https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1370

IN THE REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI CAUSE NO. ELRC PET NO. E102/2024 KENNETH OLUOCH NYAMOLO...............................................APPLICANT/DECREE HOLDER VERSUS NATIONAL SYNDEMIC DISEASES CONTROL COUNCIL (NSDCC)...................................................1ST RESPONDENT/JUDGMENT DEBTOR DOUGLAS OSEKO BOSIRE (ACTING CEO, NSDCC) ........................................................2ND RESPONDENT/CONTEMNOR CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The applicant filed an application by way of Notice of Motion dated 28th November 2025 brought under Section 4 of the Contempt of Court Act No. 46 of 2016, Section 5 of the Judicature Act, Cap 8, Order 51 Rule 1 of the Civil Procedure Rules, for orders: 2. THAT this Honourable Court be pleased to find the 2ND RESPONDENT, DOUGLAS OSEKO BOSIRE (ACTING CEO, NSDCC), in contempt of the lawful and binding Orders of this Honourable Court made on September 25, 2025. 1. THAT the 2ND RESPONDENT, DOUGLAS OSEKO BOSIRE (ACTING CEO, NSDCC), be summoned to appear in person before this Honourable Court to show cause why he should not be committed to civil jail for a period not exceeding six (6) months for contempt of court, and/or in the alternative, be fined as the Court may deem fit. 2. THAT the Honourable Court be pleased to issue an Order compelling the 1ST RESPONDENT and the 2ND RESPONDENT to forthwith and unconditionally comply with the Orders of this Honourable Court made on September 25, 2025. 3. THAT the costs of this Application be borne by the RESPONDENTS in any event. GROUNDS OF THE APPLICATION 1. THAT this Honourable Court issued a lawful and binding Order on September 25, 2025, requiring the 1st Respondent, NSDCC, to calculate, file, and pay specific sums to the Applicant, KENNETH OLUOCH NYAMOLO. 2. THAT the Orders specifically directed the NSDCC to pay: 3. Damages for 3 months gross salary. 4. Salary Arrears. 5. Gratuity Arrears. 6. Cost of the Suit 7. Interest from the date of Judgment till payment 8. The payment was to be effected within sixty (60) days from the date of the Order (September 25, 2025). 9. THAT the sixty (60) day period for compliance expired on or about November 24, 2025. 10. THAT as of the date of filing this Application (November 25, 2025, or later), the 1st Respondent has failed, refused, and/or neglected to calculate, file, and pay the decretal sums as ordered, thereby wilfully disobeying the Court's directive. 11. THAT the 2ND RESPONDENT, DOUGLAS OSEKO BOSIRE, being the Acting Chief Executive Officer and administrative head of the 1ST RESPONDENT (NSDCC), is fully aware of the Court Order, the Judgement having been delivered in the presence of their Advocate, having been served with it, a reminder send to them and is the principal officer responsible for its implementation. 12. THAT the failure by the 2nd Respondent to ensure the necessary calculations, filing, and payment within the stipulated 60 days constitutes willful disobedience of a Court Order, which amounts to Civil Contempt of Court. 13. THAT the Applicant continues to suffer prejudice and is being denied the fruits of his judgment due to the contumacious conduct of the 2nd Respondent. 14. The applicant supported his affidavit way of affidavit dated 28th November 2025 where he annexed the Decree of the court dated 25th September 2025, and correspondent on service of the same for satisfaction on the respondent. 15. The respondent filed response and notice of preliminary objection as follows- 16. THAT a Certificate of Order against the Government was issued on 17th February2026. 17. THAT by the issuance of an Order against the Government pursuant to section21of the Government Proceedings Act, Cap 40, the enforcement of the decree herein became subject to an exclusive statutory regime, and this Honourable Court was thereby divested of jurisdiction to entertain execution proceedings under the Civil Procedure Act and Rules, including committal to civil jail under Order 22. 18. THAT section 21(4) of the Government Proceedings Act expressly prohibits execution, attachment, or any process in the nature of execution against the Government. Committal to civil jail is a coercive mode of execution and is consequently barred once an Order against the Government has issued (Republic v Attorney General & another ex parte James Alfred Koroso [2013] eKLR; Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza [2012] eKLR). 19. THAT the Acting Chief Executive Officer of the National Syndemic Diseases Control Council is not a judgment debtor in his or her personal capacity, and this Honourable Court lacks jurisdiction to commit an accounting officer to civil jail for the satisfaction of a public debt. 20. THAT the Petitioner/Applicant having elected to proceed by way of an Order against the Government, the Applicant is barred from invoking parallel execution mechanisms. In the event of non-payment, the only lawful remedy lies in judicial review proceedings by way f mandamus. (Republic v County Secretary, Nairobi City County &another exparte Wachira Nderitu Ngugi & Co. Advocates [2016] eKLR) 21. THAT it is settled law that proceedings conducted without jurisdiction are nullities ab initio (Owners of the Motor Vessel “Lillian S” v CaltexOil (Kenya) Ltd [1989] KLR 1). . 