https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9966

Republic v Nairobi City County Government & 4 others; KTK Advocates (Ex parte Applicant) (Judicial Review E173 of 2024) [2026] KEHC 9966 (KLR) (Judicial Review) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9966 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E173 of 2024 TW Ouya, J July 2, 2026 Between Republic Applicant and Nairobi City County Government 1st Respondent CECM, Finance & Economic Affairs Nairobi City County 2nd Respondent Chief Officer, finance Nairobi City County 3rd Respondent County Attorney, Nairobi City County 4th Respondent County Treasurer, Nairobi City County 5th Respondent and KTK Advocates Ex parte Applicant Ruling 1.Before the court is a notice of motion application for Notice to Show Cause dated 14th January 2026 requiring the judgment debtor to appear and show cause why execution by way of committal to civil jail should not issue for failure to pay the decretal sum. In particular, the Application seeks for orders:i.Spentii.That a Notice to Show Cause does issue to the Respondents:a.Governor, Nairobi City County.b.CECM, Finance & Economic Affairs.c.Chief Officer, Revenue Administration.d.County Secretary, Nairobi City County.e.County Attorney.f.Chief Officer, Finance/County Treasurer Nairobi City County to Show Cause why Contempt of Court Proceedings should not be commenced against them for disobedience of Mandamus Orders of this Honourable Court given on 03.04.25 by Hon. Justice J. Chigiti, SC.ii.That this Honourable Court does issue such orders as it may deem fit to grant in the interests of justice.iii.That the costs of this application be provided for. 2.The Application is supported by grounds and the annexed supporting Affidavit of Donald B. Kipkorirof even date deposing that, the Ex-Parte's Advocate/Client Bill of Costs was taxed in the sum of Kshs. 1,338,011,582.76 on 10.05.22. Pursuant to S.51 (2) of The Advocates Act, Cap. 16 Laws of Kenya. Subsequently, Notice of Motion application was filed for Judgment and same was granted on 21.09.23. An application for Mandamus was filed and Mandamus Orders issued on 03.04.25 compelling the Respondents to settle the decretal sums within Sixty (60) days of the date therefrom, in the presence of the Respondent's lawyers. 3.It is deposed further that the decretal sums have not been paid for at all and the Sixty (60) days lapsed on 03.06.25 or thereabouts. THAT Decree was issued pursuant the Mandamus Order and both were served upon the Respondents. The Applicant contends that the Respondents jointly and/or severally have refused and/or neglected to comply with the Decree and having previously jointly and/or severally refused to comply with the following Court Orders. The judgement delivered on 21.09.23 by Hon. Justice Oscar Angote and subsequent Order of Hon. Lady Justice Anna Omollo of 29.11.23 that the Respondents pay one third (1/3) of the decretal sums to the Ex Parte Applicant. The Applicant holds that despite knowledge, service and several reminders, the Respondents have failed and/or refused to settle the outstanding amounts. 4.The Respondents opposed the Notice to Show Cause through a Replying Affidavit sworn on 23rd March 2026 by CHRISTINE IRERI, the 4th Respondent, on her own behalf and on behalf of the 1st, 2nd, 3rd and 5th Respondents. 5.The Respondents acknowledge the history of the matter, namely that it arises from an Advocate-Client Bill of Costs in Nairobi ELC Misc. No. E056 of 2020, KTK Advocates v Nairobi City County, relating to legal services rendered in Nairobi ELC Cause No. 282 of 2012. They further concede that the Taxing Master taxed the bill at Kshs. 1,338,011,582.76 and that judgment and a decree were subsequently issued in favor of the ex- parte Applicant for that amount together with interest at 14% per annum from 10th May 2022 until payment in full. 6.The Respondents further state that on 15th February 2024, the court granted Nairobi City County leave to file a Notice of Objection and a Reference out of time against the taxation. They also acknowledge that on 3rd April 2025 this Court directed them to settle the decretal sum within sixty (60) days. 7.Notwithstanding the foregoing, the Respondents deny any deliberate refusal or intention to disobey the court's orders. They contend that the Governor should not be held personally liable since his role is limited to executive oversight under Article 179 of the Constitution and he is not the accounting officer responsible for effecting payments under Section 148 of the Public Finance Management Act (PFMA). They argue that liability for non-payment cannot automatically attach to county officials whose functions do not include direct financial disbursement. 8.The Respondents further maintain that the failure to settle the decretal sum has been occasioned by budgetary constraints, including reduced allocations from the National Treasury and competing constitutional obligations such as healthcare, education and infrastructure. They state that the County has initiated internal processes aimed at incorporating the decretal amount into a supplementary budget for approval by the County Assembly. 9.Additionally, the Respondents contend that any payment made without prior budgetary allocation and approval by the County Assembly would violate the provisions of the PFMA and expose public officers to personal and criminal liability for unauthorized expenditure. They therefore argue that compliance with the decree must be undertaken within the framework of the applicable statutory budgetary processes. 