person against or in respect of, who an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.’’* 8. From the record before me, I am satisfied that, on 8th August 2025, this court made a *mandamus* order, compelling the respondents to pay Kshs. 7,055,119.00, together with costs and interest. The amount remains due and outstanding. No reason or justification for failure to satisfy the decree has been made by the respondents. The arguments made in their reply are irrelevant to the issues at hand. 9. I note though, and I can take judicial notice of that fact, that the decree, of 8th August 2025, was pronounced after the financial year for 2025/2026 had commenced. It would be most unlikely that the said decree could have been factored into the budgeting and appropriation procedures, as at 8th August 2025, for the 2025/2026 financial year. The *mandamus* order came out too late, to be factored into the 2025/2026 budget. It would be unrealistic to expect the respondents to have the funds to settle the decree, if the said funds had not been budgeted for, for the last financial year, 2025/2026. The decree can only be catered for in the 2026/2027 financial year, for, at the time the estimates for this cycle were being prepared, the respondents had the decree at hand. 10. I shall refrain from making any orders on contempt of court at this stage, in view of the above. Instead, I shall require the respondents to give an indication to the court as to whether they have budgeted for the moneys the subject of the decree, in the 2026/2027 budget, for they are deemed to have had notice of that decree by the time the budgeting process commenced early this year. In the event no provision has been made for the decree herein, in the 2026/2027 budget, then there could be, in the circumstances, an element of contempt of the said decree. 11. Consequently, this matter shall be mentioned on 29th September 2026, for the purpose of getting that feedback, in default of which I shall have no option, but to make the final orders on the contempt application. **DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 24TH DAY OF JULY 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Ms. L Wafula, Legal Researcher.** **Advocates** **Ms. Amisi, instructed by Kiugu & Company, Advocates for the applicant.** **Ms. Kiunga, instructed by Theuri Wesonga & Company, Advocates for the respondents.**