[2022] KEHC 26977 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

MISC. CIVIL APPLICATION NO. 121 OF 2017

PROF. TOM OJIENDA & ASSOCIATES.........................................APPLICANT

-VERSUS-

THE COUNTY SECRETARY

NAIROBI CITY COUNTY.......................................................1ST RESPONDENT

CHIEF OFFICER, FINANCE/COUNTY TREASURER

NAIROBI...................................................................................2ND RESPONDENT

RULING

1. This ruling disposes the application by way of Notice of Motion dated 5th May, 2021 by Ms. Prof. Tom Ojienda and Associates (hereinafter ‘the applicant’) in which the following orders are sought;

i) Spent

ii) This Honourable Court be pleased to cite the County Secretary Nairobi City County Cyrus Musumbaand he Chief Officer, Finance/County Treasurer Nairobi City County Halakhe Waqofor being in contempt of the Certificate of Order dated 25th October, 2019 and punish them as per Section 5 of the Judicature Actfor having deliberately disobeyed the Order of this Honourable Court.

iii) That summons be issued against the said County Secretary Nairobi City CountyCyrus Musumbaand the Chief Officer, Finance/County Treasurer, Nairobi City county Halakhe Waqo to appear before this court and show cause why they should not be committed to civil jail.

iv) That the costs of this application be provided for.

2. The motion is predicated on 10 grounds listed on the face thereof and supported by the affidavit of Tom Ojienda the gist of which is that in a ruling dated 2nd October, 2017, the court issued orders of Mandamus directed to the County Secretary and the Chief Officer Finance/County Treasurer, Nairobi City County directing them to pay the applicant the sum of Ksh. 75,000,000 with interest at the rate of 9% from the date of judgment till payment in full.

3. On 25th October, 2019, the applicant extracted a Certificate of Order for the payment of Ksh. 82,705,479. 45 pursuant to Section 21of the Government Proceedings Actin Judicial Review Application No. 121 of 2017.

4. It is urged that despite knowledge, service and several reminders, the respondents have blatantly and expressly refused to settle the outstanding payment in total disregard of the court order. They are thus in contempt of court and have denied the applicant the fruits of judgment. The court is urged to cite the respondents for contempt of court.

5. The application is opposed. On his part, the 1st Respondent has in a replying affidavit averred that he is the Acting County Secretary of Nairobi City County. He clarifies that he is Dr. Jairus Musumba and not Cyrus Musumba who has been described as the 1st respondent and that there is no evidence that he has personally been served.

6. It is deponed that the County Secretary is not responsible for making withdrawals on behalf of the County since that is the exclusive function of the County Treasury as set out under Section 109of the Public Finance Management Actand therefore the 1st Respondent is wrongly suited.

7. The 1st Respondent further depones that the threshold for contempt has not been established against him as set out in Felicity Mutete Mutula vs. Nairobi City County Government (Being the natural and presumptive legal successor of the defunct City Council of Nairobi) [2021] eKLR.He asserts that the extracted order allegedly contemned was not served on him personally and if at all it was, there was no Penal Notice displayed and there is no Affidavit of Service by a licensed Process Server. It is added that granting the application would prejudice the 1st Respondent’s rights under Articles 47 and 50.

8. The 2nd Respondent swore a replying affidavit in which he avers that he is the County Chief Officer Finance of Nairobi City County. He clarifies that he was Mohamed Abdi Sahal and not Halkano Waqo who previously held the Office of the Chief Officer Finance for Nairobi City County. He adds that there is no evidence that he was personally served with any documents. He denies that he is the treasurer for the County as alleged.

9. He depones that the Chief Officer is not responsible for making withdrawals or payments on behalf of Nairobi City County since that is the exclusive function of the County treasury as set out under Section 109 of the Public Finance Management Act and he is therefore wrongly suited in this matter.

10. The application was canvassed by ways of written submissions.

11. I have had occasion to consider the application, the affidavit evidence and learned submissions by counsel.

12. Of determination is;

i) whether the respondents are in contempt of court for failure to pay to the applicant the sum of Ksh. 82,705,479. 45 together with interest of 9% from 2nd October, 2017 to 23rd October, 2019 at 9%.

ii) Whether if the answer to 1 above is in the affirmative, whether the respondents should be committed to prison for a term not exceeding 6 months.

