https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1814

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC PETITION NO. E134 OF 2023 DR. MAGARE-GIKENYI……………………………………………………PETITIONER/APPLICANT -VERSUS- DR. KIBET PETER SHIKUKU………………………………………..…CONTEMNOR/RESPONDENT AND CABINET SECRETARY FOR HEALTH……………………………..……….…...…1ST RESPONDENT HON. ATTORNEY GENERAL.…………...……………………………….…………2ND RESPONDENT PUBLIC SERVICE COMMISSION…………………………………………....……..3RD RESPONDENT AND DR. PATRIC AMOTH…………………………………………………………1ST INTERESTED PARTY DR. KIBET PETER SHIKUKU…………………………………………..….33RD INTERESTED PARTY CORAM Before Lady Justice Jemimah Keli C/ A Otieno RULING 1. The Petitioner/Applicant vide Notice of Motion application dated 22nd May 2025 brought under the provisions of Sections 5(1) of the Judicature Act; Order 52 Rule 2 (2) of the of the Rules of the Supreme Court of England 1965; Sections 1A, 1B, 3A and 63 (c ) and (e ) of the Civil Procedure Act 2010; Sections 6 (c ) and 28 of the Contempt of Court Act; Order 40 and 51 of the Civil Procedure Rules 2010, and all other enabling provisions of the law, sought the following orders:- 2. *Spent* 3. *The Honourable court be pleased to cite DR. KIBET PETER SHIKUKU the Contemnor/33rd interested party herein for contempt of and/or for disobeying lawful court Judgement delivered on 7th December 2023 by Hon. Justice Byram Ongaya in Nairobi ELRC PETE134 OF 2023.* 4. *The Honourable court be pleased to order DR.KIBET PETERSHIKUKU, the Contemnor/33rd interested party herein be arrested and committed to civil jail for such period as would be deemed necessary by this Honourable Court for being in contempt of court by disobeying and breaching the Decree & Judgement issued on 7th December 2023 by Hon. Justice Byram Ongaya.* 5. *The Honourable court be pleased to order DR. KIBET PETER SHIKUKU, the Contemnor/33rd interested party herein be heavily/heftily fined for such amount as would be deemed necessary by this Honourable Court for being in contempt of court by disobeying and breaching the lawful court order issued on 7th December 2023 by Hon. Justice Byram Ongaya.* 6. *The Honourable court be pleased to grant orders for both prayer (c) on being committed to civil jail in addition to prayer (d) above on paying of hefty fines and all other sanctions and punishments as per the law.* 7. *The honourable court be pleased to order the contemnor to pay with interests to the state all salary refunds, benefits and or any other funds and/or any remuneration illegally earned during the contempneering period-that is from the Judgement date up to date and/or until she has completed payment.* 8. *That pending hearing and determination of this Application, the33rd interested party be restrained from reporting to office at National Spinal Injury Referral Hospital, Off Lenana road along rose avenue and/or any other office related to this position and drawing salary from the ex-chequer.* 9. *The honourable court be pleased give an order that contemnor(s)/respondent(s) to obey judgement of the court as delivered on 7th December 2023 in full without fail.* 10. *That any other order/modification of my prayers in which this honourable court may deem fit to grant for purposes of attaining Justice for all Kenyans at large.* 11. *That the 33rd interested party/Contemnors be condemned to pay the costs of this application.* 12. *Costs be paid by the respondents and/or contemnor(s).* 13. The Application was supported by the statement dated 22nd May 2025, and the supporting affidavit sworn by the Petitioner on the same date. Grounds of the application 号0-5： 1. This matter was filed on 6th July 2023, and having considered all the documents on record, the Court delivered its judgment on 7th December 2023. In relation to the appointment of the Contemnor as the Acting CEO of the NATIONAL SPINAL INJURY REFERRAL HOSPITAL, at paragraph 10 of the judgment, the court held as follows:- *“In conclusion the petitions as consolidated are hereby determined with orders as follows:* *a) The declaration that acting appointment is restricted to the existing employees/staff of the organization, which is a temporary conferment upon a public officer, by the appointing authority, the power to perform duties of a public office other than the office the officer is substantively appointed to hold, while the public officer continues to hold the substantive appointment and thus the purported appointment of Dr. Peter Shikuku and Dr. Tom Omenge as such is null and void ab initio.* *b) The declaration that the appointment of the senior management team of the Ministry of Health in acting capacity must at all material times be in strict compliance with the provisions of section 34 of the Public Service Commission Act and other relevant provisions in the HR manuals.* *c) The declaration that it was unconstitutional to revoke the appointment of existing officers like Dr. Sore Otieno and replacement by Dr. Peter Shikuku without change of designation.