https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4879

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **JUDICIAL REVIEW MISC APPL. NO. E001 OF 2024** **REPUBLIC …………………………………………………………..APPLICANT** **VERSUS** **THE COUNTY SECRETARY** **THE COUNTY GOVERNMENT OF NAIROBI** **THE CHIEF FINANCE OFFICER** **THE COUNTY GOVERNMENT OF NAIROBI………………..RESPONDENTS** **AND** **BETWEEN** **A.K KINYANJUI………………………………………1ST EX-PARTE APPLICANT** **DANSON NJOROGE……………………………….2ND EX-PARTE APPLICANT** **SUSAN MUCHIRU………………………………….3RD EX-PARTE APPLICANT** **JOSEPH NGURE……………………………….……4TH EX-PARTE APPLICANT** **ESTHER WAMBUI…………………………..………5TH EX-PARTE APPLICANT** **RULING** 1. This is an urgent application seeking to hold two Respondents in contempt of Court for failing to comply with a previous Court Order requiring them to pay a substantial monetary sum. The Applicants are requesting that the Court punish the Respondents and issue warrants for their arrest and imprisonment. It is brought under Section 5(1) of the Judicature Act, Chapter 8 of the Laws of Kenya, and all other enabling provisions of the law. The Applicant seeks the following: 2. Spent. 3. **THAT** the 1st and 2nd Respondents herein be and are hereby held in contempt of the Court orders made by this Court on 7/07/2025. 4. **THAT** pursuant to the finding hereinabove that the 1st and 2nd Respondents are in contempt of the Court order made on 7/07/2025, the 1st and 2nd Respondents be punished appropriately. 5. **THAT** upon the sentence pronounced in order three above, a warrant of arrest do issue against the 1st and 2nd Respondents for their arrest and committal to jail. 6. **THAT** costs of this application be provided for. 7. The Application is supported by the Affidavit sworn at Tala by A.K Kinyanjui on 1/10/2025 and the grounds on the face of it. The 1st Ex-parte Applicant, A.K. Kinyanjui, a resident of Murang'a County, attests to the Respondents' deliberate non-compliance with a High Court (meaning ELC Court) order issued on 07/07/2025. The Court had ordered the Respondents to settle a decretal amount from **ELC No. 372 of 2017 (Thika),** which initially stood at Kshs. 49,935,694.25 as of 21/06/2023, along with Court-rate interest until full settlement, as evidenced by the Judgment marked “**Annexure K1”**. 8. That although the Court originally allowed 30 days from the service of the order and the taxed bill of costs for the Respondents to pay both the debt and judicial review expenses, the Applicants chose to forego the suit costs entirely. By executing solely on the decretal amount with accumulated interest, the final sum rose to Kshs. 62,419,618. To enforce this, the Applicants extracted, sealed, and served the formal decree, attached as “**Annexure K2”**, alongside a copy of the Judgment and a Certificate of Order against the Government, attached as “**Annexure K3’**. 9. The Applicant further deposes that both Respondents were personally served with these legal documents on 12/08/2025. The Respondents explicitly acknowledged this service by signing and stamping the documents, which is verified by the stamped letter marked “**Annexure K4”** and the Affidavit of Service marked “**Annexure K5”**. Despite the lapse of the mandatory thirty-day compliance window from the date of service, the Respondents have completely failed to pay, placing them in clear contempt of Court. 10. Highlighting the severe human toll of this delay, Kinyanjui reveals that the Applicants have been pursuing legal redress from the Respondents for over thirty-five years, during which time some of the original Applicants have tragically passed away and had to be substituted. Consequently, the Applicant implores the Court to grant the requested orders and punish the Respondents, asserting that judicial intervention is urgently needed to serve the interests of justice and prevent the remaining Applicants from suffering irreparable loss. 11. Despite the Court giving directions on disposal of the Application on 10/11/2025 and the Respondents having been given 14 days to file written submissions they never filed any response nor written submissions. When parties appeared in Court on 12/03/2026, the Ex-parte Applicant never attended Court and so the application is unopposed. However, although the application was unopposed, nonetheless the Court has to consider the merits and otherwise of the application so as to make its findings on the same. This is in line with the decision of the Court of Appeal in the case of **Karugi and 2 Others vs Kabiya and 3 Others (1983) eKLR** where the Court held as follows; - ***“The burden on a Plaintiff to prove his case remains the same throughout the case even though the burden may become easier to discharge when the matter is not validly defended. The burden of proof is not way lessened because this this is heard by way of formal proof….”