22. The application was canvassed by way of written submissions. Both parties complied. 23. The issue for determination was whether the Exparte Applicant was entitled to Orders sought and whether the Notice of Preliminary Objection was merited. The exparte applicant’s submissions 1. Whether a state corporation established under the State Corporations Act (Cap 446) with a distinct legal entity (body corporate) to sue and be sued falls under "government" as defined under the Government Proceedings Act (Cap 40). The misapplication of CAP 40 by the Applicant and their kind must not be entertained. The Applicant/Respondent is a State Corporation established under the State Corporations Act (Cap 446) and is a distinct legal entity (body corporate) from the "Government" as defined under the Government Proceedings Act (Cap 40). The Applicant has a distinct legal personality. Pursuant to the principle in Kenya Post Office Savings Bank v. Integrated Properties Limited [2015] eKLR, statutory bodies that can sue and be sued in their own name do not enjoy the immunity from execution provided under Section 21 of Cap 40. 2. Whether section 21 of the Government Proceedings Act grants absolute immunity to public officers who willfully disobey court orders. To the Contrary, Section 21(3) of the Government Proceedings Act under the head satisfaction of orders against the Government puts an obligation on the Accounting officer and provides that: “ (3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon...”. The Court gave the orders 25/9/2025 and if the said orders as set out are given a literal meaning, the same are clearly directed to the Judgement Debtor/Applicant, the Decree Holder is not required by the orders to do anything or to refrain from doing anything. The orders do however direct the Judgement Debtor/Respondent to pay within 60 days and are clear and not ambiguous. In Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another [2005] eKLR Ibrahim J (as he then was) stated as follows:- “It is essential for the maintenance of the Rule of Law and order that the authority and dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against or in respect to whom an order is made by the Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.” The Applicant has failed, refused, and/or neglected to calculate, file, and pay the decretal sums as ordered, thereby willfully disobeying the Court's directive. That the orders given by this court on September 25,2025 have not been obeyed, stayed or varied. In the case of Kenya Tea Growers Association vs Francis Atwoli and 5 Others (2012) eKLR, Lenaola J cited with approval the case of Clarke and Others vs Chadburn & Others [1985] 1All E.R (PC), 211 in which the Court observed that: “I need not cite authority for the proposition that it is of high importance that orders of the Courts should be obeyed, willful disobedience to an order of the Court is punishable as a contempt of Court, and I feel no doubt that such disobedience may properly be described as being illegal…even if the Defendants thought that the injunction was improperly obtained or too wide in its terms, that provides no excuse for disobeying it. The remedy is to vary or discharge it.” 3. The Remedy Of Mandamus Is Not Exclusive The Applicant claim Mandamus is the "only lawful remedy." This is a fallacy. Mandamus is a method to compel performance, but where there is willful disobedience of an existing Court Order, the Court has inherent power under Section 5 of the Judicature Act to punish for contempt. You cannot compel a man through Mandamus if he has already shown he has no regard for the Court's authority. 4. Contempt is not execution. Committal to civil jail is a quasi-criminal sanction intended to punish willful disobedience of a Court Order and to uphold the dignity of the Court; it is not a "process in the nature of execution" against government property barred by Section 21(4) of Cap 40. 5. On the personal liability of the accounting officer. The Applicant argue the 2nd Respondent is not a judgment debtor. However, the law on Mandamus and Contempt recognizes that a "Corporation" or "Council" acts through human agents. The 2nd Respondent is the Accounting Officer under the Public Finance Management Act. If the Court issues an order, it is his statutory duty to facilitate payment. His failure is a personal omission. In Christopher Ndarathi Murungaru v. Standard Ltd [2014] eKLR, it was settled that those in charge of public bodies are personally responsible for ensuring those bodies comply with the law. 6. Corporations act through officers. A corporation acts through its officers. The Accounting Officer of the NSDCC carries the personal responsibility to ensure that court-ordered debts are prioritized. Failure to do so renders them personally liable for contempt. Court orders are not mere suggestions. They are mandatory commands that must be obeyed to the letter and disobedience must yield consequences, Contempt proceedings like we have here now. 7. The Certificate Of Order Against Government - a court order is not a suggestion. If the judge set a 60-day clock, that clock started on September 25, 2025 and the order expired