https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2127

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS JUDICIAL REVIEW APPLICATION NO. E003 OF 2022 IN THE MATTER OF AN APPLICATION BY FRANCIS MWAKA & 124 OTHERS FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS AND IN THE MATTER OF 125 CERTIFICATES OF ORDERS AGAINST THE COUNTY GOVERNMENT OF MACHAKOS ISSUED BETWEEN 9TH AND 22ND JULY, 2021 AND IN THE MATTER OF ARTICLE 41 OF THE CONSTITUTION OF KENYA & PART 1V OF THE PUBLIC FINANCE MANAGEMENT ACT, 2012 AND IN THE MATTER OF SECTION 21 OF THE GOVERNMENT PROCEEDINGS ACT & SECTIONS 18{5} {a} OF THE EMPLOYMENT ACT, 2007 BETWEEN FRANCIS MWAKA & 124 OTHERS …………………………………………………………………….APPLICANTS =VERSUS= THE MACHAKOS COUNTY SECRETARY & HEAD OF PUBLIC SERVICE, HON. DR. VICTOR MUYA NDAMBUKI..…………………………….....1ST RESPONDENT/CONTEMNOR THE MACHAKOS CECM FINANCE & ECONOMIC PLANNING- HON. CATHERINE MUTANU............................................................2ND RESPONDENT/CONTEMNOR THE MACHAKOS COUNTY CHIEF OFFICER-FINANCE HON JULIUS KASANGA……………………...........................................3RD RESPONDENT/CONTEMNOR AND THE COUNTY GOVERNMENT OF MACHAKOS …………………………………………4TH RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The applicant, following the failure of the respondents to comply with the Order of Mandamus and pay the decretal sum as ordered by the court, filed an application by way of Notice of Motion dated 30th April 2026 which was brought under section 5 of the Judicature Act and all enabling provisions of law & procedure for orders:- a)That this Honourable court do fix date for the sentence of the contemnors namely Dr. Victor Muya Ndambuki- the Respondent County Secretary, Hon Catherine Mutanu Raphael CECM Finance & Economic Planning, Hon Julius Kasanga- Chief Officer Finance for deliberate and persistent disobedience of court orders to pay the 1st & 2nd instalment of Kshs. 54,500,000/=. b) THAT this Honourable court do sanction and commit the contemnors to civil jail for a period not exceeding six (6) months or such period as it may consider appropriate until contemnors purge their contempt. c) THAT costs of this application be provided for. Grounds of the application 1. That immediately the current county Government took office in 2022 they vowed not to pay the applicants decretal amount as it was incurred during the previous regime. 2. That true to their affirmation the current Government, despite spirited fight by the applicants have from 2022 todate (4years) have failed to budget and make requisition for the 1st & 2nd & 3rd instalment whose term of office expire July 2027. 3. On 12th March 2025, this Honourable court found the contemnors guilty of contempt and ordered the contemnors to pay the 1st instalment of Kshs. 20,000,000/= on 30th June 2025, failure of which the summons for sentencing be issued. 4. Before the expiry date the 1st instalment, the Respondent/contemnor applied to court for extension that was granted and extended to 15th January, 2025. 5. Again, the contemnors failed to pay on due date of 15th January, 2025 for the 1st instalment until Ten (10) months until in December 2025 who they paid only Kshs. 3,000,000/= leaving a balance of Kshs. 17,000,000/= which they promised to pay in the month of March 2026. 6. The Respondents/contemnors have failed to pay the 2nd Instalment that was due for payment at the end of December 2025 thus making total of unpaid arrears at Kshs. 54,500,000/=. 7. That apart from payment of only Kshs. 3,000,000/= the Respondents have failed to pay or demonstrate willingness and intention to include the decrental amount in their budgetary allocation and requisition of funds and unless compelled by this court, it will render the decree of the court useless. 8. Further various court have rejected the linking payment of decretal award on condition of budgetary allocation. A case at hand is Republic -vs- P.S MINISTRY OF DEFENCE ex-parte GEORGE KARORI WAITHAKA [2019] eKLR justice P Nyamweya (as then was) at paragraph 25 of his judgement held; "Section 21(1) & (2) of Government Proceeding Act does not condition payment to budget allocation and parliamentary approval of government expenditure in the financial year subsequently liability accrues. Further, at paragraph 48, the said court held, "Non -allocation of funds by parliament is not an acceptable defence or justification excuse for non-payment of a decretal sum ordered to be paid by Government officials." 9. That the 187 applicants Decree-holders filed their dispute in court in the year 2018 on legitimate expectation that upon judgement, the Respondents and its official- the contemnors would obey and settle the decretal amount which now they are frustrating. 