https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12746

Hanjari v Chief Finance Officer, County Government of Mombasa (Application E009 of 1000) [2026] KEHC 12746 (KLR) (7 August 2026) (Ruling) Neutral citation: [2026] KEHC 12746 (KLR) Republic of Kenya In the High Court at Mombasa Application E009 of 1000 J Ngaah, J August 7, 2026 Between Wilson Chirongo Hanjari Applicant and The Chief Finance Officer, County Government of Mombasa Respondent Ruling Introduction 1.Before the Court is the Ex-parte Applicant's application dated 29th May 2025, brought under Section 5 of the Judicature Act (Cap. 8), Section 36 of the High Court (Organisation and Administration) Act, 2015, Part 81 of the English Civil Procedure (Amendment No. 2) Rules, 2012 and all enabling provisions of the law. In substance it is an application to punish for contempt of court. 2.The application seeks, principally, orders that: (i) the matter be certified urgent; (ii) the Court find and hold that the Chief Finance Officer, County Government of Mombasa, is in contempt of the orders issued by this Court on 5th November 2024; (iii) the Respondent be committed to prison for a period of six (6) months, or such period as the Court may determine, on account of the said contempt; (iv) such further orders and directions as may be appropriate be granted; and (v) the alleged contemnor be condemned to pay the costs of the application. 3.The application is supported by the affidavit of the Ex-parte Applicant, Wilson Chirongo Hanjari, sworn on 29th May 2025, and by written submissions filed pursuant to this Court's directions of 21st October 2025. It is opposed by way of a Replying Affidavit sworn by Jimmy Waliaula, the County Attorney, County Government of Mombasa, on 13th April 2026. The applicant's case 4.The Applicant's case, as deposed and submitted, is briefly as follows. By a plaint filed in Mombasa CMCC No. 53 of 2021, the Applicant sued the County Government of Mombasa for damages arising from a road traffic accident in which he sustained grave injuries. Judgment was entered in his favour on 30th November 2023 in the sum of Kshs. 5,982,718.65, exclusive of costs and interest. 5.The Applicant thereafter extracted a Certificate of Order Against Government certifying the cumulative decretal sum of Kshs. 7,301,579.65. Owing to the judgment debtor's failure to pay, he obtained leave and, on 5th November 2024, an order of mandamus was issued compelling the Respondent to satisfy the decree, together with an accompanying decree. 6.The Applicant contends that the Respondent and the County Attorney were duly served, that the Respondent has knowledge of the order, and that the Respondent has nonetheless failed, refused and neglected to satisfy the decree despite reminders and follow-ups. He submits that this constitutes wilful and deliberate disobedience of a clear, valid and unequivocal court order, an affront to judicial authority and a violation of the rule of law. 7.The Applicant relies, among other authorities, on Kenya Human Rights Commission v Attorney General & Another [2018] eKLR; Council of Governors & Others v The Senate, Petition No. 413 of 2014 [2015] eKLR (at paragraph 135) and Section 148 of the Public Finance Management Act for the proposition that the accounting officer, the County Chief Officer, Finance, is the correct party; Republic v Kisii County Government Ex-parte Peter Kaunda Nyamosi & 2 Others [2018] eKLR; Sheila Cassatt Issenberg & Another v Antony Machatha Kinyanjui [2021] eKLR for the ingredients of contempt; and Republic v Kajiado County Government & 2 Others Ex-parte Kilimanjaro Safari Club Limited [2019] eKLR for the proposition that, notwithstanding the invalidation of the Contempt of Court Act, 2016, the High Court retains contempt jurisdiction under Section 5 of the Judicature Act. The respondent's case 8.The Respondent, through the County Attorney's Replying Affidavit, does not dispute the existence of the decree and affirms that the County Government believes in the rule of law and would not disobey an order of this Court. The Respondent, however, resists committal on the following grounds:a.that the application is quasi-criminal in nature and personal to the officer, and the Court must therefore satisfy itself that there was personal service, knowledge of the order, and wilful disobedience;b.that the Chief Officer, Finance was neither personally served with the application nor with the order alleged to have been disobeyed, and that no evidence of such service has been tendered;c.that a senior public officer is at risk of being condemned unheard and of deprivation of personal liberty, having been served neither with the orders nor the application;d.that the Applicant has failed to prove that the officer was aware of the order or that any disobedience was wilful; ande.that the Office of the County Attorney is not a recognised entity for purposes of payment nor a member of the County Treasury under Section 103 of the Public Finance Management Act, and that the application fails to meet the threshold for the orders sought and ought to be dismissed with costs. Issues for determination 9.Having considered the application, the affidavits and the submissions for the applicant, the issues that fall for determination are:i.under what legal framework and standard of proof the application falls to be determined;ii.whether the ingredients for committal for civil contempt have been established, and in particular:a.whether the order alleged to have been disobeyed was endorsed with a penal notice;b.whether the order was personally served upon the officer sought to be committed; andc.whether wilful disobedience has been proved to the requisite standard;iii.whether committal ought to issue against the officer in the circumstances; andiv.what orders the Court should make, including as to costs.Analysis and determination(i)The applicable legal framework 10.It is common ground between the parties that the Contempt of Court Act, 2016 was declared unconstitutional and invalid in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR for want of public participation. The Applicant's own submissions concede as much. The jurisdiction to punish for contempt is therefore exercised under Section 5 of the Judicature Act, which imports the practice and procedure for the time being observed by the High Court of Justice in England, read together with Section 36 of the High Court (Organisation and Administration) Act, 2015, the inherent jurisdiction of the Court, and Article 159 of the Constitution. 