on or around November 24, 2025 without the decree being satisfied. The Contempt of Court proceedings must be distinguished from execution proceedings which starts with Serving the Certificate of order Against Government to the Attorney General and wait for 21 days to seek orders of Mandamus. The Contempt of Court proceedings are to express the displeasure with the disobedience of courts orders while the Certificate begins the execution process and are totally unrelated in function. The Certificate was issued on February 17,2026 and properly served with a 21-day Notice. Have the disobedient parties to the court orders yielded to that Certificate to purge this contempt within the 21 days? This Court has the inherent power under the Contempt of Court Act to punish any party that treats its orders with levity. To allow a state agency to ignore a specific timeline would be to render the Judiciary a 'paper tiger' and erode public confidence in the rule of law. The respondent’s submissions 1. Jurisdiction is not merely a procedural technicality; it is the very foundation and lifeblood of every judicial proceeding. Without jurisdiction, everything done by a court is a nullity and of no legal effect whatsoever. This foundational principle was authoritatively settled by the Court of Appeal in the landmark case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd[1989] KLR 1, where Nyarangi JA famously held that “jurisdiction is everything. Without it, a court has no power to make one more step.” Where a court discovers—or is shown — that it lacks jurisdiction, it must immediately down its tools in respect of the matter before it. 6. In the present case, the Respondents raise a pure question of law through this Preliminary Objection i.e. whether, following the issuance of a Certificate of Order Against the Government dated 17th February 2026 pursuant to section 21of the Government Proceedings Act (Cap 40), this Honourable Court retains any jurisdiction to entertain or continue contempt proceedings that seek committal to civil jail under Order 22 of the Civil Procedure Rules. The answer lies in the clear and deliberate statutory scheme enacted by Parliament in the Government Proceedings Act that is once a Certificate of Order Against the Government is issued and served, the enforcement of any monetary decree against a government entity ceases to be governed by the ordinary civil execution provisions of the Civil Procedure Act and Rules. Instead, Parliament deliberately substituted those ordinary execution mechanisms with a special, exclusive statutory regime under section 21. Section 21(3) imposes a statutory duty on the accounting officer to satisfy the certified amount from public funds. Section 21(4) then goes further and expressly prohibits execution, attachment, or any process in the nature of execution against the Government or its property. The prohibition is absolute and categorical. Committal to civil jail the very relief sought in the Applicant’s Notice of Motion is a classic coercive process in the nature of execution. It is designed to compel payment by the threat and actual deprivation of personal liberty. To allow such a process to continue after the Certificate has been issued would be to directly contravene the express words and clear intention of section 21(4). 9. This position is not novel; it has been consistently and authoritatively affirmed by the superior courts. In Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza[2012]eKLR, the High Court (Musinga J, as he then was) held in clear terms that although the Government does not enjoy blanket immunity from liability, it enjoys statutory protection as to the mode of execution. The learned Judge stated: “Decrees against the Government can only be enforced by way of an order of mandamus compelling the accounting of icer … as the Government is protected and given immunity from execution and attachment under Section 21(4).” That pronouncement remains good law and directly applies here. The same principle was reinforced in Republic v Attorney General &another exparte James Alfred Koroso [2013] eKLR, where the Court emphasized that the Government Proceedings Act establishes an exclusive enforcement framework. Attachment, execution, or any analogous coercive process cannot lawfully issue against government entities once the statutory pathway is activated. The only remedy preserved for a decree-holder who alleges non-compliance is judicial review proceedings seeking an order of mandamus, not contempt proceedings seeking personal committal. Most pertinently, in Republic v County Secretary, Nairobi City County &others exparte Koceyo & Co Advocates the Honourable Judge under paragraph 18 of his judgment cited with authority the case of Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) where J. Githua reiterated that once a decree and Certificate of Order have issued against a public entity, the only lawful mode of enforcement is mandamus directed at the accounting officer. Section 21 does not absolve the Government from ultimate liability; it strictly regulates and limits the mode by which that liability may be enforced. The deliberate legislative choice was to replace execution with mandamus, not to permit parallel or concurrent coercive