10. Failure to comply with court decrees effectively undermines, the recourse to law as an instrument to resolve disputes and may lead to anarchy as was held in the case of CANADIAN METAL CO. LTD -VS- CANATIAN BROADCASTING CORP (No. 2) (1975) 48 D.L.R (30) quoted in NAIROBI J/R CASE NO.276 OF 2015 – Republic -vs- Principal Secretary, Ministry of Finance that:- "To allow court orders to be disobeyed would be to trend the road toward anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn.... If the remedies that the courts grant to correct wrongs can be ignored, then there will be nothing left for each person but to take the Law into his own hands, loss of respect for the courts will quickly result into the distraction of our society" 11. Since the decrees of the 187 claimants herein was passed in the year 2020 i.e 6 years ago, the judgment-debtor have failed to demonstrate unwillingness to pay and/or include the decretal amount in their budgetary allocation and requisition of funds from 2022 and/or any subsequent years and unless they are compelled to civil jail the court award will never be honoured, as the applicants and their families continue to suffer. 12. The application was supported by the affidavit of Francis Mwaka, one of the applicants, sworn on the 30th April 2026 and annexed Notice to show cause dated 24th September 2021 to the respondents chief Finance Officer , Order of Mandamus of the court issued on the 17th March 2023 by Justice Byram Ongaya, Order of summons to show cause to the respondents dated 12th March 2024, Warrants of execution of arrest of the 3rd Respondent dated 2nd July 2024 , consent dated 28th October 2024 to settle by instalments and order dated 12th March 2025 where it stated the counsel for the county secretary committed to pay the 1st instilment of Kshs. 20,000,000 by 30th June 2025.There was no compliance with the consent. On the 17th December 2025, the counsel for the applicant informed the court that they had only received Kshs. 3 million out of the consent of 20 million. 13. The application was opposed by the respondent through the affidavit of Julius Kasanga, the 3rd respondent, dated 29th June 2026. The response was outside the period of 7 days given by the court on the 5th June 2026 . In the interest of justice, the court considered the response. The 3rd respondent stated as follows- ‘THAT I am further aware that the parties previously engaged in an out-of-court settlement process pursuant to directions issued by this Honourable Court vide orders by consent issued pursuant to ELRC Judicial Review E003 of 2022. THAT the said settlement process culminated in a consent/payment arrangement between the Claimants/Applicants and the County Government of Machakos. THAT under the said consent/payment arrangement, the County Government of Machakos was required to pay an initial instalment of Kenya Shillings Twenty Million (Kshs. 20,000,000) and thereafter subsequent annual instalments of Kenya Shillings Thirty-Eight Million Seven Hundred and Fifty Thousand (Kshs. 38,750,000). THAT I am further aware the County Government of Machakos has partially settled the first instalment by Kenya Shillings Three Million (Kshs. 3,000,000) and the balance of Kenya Shillings Seventeen Million (Kshs. 17,000,000) of the first instalment remains outstanding. THAT the Applicants further allege that the subsequent and second instalment of Kenya Shillings Thirty-Eight Million Seven Hundred and Fifty Thousand was not settled at all (Kshs. 38, 750,000). THAT I am also aware that the Applicants allege that the outstanding amount in total currently stands at Kenya Shillings Fifty-Four Million Five Hundred Thousand (Kshs. 54,500,000). THAT the Respondents do not take the said allegations lightly and are aware that the matter concerns a longstanding payment obligation arising from proceedings before this Honourable Court. THAT however, I am informed by the Machakos County Internal Audit Department, which information I verily believe to be true, that clarification has been sought on the computation of interest upon the decretal sum and the costs of the suit. THAT in particular, the Internal Audit Department has sought to understand how the advocate for the Claimants/Applicants computed interest on the decretal amount and interest upon the costs of the suit. THAT the clarification so sought by the Machakos County Internal Audit Department is both necessary and prudent, to enable the Respondents and the County Government of Machakos verify the quantum of the figures being claimed and to ensure that any payment made from public funds is properly supported, transparent and accountable in accordance