13. The record of court shows that vide a ruling dated 2nd October, 2017, this court issued orders of mandamus directed to the County Secretary and the Chief Officer, Finance/County Treasurer, Nairobi City County directing them to pay the applicant the sum of Ksh. 75,000,000 with interest at the rate of 9% per annum. In the words of the court, the order was as follows;

“In the premises, I issue an order of mandamus directed to the County Secretary and the Chief Officer Finance/County Treasurer, Nairobi City County directing them to pay to the applicant the sum of Ksh. 75,000,000 with interest at the rate of 9% pursuant to rule 7 of the Advocates (Remuneration) order from the date of Judgment till payment in full.”

14. No evidence of a successful appeal or variation of this order has been tendered and the question of which officers are liable to pay the applicant herein is not, in my view, live for determination. The court clearly pronounced itself on the matter to the effect that the County Secretary and the Chief Officer Finance/County Treasurer, Nairobi City County were to pay the applicant the sums indicated. This court cannot therefore sit on appeal over the orders herein and any protestations by the respondents along the lines of who is liable to pay the applicant have been raised in the wrong jurisdiction.

15. Service on the respondents is hotly contested. Before I venture into answering this question which is central to contempt proceedings, I find it necessary to make comments which in my view are necessary in furtherance of substantive justice to the parties herein and also in related matters.

16. Without a doubt, there is an order of the court directing the County Secretary and Chief Officer, Finance/County Treasurer Nairobi City County to pay up the sums due to the applicant. In his affidavit Dr. Jairus Musumba (save for pointing out that he is not Cyrus as pleaded) confirms that he is the Ag. County Secretary of Nairobi City County. Mohamed Abdi Sahal in his affidavit confirms that he is the County Chief Officer Finance of Nairobi City County. He avers that he is not Halkano Wako who previously held the Office of the Chief Officer and he indicates that the said Halkano Wako has been misnamed as Halakhe Wako in these proceedings.

17. Throughout the affidavits of these 2 officers of the County, there is a discernible deliberate attempt to evade the real issue in controversy in that, both fail to acknowledge the existence of the indebtness to the applicant by the County, yet, if they were, in my view, acting in good faith, by virtue of the offices they hold, they would be aware of and should disclose the fact to the court even as they argue their case that they were not served with any documents or that they are not the officers liable to pay.

18. Instead, the real substratum of the matter is lost as lofty arguments are made about misnaming of parties and or service leaving a successful litigant clutching at straws despite having a valid and an enforceable judgment of court.

19. In my view, a purposeful interpretation of Article 159 of the Constitution would flown upon a situation like obtains in this case where a court of law having expressed itself on a matter is taken through a re-opening of the case over questions that can be summarily answered without convoluted arguments that only serve to delay the conclusion of the matter and like in this case, deny a successful litigant enjoyment of his fruits of judgment. Of what use, one may pose, is access to justice under Article 48 of the Constitution if, in the end a successful litigant ends up with a pyrrhic victory.

20. Am persuaded that in the spirit of Article 159 of the Constitution, the court ought in appropriate circumstances to side step a purely adversarial system of dispute resolution and adopt an inquisitorial one in matters akin to, and at the stage which this matter is. In our instant suit, there is no dispute about the indebtness. The major question brought up is who should be the officer to pay yet the court in its ruling of 2nd October, 2017 did direct the orders to 2 specific officers.

21. That said, i now revert to the question whether the respondents are guilty of contempt. Counsel for the respondent has aptly set out the reason why a court of law will punish for contempt being to jealously safeguard the rule of law. Ndolo J in Teachers Service Commission v. Kenya National Union of Teachers & 2 others [2013] eKLR observed ad follows:

“The reason why courts will punish for contempt of court then 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”

22. The court in Felicity Mutete Mutula v. Nairobi City County Government (2021) eKLRlaid down the requirements for contempt when it stated;

“From the foregoing Rules, I would say that some of the salient featuresin anapplication for contempt of court are as follows:

1. Disobedience of a court order or judgment is a foundation for contempt of court proceedings against the contemnor.

2. Where the contemnor is a company or other corporation, the committal ordermay be made against any director or other officer of that company.

3. The judgment or order in question must be served on the person required to do or not to do the act in question unless the court expressly dispense with personal service.

4. Where the person required to do or not to do an act is a company or othercorporation, a copy of the judgment or order must also be served on the alleged contemnor.

5. Judgments and orders must be served personally.

6. The court may, however, dispense with personal service if it is satisfied that the contemnor had notice of the judgment or order;

a) By being present when the judgment or order was given or made; or

b) By being notified of its terms by telephone, email or otherwise.

7. The court may also dispense with personal service if it thinks it is just to do so or may make an order in respect of service by an alternative method or an alternative place.

