https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12007

Republic v County Secretary, Kilifi County & another; Veteran Pharmaceuticals Limited (Ex parte) (Judicial Review E061 of 2024) [2026] KEHC 12007 (KLR) (Judicial Review) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12007 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E061 of 2024 WM Musyoka, J July 31, 2026 Between Republic Applicant and The County Secretary, Kilifi County 1st Respondent Chief Officer, Finance, Kilifi County 2nd Respondent and Veteran Pharmaceuticals Limited Ex parte Ruling 1.The ex parte applicant has moved this court by way of a motion, dated 15th April 2026, in which it seeks that the respondents be cited for contempt of court, for wilful disobedience of the order of mandamus that was made by this court, in the judgement delivered in 23rd June 2025. It is also sought that warrants of arrest do issue against the respondents, and the said respondents be committed to civil jail, for their wilful disobedience of the decree of the court, that was extracted on 20th January 2026, out of the judgement of 23rd June 2025, for a sum of Kshs. 239,327.00 and costs of Kshs. 39,430.00. 2.The application is supported by the affidavit of Mr. Robert Kamau Willie Ngigi, sworn on 15th April 2026. The case, by the ex parte applicant, is that, following a judgement in Milimani MCCC No. 2630 of 2019, an order of mandamus was made herein, on 23rd June 2025, commanding the respondents to pay the ex parte applicant a sum of Kshs. 239,327.00, and costs of Kshs. 39,430.00. The respondents are yet to comply with that mandamus order. 3.The respondents have reacted to the motion for the contempt of court order, through an affidavit, sworn on 15th June 2026, by Mr. Henry Kazungu Lughanje, the County Attorney of the County Government of Kilifi. It is averred that the ex parte applicant has failed to disclose the names of the alleged contemnors, and has instead proceeded against offices, contrary to established principles governing contempt proceedings. 4.The application was canvassed by way of written submissions. 5.The ex parte applicant submits that the respondents have wilfully and deliberately failed to comply with the judgement on mandamus, and seeks that the court finds them in contempt of court. It cites Refrigeration and Kitchen Utensils Ltd vs. Gulabchand Popatlal Shah & Another, Nairobi CACA No. 39 of 1990 (unreported), where the importance of upholding the authority and dignity of the court was emphasised, as being essential for maintenance of the rule of law and good order, and that the court would not condone deliberate disobedience of its orders, nor shy away from its responsibility of dealing firmly with proved contemnors. Hadkinson vs. Hadkinson (1952) 2 All ER 567 is also cited, on the obligation for obedience of a court order, even if the order is viewed as irregular or void, with the only qualification being where the same is discharged. It is asserted that contempt orders can only be against the current office-holders, going by section 43 of the Interpretation and General Provisions Act, Cap. 2, Laws of Kenya. 6.The respondents submit that the ex parte applicant has failed to establish knowledge and service of the order upon specific and identified contemnors, and deliberate and wilful disobedience of the served court order by them. It is further submitted that the matter relates to a money decree, and the obligation to remit the funds falls on the relevant accounting officer, and not the County Secretary. Solo Worldwide Inter-Enterprises vs. County Secretary Nairobi County & another [2016] eKLR[2016] KEHC 7751 (KLR), is cited in support. It is argued that the motion for contempt does not meet the threshold, as it wrongfully joins the County Secretary rather than the responsible accounting officer. 7.The only issue for determination is whether the application for contempt of court is merited. 8.The main prayer is for the court to find the respondents in breach of the obligation to settle a decree, that had commanded them to settle, by way of the mandamus order of 23rd June 2025, and for imposition of appropriate punishment, until the said orders are complied with. From the record before me, I am satisfied that, on 23rd June 2025, this court made a mandamus order, compelling the respondents to pay Kshs. 239,327.00 and costs of Kshs. 39,430.00. The amount remains due and outstanding. No reason or justification for failure to satisfy the decree has been made by the respondents. The respondents have only concentrated on the weakness of the contempt application, but shied away from addressing the critical issue, settlement of the court decree, for the contempt application would be wholly unnecessary, if the decree had been settled. 9.Although the court in Kenya is assertive, in protecting the authority of the court, and ensuring that court orders are obeyed, it does so within a certain framework, that guarantees a fair hearing and demands clear, deliberate and proven disobedience. Before I can decide on whether the respondents are in contempt of court, and ought to be cited, I have to be satisfied that the application herein fits within that framework. 