10.The Respondents further submit that they have acted in good faith and have taken steps towards compliance. They rely on various decisions of the superior courts for the proposition that inability to pay due to fiscal constraints does not amount to willful disobedience of court orders and that statutory budgeting requirements cannot be circumvented. 11.In conclusion, the Respondents urge the Court to find that there has been no willful disobedience of its orders, to take into account the County's fiscal and statutory constraints, and to decline the coercive orders sought against the individual county officials. They contend that granting the orders sought would prejudice the County and the public interest, while the Ex parte Applicant would suffer no undue prejudice if additional time is allowed to facilitate compliance through lawful budgetary processes. 12.The matter was canvassed by way of written submissions. 13.The Applicant submitted that despite obtaining a valid judgment, decree and an order of mandamus compelling payment of the decretal sum within sixty (60) days, the Respondents have failed to comply with the court's orders. The Applicant contends that there is no dispute as to the existence of the taxed costs, the judgment, the decree issued on 3rd November 2023, and the mandamus judgment delivered on 3rd April 2025 directing payment. 14.The Applicant argued that the Respondents' opposition is founded on only two grounds: first, alleged budgetary constraints, budgetary processes and lack of budgetary allocation; and second, the contention that some of the cited officials, particularly the Governor and the County Attorney, should not be held personally accountable. 15.On budgetary constraints, the Applicant submits that the issue was raised and conclusively determined during the mandamus proceedings and is therefore barred by the doctrine of res judicata. According to the Applicant, the Respondents cannot reopen matters that were previously litigated and determined by a court of competent jurisdiction. Reliance is placed on Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd, William Koross v Hezekiah Kiptoo Komen & 4 Others, Henderson v Henderson, and Mburu Kinyua v Gachini Tutu. 16.The Applicant further contended that the Governor, as the head of the County Executive under Article 179 of the Constitution, bears ultimate responsibility for the affairs and obligations of the County Government. It is argued that the Governor exercises supervisory authority over county departments and officers and therefore cannot escape responsibility for the County's continued failure to comply with court orders. 17.Regarding the County Attorney, the Applicant submitted that the Office of the County Attorney Act designates the County Attorney as the principal legal adviser to the County Government with responsibility for advising county departments and representing the County in legal proceedings. The Applicant argued that there is no evidence that the County Attorney advised the County Government to comply with the mandamus order and therefore she bears responsibility for the continued non-compliance. 18.The Applicant also submitted that the Respondents have failed to exhibit any evidence demonstrating genuine efforts toward settlement of the decretal sum. They argued that the Respondents have merely made general assertions regarding ongoing budgetary processes without producing any supporting documentation. The Applicant points out that since the taxation of the bill in May 2022, the Respondents have had several financial years and supplementary budget cycles within which to provide for payment of the decretal amount but have failed to do so. 19.Further, the Applicant maintained that once judgment has been entered and a decree issued, the debt becomes a crystallized legal obligation that is immediately payable. According to the Applicant, compliance with such a decree cannot be defeated by budgetary allocations or internal governmental processes. Reliance is placed on Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security & Another, where the court held that the accounting officer's duty to satisfy a decree against the Government arises upon service of the requisite certificate and is not conditional upon budgetary allocation. 20.The Applicant therefore urged the Court to find that the Respondents have not shown any lawful justification for their failure to comply with the mandamus orders and that their continued reliance on budgetary constraints is untenable. Consequently, the Applicant prays that the Respondents be required to show cause why contempt proceedings should not be commenced against them for disobedience of the court's orders. 21.The Applicant submitted that the Respondents cannot rely on budgetary constraints, budgetary processes, or lack of budgetary allocation as a justification for failing to comply with the decree and the order of mandamus. According to the Applicant, once judgment has been entered and a decree issued against a public body, the debt crystallizes and becomes payable as a legal obligation. The Applicant argues that the duty to satisfy such a decree is not conditional upon budgetary allocation or approval processes. 