https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1988

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MERU** **ELRC JUDICIAL REVIEW NO. E002 OF 2025** **REPUBLIC……………………………………………………………..APPLICANT** **VERSUS** **THE COUNTY GOVERNMENT OF ISIOLO………………...1ST RESPONDENT** **THE COUNTY SECRETARY,** **COUNTY GOVERNMENT OF ISIOLO……………………...2ND RESPONDENT** **THE CHIEF OFFICER FINANCE, ICT, AND ECONOMIC PLANNING** **COUNTY GOVERNMENT OF ISIOLO……………….……..3RD RESPONDENT** **THE COUNTY EXECUTIVE COMMITTEE MEMBER** **FOR FINANCE, ICT, AND ECONOMIC PLANNING COUNTY GOVERNMENT OF ISIOLO………………………………….4TH RESPONDENT** **COUNTY GOVERNMENT OF ISIOLO……………………...5TH RESPONDENT** **MBOGO & MURIUKI ADVOCATES…………………EX-PARTE APPLICANT** **RULING** 1. The Ex-parte Applicant has moved this Court by way of a Notice of Motion, as amended on 11th May 2026, seeking the following orders: 2. ***Spent.*** 3. ***THAT the Honourable court do find that the 2nd -4th Respondents are in contempt of court for disobedience of the decree and orders of this court by failing to pay a cumulative sum of Kshs 28,841,569/-.*** 4. ***THAT this Honorable court do summon Dade Boru (the County Secretary, Isiolo County Government), Habiba Galgalo Jirma (the Chief Officer Finance, ICT and Economic Planning, Isiolo County government) and Lucy Kagwiria (the County Executive Committee Member for Finance, ICT and Economic Planning) to personally attend Court to show cause why they should not be punished for contempt of Court.*** 5. ***THAT upon grant of prayers (2) and (3) above, this Honorable court do issue an order that the above-mentioned person be committed to civil jail for a period of six months for contempt of court.*** 6. ***THAT costs of the application be provided for.*** 7. The application is premised on the grounds set out on its face and is supported by the affidavit of **Ken Muriuki**, sworn on 11th May 2026. Mr. Muriuki describes himself as the Managing Partner of the Ex-parte Applicant. 8. Mr. Muriuki deposes that judgment was entered in favour of the Ex-parte Applicant against the Respondents on 6th November 2025 in the sum of Kshs 24,304,693.00, together with costs and interest. He further avers that the outstanding decretal amount, inclusive of accrued interest, now stands at Kshs 28,841,569.00. 9. He further deposes that a Certificate of Order dated 12th March 2025 was served upon the County Government on 27th March 2025. Despite such service, the Respondents have allegedly failed, neglected and/or refused to satisfy the decretal sum. 10. It is Mr. Muriuki's further deposition that the judgment delivered on 6th November 2025 was rendered in the presence of counsel for the Respondents, who were therefore fully aware of the judgment and of their obligation to settle the decretal sum together with the attendant costs and accrued interest. 11. In response to the amended Notice of Motion, the Respondents filed a joint Replying Affidavit sworn on 12th May 2026 by **Dade Boru**, the County Secretary of the County Government of Isiolo, who is also the 1st Respondent herein. 12. Mr. Boru contends that the amended Notice of Motion is incompetent, unlawful and incurably defective because it was filed without leave of this Court and without first withdrawing the earlier application. 13. He further avers upon the advice of his advocates on record, which advice he verily believes to be true, that under ***Order 8 rule 3 of the Civil Procedure Rules,*** amendments are directed to pleadings, while ***Order 8 rule 4*** extends that regime to originating summons, petitions, and originating notices of motion, and not to an ordinary interlocutory Notice of Motion. 14. Mr. Boru avers without prejudice that there has been no willful, deliberate, or contumacious disobedience of the Court’s orders by the Respondents 15. He adds that payment of the decretal sums by the County Government must comply with the Constitution, the Public Finance Management Act, the County budget cycle, and approved appropriation procedures. 16. He further deposes that the Respondents included the decretal sum in the 2025/2026 budgetary estimates and submitted the same to the County Assembly for approval. 17. Mr. Boru states that implementation of the budget estimates and the Isiolo Appropriations Act, 2025 was stayed by Court order issued on 31st July 2025, pending the determination of ***HCCHR Petition E007 of 2025, Koto, Speaker of the County Assembly of Isiolo & 9 others v County Assembly of Isiolo & 5 others, Government Printer & another (Interested Parties).*** 18. That consequently, the High Court in ***HCCHR Petition E007 of 2025*** directed the Controller of Budget to approve the withdrawal of Kshs. 2.4 billion from the County Revenue Fund. That the Controller of Budget, by a letter dated 12th September 2025, advised that it would proceed to clear the budget strictly on a vote-on-account basis in compliance with the Court’s ruling in the said petition. 