* *d) The order of certiorari to remove into the court for purposes of hereby quashing, the purported appointments of the senior management of the ministry of health vide an internal memo dated 19.04.2023 and titled reorganization of the ministry.* 1. It is the Applicant’s case that the 33rd interested party/contemnor has deliberately disobeyed the orders of this court issued on 7th December 2023, in that despite having being aware of the said orders, the 33rd interested party/contemnor herein continues to hold the office of Acting CEO of NATIONAL SPINAL INJURY REFERRAL HOSPITAL despite the position being nullified by the Honourable Court. 2. The Applicant has recently learnt that the 33rd interested party herein is still in office and drawing salary from the exchequer. The 33rd interested party recently issued memo to other members of staff a clear indication that she is still in office. 3. The courts' judgment was unambiguous and therefore the 33rd interested party should have vacated office. The dignity and authority of the court must be protected at all times. The Applicant states that the culture of disobeying court orders with impunity has reached very high levels in Kenya and the courts must now exercise their constitutional authority of punishing offenders for contempt of court. The blatant refusal to obey a valid court order is contempt of court, and the Applicant has no other way of enforcing the said order. 4. In its judgment, the court emphasized the appointment of officers like the contemnor herein (Dr. Kibet Peter Shikuku) is null and void, and quashed the Respondents’ decision to appoint the Contemnor to the subject senior management position vide the memo of 19.04.2023. However, it is stated that following the Judgement, the contemnor and other respondents ignored the decision and went on as if nothing had happened. 5. The Applicant avers that while going about his normal business on or about 20th May 2025, he came across documents shared in the hospital notice board and public WhatsApp group which were signed by the Contemnor as the Acting CEO of the NATIONAL SPINAL INJURY REFERRAL HOSPITAL, and on further inquiry, he came to the realization that the 33rd Interested Party/Contemnor never left the office following the judgement. 6. There is an attempt by the Contemnors/Respondents to circumvent the court orders/directions by their actions and/or omission and the same is not allowed in the new constitutional dispensation. Unless the court stops the actions of the contemnors/respondents, then the authority of court will be lost and the contemnor and Respondents will have made a mockery of court process. The Applicant prays that the Contemnor(s)/Respondents be held into account by their actions/omission(s) and be subjected to sanctions by the court. Response to the application 号0-5： 1. The application was opposed by the Contemnor/Respondent/33rd Interested Party through a Replying Affidavit sworn on 13th June 2025; and the 3rd Respondent, the Public Service Commission, through an Affidavit sworn by Paul Famba on 26th February 2026. 2. The Contemnor/Respondent/33rd Interested Party explains that he was qualified for the position of Acting CEO of the NATIONAL SPINAL INJURY REFERRAL HOSPITAL, having been awarded Bachelor's degree of Medicine and Surgery from the University of Nairobi on 26th November 2001, and received his certificate of registration as a medical practitioner from the Medical Practitioners and Dentists Board on 20th November 2002. He was further awarded a Master’s degree in Medicine (in human Pathology) on 9th December 2005 from the University of Nairobi and thereafter appointed by the Ministry of Education at the University of Nairobi in the faculty of Health Sciences. 3. The present dispute arose around 19th April 2023 when he received a deployment letter from the Ministry of Health requiring him to perform duties of a Medical superintendent at the National Spinal Injury Hospital and to report to the Director General for Health for further guidance. The Contemnor emphasizes that the deployment was not an appointment as he never derived any salary from the exchequer or any allowances as claimed by the Petitioner. He states that since his deployment on 19th April 2023 letter, he only received his first salary and/or allowances on 12th June 2025 following the Public Service commission secondment approval letter dated 13th November 2024 which appointed him as a Director of Medical services. He did not receive remuneration as a superintendent at the National Spinal Injury hospital following the deployment letter dated 19th April 2023. 4. It is averred that the purpose of the Contemnor’s deployment was to oversee implementations of the functions of the National Spinal Injury Hospital pending the finalization of the restructuring that was taking place at the Ministry of Health. The deployment at the Ministry of Health was only on a secondment basis and not a full-time basis hence the three year deployment period. The Contemnor denies being issued with an appointment letter to act in the subject role on a full-time basis, and states that he was seconded from one ministry department to another. 