with the Constitution of Kenya, 2010, the Public Finance Management Act, 2012 and all other enabling provisions. THAT I am advised by my advocate on record, which advice I verily believe to be true, that under Article 201(d) of the Constitution of Kenya, 2010, the Respondents are under a duty to ensure that public money is used in a prudent and responsible way. THAT further, the Respondents are required to ensure openness, accountability and transparency in the management and application of public funds. THAT the Respondents' request for clarification is made in the utmost good faith and is not intended to defeat, delay or otherwise frustrate the course of justice, nor to vary, review or set aside the consent/payment arrangement or any order of this Honourable Court, but is undertaken in a bid to safeguard the public interest and to protect the public funds entrusted to the County Government of Machakos by the people of Machakos County. THAT the said request is intended to ensure that the computation of the decretal sums, interest and costs is clear, verifiable and capable of being processed through the County Government’s financial and accounting framework. THAT for the foregoing reason, the Respondents humbly propose that this Honourable Court be pleased to direct that a meeting be set and held between the Machakos County Internal Audit Department and the advocate for the Claimants/Applicants. THAT the purpose of the proposed meeting would be for the advocate for the Claimants/Applicants to shed light on the computation of the decretal sum, interest thereon, costs of the suit, and any other amount forming part of the consolidated figure sought to be enforced in the present application. THAT the Respondents further pray that, for purposes of audit, openness and transparency, the claims forming the consolidated figure be unbundled. THAT this matter herein involves over one hundred claims bundled into one matter whereas they all arose form separate and distinct judgments. THAT with the claims remaining bound together as one whereas they refer to judgment and decree delivered at different times and for different amounts of money and for specific named individual’s, the same has made it extremely difficult to track the total decretal sums and interests thereon since they have been bundled into one claim that keeps growing and cannot be property audited or followed. THAT the consolidated figure sought to be enforced by the advocate for the Claimants/Applicants is not sufficiently particularised in a manner that enables the County Government to verify the individual claims, the respective primary suits, the decretal sums, the applicable interest and the costs claimed. THAT the Respondents thus seek these particulars for the individual claims not to avoid, evade or delay compliance with the orders of this Honourable Court, but to ensure that any payment process is supported by clear, verifiable records and that the public funds entrusted to the County Government of Machakos are applied to duly verified and lawfully payable claims. THAT the Respondents further seek clarification on how the sum of Kenya Shillings Three Million (Kshs. 3,000,000) previously paid towards the first instalment was applied in reducing the amount now claimed by the Claimants/Applicants. THAT the said clarification is necessary because the present application seeks enforcement of a consolidated figure, and it is important for audit purposes to establish how any previous payment was credited or apportioned against the respective claims. THAT I am further informed from the records available to the County Government that Machakos ELRC No. 3 of 2019, Christopher Mutinda Mutua v County Government of Machakos, was paid sometime in or about the year 2020 but still formal part of the claims by the Claimants herein. THAT the consolidated figure sought to be enforced by the advocate for the Claimants/Applicants is not set out, broken down or sufficiently particularised in a manner that would enable the Respondents to interrogate and verify the individual claims, the respective primary suits, the decretal sums, the applicable interest and the costs claimed, and the Respondents accordingly wish to exercise their right to interrogate, challenge and seek further particulars of the quantum so claimed. THAT in view of the foregoing, the Respondents pray that this Honourable Court be pleased to direct the advocate for the Claimants/Applicants to submit a detailed list of the Claimants, setting out the name of each claimant, the respective primary suit, the decretal 5 sum, the interest claimed thereon, the costs of the suit and the manner in which any previous payment has been