19. Mr. Boru further avers that the Court subsequently delivered judgment in ***HCCHR Petition E007 of 2025*** on 13th November 2025, declaring the Isiolo County Appropriation Act, 2025 unconstitutional, null and void ab initio. 20. He adds that the Court suspended the declaration of unconstitutionality for a period of three (3) months from the date of judgment and directed the Isiolo County Assembly and the County Executive Committee Member for Finance to regularize the legislative process and re-enact the said Appropriation Act within that period. 21. Mr. Boru avers that as County officials, they have continued to make general and lawful efforts to clear the County’s pending bills, and there remains a significant pending bills burden which the County is addressing through periodic payments, notwithstanding low own-source revenue collections and irregular remittances from the National Treasury. 22. He is advised by his advocates on record, whose advice he verily believes to be true, that the role of the County Secretary is administrative and coordinative, and does not extend to the personal authorization or execution of payments of public funds, and he therefore cannot be personally faulted for the current non-payment of the decretal sum. 23. Mr. Boru further avers that the County, through its lawful organs, has not willfully disobeyed the decree; rather, it has been constrained by the budget process, pending legal and fiscal approvals, and the need to act within the law. 24. According to him, this is not a case of contemptuous refusal to obey Court orders, but one of financial and statutory constraints under which the Respondents have continued to act lawfully and diligently. 25. In Mr. Boru’s view, the Ex-Parte Applicant will not suffer prejudice if the Court declines to issue a notice to show cause, whereas issuance of such an order in the present circumstances would be unjust and unwarranted. To this end, he prays that the amended Notice of Motion be struck out and dismissed with costs, and that the prayer for a notice to show cause in respect of the earlier application dated 1st December 2025 be declined. 26. In a rejoinder, the Ex Parte Applicant filed a Supplementary Affidavit sworn by **Ken Muriuki** on 14th May 2026, in which he contends that the alleged contemnors have failed to disclose that the ***Isiolo High Constitutional and Human Rights Petition No E007 of 2025*** was determined on 13th November 2025 and whereby the county government was granted three (3) months to undertake a proper budget-making process. 27. He avers that subsequent to the said judgment, a budget was approved and gazetted in January 2026 and hence the County Government of Isiolo is now continuously receiving all its budgetary allocations and funds. 28. In Mr. Muriuki’s view, the Respondents cannot peg/condition the payment/ settlement of a decree to county budgetary allocations and approvals. 29. Mr. Muriuki further deposes that the amendment of the Notice of Motion does not prejudice the Respondents, since they had not filed a reply to the previous application. 30. He adds that the amendment was only to indicate the new holders of the positions of the County Secretary and the County Executive Committee Member for Finance, ICT and Economic Planning after the change of guard from the previous office holders and also to reflect the correct decretal sum owing after interest had accrued. In his view, the amendment will not in any way prejudice the Respondents since it is after the said amendment that they were able to file a Replying Affidavit. 31. Mr. Muriuki concedes that ***Order 8 of the Civil Procedure Rules*** does not contemplate amendment of applications and only ***Section 100 of the Civil Procedure Act*** grants that leeway and the Ex-parte Applicant was in order to effect the said amendments. **Submissions** 1. On 13th May 2026, the Court directed that the amended Notice of Motion be disposed of by way of written submissions. Both parties duly complied by filing their respective written submissions, which the Court has considered. **Analysis and Determination** 1. Having considered the amended Notice of Motion, the Respondents' Replying Affidavit, and the parties' respective written submissions, the Court has identified the following issues for determination: 2. ***Whether the amended Notice of Motion is competent;*** 3. ***Depending on the finding in (a) whether the Respondents are in contempt of court; and*** 4. ***Depending on the finding in (b) whether the officers cited in prayer (3) of the amended Notice of Motion bore the responsibility of ensuring compliance with the Court's order.*** **Competency of the motion** 1. The Respondents contend that the amended Notice of Motion is incompetent, unlawful and incurably defective, having been filed without the leave of the Court and without the withdrawal of the original Notice of Motion. 2. In their submissions, the Respondents have argued that the Civil Procedure Rules do not grant a litigant an automatic right to amend an application in the same manner as pleadings. 