Munene v Nairobi City County & 3 others

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. E778 OF 2025 JONATHAN MUNENE ……….……………... PETITIONER/APPLICANT -VERSUS- NAIROBI CITY COUNTY ……...……………….....…...1ST RESPONDENT THE PEST CONTROL PRODUCTS BOARD ...…...… 2ND RESPONDENT THE HONOURABLE ATTORNEY GENERAL ...….... 3RD RESPONDENT CHIEF OFFICER, PUBLIC HEALTH, NAIROBI CITY COUNTY …………………4TH RESPONDENT RULING ON CONTEMPT OF COURT 1. The Petitioner, Jonathan Munene, instituted the Petition dated 25th November 2025 against the Respondents, challenging the legality and constitutionality of the implementation of the “New Pest Control Compliance Program” under Contract No. NCC/HWN/RFP/028/2024- 2027. 2. The Petitioner’s case, as set out in the Petition, is that under the impugned programme, Nairobi City County granted exclusive pest control operational rights across 17 sub-counties to 14 selected entities. He contends that the programme violates various provisions of the Constitution, including Articles 1, 2, 10, 19, 20, 22, 23, 27, 47, 185(2), 186 and 258, as well as the Fourth Schedule to the Constitution. The Petition further challenges what the Petitioner describes as the assumption by the County Government of Page 1 of 21 functions vested in the national government and the Pest Control Products Board under the applicable statutory framework. It also raises issues relating to the exclusion of other legitimate pest control operators and the alleged failure to undertake public participation. 3. Among the reliefs sought in the Petition are declarations that the impugned policy, the selection of operators and the licensing arrangements are ultra vires, unconstitutional and null and void; a declaration concerning the allocation of pest control policy functions between the national and county governments; an order of certiorari quashing the decision to implement the programme; an order of prohibition restraining the issuance or enforcement of notices restricting the provision of pest control services to the selected operators; an order of mandamus compelling the revocation of the restrictive notices; and an award of costs. 4. Contemporaneously with the Petition, the Petitioner filed a Notice of Motion dated 25th November 2025 against the same Respondents. The Application was accompanied by a Certificate of Urgency and sought, inter alia, certification of the matter as urgent and the issuance of interlocutory conservatory orders restraining the Respondents from rolling out, implementing or enforcing the policy under Contract No. NCC/HWN/RFP/028/2024-2027, pending the hearing and determination of the Application. The Petitioner further sought conservatory orders restraining Page 2 of 21 implementation of the programme pending the hearing and determination of the Constitutional Petition dated 25th November 2025, together with costs. 5. The Application for conservatory relief was subsequently considered by this Court. On 16th January 2026, following proceedings held on 18th December 2025, Mwita J., (as he then was), issued an order restraining the Respondents from implementing the policy under Contract No. NCC/HWN/RFN/028/2024/2027, described in the proceedings as the New Pest Control Compliance Program, until 24th February 2026. The order incorporated a penal notice. 6. Subsequently, on 12th May 2026, the Petitioner filed the present Notice of Motion for Contempt of Court against Godfrey Akumali Atiel, County Secretary, and Tom Michira Nyakaba, Chief Officer for Public Health, who are described in the Application as officers of the Respondent. 7. The present Motion dated 12th May 2026 arises from the Petitioner’s contention that conduct undertaken after the order of 16th January 2026 amounted to non-compliance with that order. It is this Motion that is presently before the Court for determination. 8. In the Notice of Motion, the Applicant seeks, in the first instance, certification of the application as urgent and dispensation with service. He further seeks the citation of Godfrey Akumali Atiel and Tom Michira Nyakaba for contempt of the Court orders issued on 16th January 2026 and Page 3 of 21 their committal to imprisonment for a period not exceeding six months. The Applicant additionally seeks a declaration that the Respondent is guilty of contempt of court, the imposition of a fine to be determined by the Court, and an award of the costs of the application to the Applicant. 9. The Application is supported by the Petitioner’s affidavit sworn on the even date. In the affidavit, the Applicant sets out the procedural history of the proceedings and relies upon the documents exhibited thereto in support of the allegations forming the basis of the contempt Application. 