*** 1. The Applicant filed written submissions dated 2/12/2025 dated 1/10/ 2025, are grounded in the Respondents' persistent non-compliance with the clear and unequivocal orders of the Court issued on 7/07/ 2025. In the underlying matter, **High Court ELC No. 372 of 2017 (Thika)**, the Court directed the Respondents who represent the County Government of Nairobi to settle a decretal sum of Kshs. 49,935,694.25 alongside interest at Court rates. In a bid to expedite execution, the Ex-parte Applicants voluntarily forewent the costs of the suit, bringing the final decretal amount due under the certificate of order to Kshs. 62,419,618. 2. Although the decree, Judgment, and certificate of order against the government were extracted, sealed, and personally served upon the Respondents on 12/08/2025 as verified by the signed and stamped forwarding letter marked **“K4”** and the affidavit of service marked **“K5”** more than ninety days lapsed without compliance. Consequently, the Applicants moved this Court by way of the current Notice of Motion, seeking that the Respondents be cited for contempt of Court, punished appropriately, and that warrants of arrest be issued for their committal to civil jail. 3. From a procedural standpoint, the Applicants demonstrate that the Respondents have been afforded every opportunity to comply with the rules of natural justice but have instead treated the Court with utter disdain. While the Court did not initially certify the application as urgent, it ordered personal service for an inter-partes hearing on 10/11/2025. As at that date, despite the gravity of the quasi-criminal allegations against them, the Respondents had failed to file any response. 4. The Court magnanimously extended further leniency by granting them an additional fourteen days to lodge their reply, a period which lapsed on 25/10/2025, while simultaneously directing the Applicants to file these submissions within twenty-one days thereafter. Despite these extensions, the Respondents have met the Court’s directives with complete silence, failing to file any Replying Affidavit or offer any payment proposals, thereby demonstrating *mala fides* and a deliberate attempt to reduce the administration of justice to a mere mockery. 5. In addressing the substantive law, the Applicants submit that the application squarely satisfies the legal matrix for civil contempt as established in **Lorkoyo & Another v Lorkoyo (ELC Appeal E002 of 2024) KEELC 4835(KLR)** and the case of **Samuel M. N. Mweru Case.** Kenyan jurisprudence dictates that for an Applicant to succeed in a contempt application, they must establish to a standard higher than the ordinary balance of probabilities that a clear and unambiguous order existed, that the Respondent had actual knowledge of the terms, and that the Respondent willfully disobeyed those terms. The Applicants have fully discharged this high burden of proof by demonstrating personal service of all core documents upon literate state officers who cannot plead ignorance. Since the Respondents have failed to adduce any evidence to rebut the inference of willful disobedience, the Applicants states that the Court by granting the application as prayed and imposing a custodial sentence, as a mere fine would be wholly insufficient to cure such extreme contumacy. **Issues for Determination** 1. The overarching issues falling for determination by this Court is: 2. *Whether the Applicants have satisfied the strict legal prerequisites to warrant finding the 1st and 2nd Respondents in contempt of the Court orders issued on 7th July 2025, and consequently,* 3. *Whether the Applicants are entitled to the coercive remedies of warrants of arrest and commitment of the said public officers to civil jail.* **Analysis and Determination** 1. The Application before this Court stands unopposed, the Respondents having failed to file a Replying Affidavit, grounds of opposition, or written submissions despite being granted a fourteen-day indulgence by this Court on 10/11/2025. Notwithstanding this default, the Court is guided by the established principle that an application is not granted as a matter of course merely because it is uncontroverted; the burden remains upon the Applicant to establish their entitlement to the reliefs sought. Contempt of Court proceedings are *quasi-criminal* in nature because they directly touch upon the liberty of the subject, demanding a standard of proof that is higher than a mere balance of probabilities, though not as high as beyond reasonable doubt. This position was strictly underscored by the Court of Appeal in **Mutitika v Baharini Farm Limited (1985) KLR 227,** where the learned Judges explicitly held: ***"A Court should be slow to penalize a party for contempt of Court, and will only do so if the contempt is clear and certain. It is a serious matter to hold a person in contempt, and it must be proved with that degree of certainty which is necessary where a person’s liberty is at stake."