3. On the other hand, the Ex-Parte Applicant has posited that the amendment of the Notice of Motion did not occasion any prejudice to the Respondents, as they had not filed a response to the original application at the time the amendment was effected. 4. It is settled that a Notice of Motion is not a pleading capable of amendment as envisaged under ***Rule 34 of the Employment and Labour Relations Court (Procedure) Rules, 2024*** or ***Order 8, Rules 3 and 4 of the Civil Procedure Rules***. That, however, does not preclude the amendment of a Notice of Motion. Such an amendment may be effected with the leave of the Court, there being no provision equivalent to ***Rule 34*** or ***Order 8 Rule 1*** expressly permitting the amendment of a Notice of Motion without leave. 5. In the present case, the Ex parte Applicant initially filed a Notice of Motion dated 1st December 2025, which was subsequently amended on 11th May 2026. It is apparent that by the time the amended Notice of Motion was filed, the Respondents had not lodged any response to the original application. Indeed, the Replying Affidavit sworn by ***Dade Boru*** on 12th May 2026 was expressly filed in opposition to the amended Notice of Motion. 6. On this issue, the Court adopts the reasoning in ***Kanuri Limited & 34 Others v Uber Kenya Limited [2017] KEHC 6507 (KLR),*** where the Court stated as follows: ***“Whilst, as a General Rule, because of lack of similar provisions to Order 8 Rule 1, all amendments to Applications must be made with Leave of Court, a Court should be slow to strike down an amendment brought without Leave if it is done before the Respondent has filed an answer or response to the original application unless it can be shown that the amendment prejudices or causes an injustice to the opposite side. This test of prejudice or injustice is important because procedural law is a handmaiden of substantive justice and it should not be allowed to obstruct it.*** ***And I would think that the prejudice test is one of the motivations for the Provisions of Order 8 rule 1 (1) which allows a party to amend his pleadings once at any time before pleadings are closed without requiring the Leave or sanction of the Court. In that instance the amendment is brought early in the proceedings and the Defendant has good opportunity to confront the pleadings in their amended form. In that way the amendment may not prejudice the other side.”*** 1. Applying the foregoing reasoning to the present case, the Court finds that, since the amendment was effected before the Respondents filed their response, they had a full opportunity to respond to the application in its amended form and therefore suffered no prejudice as a result of the amendment. 2. In the circumstances, the Court is not persuaded that the Ex-parte Applicant's failure to obtain leave prior to filing the amended Notice of Motion renders the application incompetent so as to warrant its striking out. To do so would not serve the interests of justice or fairness, particularly in the absence of any demonstrable prejudice to the Respondents. **Whether the Respondents are in contempt of Court** 1. The crux of the Ex-parte Applicant’s amended Notice of Motion is that the 2nd to 4th Respondents have, in flagrant disregard of this Court’s orders, failed and/or refused to settle the decretal sum of Kshs. 24,304,693.00 together with interest at the rate of 14% per annum, which, according to the Ex-parte Applicant, has accrued to Kshs. 28,841,569.00. 2. The Respondents, on the other hand, contend that the present matter does not concern a wilful or contumacious disobedience of the Court’s orders. Rather, they maintain that their inability to satisfy the decretal sum is attributable to financial and statutory constraints, and that they have at all material times acted lawfully, diligently, and within the confines of the applicable legal framework 3. In the case of ***Sheila Cassatt Issenberg & Watoto World Centre v Antony Machatha Kinyanjui [2021] KEHC 5692 (KLR),*** the Court set out the essential elements that an applicant must establish in order to succeed in civil contempt proceedings as follows: ***“The Cromwell J, writing for the Supreme of Canada in*Carey v Laiken*, 2015 SCC 17 (16thApril 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus:*** **i) The order alleged to have been breached “must state clearly and unequivocally what should and should not be done.” This ensures that a party will not be found in contempt where an order is unclear. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning.** **ii) The party alleged to have breached the order must have had actual knowledge of it. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the willful blindness doctrine.** **iii) The party alleged to be in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels**.” 