https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8612

Republic v County Government of Nairobi; Mwangi & another (Ex parte) (Both Suing as the Personal Representatives of the Estate of Ephantus Ngari - Deceased) (Judicial Review E106 of 2023) [2026] KEHC 8612 (KLR) (Judicial Review) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8612 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E106 of 2023 WM Musyoka, J June 18, 2026 Between Republic Applicant and County Government of Nairobi Respondent and Jane Waithira Mwangi Ex parte Joseph Muiruri Maina Ex parte Both Suing as the Personal Representatives of the Estate of Ephantus Ngari - Deceased Ruling 1.I am called upon to determine an application, dated 10th February 2026, seeking that the Chief Officer, Finance, Nairobi City Government, be cited and found guilty of contempt of court, for disobedience of an order of this court, of 28th May 2025; a warrant of arrest to issue against the said officer, said to be Ms. Asha Abdi, to secure her attendance in court for sentencing; the committal of the said officer to civil jail for 6 months, or imposition of a fine upon her, or both; the compelling of payment of the moneys ordered; and costs. 2.The grounds, on the face of the application, are that a mandamus order was made by this court on 28th May 2025, in the presence of the Advocates for both sides; the Chief Officer, Finance, is the accounting officer responsible, and it is her duty to ensure compliance; and there has been wilful and deliberate refusal to comply with the orders of 28th May 2025. 3.The affidavit in support is sworn by the 2 ex parte applicants. It sets out the factual background, and reiterates the grounds on the face of the application. There are annextures, being the decree of the trial court; the certificate of the order against the Nairobi City County Government; the mandamus decree from the judgement herein of 28th May 2025; correspondence exchanged between the Advocates for the ex parte applicants and the office of the County Attorney; an application for personal arrest of Ms. Abdi; and an application for execution of the decree. 4.There is a response to the application, by Ms. Abdi, by way of an affidavit, sworn on 12th May 2026. The indebtedness, expressed in the decree, the subject of the proceedings, is admitted. It is, however, protested that the application seeks to compel immediate settlement of the decree without having regard to the constitutional and statutory framework governing public finance management, on the basis that the respondent is a public entity, established under Article 176 of the Constitution of Kenya, and operating within the strict confines of the constitutional principles on public finance and statutory budgetary processes. It is averred that public funds, pursuant to Articles 201, 206 and 225 of the Constitution and the Public Finance Management Act, Cap. 412A, Laws of Kenya, can only be disbursed by the respondent, subject to approved budgetary allocations, availability of funds and financial procedures. 5.It is further averred that the respondent was currently facing numerous pending decrees, judgements and financial obligations, arising from various suits instituted against it overtime, all of which require to be settled in a structured prioritised payment framework. It is argued that due to limited financial resources, the respondent is unable to settle all decretal sums at once, without severely affecting and disrupting provision of essential public services to the residents of Nairobi City County. It is submitted that the respondent had embarked on and continues to implement a structured settlement framework, and the decree held by the ex parte applicants is said to form part of the claims falling under that framework. It is asserted that the delay in settlement was neither deliberate, an assurance is given that the respondent is committed to settlement, and it is urged that coercive or punitive orders at this stage may be disruptive. 6.That response prompted a further affidavit from the ex parte applicants, sworn on 19th May 2026. It is asserted that the contents of that reply are misleading, for there is history of acknowledgements, promises, undertaking and representations made to the ex parte applicants, that the decretal amount would be settled. A certificate of order against the government was served on 2023, but was not settled. Then the instant judicial review process was initiated, culminating in the mandamus order of 28th May 2025, and the same was served, on a date not mentioned in the affidavit. Settlement was demanded in a letter dated 9th July 2025. At a mention before the Deputy Registrar, on 22nd July 2025, the court was given an undertaking that the amount would be settled within 30 days. On 4th September 2025, the respondent requested for a waiver of interest on the judgement sum, to facilitate settlement, which the ex parte applicants granted, by a letter dated 11th September 2025, but still no payment was done. On 18th September 2025, the respondent asked for more time, to facilitate payment. On 23rd September, it wrote again, indicating that the ex parte applicants was a secured creditor who had priority over other pressing obligations of the respondent. On 30th October 2025, the respondent wrote a letter, asking for an FIMIS number and updated bank details, to facilitate payment. 7.Due to the delay, the ex parte applicants communicated withdrawal of the partial waiver, by a letter dated 20th November 2025, but still furnished the IFMIS number and banking details, on 20th January 2026. A court session was held before the Judge, on 4th February 2026, when the respondent informed the court of a structured framework for settlement of outstanding decrees, and asked for 2 months to ascertain whether the claim herein was within the payment scheduled. The ex parte applicants invoked its right to access information, to facilitate access to affidavits sworn by the Controller of Budget, explaining the financial position; a progress report on the settlement of decretal sums by the County Government of Nairobi; confirmation on whether the decree held by the ex parte applicants has been queued for payment; and clear and reasonable timelines within which the ex parte applicants was likely to receive full settlement of the decretal amount. It is argued that, in view of that background, the respondent cannot argue inability to pay, and is estopped from doing so. It is also argued that a legitimate expectation has arisen. 