[2024] KEELRC 1272 (KLR)

Ogwang v National Gender & Equality Commission (Employment and Labour Relations Cause 1803 of 2014) [2024] KEELRC 1272 (KLR) (23 May 2024) (Ruling)

Neutral citation: [2024] KEELRC 1272 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause 1803 of 2014

MN Nduma, J

May 23, 2024

Between

Prof. Rose Aoko Ogwang

Claimant

and

National Gender & Equality Commission

Respondent

Ruling

1. The court delivered judgment in favour of the claimant against the respondent on 10th August 2018 for of a sum Kshs.11,368,800/= plus interest. The applicant having failed to secure payment of the decretal amount from the respondent filed application dated 4th December 2023 in which she seeks for an order in the following terms: -1. Spent2. That this honourable court be pleased to issue a garnishee order nisi for the attachment of National Gender and Equality Commission’s bank accounts maintained by any bank within Kenya to satisfy the Decree dated 1st July 2020, and the certificate of costs dated 6th of July 2020. 3.That the Garnishee(s) be ordered to appear before this honorable court to show cause why it/they should not pay the decree holder the funds sufficient to satisfy the decree dated 1st July 2020 and, the certificate of costs dated 6th of July 2020 being a total of Kshs.20,222,212. 334. That the costs of this application be paid out of the aforesaid accounts held by the Garnishee(s)

2. The application is premised on grounds (a) to (r) set out on the face of the chamber summons application which may be summarized that the respondent did not file any appeal against the judgment of the court. Since then, the applicant has made several attempts to execute the decree.

3. On 13th November 2023, Hon. Maureen Onyango directed the judgment debtor to deposit the decretal sum within 7 days from the date of the ruling failing which the decree holder be at liberty to execute against the respondent.

4. That the respondent has filed one application after another for stay of execution of the judgment and the decree and has continued to defy the orders of the court to satisfy the judgment sum.

5. That the decree holder has reliable information that the National Treasury has remitted the entire decretal sum to the judgment debtor yet the judgment debtor has refused to release the funds to the decree holder, in utter defiance and contempt of the court order.

6. The National Treasury has not disclosed the specific bank account it deposited the decretal sum. Previous attempts by the applicant to garnishee two specific accounts in Standard Bank and National Bank drew negative result.

7. That it is imperative that the judgment debtor obeys the court order. That, to ensure compliance with its order, this court should issue orders garnishing all bank accounts held by the judgment debtor within Kenya.

8. Such orders have been granted in Nairobi Misc. Application No. E776 of 2020 – Lanted AT – He Limited.Geothermal Development Company Central Bank of Kenya Limited and 3 others (Garnishee)

9. That the Garnishee(s) be ordered to appear before court to show cause why they should not pay to the decree holder the funds sufficient to satisfy the decree dated 1st July 2020 and the certificate of costs dated 6th July 2020 being a total of Ksh.20,222,212. 33. That costs of this application be paid out of the aforesaid accounts, held by the Garnishee(s).

10. That on 17th December 2023, Mr. Mbithi, judgment debtor’s advocates, expressly admitted to the court that the judgment debtor has secured sufficient fund to settle the decree. This is express admission of contempt of court. There is no defence or justification for the judgment debtor’s failure to settle the decretal sum.

11. That a party who has disobeyed court orders cannot be heard. The court should decline to give audience to the respondent after this blatant disobedience of the court orders.

12. The respondent has filed a notice of preliminary objection that the court lacks mandate to garnishee accounts held by a government institution in addition to the response to the application.

Determination 13. The preliminary objection raised by the respondent that it is not permissible to garnishee accounts of government institutions has merit.

14. The proper way to secure payment from an obviously intransigent and contemptuous judgment debtor holding a state office is by application for issuance of mandamus against the said officer to compel compliance failing which the officer be punished for contempt of court.

15. In Trusted Society of Human Rights Alliance v Cabinet Secretary for Development and Planning and 3 others [2017] KLR, the court per Mativo J. held: -“A court order is binding on the party against whom it is addressed and until set aside remains valid and is to be complied with. I shudder to think of the fate of our judicial system if parties are let to freely decide what court orders to obey and which ones to ignore. Parties must realize that once they are brought to court they are subject to the jurisdiction of the court."

16. The decree holder is under obligation to utilize funds already paid to it by Treasury to satisfy the judgment and decree in this matter.

17. A state officer who does not obey court orders is in violation of principles and values set out under Chapter 6 of the Constitution of Kenya 2010 and is unworthy of holding that office.

18. Defiance of a court order by a state officer demeans the office the officer holds and is conduct that is devoid of respect of the rule of law and accountability to the public for decision and action made by the officer concerned.

19. The present application is however not suited to get the desired remedies from the respondent and is dismissed with no order as to costs.

DATED AT NAIROBI THIS 23RD DAY OF MAY, 2024. MATHEWS NDERI NDUMAJUDGEAppearance:Mr. Omondi for debtor/holderMs. Mangla for Judgment DebtorMr. Kemboi, Court Assistant