10.One of the key principles is that contempt proceedings are quasi-criminal, and can lead to loss of liberty, hence the standard of proof is higher than in ordinary civil cases. That is proof that a certain person is in contempt of or has disobeyed a specific lawful and valid court order. That was addressed in Mutitika vs. Baharini Farm Limited [1985] KLR 229 and Republic vs. Ahmad Abolfathi Mohammed & another [2018] eKLR, where it was established that the standard of proof, in these cases, is higher than proof on the balance of probabilities, almost, but not exactly, beyond reasonable doubt. 11.For a contempt of court application to succeed, the ex parte applicant must prove certain matters. These were identified in Kenya Tea Growers Association vs. Francis Atwoli & others [2012] eKLR[2012] KEHC 2747 (KLR, North Tetu Farmers Company Limited vs. Joseph Nderitu Wanjohi [2016] eKLR [2016] KEHC 7193 (KLR), among other decisions. They can be summarised into 4. 12.The first is that the order, said to have been disobeyed, must be clear and unambiguous, for there can be no contempt for failing to comply with a vague or unclear directive. The second relates to knowledge or notice, that the alleged contemnor must have had actual knowledge of the order, and that makes personal service of the order, on the alleged contemnor critical, and the courts have held that knowledge of the order is of paramount importance. The third relates to breach of the order, and it must be proven that the alleged contemnor acted in a way that violated the terms of the order. Finally, but by no means least, is the fourth, and that is about a deliberate conduct, for the disobedience must be shown to be intentional and wilful, not accidental or unintentional. 13.The question then is whether the application herein meets the test. I have carefully perused through the affidavit sworn in support. It exhibits the decree of 23rd June 2025, which is the subject of these proceedings. The same is clear, that there is a decree against the County Government of Kilifi, dating back to a 2015 judgement of a lower court. It sets out the amounts of the money due and owing. It warns of penal consequences, inclusive of sanctions for contempt of court, for failure to settle those amounts. So, the first test is met. 14.The deponent avers that the order of 23rd June 2026, was served on the Advocates for the Kilifi County Government in the Judicial Review matter. The duty to settle the decretal amount lies with the accounting officer responsible, and not with the Advocates for the County Government. The person from whom accountability ought to be sought is the accounting officer, and no one else. That is the law, according to the Government Proceedings Act, Cap. 40, Laws of Kenya. Service on the Advocates for the County Government, was not proof of service on the accounting officer, merely because the accounting officer happened to work there. There was, therefore, no proof that the order said to have been disobeyed had been brought to the attention of the relevant accounting officer. The second test has, in the circumstances, not been met. 15.There is the related issue as to whether the respondents, named in the application, are the accounting officers responsible. Before an application is mounted for contempt of court, and even before that, before venturing to serve the order, in cases of this nature, an attempt should be made to establish who the relevant accounting officer would be, who would then be served with the papers. Contempt of court would only arise upon the service having been effected on the responsible accounting officer, and not just on any senior officer in the Government entity in question. The information, as to who would be the responsible accounting officer, lies with the County Government, and, if not readily availed, the person seeking it has a constitutional right to access it, through the dedicated channels. 16.Related to that would be the issue raised by the respondents, that the application seeks to cite offices rather than persons. It also seeks for warrants of arrest and committal to civil jail. An office cannot be arrested nor committed to jail, for only a natural person can be. The ex parte applicant ought to have identified the persons currently occupying the offices in question, and moved against them, rather than moving against their offices. 17.The third test is breach of the order by the respondents. As there is no proof that the respondents had notice of the order, and as the respondents are mere offices, not persons, the issue of breach would not arise. The same would apply to the last test, of deliberate conduct. The office, without the natural person behind it, cannot be guilty of any kind of conduct. 18.Without saying more, the application herein is wholly poorly conceived. It suffered a fatal wound the moment the order in question was served on the Advocates for the County Government, rather than on the accounting officers, whoever they were supposed to be. No orders can be made on it, and I hereby dismiss it. Orders accordingly. DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 31ST DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.Ms. L Wafula, Legal Researcher.AdvocatesMs. Kiprop, instructed by JM Mugo & Company, Advocates for the ex parte applicant.Ms. Gachau, instructed by Miller & Company, Advocates for the respondents.