11.It follows, and I so hold, that this application must be measured against the practice imported by Section 5 of the Judicature Act. Significantly, the Applicant himself invokes Part 81 of the English Civil Procedure Rules (as amended in 2012). The correct rules are the Civil Procedure (Amendment No. 3) Rules 2020, which currently constitute the regime that governs committal for breach of an order in England, and to which, apparently, the Applicant asks this Court to have recourse. (ii) The standard of proof 12.Committal proceedings, though civil in origin, are quasi-criminal in character because they place the personal liberty of the alleged contemnor in jeopardy. The standard of proof is accordingly higher than the ordinary civil standard of a balance of probabilities and, where committal to prison is sought, is effectively that of proof beyond reasonable doubt: see Gatharia K. Mutitika v Baharini Farm Limited [1985] KLR 227. The Applicant bears the burden of proof throughout, and any real doubt must be resolved in favour of the officer sought to be committed. (iii) The ingredients of contempt 13.The Applicant correctly cites Sheila Cassatt Issenberg & Another v Antony Machatha Kinyanjui [2021] eKLR, which distils the ingredients of civil contempt as follows: (a) the existence of a valid and enforceable court order; (b) proper service of that order upon, or knowledge of the order by, the alleged contemnor; (c) that the order was clear, unambiguous and unequivocal; and (d) that the alleged contemnor wilfully and deliberately disobeyed it. 14.There is no serious contest as to the first and third ingredients: a decree and an order of mandamus issued on 5th November 2024, and their terms, the payment of a certified sum, are clear enough. The application turns, and in my view fails, on the second and fourth ingredients. To those I now turn, beginning with the matter of the penal notice, which the Respondent has squarely put in issue and which the Court is bound to consider on its own motion given that liberty is at stake. (iv) Whether the order was endorsed with a penal notice 15.It is a settled requirement of the practice this Court applies that an order of the Court, the disobedience of which is sought to be visited with committal to civil jail, must be endorsed with, or accompanied by, a penal notice — that is, an explicit and prominent warning to the person bound by the order that disobedience will constitute contempt of court punishable by imprisonment (or fine or sequestration). The rationale is elementary and rooted in fairness: before the coercive machinery of committal is turned against a person's liberty, that person must first be forewarned, in clear and unmistakable terms, of the precise jeopardy that non-compliance invites. 16.This requirement is not a mere technicality but a substantive safeguard bearing directly on the constitutional protections of the person under Articles 25, 29 and 49 of the Constitution. It is reflected in the very rules on which the Applicant relies. Under Part 81 of the English Civil Procedure Rules (as amended in 2020), a judgment or order to do or abstain from doing an act may not be enforced by committal unless there is prominently displayed, on the front of the copy of the order served, a warning to the person required to do the act that disobedience would be a contempt of court punishable by imprisonment. The Applicant cannot invoke Part 81 for the jurisdiction while ignoring the condition precedent that the same Part imposes. 17.I have examined the two instruments on the record that could conceivably have founded these proceedings — the Decree dated 5th November 2024 and the Certificate of Order Against Government issued under Order 29 rule 3 of the Civil Procedure Rules. Neither bears any penal notice. Neither carries any warning, prominent or otherwise, that the officer bound by it would, on default, be liable to imprisonment for contempt. 18.The nearest the Decree comes to the point is its recital, in the "Claim For" portion, that in default of compliance the order of mandamus "be deemed as sufficient notice under section 30(1) of the Contempt of Court Act, 2016." That recital cannot assist the Applicant, for two reasons. First, a recital that an order shall be "deemed sufficient notice" is not a penal notice; it does not warn the officer, in terms, of the consequence of imprisonment, and it appears in the prayers rather than as an endorsement on the operative order served. Secondly, and decisively, Section 30(1) of the Contempt of Court Act, 2016 could not be invoked at all, that Act having been declared invalid in 2018, some six years before the Decree of 5th November 2024. A reference to a provision of a statute that had already ceased to have any legal effect cannot supply the penal endorsement that the law requires. One cannot cure the absence of a valid