[2022] KEHC 16324 (KLR)

Republic v County Secretary, County Government of Homa Bay & another; GA Insurance Limited (Exparte) (Judicial Review 8 of 2018) [2022] KEHC 16324 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16324 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Judicial Review 8 of 2018

KW Kiarie, J

December 15, 2022

Between

Republic

Applicant

and

County Secretary, County Government Of Homa Bay

1st Respondent

Chief Officer for Finance, County Government Of Homa Bay

2nd Respondent

and

GA Insurance Limited

Exparte

Ruling

1. The ex-parte applicant moved the court by way of notice of motion dated May 20, 2022 and filed in court on June 9, 2022. The application is brought under section 5 (1) of the Judicature Act, sections 1A & 1B of the Civil Procedure Act. The applicant is seeking the following orders:a.This honourable court be pleased to order that the County Secretary and head of county public service of the County Government of Homa Bay and the Chief Officer for Finance County Government of Homa Bay, are in breach of the court order made on February 4, 2022 by Hon Justice Kiarie W Kiarie.b.This honourable court be pleased to punish the County Secretary and Head of County Public Service of the County Government of Nairobi and the Chief Officer for Finance County Government of Homa Bay, for their willful and deliberate contempt of the court order made on February 4, 2022 by Hon Justice Kiarie Waweru Kiarie by making an order for their committal in prison.c.The county Secretary and Head of County Public Service of the County Government of Nairobi and the Chief Officer for Finance County Government of Homa Bay be fined for their willful and deliberate contempt of the court order made on February 4, 2022 by Hon Justice Kiarie Waweru Kiarie for such a sum as this honorable court deems fit and just.d.This honorable court be pleased to summon the persons for time being the holders of the officers County Secretary and Head of county Public Service of the county Government of Nairobi and he Chief Officer for Finance County Government of Homa Bay to appear before this honourable court and show cause why they should not be committed to prison and/or fined for their willful and deliberate contempt of the court order made on February 4, 2022 by Hon Justice Kiarie Waweru Kiarie.e.This honourable court be pleased to issue any other orders to meet the ends of justice.f.The costs of this application be provided for.

2. The application was premised on the following grounds:a.In utter contempt of this court’s authority, the respondents have willfully and deliberately disobeyed the orders of this court issued on January 25, 2022 Hon Mr Justice Kiarie Waweru Kiarie, by failing to pay the applicant within 60 days of the order the sum of Kshs 4,253,289. 60 together with interests thereon at court rates from November 21, 2012 until payment in full.b.The applicant has on several occasions reminded the respondents through their advocates to comply with the court of January 25, 2022 to no avail. As such, the respondents have had knowledge of the order all along.c.The terms of the order issued herein are clear and unambiguous and binding on the respondents.d.The respondents have had knowledge of, or proper notice of the terms of the orders in both Decrees having been served with the same.e.The continued neglect refusal and/or failure by the respondents to settle the sums due and owing to the ex-parte applicant as at the date of this Notice of Motion application demonstrates a clear breach of the terms of the orders in both Decrees.f.The continued neglect, refusal and/or failure by the respondents to settle the sums due and owing to the ex-parte applicant as per the order of this court issued on January 25, 2022 is willful and deliberate as there has been no settlement despite service of both Decrees.g.It is only fair and in the interest of justice that this notice of motion application is allowed as prayers to uphold the integrity and authority of this honorable court.

3. The respondents opposed the application on the following grounds:a.It is bad law.b.The application has no merit.c.The parties cited are not in contempt.

4. Certificate of costs in this matter was issued in Migori High Court Civil Case No 13 of 2015 on May 25, 2015. When the respondents failed to make payment, the ex parte applicant moved to this court. In the ruling delivered on January 25, 2022, the following orders were issued:a.The respondents are ordered to pay within 60 days of this order the sum of Kshs.4, 253,289. 60 in accordance with the Certificate of Costs issued in Migori High Court Civil Case No 13 of 2015 on May 25, 2015 together with interests thereon at court rates with effect from November 21, 2017 until payment in full.b.Costs of this application.

5. The ex parte applicant has argued that the respondents are in contempt of the said orders. Before an individual is held to be in contempt, the court’s order must be directed to that individual personally. The purpose of contempt proceedings was explained in In the case of Kenya Human Rights Commission v Attorney General & another[2018] eKLR the court stated thus:That is why the court stated in Carey v Laiken [2015] SCC17 that;“Contempt of court rests on the power of the court to uphold its dignity and process. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.”61. It is therefore a fundamental rule of law that court orders be obeyed and where an individual is enjoined by an order of the court to do or to refrain from doing a particular act; he has a duty to carry out that order. The court has a duty to commit that individual for contempt of its orders where he deliberately fails to carry out such orders. (Louis Ezekiel Hart v Chief George 1 Ezekiel Hart (-SC 52/2983 February 2, 1990). And in Hon. Martin Nyaga Wambora and another v Justus Kariuki Mate & another [2014] eKLR, the Court stated the duty to obey the law by all individuals and institutions is cardinal in the maintenance of rule law and administration of justice.

6. The application to for contempt proceedings herein is erroneous for it cited specific offices instead of individuals. I therefore dismiss the application with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 15THDAY OF DECEMBER, 2022KIARIE WAWERU KIARIEJUDGE