[2023] KEHC 26595 (KLR)

Republic v Nairobi County; Ojienda & Company Advocates (Exparte) (Judicial Review Application 370 of 2018) [2023] KEHC 26595 (KLR) (Judicial Review) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26595 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application 370 of 2018

JM Chigiti, J

December 15, 2023

Between

Republic

Applicant

and

The Nairobi County

Respondent

and

Ojienda & Company Advocates

Exparte

Judgment

1. Before the Court is the ex parte Applicant’s Amended Notice of Motion application dated 12th April,2019.

2. The application seeks as follows;1. Spent2A.That the Honourable Court be pleased to find the County Secretary and County Finance Executive Committee Member Nairobi City County in contempt of Court for willful disobedience of the court’s Decree dated 14th February,2019. 2B.That the County Secretary and County Finance Executive Committee Member Nairobi City County, the contemnor, be committed to civil jail on such terms as the Honourable Court may deem fit unless and until he purges the contempt by honouring the court’s order dated 14th February,2019. 3.That the cost of this application be borne by the Respondent.

3. The Application is supported by the Affidavit sworn by one Seth Ojienda on even date.

Analysis and Determination 4. I have considered the case adduced before me and the issues that crystalize for determination are:i.Whether or not the Respondent is in contempt of the court orders of 14th February 2019 as stated in both applications.ii.Whether or not the prayers sought should be granted.

5. The Black’s Law Dictionary 9th Edition defines contempt of court as follows: -“Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine for imprisonment.”

6. Reliance is placed in the case of Teachers Service Commission V Kenya National Union of Teachers & 2 others (2013) eKLR where Ndolo J observed as follows:“The reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the Judiciary or the court or even the personal ego of the presiding Judge. Neither is it about placating the applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law.”

7. I am satisfied that on 14th February,2019, this Honourable Court issued an order of mandamus compelling the County Secretary and County Finance Executive Member of the Nairobi City County to effect payment to the Applicant of taxed costs of Kenya Shillings Four Hundred and Sixty-Four Thousand (464,000/=) respectively in satisfaction of the court order issued in High Court Misc. Case No.130 of 2015-Ojienda & Co. Advocates vs. City Council of Nairobi on 15th April,2016.

8. The Judgement was delivered in open court and although there was no appearance for the Respondent there is evidence of service of the order of 14th February, 2019 as seen in the letter dated 27th February,2019.

9. I note from the record that on several occasions the firm of Ojienda & Co Advocates have served the Respondent with mention notices and hearing notices and that receipt has been acknowledged through the County’s official stamp. It cannot be said that the County Secretary and County Finance Executive Committee Member have no knowledge of the proceedings before this court. I'm satisfied that the County Secretary and County Finance Executive Committee Member are aware of the order through the said correspondence.

10. In Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR the Court of Appeal considered the following on knowledge of existence of a court order;“Kenya’s growing jurisprudence right from the High Court has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings, for instance, Lenaola J in the case of Basil Criticos v Attorney General and 8 Others [2012]eKLR pronounced himself as follows:‘..the law has changed and as it stands today knowledge supersedes personal service… where a party clearly acts and shows that he had knowledge of a court order, the strict requirement that personal service must be proved is rendered unnecessary.’

11. The Court of Appeal in Fred Matiang’i, The Cabinet Secretary Ministry of Interior and Coordination of National Government v. Miguna & others [2018] eKLR held as follows:“Courts must not look the other way, while Public and State Officers ride roughshod over constitutionalism and the rule of law.When Courts issue orders, they do not do so as suggestions or pleas, to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for a Party, be he high or low, weak or mighty, and quite regardless of standing in Society, to decide whether or not to obey, to choose which to obey and which to ignore, and to negotiate the manner of compliance.’’

Disposition: 12. The Applicant has proven his case.

13. The Respondent is found guilty and in contempt of the order issued on 14th February 2019.

Order:1. The County Secretary and County Finance Executive Member are convicted for contempt of the Court’s Judgment dated and delivered on 14th February 2019. 2.The County Secretary and County Finance Executive Member shall attend open court in person on 22nd January, 2024 at 10am for mitigation and sentencing.3. Costs to the applicant.

DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 15THDAY OF DECEMBER, 2023. ……………………………………JOHN CHIGITI (SC)JUDGE