[2022] KEHC 10123 (KLR)

Republic v Ahmed Galgalo Guyo, County Secretary Isiolo County & another; Veteran Pharmaceuticals Limited (Exparte) (Judicial Review Miscellaneous Application 577 of 2017) [2022] KEHC 10123 (KLR) (Judicial Review) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10123 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application 577 of 2017

AK Ndung'u, J

July 21, 2022

Between

Republic

Applicant

and

DR. Ahmed Galgalo Guyo, County Secretary Isiolo County

1st Respondent

HON. Abdinasir Hajj Daudi, Acting Executive Officer Finance or Executive Officer, Finance Isiolo County

2nd Respondent

and

Veteran Pharmaceuticals Limited

Exparte

Ruling

1. The motion before court is the Ex parte Applicant’s application dated February 17, 2021. The application seeks the following prayers;i.That this Honourable Court be pleased to punish the 1st and 2nd Respondents herein by imposing a fine to be determined by the Honourable Court upon the 1st and 2nd Respondents for willful disobedience of the Orders of this Honourable Court issued on July 23, 2019 in this cause.ii.That an order for the arrest and committal to prison of Dr. Ahmed Galgalo Guyo, the County Secretary and Hon. Abdinassir llajj Daudi, Acting Executive Officer, Finance or the Current Executive Officer, Finance; the 1st and 2nd Respondents respectively be issued for their willful disobedience of the judgment and decree of this Honourable Court issued on July 23, 2019. iii.That the costs of these contempt proceedings be borne by the Respondents.

2. Robert Kamau Willie Ngigi has sworn an affidavit in support of the application stating that the ex parte applicant herein was granted an order of mandamus on June 25, 2019compelling the 1st and 2nd Respondents to pay the decretal sum of Kshs.914,424. 20 plus costs of Kshs.115,115. 00 awared to the ex parte Applicant in Nairobi Chief Magistrates Court Civil Case No. 6828 of 2015 — Veteran Pharmaceuticals v Isiolo District Hospital and the County Government of Isiolo together with the accrued interest on the amount at the court rate of 12% p.a. from 12th May,2015 until payment in full.

3. The ex parte applicant is said to have served the Respondents with the Decree of the lower court, certificate of costs as well as the Judgment and decree of the High court on January 22, 2022.

4. There is no response filed by the Respondents on record in reply to the instant application.

5. I have considered the application before this court, the supporting grounds and affidavit and of determination is whether the applicant has achieved the threshold for the grant of the orders sought.

6. A brief background of this matter is that the ex parte applicant having filed an application dated 13th November, 2018 was granted an order of mandamus against the Respondents compelling them to pay the decretal sum owed to it. I note that in response to the said application the Respondents filed a Replying Affidavit dated December 24, 2018. I also note that although all parties were notified that the court would deliver its Judgment onJune 25, 2019the Respondents were not represented.

7. From a brief reading of the Respondent’s Replying Affidavit sworn by Ahmed Galgalo Guyo on 24th December,2019 and filed in response to the ex parte applicant’s application for an order of mandamus, it is obvious that the Respondents do not deny the decretal sum owed to the ex parte applicant, instead the county secretary avers that the respondent is ready to pay the said sums due once the same are allocated for, approved and passed by the county assembly as provided for under the Public Finance Management Act.

8. The Applicant aggrieved by the Respondents’ failure to settle the said decretal sum has filed the application before this court seeking for the arrest and committal to prison of the Respondents for disobeying court orders.

9. There is evidence produced by the ex parte applicant before this court showing that the Respondents were served through counsel’s email with the courts decree vide a letter dated August 28, 2019. Further there is also an affidavit of service evidencing that the Respondents were duly served with the ex parte applicant’s Notice of motion application before this court and the affidavit in support of the said motion. There are also several hearing notices informing them of the dates the said application was set down for hearing.

10. In addition, Mr. Kiogora Mugambi who represents the Respondents before this court has also on several occasions appeared before me, case in point, on December 15, 2021,February 16, 2022where I directed the Respondents to file a reply to the said application if they so wish and on April 24, 2022 where the matter was set down for ruling.

