[2022] KEHC 11020 (KLR)

Republic v County Secretary County Government of Meru & 3 others; Wachira (Exparte) (Judicial Review E002 of 2020) [2022] KEHC 11020 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11020 (KLR)

Republic of Kenya

In the High Court at Meru

Judicial Review E002 of 2020

EM Muriithi, J

June 9, 2022

Between

Republic

Applicant

and

County Secretary County Government of Meru

1st Respondent

Chief Officer, Economic Planning & ICT County Government of Meru

2nd Respondent

Chief Officer Dept. of Public Service

3rd Respondent

County Government of Meru

4th Respondent

and

Andrew Wachira

Exparte

Ruling

1. The court is called upon to determine a Notice of Motion under certificate of urgency dated 18th November 2021 by the ex parte applicant, brought under Section 5(1) of the Judicature Act Cap 8 of the Laws of Kenya, Rule 81. 4 of the Civil Procedure (Amendment No. 2) Rules of England, 2012, Rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms, Practice and Procedure Rules 2013, the inherent powers of the court and all other enabling provisions of the law).

2. In it the ex parte applicant seeks inter alia that:1. Spent2. That the Honourable court do find that the Respondents are in contempt of court for disobedience of the orders of this court issued on 24th June 2021. 3.Spent4. That upon grant of prayers (2) and (3) above, this Honourable court do issue an order that the above-mentioned be committed to civil jail for a period of 6 months for contempt of court or that they be penalized in such other way as the court may deem fit.5. That the Honourable court do find that the Respondents are in contempt of the court order issued on 24th June 2021 and impose a penalty against the Respondents.6. That the Honourable court directs that the Respondents immediately comply with the court order of 24th June 2021 by paying the Applicants a sum of Kshs. 4,217,509 being the decretal amount, interest and taxed costs.That the costs of and incidental to this application be borne by the Respondents.”

3. The grounds upon which the application is premised are set out in the body of the application and supporting affidavit of Andrew Wachira, the ex parte applicant sworn on even date. He contends that on 24/6/2021, the court made an order compelling the respondents to implement the judgement in Meru Chief Magistrate’s Court Civil Case No.67 of 2011(formerly Meru High Court Civil Case No. 33 of 2007) by payment of the sum of Ksh.4,217,509 being the decretal sum plus payment of such further interest as shall have accrued at court rates pursuant to the certificate of Order against the government dated 30/7/2020. The said order and the certificate of costs were served upon the respondents and their advocates on 24/9/2021 and 10/8/2021 respectively. He refutes the respondents’ claim that the decretal amount had not been budgeted for and could only be budgeted for in the budget for the financial year 2021/2022, as from the time the judgement was delivered in 18/10/2018, 2 financial years had lapsed. He avers that the only logical explanation for the respondents’ conduct was that they were determined to disobey a court order and frustrate all efforts by the applicant to pursue his constitutional rights in so far as protection of right to property was concerned. He verily believes that the respondents’ attitude clearly demonstrated their disdain for the authority of the court and amounted to abuse of office and/or authority and urged the court to punish the respondents and avail redress to him.

4. The respondents opposed the application through a replying affidavit sworn on 4/2/2022 by Joseph Chabari, the Chief Officer Finance, Economic Planning and ICT of the 4th Respondent. He avers that the Respondents had not willfully refused or failed to pay the decretal sum to the ex parte Applicant as pleaded. He avers that the 4th Respondent had not refused or failed to obey the court orders to settle the decretal amount as alleged by the Ex parte Applicant. He states that by June 2021, the financial budget making cycle for the financial year 2021-2022 had been prepared by the 4th Respondent and money had already been committed to various vote heads by the various departments of the County Government of Meru. The aforesaid financial year 2021-2022 budget was eventually forwarded to the County Assembly through the Meru County Appropriation Bill, 2021 which was duly assented to by members of the County Assembly and the same was also submitted to the controller of budget who approved the County Government of Meru’s appropriation of money from the County Exchequer account. The provisions of the Public Finance and Management Act, precludes the 4th Respondent from spending any public funds other than what was budgeted for. He avers that the non-settlement of the Ex parte Applicant’s decree was not willful, but it was due to budgetary restrictions and the budget cycles of the County Government that had lapsed before the court orders were issued. He avers the decretal sum plus costs and the accrued interest will be duly budgeted for in the 2022-2023 financial budget which shall be prepared around April 2022 and that shall pave way for the full payment to be done to the ex parte Applicant. He beseeches the court to give them an opportunity to settle the Applicant’s claim by adhering to the laid procedure to be able to pay the ex parte Applicant. He urges the court to find that the Respondents have not disobeyed the court orders of 24/6/2021, and dismiss the application for mandamus.

5. The parties agreed to canvass the application by way of written submissions which were respectively filed on 16/3/2022 and 29/3/2022.