8.Several documents are attached, which include the certificate of order against the government, dated 23rd March 2023; the formal mandamus decree, herein, issued on 12th June 2025, arising from a judgement delivered on 28th May 2025; and correspondence between the ex parte applicants and the respondent, with respect to the discussions on settlement. 9.The application was canvassed by way of written submissions. Both sides have filed written submissions. 10.Those by the ex parte applicants are dated 19th May 2026. They turn around whether Ms. Abdi is personally bound by and liable to comply with the order of mandamus made on 28th May 2025; whether her failure or omission to comply with it, notwithstanding allegations of budgetary contrasts, constitutes contempt of court; whether the court ought to commit her to civil jail, impose a punitive fine or issue coercive orders, to ensure compliance with the decree; and costs. 11.The decisions in Jacinta Wanjala Mwatela vs. IEBC & 3 others, Kimotho vs. KCB 2003 1 EA 108, Serraco Limited vs. Attorney General HCCC No. 401 of 2007, Republic vs. Kenya Railways & The Attorney General Ex parte Inviolatte Wacike Siboe HC Misc. Applica. No. 10 of 2009, Sarah Njeri Mwobi vs. John Kimani Njoroge [2013] eKLR, Republic vs. Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR, Republic vs. Kisii County Government Ex-Parte Peter Kaunda Nyamosi [2018] eKLR, Republic vs. County Secretary, County Government of Kisumu & 2 others; Otieno Ragot & Co. Advocates (Exparte) [2022] KEHC 13204 (KLR), Republic of Kenya vs. Town Clerk of Webuye County Council & another [2014] KEHC 7207 (KLR), Republic vs. County Chief Officer, Finance & Economic Planning, Nairobi City County (ex parte David Mugo Mwangi)[2018] eKLR, Torino Enterprises Limited vs. Principal Secretary, Ministry of Defence Petition No. 38 of 2011, Kenya Akiba Micro Financing Limited vs. Chebii & 14 others [2012] KEHC 5590 (KLR), Kenya Commercial Bank Limited vs. Specialised Engineering Co. Ltd [1982] KLR 485, Communications Commission of Kenya & 5 others vs. Royal Media Services Limited & 5 others [2014] KESC 53 (KLR), Odhiambo vs. Chatur t/a Sooper Guest House [2024] KEELRC 13327 (KLR), Republic vs. Kajiado County & 2 others ex parte Kilimanjaro Safari Club Limited [2019] eKLR, North Tetu Farmers Co. Limited vs. Joseph Nderitu Wanjohi [2016] eKLR, Mutitika vs. Baharini Farm Limited [1985] KLR 229, Econet Wireless Kenya Limited vs. Minister for Information and Communication of Kenya & another [2005] 1 KLR 828, Shimmers Plaza Limited vs. National Bank of Kenya Limited, among others, are cited. So are provisions of the Government Proceedings Act, Cap 40, Laws of Kenya; the Public Finance Management Act; the Evidence Act, Cap. 80, Laws of Kenya; the Judicature Act, Cap. 8, Laws of Kenya; and the Civil Procedure Act, Cap. 21, Laws of Kenya. 12.The written submissions by the respondent are dated 11th June 2026. They address 4 issues, whether the respondent has refused or failed to satisfy the decretal amount in question, whether there are adequate funds to satisfy the decree, whether Ms. Abdi is guilty of contempt of court, and costs. Reliance is placed on provisions of the Government Proceedings Act and the Contempt of Court Act, and the decisions in R. vs. Town Clerk, Kisumu Municipality ex parte East African Engineering Consultants [2007] 2 EA KLR, Wachira Nderitu Ngugi & Co. Advocates vs. The Town Clerk City Council of Nairobi Misc. App. No. 354 of 2012, Mungai & another vs. Kiambu County Government [2026] KEHC 5040 (KLR) and Republic vs. Principal Secretary, Ministry of Health & 2 others [2018] KEHC 9505 (KLR). 13.There are only 2 issues for consideration, whether contempt of court has been committed by Ms. Abdi, which should warrant her committal, and whether the financial constraints of the respondent are a factor to ward off the attempt to commit her. 14.On the first issue, it is not disputed that a mandamus order was made on 28th May 2025, directed at the respondent to settle the decretal amount in Milimani CMCCC No. 2025 of 2019, as there had been evidence of service of the decree and certificate of order against government had been served as appropriate. It is also not disputed that that decree has not been settled to date. 15.The respondent cites financial constraints for failure to settle the decree, of which I have not seen any evidence. It has also raised the issue of legal protocols around payment of public moneys from coffers of public entities, being tied to laws around budgets and approvals, which makes it a process. The ex parte applicants counter that that notwithstanding, the respondents had reached out and offered to settle the decree upon a waiver being given by the ex parte applicants, which waiver was duly given, but nothing came of it. Estoppel is invoked to stop the respondent arguing otherwise or shifting ground. 16.Has the matter reached a level where contempt of court can be considered, to compel settlement of the decree? I do not think so. The argument, that the decree is about payment of moneys from a public purse, which is usually subject to certain legal protocols is formidable. Public funds are not released to the general public, or to any other person for that matter, even where a court decree has been obtained, without the decree being first taken through these legal protocols, set out in Articles 201, 206 and 225 of the Constitution and the provisions of the Public Finance Management Act. Those steps or protocols involve the budgeting process, at both levels of government, and parliamentary approvals, again at both levels of government. The moneys in question should be budgeted for by the respondent, and appropriated by the County Assembly, after the National Assembly has completed its process. All this is a matter of law. No State entity holds a pool of funds, from which it would pay out moneys that have not been budgeted for, and appropriated for that purpose by the National Assembly or the County Assembly, as the case maybe. That should be the starting point. 