10. The Applicant contends that, notwithstanding the order issued on 16th January 2026, county officers caused or instigated property management entities, including Knight Frank, to communicate and enforce a requirement for quarterly pest control compliance certification. The Applicant relies upon a letter dated 31st March 2026 issued by Catherine Mzungu, Assistant Property Manager, Knight Frank, to tenants of Lunga Lunga Square. 11. The said letter states that the Nairobi City County Government required holders of Unified Business Permits to obtain a quarterly Pest Control Compliance Certificate. According to the letter, the tenants were directed to apply for the certificate through the County’s online portal or at the customer service office. 12. The Applicant relies upon the said communication as evidence of the alleged implementation or enforcement of a pest control compliance requirement Page 4 of 21 after the order of 16th January 2026. The Applicant attributes the complained-of conduct to the two named county officers and invokes the contempt jurisdiction of the Court on that basis. Responses 13. The Respondents oppose the Petitioner’s Motion through their Grounds of Opposition dated 2nd June 2026, in which they contend that the Application is procedurally defective, incompetent, bad in law, misconceived and devoid of merit. They further maintain that the Application falls short of the legal threshold applicable to proceedings for contempt of court. 14. A further objection is the manner the alleged contemnors have been brought before the Court. The Respondents contend that contempt proceedings are personal in nature and quasi-criminal in character and for that reason, the persons against whom contempt is alleged ought to be properly identified and reflected in the heading of the Application. It is their further contention that the failure to properly reflect the alleged contemnors in the heading renders the Application procedurally irregular. 15. The Respondents also dispute the evidential foundation of the Application contending that the Petitioner has not placed before the Court any directive, circular, enforcement notice, policy document or official communication emanating from the alleged contemnors or the County Secretary which demonstrates their involvement in the conduct complained of. In particular, Page 5 of 21 they submit that no substantive evidence has been produced to establish the personal participation, authorization or involvement of the County Secretary in the alleged acts. 16. The Respondents further argue that the Petitioner’s case is founded principally, if not wholly, upon a communication emanating from a third party, namely Knight Frank. They characterize the letter issued by Knight Frank as a unilateral third-party communication and contend that no evidence has been produced connecting its contents or issuance to the alleged contemnors. Accordingly, they maintain that the communication cannot, without more, be attributed to the persons against whom the allegations of contempt are directed. 17. The Respondents also address the scope of the order issued on 16th January 2026. Their contention is that the order was confined to restraining implementation of the policy under Contract No. NCC/HWN/RFN/028/2024/2027. They maintain that the order did not prohibit the 1st Respondent from continuing to discharge its ordinary statutory functions relating to public health enforcement under the existing law. 18. On that basis, the Respondents contend that the conduct complained of by the Petitioner falls outside the scope of the order of 16th January 2026 and therefore does not constitute a breach of that order. Page 6 of 21 19. In addition, the 1st and 4th Respondents contend that the Petitioner has not demonstrated any wilful, deliberate or intentional disobedience of the Court’s order. They maintain that the material presented to the Court does not establish that the alleged contemnors knowingly and deliberately acted in disregard or breach of the order issued on 16th January 2026. 20. The Respondents urge the Court, on the foregoing grounds, to decline the orders sought by the Petitioner. 21. In addition to the foregoing Grounds of Opposition, the Respondents rely upon the Replying Affidavit sworn on 2nd June 2026 by Tom Michira Nyakaba, the Chief Officer for Public Health, Nairobi City County, in opposition to the Petitioner’s Notice of Motion for contempt dated 12th May 2026. 22. In that affidavit, the deponent avers that the Respondents have, at all material times, acted in good faith and taken steps to comply with the orders of the Court. In particular, he states that following the issuance of the conservatory order on 16th January 2026, neither the 1st nor the 4th Respondent took any steps towards implementing the policy under Contract No. NCC/HWN/RFN/028/2024/2027, described as the “New Pest Control Program.” 