6. The ex parte applicant submitted that the court already pronounced itself on the issues of budgetary constraints now being relitigated by Mr. Joseph Chabari in his replying affidavit. He submitted that unless the court disregards the said replying affidavit, it will continuously form a template upon which the Respondents will continue to disobey the orders of this court. He was unsurprised by the Respondents prayer that the application for mandamus be dismissed, as the same had already been determined by this court in his favour. He submitted that he had demonstrated merit in the grant of prayers 4,5,6 and 7 of the application dated 18/11/2021 and prayed for the court to find as such and proceed to punish the Respondents accordingly.

7. The respondents submitted that they had started to implement the court order of 26/4/2021 by budgeting for the same and following the laid down procedures under the Finance and Management Act. They submitted that the ex parte applicant had not refuted the fact that the budget items were catered for in the month of April 2022 to pave way for the funds to be released from the consolidated funds so that the court order of 24/6/2021 can be implemented in full. They urged the court to give them time to settle the decretal amount within the laid down procedures under the Public Finance and Management Act.

Analysis and Determination 8. The guide on the law of contempt in this country is found under section 5 of the Judicature Act, cap. 8 which reads as follows:“(1)The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.(2)An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.”

9. I should consider that Section 5 of the Judicature Act remains applicable and in force, as section 38 of the Contempt of Court Act, 2016 which attempted to repeal it was declared unconstitutional. See Kenya Human Rights Commission versus Attorney General & Another (2018) EkLR (Chacha Mwita, J.). otherwise, the Court may never be able to enforce its orders by contempt of court jurisdiction until another substantive law is enacted.

10. In any event, as held by the Court of Appeal in Woburn Estate Limited v Margaret Bashforth [2016] eKLR, the High Court (Organization and Administration) Act which was passed in 2015 now expressly donates to the High Court the power to punish for the disobedience of its orders, as follows:“36. (1)A person who –(b)willfully and without lawful excuse disobeys an order or directions of the court in the course of the hearing of a proceeding;(d)having been called upon to give evidence in a judicial proceeding, fails to attend, or having attended refuses to be sworn or to make an affirmation, or having been sworn or affirmed, refuses without lawful excuse to answer a question or to produce a document, or remains in the room in which such proceeding is being heard or taken after the witnesses have been ordered to leave such room;(3)A person who commits an offence under subsection (1) shall, on conviction be liable to imprisonment for a term not exceeding five days, or to a fine not exceeding one hundred thousand shillings, or to both.(4)In exercise of its powers under this section, the Court shall observe the principles of fair administration of justice set out in article 47 of the Constitution.”

11. As held by the Court of Appeal in Christine Wangari Gachege versus Elizabeth Wanjiru Evans & 11 Others (2014) eKLR, Rule 81 of the Civil Procedure Rules of England sets out the procedure to be used in moving applications for contempt before the Hon the Chief Justice promulgates rules for Kenya. I respectfully agree with the description of the salient features of Rule 81. 4 of the Civil Procedure (Amendment No.2) Rules 2012 of England in Republic v Attorney General Ex parte Evalyene Khamasi Amboyi [2021] eKLR (Ngaah, J.) as follows: “Disobedience of a court order or judgment is a foundation for contempt of court proceedings against the contemnor; Where the contemnor is a company or other corporation, the committal order may be made against any director or other officer of that company; The judgment or order in question must be served on the person required to do or not to do the act in question unless the court expressly dispense with personal service; Where the person required to do or not to do an act is a company or other corporation, a copy of the judgment or order must also be served on the alleged contemnor; Judgments and orders must be served personally; The court may, however, dispense with personal service if it is satisfied that the contemnor had notice of the judgment or order: (a) By being present when the judgment or order was given or made.”

12. The respondents’ counsel was present when the judgment of 24/6/2021 was delivered, and thus personal service was dispensed with. But out of abundance of caution, the applicant still effected personal service upon the respondents and their counsel on 24/9/2021. In their replying affidavit, the respondents do not dispute service but they only pray for more time to settle the decretal sum. The justification for non-settlement of the ex parte applicant’s decree as raised by the respondents in their replying affidavit was that, “the decretal sum plus costs and the accrued interest shall be duly budgeted for in the year 2022-2023 financial budget which shall be prepared around April 2022 and that shall pave way for the full payment to be done to the ex parte Applicant.”

13. That is the very excuse the respondents gave the court in their replying affidavit sworn on 21/4/2021, and this court in its judgement of 24/6/2021 observed thus, “in their submission, the Respondents’ main argument is that the money to be used to settle the decretal amount has not been budgeted for and can only be budgeted for in budget for the financial year 2021/2022. To this Court’s mind, their argument does not absolve them from the requirement to perform their duty, but can only be a persuasive argument as to why they should be given more time to settle the decretal amount. In any event, from the time of delivery of Judgment in October 2018, 2 financial years have lapsed and this Court is not therefore convinced that the constraints in payment have been due to budgetary concerns. As at today, the budget for the financial year 2021/2022 has already been read and there is therefore no reason why the Respondents should not be ordered to settle the decretal amount either using funds in the main budget and/or supplementary budget. The source of the money is not the Applicant’s concern and this court will hereby order that the sums be paid.”