17.The government financial years run in cycles of 12 months, from 1st July to 30th June of the succeeding year. The mandamus order was made on 28th May 2025, and was formally extracted on 12th June 2025. There is no proof that the said order was formally served, for all I see is a letter dated 9th July 2025, notifying the other side of a court mention, projected for 22nd July 2025. The said mandamus order was, therefore, made at the tail end of the 2024/2025 financial year. By the time the decree was being extracted, on 12th June 2025, the budgeting process for 2025/2026 must have been completed, and clearly no funds would have been budgeted and allocated for the decree, in Milimani CMCCC No. 2025 of 2019, the subject of the mandamus order. To that extent, it would have been a little too ambitious to expect any payment in the course of the financial year 2025/2026. 18.The ex parte applicants argue that there were promises made, which gave rise to a legitimate expectation. A legitimate expectation cannot possibly arise where provisions of the Constitution and the relevant legislation, the Public Finance Management Act, have not been exhausted, in terms of the budgeting for that judgement amount and its appropriation. That could not be done for the financial year 2025/2026, because the mandamus order came out only weeks to the end of the financial year 2024/2025, on 30th June 2025. 19.Secondly, the promises that the ex parte applicants rely upon are contained in without prejudice correspondence, from the respondent. I am referring to the letters dated 4th September 2025, 11th September 2025 and that of 18th September 2025. The only unmarked letter is that dated 30th October 2025, calling for an IFMIS number. The ex parte applicants also wrote a without prejudice letter, dated 11th September 2025. Exchange of correspondence, under the cover of “without prejudice,” leaves room for the parties to back out of any negotiations, without suffering any consequences, being running the risk of being bound by the sentiments exchanged in any correspondence at the time of the negotiations. The negotiations herein were not fruitful, because no payment was made during the 2025/2026 financial period, as it would appear the decree herein could not have found its way into the budgeting making process for that period. That correspondence could not bind, for it was done without prejudice. It cannot, therefore, provide a foundation for invocation of the doctrine of estoppel. 20.Thirdly, this correspondence was riding on an initiative by the court, in the spirit of alternative dispute resolution, envisaged under Article 159 of the Constitution, which involved bringing together all the decrees passed against the respondent, to ascertain the extent of the indebtedness, and to suggest a structured framework for settlement. That did not override the requirement, under the Constitution and the relevant legislation, for public funds to be paid out of the public purse only upon budgeting and appropriation. Whatever discussions the ex parte applicants had with the respondent could only be in the context of the provisions of the Constitution and the relevant legislation on the handling of public finances. They could only relate to the case for ex parte applicants being acknowledged and queued up, to be considered in the next financial budget, that is for 2026/2027, because the mandamus order was too late for it to be factored in the budget for 2025/2026. 21.In view of the above, therefore, there was no legal foundation, whatsoever, for the ex parte applicants to expect any payment in the financial year 2025/2026. 22.The only case that can be made, in her favour, is with respect to the financial year 2026/2027, whose budgeting process is ongoing, for the financial year 2025/2026 is yet to come to a close. It would be premature to make demands on Ms. Abdi, as the accounting officer, at this stage. The only demand should be the one for disclosure, as to whether the decree for the ex parte applicants has been incorporated into the budget for 2026/2027, in readiness for appropriation, once the funds are made available, from the National Government, and the requisite approval of the County Assembly has been given. Apart from that, the application, dated 10th February 2026, is premature. 23.On the issue as to whether the financial constraints of the respondent are a factor to ward off the attempt to commit Ms. Abdi, I believe an attempt to cross that bridge should be made after the preliminaries have been cleared, in terms of the decree held by the ex parte applicants being queued up for settlement, and the funds for the next financial year, 2026/2027, being released to the respondent, by the national exchequer. That money is still with the National Government, not the respondent, the issue of financial constraints, with respect to the 2026/2027 financial year, cannot, therefore, be ventured into at this stage. 24.Consequently, I hereby direct the respondent to confirm, by way of an affidavit, sworn by Ms. Abdi, to be filed within 30 days hereof, that the decree held by the ex parte applicants, in Milimani CMCCC No. 2025 of 2019, has been queued up for payment in the 2026/2027 financial year. The matter shall be mentioned, on 21st July 2026, for compliance and further directions. Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 18TH DAY OF JUNE 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMr. Ndegwa, instructed by SNW & Co Advocates LLP, for the ex parte applicants.Ms. Kamunya, instructed by Nyambura Kitela Kanini & Kyatha, Advocates for the respondent.