https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9020

Katiba Institute & another v Attorney General & 7 others (Petition E333 & E334 of 2026 (Consolidated)) [2026] KEHC 9020 (KLR) (Constitutional and Human Rights) (22 June 2026) (Sentence) Neutral citation: [2026] KEHC 9020 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E333 & E334 of 2026 (Consolidated) PM Nyaundi, J June 22, 2026 Between Katiba Institute 1st Petitioner Law Society of Kenya 2nd Petitioner and Attorney General 1st Respondent Cabinet Secretary for the Ministry Of Health 2nd Respondent The Cabinet Secretary for Ministry of Foreign and Diaspora Affairs 3rd Respondent and Kelin Kenya 1st Interested Party Mercy Mathai 2nd Interested Party Mwangi Maingi 3rd Interested Party County Government Of Laikipia 4th Interested Party Kenya National Commission on Human Rights 5th Interested Party Sentence 1.Following the finding that the 2nd Respondent was guilty of contempt, I directed that he attends Court on 23rd June 2026 for mitigation and sentencing. He appeared as required, and upon considering his mitigation, I accepted his apology and discharged him with a stern warning, cautioning him to ensure strict compliance with Court Orders. I indicated that I would issue my reasoned decision thereafter. I now do so. 2.In response to the Summons, the 2nd Respondent appeared before the Court on 23rd June 2026 and filed an Affidavit of Mitigation, which he supplemented with oral submissions. In mitigation, he avers that his actions were taken in the public interest and under considerable pressure to ensure that the Government had adequate measures in place to respond to the Ebola pandemic. He states that his decisions were guided by scientific advice, technical assessments, and strategic considerations. 3.He expresses regret for what he terms a misunderstanding that was interpreted as disobedience of Court orders. He assures the Court that, having served in senior leadership positions for over twenty years, he would be the last person to deliberately violate a court order. He reiterates his commitment to the constitutional principles of the rule of law and the independence of the judiciary. 4.Counsel for the 2nd Respondent submitted that the contempt has since been purged, as all activities at the Laikipia Airbase have been suspended. The Court was urged to note that the 2nd Respondent presented himself at the earliest opportunity upon being summoned. It was further submitted that his actions were undertaken in the public interest and not for personal gain. 5.The 2nd Respondent therefore submitted that, in the circumstances, a warning would suffice. 6.In response, the 1st Petitioner urged that, in determining the appropriate sentence, the Court must be guided by the need to safeguard the dignity of the Court, uphold the rule of law, and preserve constitutional supremacy. Reference was made to Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] KEELRC 656 (KLR), and the Court was urged to impose a sentence that reinforces the authority of the law. 7.It was further urged that unless the Court issues an appropriate sanction, public confidence in the judiciary may be eroded. Reliance was placed on Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] KEHC 5692 (KLR), underscoring the need to protect the integrity and authority of the Court. 8.Additional aggravating factors were cited, including the continued breach and the deliberate nature of the 2nd Respondent’s conduct. The Court was urged to consider that, by virtue of the high office he holds as Cabinet Secretary, the 2nd Respondent bears an elevated responsibility to uphold the law. Reference was made to Miguna Miguna v Fred Matiang’i, Cabinet Secretary Ministry of Interior and Co‑ordination of National Government & 8 others [2018] KEHC 7733 (KLR), urging the Court to take a firm view where senior government officials disobey court orders. It was submitted that such disobedience directly contravenes Article 10 of the Constitution and must be treated with the seriousness it deserves. 9.Further reliance was placed on the South African decision in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC), urging that an appropriate sentence must: affirm the authority, integrity, and dignity of the Court; uphold constitutional supremacy; deter the contemnor and other state officers; and restore public confidence that all persons are subject to the law. 10.For these reasons, it was submitted that a warning or pardon would be insufficient. A custodial sentence was urged, with reliance on the Zuma case (supra), where a term of fifteen months was imposed. 11.Counsel for the 2nd Petitioner aligned with the 1st Petitioner, urging the Court to mete a sentence that restores the dignity of the Court and the constitutional order. 