14. Evidently, the respondents are not keen on settling the applicant’s decree and no amount of time will change the situation. I say so because, the financial year for the year 2022/2023 was read a while back and the respondents did not make any efforts to settle the applicant’s decree whether in part and/or in full.

15. The court cannot condone deliberate disobedience of its orders. It must deal firmly with contemnors who disobey orders of the court of which they are aware and which remain in force until they are discharged, stayed or perfected on review, appeal or other process of the court. A court order is binding on the party against whom it is addressed and until set aside remains valid and iit must be complied with. Article 159 (1) of the Constitution provides that judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution. It would a subversion of the sovereign judicial authority of the people to disobey court orders.

16. In 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. 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.”

17. Similarly, in Nyamodi Ochieng Nyamogo & Another v Kenya Posts & Telecommunications Corporation(1994) eKLR it was held that:“The consequences of a finding of disobedience being penal, the party who calls upon the Court to make such a finding must show that he has himself complied strictly with the procedural requirements and his failure to so comply cannot be answered by merely saying that the other side was aware or ought to have been aware of what the order required him to do.”

18. The respondents raised the defence of non-allocation and/or unavailability of funds as the reason for their inability to obey the court orders of 24/6/2021. This defence has been addressed in Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza[2012] eKLR where it was expressed as follows:“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, Section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.”

19. The respondents submitted that they have started to implement the court order by budgeting for the same and following the laid down procedures under the Public Finance and Management Act.

20. The justification why the decretal sum was not budgeted for in the 2021-2022 financial year was that the judgement of the court was delivered way after the budget had been read is not valid because, the principal judgment sought to be implemented by the order for Mandamus was given on 17/10/2018. The respondents had time to budget for the decretal sum upto the latest budget for the 2022-2023 financial year, but have not adduced any proof thereof. In the Judgment sought to be executed, the defence that the provision for the judgment sums had not been provided for and could only be so provided for in the 2021/2022 Budget was rejected. It is now another budget 2022/2023 down the line. The situation of disobedience of the court judgment on the excuse of lack of budgetary provision which is within the control of the respondents cannot be allowed to continue.

21. The Court is persuaded to find that the respondents, being aware of the court order for Mandamus and the prior Judgment of the Court for which Mandamus was issued, as it was served personally upon them and on their counsel, have willfully disobeyed it by failing to pay the decretal sum, and to take steps necessary, including making provision for the same in the budgets, for the payment of the decree therein.

22. The Court must find that that as the respondents were aware of the orders issued by the court on 24th June 2021, and have not shown any steps taken to satisfy the decretal sum due to the applicant as compelled in the said orders, they are culpable of disobeying the same and for contempt of court. The applicant’s Notice of Motion dated November 18, 2021 is merited.

23. On November 18, 2021, the court issued prayer 3 of the application Finance, Economic Planning & ICT, Timothy Kaaria, Chief Officer, Dept. of Public Service to personally attend Court on November 26, 2021 to show why they should not be punished for contempt of Court. Their Counsel explained on November 26, 2021 that they were away attending a Devolution Conference at Makueni. By their Replying Affidavit and Submissions herein, the Respondents have been heard and they failed to show cause why they should not be punished for contempt of court.

Orders 24. Accordingly, for the reasons set out above, the Court finds the County Secretary, Dr. Rufus Miriti; Chief Officer, Finance, Economic Planning and ICT, Mr. Joseph Chabari; and Chief Officer, Department of Public Service guilty of contempt of court in failing to make payment to the ex parte applicant the money due on his judgment in Meru Chief Magistrate’s Court Civil Case No. 67 of 2011which was the subject of the order of Mandamus made on June 24, 2021 herein.

25. The Court will, in recognition of their function in the administration, direction and management of the financial and other operations of the County grant them an opportunity to purge their contempt by making good the judgment of the court herein by payment of the decretal sum, interest and taxed costs within the next thirty (30) days in default of which they shall pay a fine of Ksh.100,000/- each Or Serve Imprisonment For Six Months for their contempt of court.

26. For avoidance of doubt, the Respondents will be discharged, if they pay the decretal sum and taxed costs together with interest as at the date of payment, within the said period of thirty (30) days.Order accordingly.

DATED AND DELIVERED ON THIS 9TH JUNE DAY OF JUNE, 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S J. M. MWANGI & CO. ADVOCATES FOR THE APPLICANT.M/S MWIRIGI KABURU & CO. ADVOCATES FOR THE RESPONDENTS.