applied. THAT the said list is necessary to enable the Internal Audit Department and the Finance Department(s) to verify the claims and process the matter in a transparent and accountable manner. THAT the Respondents further pray that the said particulars be supplied in respect of all claims forming part of the consolidated amount sought to be enforced herein, including the claims said to arise. THAT the Respondents verily believe that the unbundling of the claims will assist all parties and this Honourable Court to understand the exact amounts payable, the basis of the interest claimed, the costs alleged to be due, and the claimants to whom the respective amounts relate. THAT the Respondents further believe that the said process will promote transparency, avoid duplication, prevent the risk of double payment, and ensure that any settlement made is supported by proper records. THAT while the Respondents remain fully willing to discharge their duty of complying with the lawful orders, directions and judgments of this Honourable Court, they are equally duty-bound to do so in a manner that meets the requirements of the law, safeguards the public interest and protects the public funds entrusted to it by the people of Machakos County. THAT the Respondents are ready and willing to engage the advocate for the Claimants/Applicants and the Claimants through the County Internal Audit Department and the Finance Department for purposes of clarifying the computation and verifying the supporting records. THAT the Respondents humbly pray that the advocate for the Claimants/Applicants be directed to submit the requested information as soon as possible to enable the Respondents through the County Internal Audit Department undertake the necessary audit verification and processing. THAT I am not aware of any instruction, decision or conduct by any of the Respondents directing any officer of the County Government to disobey, frustrate or disregard the orders of this Honourable Court. THAT I am not aware of any deliberate refusal by the Respondents to comply with the orders of this Honourable Court. THAT the issue presently arising is the need to verify, clarify and unbundle the sums claimed so that the County Government can process the matter lawfully, prudently and transparently. THAT the Respondents herein remain ready and willing to comply with such directions as this Honourable Court may issue for purposes of clarifying the sums claimed, facilitating audit verification and progressing the matter towards settlement. THAT in light of the foregoing, the Respondents oppose the application in so far as it seeks sentencing and committal to civil jail. THAT I verily believe that committing the Respondents to civil jail will not resolve the outstanding audit and computation issues and will not assist in clarifying the amount payable, the applicable interest, the costs claimed or the application of previous payments. THAT I verily believe that the interests of justice would be better served if this Honourable Court directs the Claimants/Applicants, through their advocate, to provide the requested breakdown and supporting computation, and thereafter directs the parties to engage through the County Internal Audit Department and the County Finance Department for verification and reporting back to Court. THAT the Respondents therefore humbly pray that this Honourable Court be pleased to decline the prayer for sentencing and committal to civil jail, the same being neither necessary nor in the public interest, and being inimical to the protection of the public funds entrusted to the County Government of Machakos by the people of Machakos County. THAT in the alternative, and in furtherance of the public interest and the prudent and accountable application of public funds, the Respondents pray that this Honourable Court be pleased to issue directions requiring the advocate for the Claimants/Applicants to furnish a detailed breakdown of the claims, including the names of the claimants, the respective primary suits, decretal sums, interest claimed, costs of the suit, and the application of any previous payments, so as to enable the County Government to verify the quantum and process the matter in a manner consistent with its constitutional and statutory obligations. THAT the Respondents further pray that this Honourable Court be pleased to direct that a meeting be convened between the Machakos County Internal Audit Department, the County Finance Department and the advocate for the Claimants/Applicants for purposes of clarifying the computation and enabling the County Government to process the matter in accordance with the applicable public finance framework. 