12.The Court was urged to discount the argument that the 2nd Respondent acted in the public interest, as the highest public interest lies in safeguarding respect for the rule of law. It was submitted that the 2nd Respondent’s conduct warrants a custodial sentence proportionate to the gravity of the contempt. In the alternative, a substantial fine reflective of the seriousness of the breach was proposed. 13.The 2nd Petitioner further urged that the 2nd Respondent personally bear the costs of the proceedings. It was submitted that the sentence must deter future disobedience. On the apology tendered, the 2nd Petitioner noted that the contemnor did not address his public utterances in which he referred to court orders as “noise.” 14.The 4th Interested Party submitted that, in sentencing, the Court should consider that the 2nd Respondent attended Court, has since complied with the orders, and has expressed remorse. The Court was urged to be guided by Law Society of Kenya & 3 others v Inspector General of Police & 4 others [2024] KEHC 10634 (KLR), and to consider that a coercive order may suffice. It was urged that the apology be deemed adequate. 15.The 5th Interested Party urged that Court orders are not made in vain and that the reasons advanced for non‑compliance were not plausible. It was noted that judicial authority flows from the Constitution, and the Court must therefore uphold its authority by punishing the contemnor. 16.In response, it was submitted on behalf of the 2nd Respondent that he has since issued a directive halting all development at the Laikipia Airbase. The facts in the Zuma case were distinguished, noting that the 2nd Respondent has served in public office for twenty‑five years without prior citation for contempt. It was further submitted that he should not be condemned to pay costs, as courts generally refrain from awarding costs against parties in public interest litigation. It was reiterated that he attended Court in compliance with the summons. The Court was urged to exercise leniency and to consider a pardon and warning sufficient. SENTENCE 17.In my judgment finding the contemnor liable, I underscored, at length, the gravity with which this Court regards contempt. It is not a minor procedural misstep; it is a direct affront to the rule of law. Left unchecked, such conduct erodes the authority of the judiciary and invites disorder. Our constitutional framework leaves no room for that. It envisions a nation anchored in values, governed by law, and committed to the integrity of its institutions. Contempt of court is incompatible with that vision, and this Court cannot permit it to take root. 18.The Court’s response to acts of contempt must always reflect its firm intolerance for such conduct. The sanction imposed must therefore serve a broader purpose, one aimed at deterring any repetition of the offending behaviour and reinforcing the principle that court orders are to be obeyed. 19.The Court will therefore take an uncompromising stance where a senior public official, such as the 2nd Respondent, elects to disregard a Court Order. In determining sentence, I have considered his mitigation and his conduct following conviction. I note that he appeared in person in response to the summons. I have taken into account his apology and the remorse he expressed in open Court. I have also considered that he has since issued a directive halting all developments at the Laikipia Airbase in compliance with the Court’s Order. It is not lost on the Court that he attended accompanied by the senior leadership of the Ministry of Health. 20.In these proceedings, the Court’s primary concern is to affirm its authority and to make clear to the contemnor that compliance with Court Orders is not optional. Where the Court is persuaded that the contemnor now understands the importance and necessity of adhering to judicial directives, that core objective is achieved. 21.In the circumstances, I will accept the apology of the 2nd Respondent, the contemnor, and discharge him with a stern warning and a caution to ensure strict compliance with Court Orders going forward. It is so ordered. SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF JUNE 2026.P .M NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantMadzo Nyawa for 1st Petitioner WahumbeKiragu Wathuta Oyoo Owino Ms. Kagai Jared Gekombe for 2nd PetitionerEric Gumbo, Thande Kiria , Moses Kipkogei, Ms. Edith Torome 1st to 4th RespondentsLevi Munyeri, Lydia Gichuru FOR 4th Interested PartyMrs. Omutumba 5th Interested PartyMalidzo Nyawa for Ms. Omuom for 1st Interested PartyMwangi Maingi 3rd Interested Party in person