22.It is further submitted that the Respondents have had ample opportunity since the taxation of the Bill of Costs on 10th May 2022 to provide for payment through successive financial years and supplementary budgets but have failed to do so. The Applicant contends that the Respondents have not tendered any documentary evidence demonstrating genuine efforts towards settlement and have merely made unsupported assertions of intending to comply. 23.The Applicant argued that the continued failure to comply with the Mandamus Judgment of 3rd April 2025 leaves the Court with no alternative but to require the Respondents to show cause why contempt proceedings should not be commenced against them. It is submitted that court orders must be obeyed and that failure to enforce them would undermine the authority of the Court, the administration of justice, and the rule of law. 24.Relying on various authorities, the Applicant maintained that disobedience of court orders threatens public confidence in the judiciary and renders judicial authority ineffective. The Applicant emphasized that neither financial difficulties, austerity measures, nor internal administrative processes constitute valid reasons for failing to honor a court decree. 25.The Applicant therefore urges the Court to find that the Respondents have knowingly failed to comply with the mandamus order despite being aware of it and having had sufficient time to implement it. Consequently, the Applicant prays that the Notice to Show Cause be allowed and that the cited County officials be required to answer why contempt proceedings should not be initiated against them for disobedience of the Court's orders. 26.The Respondents opposed the application for issuance of a Notice to Show Cause and contended that the Applicant has failed to establish grounds for commencement of contempt proceedings. 27.The Respondents submitted that contempt of court is quasi-criminal in nature and must be proved to a standard higher than a balance of probabilities. They argued that the Applicant must demonstrate the existence of a clear court order, knowledge of the order, breach of the order, and most importantly, willful and deliberate disobedience of the order. According to the Respondents, the Applicant has failed to prove that the alleged non-compliance was intentional or undertaken in bad faith. 28.The Respondents contended that there has been no deliberate refusal to comply with the orders of the Court. Rather, the delay in settling the decretal sum has been occasioned by legal, statutory and financial constraints. They submitted that payment of public funds must comply with the provisions of the Public Finance Management Act (PFMA), which requires budgetary allocation, appropriation, and approval before expenditure can be incurred. 29.It was the Respondents' position that compliance with the decree cannot lawfully be achieved outside the statutory budgetary framework. They argued that payment without the requisite budgetary approval would constitute unauthorized expenditure and expose the responsible public officers to personal liability and sanctions under the Constitution and the PFMA. 30.The Respondents further submitted that they have taken steps towards compliance in good faith and that the Applicant has failed to disclose ongoing efforts aimed at addressing claims against Nairobi City County. They therefore maintained that the alleged non-compliance is neither willful nor contemptuous but arises from lawful fiscal and administrative processes. 31.On personal liability, the Respondents argued that the Governor, County Attorney, County Secretary, CECM Finance, Chief Officer Revenue Administration and Chief Officer Finance/County Treasurer should not be held personally liable for obligations arising from institutional functions of the County Government. They contend that accountability for public expenditure is governed by statutory frameworks and rests primarily upon designated accounting officers acting within the confines of the law. 32.The Respondents also invoked the constitutional principles of devolution, separation of powers, and prudent public finance management. They argued that the Court should not interfere with budgeting and appropriation functions vested in the County Executive and County Assembly and should instead respect the processes established by the Constitution and the PFMA. 33.Further, the Respondents submitted that contempt proceedings are a remedy of last resort and should not be utilized to convert a debt recovery process into a punitive sanction against public officers. They urged the Court to consider the wider public interest, including fiscal stability and continued delivery of essential public services, and to allow a reasonable timeline for compliance. 34.In conclusion, the Respondents maintained that the Applicant has failed to prove willful and deliberate disobedience of the Court's orders and therefore has not met the threshold for commencement of contempt proceedings. They urge the Court to dismiss the application with costs. 