5. The Contemnor discloses that he received a letter dated 2nd November 2023, from the Ministry of Health to the Vice Chancellor, University of Nairobi, where the university was in support of his secondment to the Kenya Medical Research Institute (KEMRI), which is a state corporation under the Ministry of Health, for a period of 3 years. On 7th December 2023, the court delivered its Judgment where the Contemnor’s appointment and that of Dr. Tom Omenge were declared null and void *ab initio* together with further declarations. Vide a letter dated 13th November 2024 from the Public Service Commission to the PS, State Department for Medical Services, the Contemnor learned that a decision was made to decline his secondment from the University of Nairobi to the Ministry of Health. A letter dated 9th January 2025 from the Public Service Commission to the PS, State Department for Medical Services, was thereafter issued, where the decision to decline the Contemnor’s secondment was reviewed and an approval was issued by the Public Service Commission for the Contemnor’s belated secondment from the University of Nairobi to the Ministry of Health against the position of Director, Medical Services(CSG/Job group S) at the National Spinal Injury Hospital for a period of Three (3) years with effect from 1st July 2023 up to 30th June 2026. The foregoing was communicated to the Contemnor vide a letter dated 28th February 2025 (erroneously drafted as 28th February 2024) from the Principal Secretary, State Department of Medical Services at the Ministry of Health. 6. The Contemnor relies on Article 234(2)(a)(ii) of the Constitution as read together with section 33(1) and Part VI of the Public Service Commission (PSC) Act 2017 and Part iii of the PSC Regulations 2020, for the position that the Public Service Commission has the power and function to make appointments in the public service. He further relies on Article 234(5) of the Constitution as read together with Sections 31, 32 and 33(2) of the PSC Act 2017 to state that the Commission, after appointing principal secretaries as the authorized officers of the various Ministries/state departments, has the authority to delegate some of its powers and functions to the said authorized officers. Under Section 42 of the PSC Act as read together with regulation 37 of the PSC Regulations 2020 public officers can be seconded from one state corporation to another with the approval of the Public Service Commission. 7. The Contemnor insists that the process of secondment and his appointment as the Director, Medical services (CSG5/106 group S) at the National Spinal Injury Hospital conformed with the provisions of the Constitution, PSC Act and its regulations. He states that the first decision on the Court determined that he could not hold a public office in one organization while still having been appointed and holding another public office, but the approval by the Public service Commission of his secondment from the University of Nairobi to the Ministry of Health to serve in the position of Director, Medical Services at the National Spinal Injury Hospital cured the decision of the Court. 8. The Contemnor confirms that his current position of Director, Medical Services at the National spinal Injury Hospital (NSIH) is not an acting role and is therefore not subject to the provisions of Section 34 of the PSC Act. As such, the Contemnor denies contravening the decision of the court on lack of strict compliance with Section 34 of the PSC Act. He further states that since his current role of Director of the NSIH was clearly defined and communicated by the PSC's letter dated 28th February 2025 following approval by the PSC, he has also complied with the court’s decision on the change of designation, and has conformed with the decision to quash the internal memo dated 19th April 2023 which deployed the Contemnor as the Medical Superintendent of the National Spinal Injury Hospital. The Contemnor avers that his appointment as Director of Medical Services is in line with the Constitution, the Court's Judgment delivered on 7th December 2023, statutes and their Regulations. 9. The Contemnor denies committing any illegalities or being in contempt of the judgment of the Court delivered on 7th December 2023, having been issued with a letter dated 28th February 2025 by the Ministry over his secondment to the position of Director at the NSIH. 10. On their part, the 3rd Respondent confirms that pursuant to the directions of the Court (Hon. Byram Ongaya, J as he then was), the Commission was directed to file an affidavit on the employment history of Dr. Kibet Peter Shikuku. Vide a letter dated 13th October, 2025, the Commission wrote to the Vice Chancellor of the University of Nairobi requesting for information on whether the Contemnor had ever worked in the University of Nairobi; if the answer was in the affirmative, the details of when he was employed at the University and in what capacity, when he stopped working for the University and under what circumstances, and any other matter related to the Contemnor’s employment with the University. 