8. There shall be permanently displayed on the front copy of the judgment or order served a warning to the person required to do or not to do the act in question that disobedience to the order would be contempt of court punishable by imprisonment, a fine or sequestration of assets. Without thisdisplay the judgment or order may not be enforced unless it is an undertaking contained in a judgment or order.

9. The contempt of court application shall be made by an application notice in the same proceedings in which the judgment or order was made.

10. The application notice must set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and must also be supported by one or more affidavits containing all the evidence relied upon.

11. The application notice and the evidence in support must be served personally on the respondent although the court may dispense with service under paragraph (10) if it considers it just to do so: or may make an order in respect of service by an alternative method or at an alternative place."

23. In the book ‘Contempt in modern Newzealand’, the elements of Civil contempt are summarised thus;

“There are essentially four elements that must be proved to make the case for civil contempt.

The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -

a) The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant.

b) The defendant had knowledge of or proper notice of the terms of the order.

c) The defendant has acted in breach of the terms of the order; and

d) The defendant’s conduct was deliberate.

24. Distilled from the foregoing, the court would then have to pose the questions whether the respondents were served with the order and/or had knowledge of the order and whether there was wilful and deliberate disobedience of the said order. In doing so, I must be minded that in this case the orders are directed to 2 particular offices and therefore service is on the occupiers of the office in their official capacity. This is so because section 21(3) of the Government Proceedings Act imposes a statutory duty on the accounting officer concerned to pay the sums specified in the Certificate of Order against the Government to the person entitled or to his Advocate together with any interest accruing thereon.

25. As regards who the accounting officers of the Nairobi City County are, Nyamweya J (as she then was) in Judicial Review Miscellaneous Application No.375 of 2018 Republic v. The County Secretary, Mombasa County Government and The Chief Officer, Finance, Mombasa County Government stated;

26. ‘’11….. section 44 of the County Government Act establishes the office of the County Secretary who is secretary to the County Executive Committee, and is answerable for the operations of the County Executive, and whose functions include being head of the County Public Service. Section 103 of the Public Finance Management Act also establishes the County Treasury comprising of the County Executive member of Finance, the Chief Officer and the departments of the County treasury responsible for finance and fiscal matters.

12. Under section 103(3) of the Public Finance Management Act,the County Executive Member of Finance is the head of Treasury and is thus responsible for finance matters in the county. It follows then therefore that both the 1st and 2nd respondents are jointly responsible for the satisfaction of court orders and decrees on payment of money owed by the Nairobi City County by virtue of their roles and functions.’’

27. I have scoured through the proceedings herein. Service on the respondents is demonstrated through letters and attachments to the offices of the County Secretary and Chief Finance Officer which letters are duly stamped as received. Am aware of the discrepancy in the name of the County Secretary whereby in the application he is named as Cyrus and not Jairus. He, however confirms he is the Ag. County Secretary of Nairobi City County. Suffice it to note that the service is on the Officer in his official capacity and in my view a mistake in one of the names may not be material.

28. As held in Felicity Mutete Case (Supra),the court may however, dispense with personal service if it is satisfied that the contemnor had Notice of the Judgment or order by being notified of its terms by telephone, email or otherwise. In Kenya Tourist Development Corporation vs. Kenya National Capital Corporation and another HCCC NO. 6776 of 1992, the court held that a party having knowledge of an order of court supersedes personal service of the same upon them. It is also trite law that an advocate is a special agent of their client and where orders are issued in their presence or are served on the advocate, the client is deemed to be served. (see Kenya Bus Services vs. Susan Muteti, Nairobi Civil Appeal no. 15 of 1992)

29. It is noteworthy that counsel representing the respondents has been on record in the matter all along. When the ruling of court dated 2nd October, 2017 was delivered, his brief was held by one Mr. Kotonya Advocate. Counsel has participated in subsequent applications, some filed by himself on behalf of the respondents.

30. It is thus obvious and beyond peradventure that counsel for the respondent has all along been aware of the orders of the court. As a special agent of the respondents, the respondents are deemed to have knowledge of the orders herein.

31. Am satisfied that the respondents in their official capacities had knowledge of the orders.

32. As to whether there was wilful 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 defence 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

34. From the foregoing, I find and hold that the application dated 5th of May, 2021 is successful. The Chief Officer, Finance/County Treasurer and the County Secretary Nairobi City County are hereby cited for contempt of the orders of court of 25th October, 2019. A summons is to issue to both officers to show cause why they should not be committed to civil jail.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF MARCH 2022

.............................

A. K. NDUNG'U

JUDGE