*** 1. In evaluating whether the Applicants have discharged this heavy burden, the Court must satisfy itself that the decree-holders have met the fourfold test of civil contempt: the clarity of the underlying order, the contemnor's knowledge of its terms, the fact of non-compliance, and the presence of willful disobedience. The undisputed evidence on record demonstrates that on 7/07/2025, a clear, unambiguous order was issued directing the Respondents, as officials of the Nairobi City County Government, to pay a decretal sum which, upon voluntary waiver of party-to-party costs by the Applicants to expedite settlement, stood at Kshs.62,419,618. 2. Knowledge and personal service are irreproachably established through Annexures **“K4 and K5”**, showing that both Respondents personally signed and stamped the forwarding letters acknowledging safe delivery of the Judgment, decree, and statutory Certificate of Order against the Government on 12/08/2025. More than ninety (90) days have since lapsed without a single cent being remitted or any structured payment proposals being presented to this Court. In **Hadkinson v Hadkinson (1952) 2 All ER 567**, a persuasive authority long adopted by our local Courts, Denning, L.J. restated the immutable obligation of obedience to judicial pronouncements by stating: ***"It is the plain and unqualified duty of every person against whom an order is made by a Court of competent jurisdiction to obey it to the letter until that order is discharged or set aside."*** 1. The Respondents' total silence in the face of this application constitutes the highest form of contumacy and an overt challenge to the rule of law. Representing a critical state organ, their high-handed inaction cannot be attributed to an administrative oversight or lack of funds, particularly where the Applicants have been languishing in the corridors of justice for over thirty-five years, seeing some of their co-litigants pass away before tasting the fruits of their Judgment. Our Courts will not sit back and allow public officers to reduce lawful decrees to mere pieces of paper, thereby driving citizens to financial ruin and despair. 2. Where a party is given every opportunity to defend themselves under the banner of procedural fairness and chooses to treat judicial directives with complete indolence, the Court is left with no option but to invoke its coercive powers to vindicate its own majesty. As observed by the Supreme Court of Kenya in **In Re Gachoka & Another (2019) KE SC 15 (KLR):** ***"The corporate identity of the Court is diminished, and the rule of law is subverted, every time an order of the Court is disobeyed with impunity. The power of the Court to punish for contempt is an essential safeguard for the administration of justice and the maintenance of the authority of the Courts."*** 1. Having carefully evaluated the Notice of Motion Application, the Supporting Affidavit of A.K. Kinyanjui, the unchallenged annexures, and the relevant statutory and jurisprudential principles, this Court finds that the Application is highly meritorious. The Applicants have proved to the required standard that the Respondents have willfully, deliberately, and maliciously disobeyed the clear orders of this Court. 2. Consequent upon the foregone conclusions, the Court issues the following Orders: 3. ***The 1st and 2nd Respondents herein are hereby found and held to be in deliberate and willful contempt of the Court Orders and Decree issued by this Court on 7/07/2025.*** 4. ***For the extreme contumacy and contempt, the 1st and 2nd Respondents are hereby sentenced to a term of six (6) months imprisonment each, to be served in civil jail.*** 5. ***The warrants of arrest do hereby issue against the 1st and 2nd Respondents, to be executed forthwith by the Officer-in-Charge of the Nairobi County Police Commander, for their apprehension and committal to the nearest civil prison to serve the sentence pronounced in Order (ii) above.*** 6. ***The execution of the warrants of arrest issued under Order (iii) above is hereby stayed for a period of fourteen (14) days from the date of this Ruling to allow the Respondents a final window to fully satisfy the decretal sum of Kshs. 62,419,618, in default of which the stay shall automatically lapse and the warrants shall be executed without further reference to this Court.*** 7. ***The costs of this Application are awarded to the Applicants, to be borne personally and jointly by the 1st and 2nd Respondents.*** Orders Accordingly. **DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 27TH DAY OF JULY 2026.** **…………………………** **MOGENI J** **JUDGE** **In the presence of:** Miss King’oo Wanja for the Ex-Applicants Respondents – Absent Mr. Melita - Court Assistant **…………………………** **MOGENI J** **JUDGE**