11. It is averred that the University of Nairobi in response to the Public Service Commission’s letter, stated that: the Contemnor was employed as a lecturer Grade 12 in the Department of Human Pathology, Faculty of Health Services in the University, with effect from 6th January, 2014 and assigned payroll number 21705; and that the Contemnor was still an employee of the University on a three (3) year secondment to the Kenya Medical Research Institute under the Ministry of Health with effect from 1st July 2023 to 30th June 2026. . 12. The Public Service Commission provides a history of the Contemnor’s employment in the public service by stating that prior to the engagement of the Contemnor by the University of Nairobi, he had been deployed to the Provincial General Hospital (PGH), Kakamega, vide a posting order dated 8th November 2005. Thereafter, vide their letter dated 17th November 2005, the Moi Teaching and Referral Hospital (MTRH) informed the Authorized Officer that they had offered the Contemnor an appointment and he had accepted the same vide his letter dated 11th November 2005; and requested that the Contemnor’s salary be stopped with effect from 15th November 2005 and his service be transferred to MTRH. His salary was stopped by the Ministry with effect from 1st April 2006. 13. Through a show cause letter dated 9th June 2006, the Contemnor was called upon to explain why he should not be dismissed from the public service on account of desertion of duty, and the letter was returned as unclaimed item. On 19th August 2009, the Commission decided that he be dismissed from the public service with effect from 1st January 2006 on account of absence from duty without lawful authority, and this decision was conveyed to him vide a registered letter dated 24th September 2009 which was also returned as unclaimed item. 14. The Public Service Commission confirmed that the Cabinet Secretary, Ministry of Health, informed the Contemnor vide a letter dated 19th April 2023, of a decision to deploy him to the National Spinal Hospital to perform duties of the Medical Superintendent, and requested him to report to the Director General of Health for further guidance. On 19th May 2023, the Authorized Officer wrote to the Vice Chancellor, University of Nairobi (UoN) requesting that the Contemnor who is an employee of the University be seconded to the Ministry for deployment. The University complied and released the Contemnor to the Ministry of Health on a three (3) year secondment vide a letter dated 22nd June 2023 with effect from 1st July 2023 and stopped his salary. 15. It is averred that the Authorized Officer vide a letter dated 20th July 2023 requested the Commission to approve secondment of the Contemnor as Senior Deputy Director Medical Services, CSG 5, for an initial period of three (3) years with effect from 1st July 2023.15. The Commission declined the request on 16th August 2023 as the Contemnor had no formal appointment in the Ministry. The Contemnor appealed against dismissal from the service vide a letter dated 16th February 2024 in which he explained that: his appointment to the MTRH was effected with full disclosure to all interested parties and he proceeded to work at MTRH and subsequently in other organizations; with the appointment on 19th April 2023 to serve at the Ministry of Health, his file was re-activated but was found to have a notice to show cause and a dismissal letter, and this was the first time the same had come to his attention. 16. Vide a letter dated 8th July 2024, the Authorized Officer, State Department for Medical Services, while forwarding the Contemnor’s appeal against dismissal from the service, requested for: the rescission of the Commission's decision that dismissed the Contemnor, Medical Officer; P/F.2001060299; and the reinstatement into the Civil Service and approval of his secondment from the University of Nairobi to the Ministry of Health to the grade of Director Medical Services at the National Spinal Injury Referral Hospital. 17. It is stated that during a meeting held on 26th August 2024, the Commission's Discipline Committee recommended that the appeal be disallowed, and the case was referred to the Terms and Conditions Committee for in-depth analysis and recommendations. Further, in its 2775th meeting held on 16th August, 2023, the Commission declined the request that the Contemnor, a Pathologist in the University of Nairobi - Faculty of Health Sciences, Department of Human Pathology, be seconded to the Ministry of Health (State Department for Medical Services) as he had no formal appointment in the Ministry. 