23. The Respondents’ further case is that the order issued on 16th January 2026 was directed specifically at the implementation of the impugned tender Page 7 of 21 contract and did not, either expressly or by necessary implication, suspend the discharge by the County Government of its ordinary statutory public health functions. Those functions, it is contended, include inspections, audits and the issuance of compliance certifications pursuant to the Constitution, the Public Health Act, Cap. 242, the Health Act, 2017, the Food, Drugs and Chemical Substances Act, Cap. 254, and the Unified Business Permit (UBP) framework. 24. The deponent further explains that the issuance of public health compliance certificates and the inclusion of pest control fees within the UBP framework were not functions introduced pursuant to the impugned programme. According to the Respondents, those were pre-existing administrative functions ordinarily undertaken through the Nairobi Revenue System. To substantiate that position, the Respondents annexed to the affidavit, and marked “TMN-1”, sample Unified Business Permits together with screenshots from the Nairobi Revenue System, which they contend demonstrate the existence and application of the relevant compliance items. 25. The Respondents also deny that, following the issuance of the Court’s order, they introduced any new regulatory policy or directed business operators to procure pest control services exclusively from the fourteen firms identified in the Petition. They maintain, further, that no monopoly, preferential treatment Page 8 of 21 or other special status was conferred upon any pest control operator after the issuance of the order. 26. Regarding the letter dated 31st March 2026 emanating from Knight Frank, the deponent states that the same was neither authored nor authorised by the County Secretary or the 4th Respondent. The Respondents accordingly describe the letter as a unilateral communication by a third party, issued independently of, and without authority or sanction from, the County Government. 27. The Respondents further contend that the Applicant has not placed before the Court any official County circular, directive or other instrument issued after 16th January 2026 demonstrating that the Respondents acted in breach of the Court’s order. It is their position that the Applicant has failed to discharge the evidentiary burden necessary to establish wilful and deliberate disobedience of the order, particularly having regard to the quasi-criminal character of contempt proceedings. 28. The substance of the Respondents’ position is, consequently, that the contempt Application proceeds from a conflation of two distinct matters: the County Government’s continuing discharge of its statutory public health functions, on the one hand, and the implementation of the specific tender contract restrained by the order of 16th January 2026, on the other. Page 9 of 21 29. The Respondents maintain that the impugned acts fall within the former category and were not measures undertaken pursuant to the restrained contract. On that basis, they contend that the contempt Application is misconceived, does not arise from the substance of the grievance advanced in the Petition, is devoid of merit and amounts to an abuse of the process of the Court. Submissions 30. The parties filed submissions to canvass the notice of motion. The Applicant submits that the said orders issued on the 16th January 2026 restrained the Respondents from implementing the New Pest Control Compliance Programme under Contract No. NCC/HWN/RFP/028/2024/2027 pending determination of the suit and as such he seeks, inter alia, the committal of the two officers to civil jail for six months and an award of costs. 31. On the applicable principles, the Applicant relies on Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR, where the Court set out the elements that an applicant has to prove to establish civil contempt. 32. As to the existence and terms of the order, the Applicant submits that the order of 16th January 2026 was clear and unequivocal in restraining implementation of the impugned pest control programme. Reliance is placed on Janet Nyandiko v National Social Security Fund Board of Trustees & 6 Page 10 of 21 Others [2012] KEHC 424 (KLR) for the proposition that a court order is binding and ought to be obeyed unless set aside, reviewed or otherwise discharged. The Applicant argues that the Respondents could not unilaterally construe or narrow the order to permit continued implementation under the guise of exercising their statutory public-health functions. 