[2023] KEHC 25958 (KLR)

Republic v County Secretary, Machakos County Government & another; Veteran Pharmaceuticals Limited (Exparte Applicant) (Judicial Review 374 of 2018) [2023] KEHC 25958 (KLR) (Judicial Review) (30 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25958 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review 374 of 2018

JM Chigiti, J

November 30, 2023

Between

Republic

Applicant

and

The County Secretary, Machakos County Government

1st Respondent

The Chief Officer, Finance/County Treasurer,Machakos County Government

2nd Respondent

and

Veteran Pharmaceuticals Limited

Exparte Applicant

Ruling

1. Before this court the Notice of Motion Application dated 24th February 2023 in which the Applicant is seeking for;1. That this Honourable Court be pleased to issue summons against the 1st and 2nd Respondents to show cause why they should not be committed to civil jail for contempt of the orders of 26th March 2019. 2.That this Honourable be pleased to issue the warrants of arrest and committal to civil jail of the County Secretary and Chief Officer, Finance Machakos County; the 1st and 2nd Respondents respectively for their willful disobedience of the judgment and decree of this Honourable Court issued on 26th March 2019. 3.That the costs of these proceedings be borne by the Respondents

2. That the application is supported by the affidavit of Robert Kamau Willie Ngigi, the Applicant’s Director sworn on 24th February 2023.

3. On 18th November, 2021 Justice Ndungu found that the Respondents in contempt of this Honourable Court orders issued on 26th March, 2019 by Lady Justice Nyamweya and issued summons against them to show cause why they should not be committed to civil jail.

4. I am satisfied from the Affidavit of service dated….The application was served personally on the Respondents on 1stMarch, 2023. It is unopposed.

5. This ruling was delivered and summons issued in the presence of Counsel for the Respondents.

6. Subsequently several mentions have been given in a bid to confirm compliance on 26. 1.2022, 17. 3.2022, 20. 6.2022, 20. 9.2022 all in the presence of Counsel for the Respondent.

7. The Respondents have partially complied with the orders of 26th March 2019 through payment of an amount of Kshs. 2,031,400.

8. They have however failed and or refused to settle the outstanding amount of Kshs. 1,355,883 on account of costs and interest as was awarded by the court.

9. The Respondents counsels were informed of this outstanding amount vide the letter dated 21st November, 2022.

10. In Nyeri Cause 26 of 2018 (Formerly Nyeri ELRC Cause 256 of 2016)- Kennedy David Mwaniki Nyaga v County Government of Tharaka Nithi [2021] eKLR Justice Njagi Marete in issuing the summons on account of disobedience of the court orders stated that;“The Claimant/Respondent’s case is that his is not a quest for jailing or in any manner harassing or annoying the public officers cited. This is a call for them to show cause in a situation where they have refused or neglected to meet the decree despite service. There is therefore nothing obnoxious with the application. I agree.!

11. Similarly, Justice Ndungu in Nairobi Miscellaneous Civil Application 121 of 2017- Tom Ojienda & Associates v County Secretary Nairobi City County & another [2022] eKLR held that;“As to whether there was willful disobedience of the order, the answer is in the affirmative. Despite having knowledge of the orders even after the making of the present application and despite being the holders of the offices that were ordered to pay the sums due to the applicant, there has not been any payments made and/or any iota of intention and effort to pay.33. One would have thought that the pendency of this application was a good opportunity for the respondents to obey the orders of court and proceed to pay and or engage the applicant on modalities of resolving the dispute going forward. Instead, they embarked on mounting a spirited but worthless defense to the application herein side stepping the real issue facing the offices they serve and seemingly oblivious of their obligation under section 21 (3) of the Government Proceedings Act.”

12. The Respondents have not advanced any reason why they have not paid the outstanding sum.

13. The contempt has not been purged and that this Honourable Court has the requisite powers to issue summons against them to show cause why they should not be jailed for contemptuous and continued non-compliance of the orders of this Honourable Court.

Order:1. Summons do issue against the 1st and 2nd Respondents to show cause why they should not be committed to civil jail for contempt of the orders of 26th March, 2019. 2.The matter will be mentioned on 18th January, 2024 for mitigation and sentencing in open court at 10. 30 a.m.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. ……………………………………J. CHIGITI (SC)JUDGE