18. However, in its 2828th meeting held on 13th November 2024, the Commission rescinded the decision contained in Min. No. 17D of the 2775th meeting of 16th August 2023 regarding dismissal of the Contemnor, P/No.2001060299, Medical Officer in the Ministry of Health (State Department for Medical Services) and instead granted approval for belated transfer of service to the Moi Teaching and Referral Hospital; and upheld the earlier decision that declined the secondment of Dr. Kibet from the University of Nairobi to the Ministry of Health. 19. Later, in its 2834th meeting held on 9th September 2025, the Commission granted approval for the belated secondment of the Contemnor, P/No.2001060299, Director, Medical Services, CSG 5/Job Group ‘S’ to the Ministry of Health (State Department for Medical Services) with effect from 1st July 2023. DECISION 1. The applicant asserts that the Contemnor and the respondents are in contempt of court judgment. The Court delivered its judgment on 7th December 2023. The decision was in relation to the appointment of the Contemnor and 33rd Interested party as the Acting CEO of the NATIONAL SPINAL INJURY REFERRAL HOSPITAL. At paragraph 10 of the judgment, the court held as follows:- *“In conclusion the petitions as consolidated are hereby determined with orders as follows:* *a) The declaration that acting appointment is restricted to the existing employees/staff of the organization, which is a temporary conferment upon a public officer, by the appointing authority, the power to perform duties of a public office other than the office the officer is substantively appointed to hold, while the public officer continues to hold the substantive appointment and thus the purported appointment of Dr. Peter Shikuku and Dr. Tom Omenge as such is null and void ab initio.* *b) The declaration that the appointment of the senior management team of the Ministry of Health in acting capacity must at all material times be in strict compliance with the provisions of section 34 of the Public Service Commission Act and other relevant provisions in the HR manuals.* *c) The declaration that it was unconstitutional to revoke the appointment of existing officers like Dr. Sore Otieno and replacement by Dr. Peter Shikuku without change of designation.* *d) The order of certiorari to remove into the court for purposes of hereby quashing, the purported appointments of the senior management of the ministry of health vide an internal memo dated 19.04.2023 and titled reorganization of the ministry.’* 1. The petitioner/applicant stated as follows in support of the application *-*It is the Applicant’s case that the 33rd interested party/contemnor has deliberately disobeyed the orders of this court issued on 7th December 2023, in that despite having being aware of the said orders, the 33rd interested party/contemnor herein continues to hold the office of Acting CEO of NATIONAL SPINAL INJURY REFERRAL HOSPITAL despite the position being nullified by the Honourable Court. The Applicant has recently learnt that the 33rd interested party herein is still in office and drawing salary from the exchequer. The 33rd interested party recently issued memo to other members of staff a clear indication that she is still in office. The courts' judgment was unambiguous and therefore the 33rd interested party should have vacated office. The dignity and authority of the court must be protected at all times. The Applicant states that the culture of disobeying court orders with impunity has reached very high levels in Kenya and the courts must now exercise their constitutional authority of punishing offenders for contempt of court. The blatant refusal to obey a valid court order is contempt of court, and the Applicant has no other way of enforcing the said order. In its judgment, the court emphasized the appointment of officers like the contemnor herein (Dr. Kibet Peter Shikuku) is null and void, and quashed the Respondents’ decision to appoint the Contemnor to the subject senior management position vide the memo of 19.04.2023. However, it is stated that following the Judgement, the contemnor and other respondents ignored the decision and went on as if nothing had happened. The Applicant avers that while going about his normal business on or about 20th May 2025, he came across documents shared in the hospital notice board and public WhatsApp group which were signed by the Contemnor as the Acting CEO of the NATIONAL SPINAL INJURY REFERRAL HOSPITAL, and on further inquiry, he came to the realization that the 33rd Interested Party/Contemnor never left the office following the judgement. The petitioner attached an internal memo dated 13th May 2025 signed by Dr Shikuku as Acting CEO of the NATIONAL SPINAL INJURY REFERRAL HOSPITAL. The court finds that at that time the officer was in contempt of court, the appointment having been quashed in the judgment. 