1. Likewise, in ***Samuel Mweru & Others v National Land Commission & Others [2020] KEHC 9233 (KLR),*** the Court held that: ***“It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove*** ***(i)the terms of the order*** ***(ii)Knowledge of these terms by the Respondent*** ***(iii)Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements, the presence of wilfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand, who succinctly stated:-"There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-*** ***a.the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;*** ***b.the defendant had knowledge of or proper notice of the terms of the order;*** ***c.the defendant has acted in breach of the terms of the order; and*** ***d.the defendant's conduct was deliberate.*** 1. Turning to the present application, it is common ground that by a Judgment delivered on 6th November 2025, this Court issued an order of mandamus compelling the Respondents to satisfy the decree issued in ***Meru ELRC Misc. App. No. E001 of 2025*** by paying the Ex-parte Applicant the sum of Kshs. 24,304,693.00 together with the accrued interest. 2. It is equally undisputed that the Respondents were aware of the said Judgment, having actively participated in the proceedings culminating in its delivery. Nevertheless, the decretal sum remains wholly unpaid. 3. The central issue for determination, therefore, is whether the Respondents' failure to comply with the order of mandamus amounts to deliberate and wilful disobedience of the Court's orders. 4. The Respondents have posited that the Ex-parte Applicant has failed to demonstrate the essential element of wilful and deliberate disobedience required to sustain a finding of contempt. 5. To further counter the allegations of contempt, the Respondents stated that the Judgment delivered on 13th November 2025 in ***Isiolo HCCHR Petition E007 of 2025*** declared the Isiolo County Appropriation Act, 2025 unconstitutional, null and void ab initio. 6. The Respondents further contend that, as County officials, they have continued to make lawful efforts towards settling the County's pending bills. According to them, the County continues to grapple with a substantial backlog of pending obligations, compounded by low own-source revenue and irregular disbursements from the National Treasury, with payments being made progressively as funds become available. 7. The Ex-parte Applicant has discounted the explanation by the Respondents, contending that following the Judgment in ***Isiolo HCCHR Petition E007 of 2025,*** a fresh budget was duly approved and gazetted in January 2026, following which the County Government of Isiolo resumed receiving its budgetary allocations and funding. It is notable that the Respondents have not controverted this assertion. 8. In the circumstances, the Respondents have not demonstrated the existence of any legal or factual impediment that continues to justify their non-compliance with the order issued on 6th November 2025. This is taking into account that the Judgment in ***Isiolo HCCHR Petition E007 of 2025*** was delivered in November 2025, nearly seven (7) months ago, thereby affording the Respondents sufficient time to regularize their budgetary processes and take appropriate steps towards satisfying the decree. 9. Despite being fully aware of the Judgment of 6th November 2025, and notwithstanding the filing of the present application, no payment has been made towards satisfaction of the decree, nor has any credible evidence been tendered of concrete steps taken to comply with the Court's order. The Court is therefore satisfied that the Respondents' continued non-compliance amounts to wilful disobedience of its orders. 10. It is well settled that the purpose of contempt proceedings is not merely to punish non-compliance but to uphold the authority of the Court and preserve the rule of law, which lies at the heart of the administration of justice. This principle was aptly underscored in the case of **Teachers Service Commission v Kenya National Union of Teachers & 2 others (2013) eKLR.** 11. The Respondents in this case were fully aware of this Court's Judgment dated 6th November 2025 directing them to pay the Ex-parte Applicant the sum of Kshs. 24,304,693.00 together with the applicable interest. The terms of the order are clear, unequivocal, and binding upon them. Despite such knowledge, the Respondents have failed to comply with the order and have not advanced any plausible or satisfactory explanation for their continued non-compliance. 12. The Court consequently finds that the Respondents have exhibited a deliberate disregard of the order of mandamus issued on 6th November 2025 and are, therefore, in contempt of this Court. 