11. The obligation to obey court orders and the necessity to punish for contempt of court orders was explained in detail by the Supreme Court in Republic v Ahmad Abolfathi Mohammed & Another[2018] eKLR where the court observed as follows;(23)Authorities on the necessity to punish for contempt are legion. We have considered those provided by the respondent, and also cite the following, in affirmation of the principle.(24)In Econet Wireless Kenya Ltd v. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim J (as he then was) relied on the Court of Appeal decision in Gulabchand Popatlal Shah & Another Civil Application No. 39 of 1990 (unreported), where the Court of Appeal stated as follows:“It is essential for the maintenance of the Rule of Law and order that the authority and the 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... In Hadkinson v.Hadkinson (1952) 2 All E.R. 567, it was held that: It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a 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.”(25)In Att-Gen. v. Times Newspapers Ltd. [1974] A.C. 273, Lord Diplock stated:“…. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity.”(26)The Court of Appeal in A.B. & Another v R.B., Civil Application No. 4 of 2016 [2016] eKLR cited with approval the Constitutional Court of South Africa’s decision in Burchell v. Burchell, Case No.364 of 2005 where it was held:“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the court and requires other organs of the state to assist and protect the court. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively have the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”(27)Ojwang, J (as he then was) in B. V. Attorney General [2004] 1 KLR 431 that:“The Court does not, and ought not to be seen to, make Orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.”(28)It is, therefore, evident that not only do contemnors demean the integrity and authority of Courts, but they also deride the rule of law. This must not be allowed to happen. We are also conscious of the standard of proof in contempt matters. The standard of proof in cases of contempt of Court is well established. In the case of Mutitika v. Baharini Farm Limited [1985] KLR 229, 234 the Court of Appeal held that:“In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.”(29)The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged “contemnor’s conduct was deliberate, in the sense that he or she willfully acted in a manner that flouted the Court Order.”

12. On who is the Accounting officer of a county the court in the case of Council of Governors & Others vs The Senate [2015] eKLR held as follows;“The Petitioners have also sought the interpretation of the term ‘Accounting Officer’. In that regard, Article 226 of the Constitution provides;(1)Act of Parliament shall provide for -(a)The keeping of financial records and the auditing of accounts of all governments and other public entities, and prescribe other measures for securing efficient and transparent fiscal management(b)The designation of an accounting officer in every public entity at the National and County level of Government.(2)The Accounting Officer of a National public entity is accountable to the National Assembly for its financial management, and the Accounting Officer of a County public entity is accountable to the County Assembly for its financial management.Pursuant to this provision, Parliament enacted the Public Finance Management Act. The appointment and designation of a County Government Accounting Officer is provided for under Section 148 of that Act, as follows;“A County Executive Committee member for finance shall, except as otherwise provided by law, in writing designate accounting officers to be responsible for managing the finances of the county government entities as is specified in the designation.”Except as otherwise stated in other legislation, the person responsible for the administration of a County Government entity, shall be the Accounting Officer responsible for managing the finances of that entity.It therefore follows that “an accounting officer” for a County Government entity is the person so appointed and designated as such by the County Executive Committee Member for Finance under Section 148 of the Public Finance Management Act. Indeed, Section 148 (3) of the Public Finance Management Act mandates the County Executive Committee Member for Finance to ensure that each County government entity has an accounting officer as provided for under Article 226(2) of the Constitution.”

13. Further in the case of Solo Worldwide Inter-Enterprises vs County Secretary Nairobi County and Another [2016] eKLR it was held;“It therefore follows that the person who has the overall financial obligation for the purposes of the affairs of a County Government must be the County Executive in Charge of Finance and unless he shows otherwise, he is the one under obligation to pay funds, in the capacity as the accounting officer. It must always be remembered that a judicial review application is neither a criminal case nor a civil suit hence the application ought to be brought against the person who is bound to comply with the orders sought therein. In an application for mandamus where orders are sought to compel the satisfaction of a decree against a County Government, the proper person to be a respondent ought to be the said County Executive in Charge of Finance unless he discloses that he had in fact appointed an accounting officer for that purpose…….”

14. The Respondents before this court have not given any plausible explanation why they have failed to comply with the court's order dated June 25, 2019despite having actively participated in the proceedings before it .It is worth noting that any lapse in enforcement of court orders is a sure invite to a total breakdown of law and order and the rule of law as we know it. The inevitable result would be anarchy and an erosion of our social fabric. This court has an obligation to stand firm and guard against such an eventuality.

15. From the foregoing I find both the Respondents guilty of contempt, as the 1st Respondent being responsible for the coordination and smooth operation of all County departments is under a duty to ensure that the 2nd Respondent performs his duty optimally and this includes complying with court orders. The 2nd Respondent on the other hand being the Acting Executive Officer Finance is responsible for settling any claims.

16. Consequently, I direct that they appear before me on 17th October, 2022 to show cause why they should not be committed to civil jail. In default of appearance, a warrant of arrest is to issue.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JULY 2022. A. K. NDUNG'UJUDGE