processes. The nature of mandamus itself underscores why contempt cannot coexist with this regime. In Republic v Kenya National Examinations Council ex parte Geofrey Gathenji & 9 Others (Court of Appeal), mandamus was described as the appropriate command to compel performance of a public duty where a clear legal right exists and no equally convenient or effective remedy is available. In the specific context of decrees against the Government, Parliament has expressly declared that mandamus is the convenient, effective, and exclusive remedy. To permit contempt proceedings would be to introduce a parallel remedy that Parliament deliberately excluded. The Applicant’s Notice of Motion dated 28 th November 2025 expressly prays for committal of the 2nd Respondent to civil jail for up to six months and/or a fine, relief that are quintessentially coercive and executory in character. Allowing such prayers to be entertained after 17th February 2026 would amount to reintroducing execution jurisdiction that section 21(4) expressly removed. Jurisdiction to execute decrees against the Government is not inherent in the court; it is conferred and deliberately circumscribed by statute. Once Parliament has spoken through section 21, this Honourable Court cannot invoke the general provisions of Order 22 to circumvent that clear statutory limitation. For all these reasons, upon the issuance of the Certificate of Order Against the Government dated 17th February 2026, this Court’s ordinary execution jurisdiction under the Civil Procedure Rules stood displaced. The Applicant’s only lawful recourse in the event of continued non-payment lies in separate judicial review proceedings seeking mandamus, not in the present contempt application. In the premises, and guided by the binding authority of Lillian S, this Honourable Court has no jurisdiction to entertain the Applicant’s Notice of Motion dated 28th November 2025. The Preliminary Objection must therefore be upheld and the said application struck out in limine with costs to the Respondents. Whether committal to civil jail under Order 22 constitutes “execution or process in the nature of execution” within the meaning of section 21(4) of the Government Proceedings Act 16. My Lord, the Applicant’s Notice of Motion dated 28th November 2025 expressly seeks the committal of the 2nd Respondent (Acting Chief Executive Officer and Accounting Officer) to civil jail, or in the alternative, a fine, for alleged non-compliance with the decretal sums ordered on 25th September 2025. That application is brought under Order 22 of the Civil Procedure Rules, which is the very Order that governs execution of decrees and orders for payment of money. Order 22 provides, among other modes, for committal to civil jail as a recognised method of enforcing a money decree where the judgment debtor wilfully refuses or neglects to pay. The purpose is coercive: to compel satisfaction of the decree through the threat and, if necessary, the actual deprivation of personal liberty. In form and effect, committal under Order 22 is execution; it is one of the coercive tools Parliament has placed within the ordinary execution framework of the Civil Procedure Act and Rules. However Honourable Judge, section 21(4) of the Government Proceedings Act (Cap40) is unequivocal: “Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any of icer of the Government as such, of any money or costs.” The phrase “process in the nature thereof” is deliberately wide. It is our submission that Parliament did not limit the prohibition to attachment of property or garnishee orders; it captured any coercive mechanism that functions as execution —i.e., any process whose essential purpose is to compel payment of a public debt through pressure on the judgment debtor or its officers. Further, the use of “shall” is deliberate and binding: it imposes an absolute statutory prohibition, not a discretionary guideline. Parliament did not employ permissive language such as “may” or “can”; it commanded that no such process shall issue and that no person shall bear individual liability. The phrase “process in the nature thereof” is deliberately wide so as to capture every coercive mechanism whose essential purpose is to compel payment of a public debt through pressure on the judgment debtor or its officers including committal to civil jail. It is our respectful submission that this mandatory language leaves no room for the Court to permit the Applicant’s application for committal, as doing so would directly contravene the clear and imperative statutory command of Parliament. Committal to civil jail is inherently coercive and remedial in character. It is not imposed as criminal punishment; it is imposed to secure compliance with a civil obligation (payment of a decretal sum). Its object is identical to that of attachment or sale of property: to force satisfaction of the decree. In substance, therefore, it is execution however the Applicant chooses to label it “contempt of court”. The courts have consistently treated committal in this context as falling within the prohibited category. In Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza supra, the High Court held that ordinary execution processes, including those that seek to coerce payment through personal