2. Conversely, the appointing authority, the Public Service Commission, through its Secretary Paul Famba, filed a replying affidavit and explained the history of the employment of the contemnor, the 33rd interested party. The court found that the officer had faced disciplinary issues before the Commission while the case was ongoing. The Commission, in response to this application, stated as follows- ‘in its 2834th meeting held on 9th September 2025, the Commission granted approval for the belated secondment of the Contemnor, P/No.2001060299, Director, Medical Services, CSG 5/Job Group ‘S’ to the Ministry of Health (State Department for Medical Services) with effect from 1st July 2023.’ 3. The court established that the belated secondment was communicated vide a letter dated 9th January 2025, being review of the commission decision, which stated as follows- ‘9 January, 2025 Mr. Harry K. Kimtai, CBS State Department for Medical Services Ministry of Health NAIROBI Dear PS, REVIEW OF COMMISSION'S DECISION Ref. Your No.2001060299 of 5.12.2024 This is to inform you that the Public Service Commission has reviewed the decision conveyed vide letter Ref. No. PSC/D/KI/1162 TY/(26) of 13th November, 2024 and granted approval for belated secondment in respect of Dr. Peter, Shikuku Kibet, P/No. 2001060299 from the University of Nairobi to your Ministry (State Department for Medical Services) against the position of Director, Medical Services (CSG 5/Job Group 5) at the National Spinal Injury Hospital for a period of Three (3) years w.e.f. 1.7.2023…’’ ( The contemnor’s’ exhibit ‘PSK 8’) The letter was authored by Paul Famba , the Secretary of the Public Service Commission. I find the letter confirms the averment of the Commission of the belated secondment of the contemnor, as outlined above. 1. The court then finds that the contemnor is not holding the position of acting CEO but of Director of Medical Services at the said hospital pursuant to the above letter by the Public Service Commission dated 9th January 2025. 2. The applicant relied on the decision in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR where the court held- 40. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove – 3. the terms of the order, 4. (ii) Knowledge of these terms by the Respondent, 5. (iii). Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred…... Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated:-"There are essentially four elements that must be proved to make the case for civil contempt……in that: (a) -the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; (b) the defendant had knowledge of or proper notice of the terms of the order; (c) the defendant has acted in breach of the terms of the order; and (d) the defendant's conduct was deliberate.’’ I upheld the decision to apply in the instant case. 6. The applicant further submitted that from the above matter Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR (supra)the court listed 3-4 conditions which ought to be satisfied as follows- (a) The terms of the judgement was clear. We submit the court gave clear orders/judgements. That the respondents were well aware of the clear terms of judgement since they were represented in court by hon. Attorney General and there has never been a contention on this. (b) Secondly the respondents had proper knowledge of terms-since the advocates of the respondents were in court, this is a sure proof that the respondents were aware/had knowledge of terms of the judgments and ought to have followed it. (c) Thirdly, the defendant has acted in breach of the terms of the order; that by failing to follow the directions/judgment of the order, the contemnor/33rd interested party acted and breached the order by continuing to be in office despite the court order. Court judgments are never given for ornamental value; courts orders are never given in vain, but to be complied with. Failure by respondents to willfully follow the judgments orders is a breach of the said judgments. (d) Fourth, the respondents willfully/deliberately failed to comply with judgement/decree. 1. The applicant further submitted that the respondents, having been aware of the judgment/order, ought to have complied with the order and stopped continuing to be in office illegally. However, they intentionally and willfully disobeyed the said court orders. 2. The applicant further submitted that there was willful failure to comply can be shown as follows (i) After the court quashed the 19th April 2023 appointments list through a 7Th December 2023 judgment(see order (c), the 33rd contemnor/respondent disobeyed the court order and continued being in office illegally. (ii) That as shown by the public service commission(PSC) responses essentially supports that Dr. Kibet continued working at spinal hospital illegally for instance at paragraph 4(ii) quote: “That Dr. Kibet is still an employee of the university of Nairobi on 3year secondment to Kenya medical research institute[KEMRI] (and not spinal injury hospital) under the ministry of health with effect 1st July 2023-30th June 2026”, which mean that by the time of his appointment on 19th April 2023 to spinal injury hospital , he was not an employee of the ministry of health and that the court had noted the same and quashed his appointment at the spinal hospital as medical superintendent. (iii) PSC says in At paragraph “That the commission declined the request (of approving Dr. Kibet’s secondment to MOH) on 16th august 2023 AS Dr. Kibet had no formal appointment in the ministry”, hence his continued stay at spinal hospital is a deliberate disobedience of court orders. 