14. The application was canvassed by way of written submissions Decision 1. The court finds that the issue for determination is whether the respondents are in contempt of the orders of the court and whether the orders sought are merited. 2. The order sought is as follows- a)That this Honourable court do fix date for the sentence of the contemnors namely Dr. Victor Muya Ndambuki- the Respondent County Secretary, Hon Catherine Mutanu Raphael CECM Finance & Economic Planning, Hon Julius Kasanga- Chief Officer Finance for deliberate and persistent disobedience of court orders to pay the 1st & 2nd instalment of Kshs. 54,500,000/=. b) THAT this Honourable court do sanction and commit the contemnors to civil jail for a period not exceeding six (6) months or such period as it may consider appropriate until contemnors purge their contempt. c) THAT costs of this application be provided for. 1. The affidavit in support of the application gave a chronology of the orders of the court on the settlement of the judgment debt. The respondents admitted knowledge of the court orders and even their own consent order to pay the Kshs. 20 million was not complied with. I find the respondent's reasons for non-compliance not justified. The allegations of audit have not been raised in any previous court proceedings. There is no valid reason extended as to the non-compliance. In Republic-Vs- Ag & Anor Ex-Parte James Alfred Koroso[ 2013] eKLR Hon. Justice G.V Odunga held; ".....contempt proceedings are no longer execution proceedings but are meant to show the courts displeasure at the failure by a servant of the state to comply with the directive of the court given at the instance of the Republic......" The applicant submitted, that the contemnors failure to include the 1st & 2nd instalment in the financial year 2023/2024 and 2025/2026 ending 30th June, 2026 illustrates a well calculated persisted, deliberate scheme to frustrate payment of valid court decrees that directly undermines the dignity and authority of the judiciary under Article 159(1) of the Constitution. A court order is not mere words. Court orders must be complied with and the court has duty to enforce its orders and punish for contempt when justified to assert the rule of law and court authority. The legislature has given the power to punish for contempt to the court in section 5 of the Judicature Act-‘5. Jurisdiction of superior Courts. Every superior court shall have power to—(a)punish for contempt of court on the face of the court;(b)punish for contempt of court; and(c)uphold the dignity and authority of subordinate courts.’ I have found deliberate disobedience of the court orders.’ I upheld the position of the court in Canadian Metal Co. Ltd -Vs- Canatian Broadcasting Corp (No. 2) (1975) 48 D.L.R (30) cited in Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka [2019] KEHC 10383 (KLR)that:- "To allow court orders to be disobeyed would be to trend the road toward anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn.... If the remedies that the courts grant to correct wrongs can be ignored, then there will be nothing left for each person but to take the Law into his own hands, loss of respect for the courts will quickly result into the distraction of our society". In the same decision (Waithaka) it was held-‘**60. Courts therefore punish for contempt to insulate its processes for purposes of compliance so that the rule of law and administration of justice are not undermined. Without this power or where it is limited or diminished, the court is left helpless and its decisions would mean nothing. This ultimately erodes public confidence in the courts; endangers the rule of law, administration of justice and more importantly, development of society.’** I am persuaded that the respondents are in contempt of court orders and I so declare. 1. In the upshot, the application dated 30th April 2026 is allowed. The court holds that the respondents/ contemnors are in continuous contempt of court orders. The Honourable court hereby fixes dates of 18th September 2026 for Dr. Victor Muya Ndambuki- the Respondent County Secretary, Hon Catherine Mutanu Raphael CECM Finance & Economic Planning, and Hon. Julius Kasanga- Chief Officer-Finance, to show cause why they should not be sentenced to civil jail for period not exceeding 6 months for disobedience of court orders to pay the 1st & 2nd decretal sum instalments total sum of Kshs. 54,500,000/= as per Order of the Court dated 25th October 2024. 2. The applicant is awarded costs of the application. 3. It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 17TH DAY OF JULY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicants - Ndolo Respondents /contemnors – Mutua