33. On knowledge of the order, the Applicant submits that the Respondents participated in the proceedings through the Office of the County Attorney and that counsel representing them was present when the orders were issued. Reliance is placed on Equity Bank Limited v Bryan Yongo & Another [2014] eKLR for the proposition that knowledge or service of the order is an essential consideration in contempt proceedings. The Applicant further relies on Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR), in which the Court of Appeal stated that “knowledge supersedes personal service” in appropriate circumstances. 34. The Applicant further submits that knowledge of the order by counsel is attributable to the client. It relies on the principle discussed in Shimmers Plaza, (supra) with reference to Basil Criticos v Attorney General & 8 Others [2012] eKLR, that where a party’s advocate has knowledge of a court order, such knowledge may be imputed to the party. The Applicant therefore contends that the absence of personal service upon the individual officers, or any technical objection concerning the form or heading of the order, does not Page 11 of 21 negate their knowledge of the court’s command. Article 159(2)(d) of the Constitution is invoked against reliance on procedural technicalities. 35. With respect to breach, the Applicant submits that the Respondents continued implementing the restrained programme after the order was issued. In particular, that tenants and occupiers were allegedly required to obtain mandatory quarterly Pest Control Compliance Certificates. The Applicant contends that, although the Respondents attributed this conduct to third parties, their own Replying Affidavit acknowledged that consultancy firms had been procured under Tender No. NCC/HWN/RFP/030/2024-2027 to undertake Integrated Pest Management audits and inspections. 36. The Applicant therefore submits that the Respondents cannot avoid the effect of the court order by acting through agents or describing the impugned activities as ordinary public-health enforcement. It is argued that the continued inspections and certification requirements amounted, in substance, to continued implementation of the programme restrained by the court. 37. The Applicant further relies on Shimmers Plaza Limited v National Bank of Kenya Limited (supra) for the proposition that obedience to court orders is mandatory, the Court having stated: “Obedience of Court orders is not optional, rather, it is mandatory.” 38. Finally, the Applicant submits that the alleged conduct constitutes wilful disobedience of the court’s authority. Relying on A.D.C v D.P.N [2017] Page 12 of 21 KEHC 8672 (KLR), which cited with approval, Sam Nyamweya & Others v Kenya Premier League Ltd & Others [2015] eKLR, the Applicant characterises contempt as conduct involving wilful defiance, disrespect or a challenge to the authority of the court. On that basis, the Applicant maintains that the continued implementation of the pest control requirements, whether directly or through appointed agents, amounted to deliberate disobedience of the orders of 16th January 2026. 39. On their part, the Respondents submit that the Application does not meet the threshold for civil contempt. They acknowledge the existence and knowledge of the conservatory order of 16th January 2026, but submit that the Applicant was required to prove, by cogent evidence, a deliberate and wilful breach attributable to the named officers. 40. Relying on Samuel M. N. Mweru & Others v National Land Commission & 2 Others(supra), the Respondents submit that the Applicant must establish the terms of the order, knowledge thereof, and failure to comply. They further rely on Stephen Jennings & 4 Others v Tatu City Limited & 5 Others [2018] eKLR for the proposition that the burden lies on the applicant to prove wilful disobedience. Relying on Shimmers Plaza Limited v National Bank of Kenya Limited (supra), they acknowledge that knowledge of an order may supersede personal service but maintain that knowledge alone does not establish contempt; an actual breach must also be proved. Page 13 of 21 41. The Respondents submit that the order restrained the specific pest-control programme under Tender No. NCC/HWN/RFN/028/2024/2027 and did not suspend the County’s independent constitutional and statutory public-health functions. They contend that routine inspections, sanitary audits and enforcement of public-health requirements were distinct from implementation of the restrained programme. 42. Concerning the letter issued by Knight Frank on 31st March 2026, the Respondents submit that the Applicant produced no evidence connecting the letter to either cited officer. They contend that there was no proof that Knight Frank acted as their agent, or that the officers authorised, sanctioned or directed the communication. Reliance is placed on Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another [2014] KECA 376 (KLR) for the submission that contempt liability is personal and must be founded on evidence linking the alleged contemnor to the impugned conduct. 