35.Having carefully considered the Notice of Motion dated 14th January 2026, the Replying Affidavit sworn by Christine Ireri on 23rd March 2026, and the parties' respective submissions, the following issues arise for determination:a.Whether the Respondents have shown sufficient cause for their failure to comply with the Mandamus Judgment delivered on 3rd April 2025.b.Whether the cited County officials are proper parties to answer the Notice to Show Cause.c.Whether the Applicant is entitled to the orders sought in the Notice of Motion dated 14th January 2026.d.Who should bear the costs of this Application 36.As to whether the Respondents have shown sufficient cause for their failure to comply with the Mandamus Judgment delivered on 3rd April 2025, there is no dispute that the Ex-Parte Applicant obtained a taxed Advocate-Client Bill of Costs in the sum of Kshs. 1,338,011,582.76. That judgment was entered in its favor on 21st September 2023, and that a decree was subsequently issued on 3rd November 2023. It is equally uncontested that this Court, through its judgment delivered on 3rd April 2025, issued an order of mandamus compelling the Respondents to settle the decretal sum within sixty (60) days. The Respondents have expressly acknowledged the existence of these orders and their awareness thereof. 37.The central question is whether the reasons advanced by the Respondents constitute sufficient cause for their continued failure to comply with the court's orders. 38.The Respondents attribute their non-compliance to budgetary constraints, statutory budgeting processes under the Public Finance Management Act and the absence of budgetary allocation for settlement of the decretal sum. They further contend that steps have been initiated towards incorporating the decretal amount into the County's budgetary framework. 39.The Applicant, on the other hand, argues that these issues were canvassed and determined during the mandamus proceedings and cannot be re-opened. The Applicant further contends that once judgment has been entered and a decree issued, the resulting debt becomes a crystallized legal obligation that is immediately payable. 40.The Court agrees with the Applicant that the order of mandamus was not issued in a vacuum. Before granting that relief, the Court had the opportunity to consider the Respondents' legal obligation to satisfy the decree. The effect of the mandamus order was to compel the performance of a statutory duty that had already accrued. To permit the Respondents to revert to the same arguments that were available during the mandamus proceedings would undermine the finality of judicial determinations. 41.In Republic v Permanent Secretary, Ministry of State for Provincial Administration & Internal Security & Another, Misc. Application No. 31 of 2012, the Court held that once a Certificate of Order against the Government has been served, the accounting officer concerned is under a statutory duty to settle the decretal sum and that such obligation is not dependent on budgetary allocation or parliamentary approval. The rationale is that a successful litigant should not be denied the fruits of his judgment through administrative or budgetary impediments. 42.It is also noteworthy that the decretal sum arose from taxation on 10th May 2022. By the Respondents' own admission, more than four years have elapsed since the debt crystallized. During this period, several budget cycles and supplementary budgets have passed. Yet no evidence has been placed before the Court demonstrating actual allocation of funds, approval of a payment plan, correspondence seeking phased settlement, or any concrete steps directed towards satisfaction of the decree. A bare assertion that steps are ongoing, without supporting evidence, cannot amount to sufficient cause. 43.While the Court appreciates the constitutional and statutory obligations imposed on county governments regarding management of public finances, those obligations cannot be invoked indefinitely to defeat compliance with valid court orders. To hold otherwise would render decrees against public entities illusory and undermine public confidence in the administration of justice. I therefore find that the Respondents have not demonstrated sufficient cause for their continued failure to comply with the Mandamus Judgment delivered on 3rd April 2025. 44.The Applicant contends that the cited County Officials are proper persons to answer the Notice to Show Cause while the Respondents on the other hand, argue that the Governor and certain other county officials should not be personally subjected to contempt proceedings on account of the distinct roles they perform within the County. 45.The Court is alive to the principle that contempt proceedings are directed at ensuring compliance with court orders and not at punishing public officers for circumstances beyond their control. However, where a court order is directed at a public entity, the officers charged with the management, supervision and execution of the entity's affairs may properly be called upon to explain the steps taken towards compliance. 46.This court notes that whereas the Governor is the head of the County Executive Committee under Article 179 of the Constitution and bears overall responsibility for the administration of county affairs he was not specifically cited in the proceedings culminating into mandamus pursuant to which the orders herein are being sought. The County Secretary, County Attorney, County Executive Committee Member for Finance, Chief Officer Finance and other senior officers cited by the Applicant are officers who occupy strategic positions in the governance and financial management architecture of the County Government. 