13. Having reached that conclusion, the next issue for determination is whether the officers cited in prayer 3 of the amended Notice of Motion bore the responsibility of ensuring compliance with the Court's order. ***Whether the officers cited in prayer (3) of the amended Notice of Motion bore the responsibility of ensuring compliance with the Court's order*** 1. The Respondents contend that the application improperly seeks to impose personal liability upon them for obligations that are, in law, those of the County Government. According to the Respondents, the Ex-parte Applicant has not demonstrated that any of the cited officers personally refused, obstructed, concealed, or deliberately frustrated compliance with the Court's orders. They therefore argue that there is no basis upon which the said officers should be held personally liable for contempt. 2. With tremendous respect to the Respondents, the Court is not persuaded by that argument. In the first place, the 1st Respondent, the County Government of Isiolo, being a corporate body, can only act through its authorized officers and is incapable of personally effecting compliance with court orders. Secondly, the officials named in prayer 3 of the amended Motion hold senior offices within the County Government of Isiolo and bear responsibility for the discharge of their statutory obligations. Thirdly, the order of mandamus issued on 6th November 2025 was directed at the offices occupied by the officers cited under prayer 3 of the amended Notice of Motion. 3. In light of the Respondents' contention, one wonders how the 1st Respondent, the County Government of Isiolo, being a corporate entity, could reasonably have been expected to comply with the Court's order other than through the officers charged with the administration of its affairs and the discharge of its statutory obligations. 4. In addition to the foregoing, ***Section 21(3) of the Government Proceedings Act*** imposes a statutory obligation upon the accounting officer concerned to pay to the person entitled, or to his or her advocate, the sums specified in a Certificate of Order against the Government together with any interest lawfully accruing thereon. 5. On the question of who qualifies as the accounting officer of a County Government, the Court adopts the holding in ***Judicial Review Miscellaneous Application No. 375 of 2018, Republic v The County Secretary, Mombasa County Government and The Chief Officer, Finance, Mombasa County Government***, ***[2019] KEHC 10526 (KLR)*** where it was held as follows: ***“As regards who the accounting officers of the Nairobi City County are, section 44 of the County Government Act establishes the office of the County Secretary who is secretary to the County Executive Committee, and is answerable for the operations of the County Executive, and whose functions include being head of the County Public Service. Section 103 of the Public Finance Management Act also establishes the County Treasury comprising of the County Executive member of Finance, the Chief Officer and the departments of the County treasury responsible for finance and fiscal matters.*** ***Under section 103(3) of the Public Finance Management Act, the County Executive Member of Finance is the head of Treasury and is thus responsible for finance matters in the county. It follows then therefore that both the 1st and 2nd respondents are jointly responsible for the satisfaction of court orders and decrees on payment of money owed by the Nairobi City County by virtue of their roles and functions.”*** 1. Needless to state, the Court finds that the officers cited in prayer (3) of the amended Notice of Motion bore the responsibility of ensuring compliance with the Court's order issued on 6th November 2025. 2. I must add that the pendency of the present application presented an opportunity for the said officials to purge the contempt by complying with the Court's order, whether by settling the decretal sum or, at the very least, engaging the Ex-parte Applicant with a proposal on the modalities for satisfying the decree. Regrettably, no such effort was made. This was despite the statutory obligation imposed upon the accounting officers under ***Section 21(3) of the Government Proceedings Act*** to satisfy a Certificate of Order against the Government. 3. The total sum of my consideration is that the amended Notice of Motion dated 11th May 2026 is hereby allowed. Accordingly, **Dade Boru**, the County Secretary, Isiolo County Government; **Habiba Galgalo Jirma**, the Chief Officer for Finance, ICT and Economic Planning, Isiolo County Government; and **Lucy Kagwiria**, the County Executive Committee Member for Finance, ICT and Economic Planning, Isiolo County Government, are hereby found to be in contempt of this Court's orders issued on 6th November 2025. 4. Consequently, summons shall issue requiring the said officers to appear before this Court and show cause why they should not be sentenced for the said contempt. **DATED, SIGNED** and **DELIVERED** at **MERU** this **8th day**of **July** 2026. ……………………………… **STELLA RUTTO** **JUDGE** **In the presence of**: For the Ex-parte Applicant Mr. Muriuki For the Respondents Ms. Macharia instructed by Mr. Theuri SC Court Assistant Ndati **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**