7 Page 8 of 14 (iv) PSC continues at paragraph 21 as “21. THAT in its 2834th meetings held on 9th September 2025, PSC granted approval for belated secondment in respect of Dr.Kibet peter Shikuku P/NO 2001060299, Director, Medical Services, CSG 5/Job group ‘S’ to the ministry of health(State Department For Medical Services) w.e.f 01.07.2023”, this means that even his ‘PSC belated approval of secondment to MOH’ in the year 2025(2 years) later did not correct nor justify the disobedience of court orders as the belated approval was made July 2025 and backdated to July 2023 , while his appointment was made in April 2023(3months before the impugned belated approvals). That overall, the contemnor/respondent and other respondents has never shown any intention to obey the said impugned order. 3. Conversely, the 3rd respondent submitted as follows on the parameters for contempt of court to be found:- 1. Non-compliance with the order: To buttress paragraph 20(a) above, the 33rd Interested party insists that the Judgment dated 7th December 2023 related to the CS Health’s internal memo and the appointment of a superintendent of National Spinal Injury Hospital in an acting capacity. It did not stop the 33rd Interested party from future appointments. The 3rd Respondent through its affidavit dated 26th February 2026 confirmed that it exercised its powers under Article 234(1& 2) of the Constitution and approved the belated secondment of the 33rd Interested party from the University of Nairobi to serve in the Ministry of Health as Director Medical services, CSG 5/Job Group “s”. 2. Willful disobedience: We wish not to belabor the Court with the same point but from the above submissions, its clear that the Orders issued on 7th December 2023 have not been violated or disobeyed in any way by the 3rd Interested Party. Additionally, the Petitioner has failed to precisely define the alleged act of disobedience as required by the principles set out in Mutitika v Baharini Farm Ltd. The allegations put forward by the Petitioner are broad and generalized, only referring to the 33rd Interested Party’s service at the National Spinal Injury Hospital as contemptuous without delving into the specific defiance of the Court’s Orders. There is no clear demonstration that any actions undertaken by the 3rd Respondent in the secondment of the 33rd Interested party as a Director, Medical services at the National Spinal Injury Hospital has in any way defied any of this Court’s orders issued on 7th December 2023. In the absence of such clarity, it would be unjust for this Honourable Court to make a finding of contempt, particularly given the serious consequences that attach to such a finding. We therefore humbly submit that the Respondent complied with the Judgment and subsequent Orders issued on 7th December 2023, as the nullified acting superintendent position is distinct from his current secondment as a Director of Medical Services, which was lawfully and constitutionally conferred through the Public Service Commission. 4. The Public Service Commission communicated its decision of secondment late, leading to the continued holding of the office of the contemnor as at May 2025 as if acting CEO. This qualifies as in contempt of the court and justifying the instant application. The court can only attribute the contemnor's situation as at May 2025 to government bureaucracy and delays in communicating decisions to employees. As at May 2025, as per the letter by the Commission, he was seconded to the hospital as Director of Medical Services and not in the acting position of the CEO. 5. The court, while it agreed with the applicant that the belated secondment of the contemnor as Director Medical Services backdated to July 2023 did not justify the disobedience of the court orders, before the letter, I find that since the appointing authority has since seconded the contemnor to position of Director of Medical Services of the hospital, meaning he is not acting CEO, the application is overtaken by events and there is no live controversy. I find it is academic to hold the contemnor in contempt of an issue already corrected by the appointing authority vide the letter of 9th January 2025. I also find that there is nothing illegal in seconding the contemnor as a Director of Medical Services to the hospital, as done by the Commission. I find the court has no basis to hold the contemnor and/or the respondents in contempt of the court order in the circumstances. 6. The application is disallowed with no order as to costs. 7. The file is marked as closed. 8. It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 25TH JUNE, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner/Applicant: - Dr. Magere - Gikenyi Contemnor : Owiti respondents -absent