penal notice by pointing to an invalid one. 19.The absence of a penal notice on either the Decree or the Certificate of Order is, in my judgment, fatal to an application that seeks to deprive a public officer of his liberty for a period of six months. On this ground alone the application cannot succeed. (v) Whether the officer was personally served 20.Even had the penal-notice hurdle been surmounted, the application would still founder on the question of service. In quasi-criminal committal proceedings, the Applicant must establish, to the requisite standard, that the order alleged to have been disobeyed was personally served upon the very officer sought to be committed, or that the officer otherwise had clear knowledge of it. 21.The evidence on this point is unsatisfactory and, in material respects, self-contradictory. The Supporting Affidavit deposes (at paragraph 6) that the Respondent and the County Attorney were served on 27th May 2025, yet the same paragraph asserts that this is "evidenced by the affidavit of service filed in Court on the 13th May 2025." Service said to have occurred on 27th May 2025 cannot have been evidenced by an affidavit filed a fortnight earlier, on 13th May 2025. That chronological impossibility casts doubt on the reliability of the deposition as to service. 22.The confusion is compounded by the inconsistent dates ascribed to the very documents said to have been served. The Certificate of Order is variously described as dated 14th May 2025 (Supporting Affidavit, paragraph 5), 5th March 2025 and 14th March 2025 (paragraph 6). Further, what the Applicant deposes to having served were the Certificates of Order, not the order of mandamus or the Decree of 5th November 2024, and certainly not any instrument endorsed with a penal notice. The application, however, seeks committal for disobedience of the orders of 5th November 2024. There is thus no cogent proof that the operative order, bearing a penal notice, was personally served upon the Chief Officer, Finance. 23.The Respondent has expressly deposed that the Chief Officer, Finance was neither served with the application nor with the order alleged to have been disobeyed. In the face of that denial, the evidential burden lay on the Applicant to demonstrate personal service and knowledge to the criminal standard. On the contradictory record before me, that burden has not been discharged. (vi) Whether wilful disobedience has been proved 24.It follows from the foregoing that the fourth ingredient, wilful and deliberate disobedience proved beyond reasonable doubt, is not made out. A person cannot be said to have wilfully disobeyed an order the coercive consequences of which were never brought home to him by a penal notice, and of the personal service of which there is no reliable proof. (vii) The correct party and the personal liberty consideration 26.The Applicant is correct that, as a matter of law, the accounting officer, the County Chief Officer, Finance, is the proper officer to be compelled to satisfy a County Government decree (see Council of Governors & Others v The Senate [2015] eKLR at paragraph 135, Section 148 of the Public Finance Management Act, and Republic v Kisii County Government Ex-parte Peter Kaunda Nyamosi & 2 Others [2018] eKLR). The Respondent's argument premised on Section 103 of the Public Finance Management Act and the status of the County Attorney is, with respect, beside the point; the Applicant does not seek payment from the County Attorney but committal of the Chief Finance Officer. 27.But identifying the correct officer does not dispense with the safeguards. Committal of that officer to civil jail cannot be ordered where he has neither been personally served with an order endorsed with a penal notice nor shown to have wilfully disobeyed it. To commit him in these circumstances would offend the rule against condemning a person unheard and the constitutional protection of personal liberty. The Respondent's apprehension on this score is well founded. 28.I wish to be clear that this ruling is not a licence for non-payment, nor does it excuse the continued failure to satisfy a lawful decree. The Respondent has itself, and rightly, affirmed its commitment to the rule of law. The decree remains a solemn obligation of the County Government. What the Applicant has not done is lay the necessary foundation for the drastic remedy of imprisonment. That foundation can be laid; it simply has not been laid on the material presently before the Court. Disposition 29.For the reasons given, and noting in particular that neither the Decree of 5th November 2024 nor the Certificate of Order Against Government was endorsed with the requisite penal notice, that personal service of the operative order upon the officer has not been reliably proved, and that wilful disobedience has not been established to the required standard, the application for committal is not merited. 30.I accordingly make the following orders:a.The Ex-parte Applicant's application dated 29th May 2025, seeking to commit the Chief Finance Officer, County Government of Mombasa, to civil jail for contempt of court, is declined and is hereby dismissed.b.For the avoidance of doubt, the Decree and the order of mandamus issued on 5th November 2024, and the certified sum of Kshs. 7,301,579.65 together with interest and costs, remain valid, subsisting and enforceable. Nothing in this ruling relieves the County Government of Mombasa of its obligation to satisfy the decree.c.Taking into account that the Respondent has failed to satisfy a lawful and subsisting decree, each party shall bear its own costs of the application.Orders accordingly. SIGNED, DATED AND PUBLISHED ON 7 AUGUST 2026NGAAH JAIRUSJUDGE