43. The Respondents maintain that they complied with the order by halting the impugned tender programme while continuing to discharge their ordinary public-health mandate. They therefore submit that there was no evidence of wilful disobedience by either officer and urge that the application be dismissed with costs. Page 14 of 21 Analysis and Determination 44. Having considered the Notice of Motion, the affidavits, grounds of opposition and the written submissions, I find four issues for determination: (i) Whether the Motion is procedurally competent having regard to the manner in which the alleged contemnors are described in its heading; (ii) Whether the Applicant has satisfied the legal threshold for civil contempt; (iii) Whether the conduct complained of amounted to a breach of the conservatory order issued on 16th January 2026 or constituted the exercise of the 1st Respondent’s ordinary statutory mandate; (iv) Whether personal liability for contempt can properly be attributed to Godfrey Akumali Atiel and Tom Michira Nyakaba. (i) Whether the Motion is procedurally competent having regard to the manner in which the alleged contemnors are described in its heading. 45. The Respondents challenge the competence of the Notice of Motion on the ground that, being quasi-criminal and personal in nature, contempt proceedings require the alleged contemnors to be expressly named in the heading in their individual capacities. Page 15 of 21 46. While the Court recognises the need for precision in proceedings that may result in deprivation of personal liberty, the alleged defect is procedural and did not occasion any prejudice. The cited officers were served, filed replying affidavits and participated in the proceedings through counsel. In the circumstances, the Court is guided by Article 159(2)(d) of the Constitution, which requires justice to be administered without undue regard to procedural technicalities. The objection to the competence of the Notice of Motion is therefore not sustained. (ii) Whether the Applicant has satisfied the legal threshold for civil contempt. 47. The applicable principles governing civil contempt are well settled. In Samuel M. N. Mweru & Others v National Land Commission & 2 Others (supra), the Court identified matters that an applicant must establish in contempt proceedings, namely the terms of the order, knowledge of those terms by the alleged contemnor, and failure to comply with the order. Given the quasi-criminal character of contempt proceedings and the penal consequences that may follow, the alleged disobedience must be established to the requisite high standard, which is above the balance of probabilities. 48. In the present matter, the existence and terms of the conservatory order issued on 16th January 2026 are not in dispute. Neither is the Respondents’ knowledge of the order. The issue of knowledge is further informed by the Page 16 of 21 principle set out in Equity Bank Limited v Bryan Yongo & Another [2014] eKLR and Shimmers Plaza Limited v National Bank of Kenya Limited (supra) as well as Basil Criticos v Attorney General & 8 Others [2012] eKLR, on the effect of actual knowledge of a court order. The main question is therefore whether the Applicant has established an actual and wilful breach of the order. 49. The Applicant’s complaint primarily concerns the continued requirement that tenants obtain quarterly Pest Control Compliance Certificates. The Respondents, on the other hand, contend that the conservatory order was limited to the implementation of Contract No. NCC/HWN/RFN/028/2024/2027 and did not restrain the County from performing its independent constitutional and statutory public-health functions. There is evidence of an order which was clear and the respondents were served with the order. They were also aware of the order. This now leads me to determine the next issue of: (iii) Whether the conduct complained of amounted to a willful and breach of the conservatory order issued on 16th January 2026 or whether the what is complained of as breach constituted the exercise of the 1st Respondent’s ordinary statutory mandate. 50. In determining whether there has been willful breach, the Court must have regard to the terms of the order itself. In Janet Nyandiko v National Social Page 17 of 21 Security Fund Board of Trustees & 6 Others [2012] KEHC 424 (KLR), the Court underscored the obligation to comply with a court order according to its terms unless the order is reviewed or set aside. Equally, an order cannot properly by implication, be extended to prohibit conduct which the order did not expressly restrain. 