sanctions, are unavailable against the Government once a Certificate of Order has been issued. The Court made clear that the only remedy is mandamus compelling the accounting officer to perform the statutory duty under section 21(3). That position was reaffirmed in Republic v Attorney General &another exparte James Alfred Koroso supra where the Court stressed that section 21 establishes a complete and exclusive statutory enforcement mechanism. To allow any form of execution, whether attachment of assets or committal of officers, would defeat the legislative intent and render the immunity in section 21(4) meaningless. Also, in Republic v Permanent Secretary, Of ice of the President, Ministry of Internal Security ex parte Nassir Mwandihi (JR No. 132 of 2010), the Court drew a critical distinction between execution proceedings and enforcement through judicial review. The Court reaffirmed that by virtue of Section 21(4) of the Government Proceedings Act, ordinary execution mechanisms are unavailable against Government, and that satisfaction of a decree lies within the statutory framework established under Section 21. Importantly, the Court emphasized that mandamus is not “execution or attachment or process in the nature thereof,” but a public law remedy compelling a statutory duty imposed upon an accounting officer. The logical corollary is that committal proceedings can only arise after, and in consequence of, a properly issued order of mandamus not as a parallel or substitute execution mechanism under Order 22 of the Civil Procedure Rules. 25. The decisions therefore reinforce the Respondents’ position that where a decree-holder has not invoked and exhausted the judicial review route including obtaining mandamus recourse to committal under Order 22 amounts to an impermissible execution process barred by Section 21(4). To allow such committal in the absence of mandamus would collapse the carefully constructed statutory distinction between prohibited execution and permissible public law enforcement. 26. The Applicant cannot evade this prohibition by framing the application as “contempt” rather than “execution”. We believe that Courts look to the substance of the relief sought, not the label attached. Where the sole objective is to compel payment of a decretal sum by imprisoning the accounting officer, the process is one of execution in nature, and is therefore caught by the statutory bar in section 21(4). We humbly submit that if committal were permitted after issuance of a Certificate of Order, the protection in section 21(4) would be illusory. Decree-holders would simply bypass the prohibition on attachment of Government assets by seeking to imprison public officers instead. Such an outcome would defeat the very purpose of the statute to shield public funds and public administration from disruptive, coercive enforcement while preserving an orderly remedy through mandamus. 28. We therefore state that the Applicant’s Notice of Motion seeks a relief that is not merely procedurally irregular; it seeks a relief that Parliament has expressly withdrawn in respect of decrees against the Government. We humbly state that this Honourable Court cannot lawfully grant it. Decision 1. The court considered the preliminary objection merited for the reason that there was no dispute the applicant sought and was issued with a Certificate of Order against the Government, bringing himself within the provisions of the Government Proceeding Act in terms of recovery of the proceedings of his judgment. I upheld the decision, in Republic v County Secretary, Nairobi City County &others exparte Koceyo & Co Advocates, where the Honourable Judge, under paragraph 18 of his judgment, cited with authority the case of Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012), where Judge Githua reiterated that once a decree and Certificate of Order have issued against a public entity, the only lawful mode of enforcement is mandamus directed at the accounting officer. Section 21 does not absolve the Government from ultimate liability; it strictly regulates and limits the mode by which that liability may be enforced. The deliberate legislative choice was to replace execution with mandamus, not to permit parallel or concurrent coercive processes. The nature of mandamus itself underscores why contempt cannot coexist with this regime. In Republic v Kenya National Examinations Council ex parte Geofrey Gathenji & 9 Others (Court of Appeal), mandamus was described as the appropriate command to compel performance of a public duty where a clear legal right exists and no other equally convenient or effective remedy is available. 2. I find it is premature to cite the respondent for contempt while the process under section 21 of the Government Proceedings Act is partially complied with by issuance of a certificate of costs against the Government. The next step on non-compliance was for the exparte applicant to seek leave to file for a judicial review Order of Mandamus. The Notice of Preliminary Objection is upheld and the application struck out for being premature. No order as to costs, as the Decree remains unsatisfied. 3. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: C/A Otieno The Exparte Applicant- in person Respondent - Nyoike h/b Kioko