[2023] KEHC 25074 (KLR)

Republic v County Secretary, Homabay County & another; Elyco Motors Ltd (Exparte Applicant) (Judicial Review E004 of 2021) [2023] KEHC 25074 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25074 (KLR)

Republic of Kenya

In the High Court at Kisumu

Judicial Review E004 of 2021

RE Aburili, J

November 10, 2023

Between

Republic

Applicant

and

County Secretary, Homabay County

1st Respondent

Chief Officer Finance, Homabay County

2nd Respondent

and

Elyco Motors Ltd

Exparte Applicant

Ruling

1. On 12th April 2023, this court rendered Judgment wherein the Respondents herein were found to be in contempt of this court’s orders issued on 8th December 2021 requiring them to settle decree for Kshs.962,682 together with Kshs.438,020 being interest at 14% p.a from 1st April 2019 to date with costs of Kshs.121,045 plus Kshs.15,534 being interest on the said costs from 20th July 2021 to date.

2. The Respondents, being the contemnors on behalf of the County Government of Homabay were then orders to appear before court for mitigation and sentence.

3. Subsequently, the Respondents appeared before this court and pleaded with the court to allow them to purge the contempt and mitigate later. The decree holder had no issue with the request hence the orders of 30th May 2023.

4. On 20th October 2023, the Decree holder’s counsel confirmed to court that the decretal sum had been fully settled hence the contempt had been purged and the judgment debtor’s counsel sought for time for mitigation and sentencing.

5. The Respondents Mr. Werah the Chief Officer, Finance and Prof. Ben Mnok the County Secretary for the County Government of Homabay appeared virtually and the court heard their mitigation through their counsel Mr. Yogo.

6. Counsel submitted that the reasons for the delay in settling decree, leading to the contempt proceedings was due to change of the political leadership and regime where there were administrative logistical challenges where injunctive orders were obtained against the Respondent’s assumption of office and secondly, that the treasury delayed in releasing the exchequer to the County Government hence the reasons for the delay were beyond the Respondent’s control and ability.

7. In response, Mr. Otieno Brian counsel for the Decree holder Exparte Applicant urged the court to warn the Respondents that compliance with court orders is the backbone of judicial authority and is necessary for the posterity of the nation. That respecting of court orders is key and it should be set as an example to members of the public.

8. I have considered the mitigation by the Respondents/Contemnors giving reasons for the delay in settling decree. I have also heard the Decree holder’s submissions on the importance of complying with court orders, which submissions are in order.

9. As was stated by Borrie and Lowes Law of Contempt, 2nd Edition, 1983:“The rules embodied in the law of contempt of court are intended to uphold the effective administration of justice. As Lord Simon said in Attorney General vs Times Newspapers Limited, they are the means by which the law vindicates the public interest in the due administration of justice. The law does not exist, as the phrase ‘contempt of court’ might misleadingly suggest, to protect the personal dignity of the judiciary nor does it exist to protect the private rights of the parties or litigants… contempt of court plays a key role in protecting the administration of justice. It is an important adjunct to the criminal process and provides the final sanction in the civil process.”

10. In Trust Bank Limited vs Shanzu Villas Limited & 3 Others [2004] 2 KLR 299, the court stated that:“When allegation of contempt of the court are raised, the alleged contemnor must either be purged of the contempt allegation or punished for it, if proved, before he/she can continue to have audience before the said court or tribunal.”

11. Contempt of court proceedings are quasi criminal in nature. The Contemnors/Respondents were heard before the court pronounced itself on their contempt and further, they have been heard in mitigation.

12. The Contemnors asked for time to purge the contempt which they have purged. They have explained the delay in purging the contempt and circumstances leading up to the contempt of court proceedings being instituted against them.

13. Sentencing is in the discretion of the court. Having considered all the above, and the fact that the Respondents were executing a public duty as public officers and have since purged the contempt by settling the decree herein, I hereby unconditionally discharge the Respondents/Contemnors and close this file.

14. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 10TH DAY OF NOVEMBER, 2023R.E. ABURILIJUDGE