51. The evidence, including annexure “TMN-1”, shows that public-health audits, sanitary inspections and pest-control compliance fees under the Unified Business Permit framework were pre-existing administrative requirements which preceded the impugned tender. These activities formed part of the County’s ordinary statutory public-health functions. They were therefore distinguishable from the implementation of the particular contract restrained by the order. 52. The principle in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] eKLR, that court orders must be strictly obeyed, does not, in the circumstances, extend the scope of the order beyond its express terms. 53. On the Applicant’s reliance on the letter issued by Knight Frank on 31st March 2026, I note that the Applicant did not place before the Court evidence demonstrating that Knight Frank acted as an authorised agent of either of the cited officers, or that Godfrey Akumali Atiel or Tom Michira Nyakaba authored, approved or directed the impugned communication. There was also Page 18 of 21 no circular, memorandum or other official instrument issued by either officer after 16th January 2026 directing implementation of the contract which was restrained by the order of the court. 54.Accordingly, I find and hold that the conduct complained of did not amount to a willful and breach of the conservatory order issued on 16th January 2026, I further find and hold that what was complained of as breach constituted the exercise of the 1st Respondent’s ordinary statutory mandate. (iv) Whether personal liability for contempt can properly be attributed to Godfrey Akumali Atiel and Tom Michira Nyakaba. 55.On this final issue, the principle that contempt liability is personal is underscored in Mate & another v Wambora & another (Civil Appeal 24 of 2014) (supra) where the Court of Appeal held: “29. ..... The offices of the Speaker and the Clerk of a County Assembly are public institutional offices and not personal. Both offices have staff and employees attached thereto who act and perform their duties on behalf of the County Assembly. Drawing an analogy that a public institution is the same as a corporate entity, service of summons on an authorized officer or legal officer attached to the corporation is deemed as service on the institution and the holder of the office. .......... 31.......... Page 19 of 21 Atkins Court Forms, Contempt of Court Volume 8 (2) at para 320, the learned commentators expressed themselves as herein below:- “In the case of an application to commit for breach of an order, judgment or undertaking, the evidence supporting an application for committal must prove: 1. Personal service of the order, judgment or undertaking duly indorsed in with a penal notice. Where a person is required to do an act, service must be made before the expiry of the time limited for doing the act but where a person is required to abstain from doing an act, the court has a discretion, which may be exercised prospectively or retrospectively, to dispense with service of the order, judgment or undertaking, if the alleged contemnor has had notice of it…”. 56. The Court of Appeal in Stephen Jennings & 4 Others v Tatu City Limited & 5 Others [2018] eKLR equally emphasised the need for cogent evidence of wilful disobedience. It was held thus: “The fact that we find no evidence of wilful disobedience of the orders in question or even evidence of frustration and intimidation of PwC by the appellants should determine finally this appeal, but for the questions, whether the right procedure for commencing contempt Page 20 of 21 proceedings was followed; whether personal service of the order was necessary and what punishment was available.” 57. Further, in A.D.C v D.P.N [2017] KEHC 8672 (KLR), citing Sam Nyamweya & Others v Kenya Premier League Ltd & Others (supra), contempt was described in terms of conduct demonstrating wilful defiance, disrespect or a challenge to the authority of the Court. 58. From my analysis of the material before the Court, I find that the evidence does not establish a sufficient nexus between the cited officers and the conduct complained of. The continued performance of pre-existing statutory public-health functions, without more, does not amount to implementation of the restrained contract. Equally, the Knight Frank correspondence does not establish personal participation in, authorisation of, or direction of the alleged contempt by either cited officer. 59. For the foregoing reasons, I find and hold that the Notice of Motion dated 12th May 2026 is devoid of merit. It is hereby dismissed. Each party to bear their own costs of the application. 60. It is so ordered. Dated, Signed &Delivered virtually at Nairobi this 8th Day of September, 2026 R.E. ABURILI JUDGE Page 21 of 21