Asman N. Waluhbuka & Shaban N. Echesa v Timothy Misikoi & Attorney General [2017] KEHC 2906 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CIVIL APPEAL NO.4 OF 2007

ASMAN N. WALUHBUKA.........................................1ST APPELLANT

SHABAN N. ECHESA................................................2ND APPELLANT

VERSUS

TIMOTHY MISIKOI.....................................................1ST RESPONDENT

THE ATTORNEY GENERAL.....................................2ND RESPONDENT

RULING

1. This matter came up for directions on 21st March, 2017 when the advocate appearing for the appellants Mr Masake informed the court that there was an order issued by the court on 13th December 2016.  That the order was served but that the officer who was served with the order has not complied with it.  He prayed for the court to declare the officer who has not complied with the order to be in contempt of court and warrant of arrest do issue to him.

2.  I have perused the court file but I have not seen any order issued on 13th December 2016.  The order that I can see in the file is the one issued on 24th November, 2016 where it was ordered that the accounting officer at the Office of the President do show cause why he should not be held in contempt for failure to pay the decretal sum awarded in this case.

3. On the 6th December, 2016, the advocate for the appellants Mr Kasamani told the court that the order had been served and that the respondent had not appeared.  The court then ordered that the order be implemented by payment of the decretal sum in 60 days from 6th December, 2016 in default the officer concerned to be held in contempt of court.

4. There is a return of service in the court file by Mr Charles Lutta Kasamani indicating that he served copies of this court’s order dated 24th November 2016 on a legal officer in the office of the president on the 28th November 2016.

However there was no return of service on the order of the court issued on 6th December 2016.  The application by Mr Masake for the accounting officer in the Office of the President to be held in contempt of court for failure to pay the decretal sum cannot hold as there is no evidence that the said order was served on the concerned officer.  In the foregoing the application to declare the said officer to be in contempt is untenable.  I thereby order that the order dated 6th December, 2016 be served on the concerned officer.

Delivered, signed and dated at Kakamega this 20th day of July, 2017.

J. NJAGI

JUDGE

In the presence of:

N/A……………………………………………………………………………..  for appellants

N/A……………………………………………………………………………..  for respondents

Paul……………………………………………………………………………..  court assistant

Appellants ……………………………………………………….  absent

Respondents  …………………………………………………..  /absent