47.At this stage, the Court is not making a finding of contempt against any of the cited officials. The application before the Court merely seeks the issuance of a Notice to Show Cause. Such a notice affords the officers an opportunity to personally explain the steps taken, if any, towards compliance with the Court's orders and to demonstrate why contempt proceedings should not issue against them. 48.The Respondents have argued that the Governor and certain other county officials should not be personally subjected to contempt proceedings on account of the distinct roles they perform within the County. 49.The Court is alive to the principle that contempt proceedings are directed at ensuring compliance with court orders and not at punishing public officers for circumstances beyond their control. However, where a court order is directed at a public entity, the officers charged with the management, supervision and execution of the entity's affairs may properly be called upon to explain the steps taken towards compliance. 50.A Notice to Show Cause is intended to provide an alleged contemnor with an opportunity to explain non-compliance before the Court determines whether contempt proceedings should be commenced. Notice to Show Cause is well established and provided for as a Constitutional Right. Article 50 provides for the right to fair hearing where sub-article (2) (b) states that one ought to be informed of the charge with sufficient detail to answer it and (c) to have adequate time and facility to prepare a defense. 51.Additionally, the Fair Administrative Actions Act, 2015 Section 4 (4) (b) provides that:“The administrator shall accord the person against whom administrative action is taken an opportunity to (b) be heard.” 52.In the case of R v Principal Secretary & another miscellaneous application no. 276 of 2015 [2018] Judge G.V. Odunga held:“Where however the entity believes that contempt of court proceedings ought not to be commenced, the entity is required to within the said period show cause, in my view preferably by way of an affidavit why the said proceedings ought not to be commenced. The Court will then determine whether cause has been shown or not based on the material before it.” 53.Further, in the case of Dr. J.A.S Kumenda & another v the Governor (County Government of Kisii) Misc Application No. 6 of 2017 Justice J.M Mutungi held:“It was further held in my view the invalidation of the Contempt of Court Act No.46 of 2016 for being unconstitutional does not render the contempt proceedings commenced against the respondents herein null and void. The proceedings can be properly proceeded with as if they were initiated under section 5(1) of the Judicature Act Cap 8 Laws of Kenya. The Respondents should accordingly be called upon to show cause, if any, why they should not be held to be in contempt of court as per the Notice to show cause served upon them.” 54.In the present case, the Applicant has demonstrated the existence of a valid court order; the Respondents have admitted knowledge of that order; and it is not disputed that the decretal sum remains wholly unpaid. Further, the explanations offered by the Respondents have not satisfactorily accounted for the prolonged period of non-compliance following the issuance of the mandamus order. 55.The Court is guided by the principle that obedience of court orders is not optional. The authority of the Court and the rule of law depend upon compliance with lawful orders issued by courts of competent jurisdiction. Where compliance is not forthcoming, the Court must invoke appropriate mechanisms to protect the integrity of its processes. 56.Without making a definitive finding of contempt at this stage, I am satisfied that the Applicant has established sufficient grounds to warrant the issuance of a Notice to Show Cause requiring the cited officials to personally appear before the Court and explain why contempt proceedings should not be commenced against them. 57.This court however takes great exception to the mention of the Governor, Nairobi City County as one of the parties to be called upon to show cause with regard to this matter. This is because this application is made pursuant to orders of this court before Chigiti J dated 3rd April 2025 where the mandamus orders were issued specifically to five Respondents and the governor was not cited among them. 58.Costs ordinarily follow the event. Having found merit in the application, I see no reason to depart from this principle. 59.Accordingly, I make the following orders:i.The Notice of Motion dated 14th January 2026 is hereby allowed.ii.A Notice to Show Cause shall issue to:a.The County Executive Committee Member, Finance and Economic Affairs;b.The Chief Officer, Revenue Administration;c.The County Secretary, Nairobi City County;d.The County Attorney; ande.The Chief Officer Finance/County Treasurer, requiring them to appear before this Court and show cause why contempt proceedings should not be commenced against them for failure to comply with the Mandamus Judgment delivered on 3rd April 2025.iii.The costs of the application are awarded to the Exparte Applicant. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 2ND DAY OF JULY, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:D. Kipkorir – Exparte ApplicantsOkatch – RespondentsNyabuto – Court Assistant