Isaiah Ochanda v Attorney General & Principal Secretary, Ministry of Defence Principal Secretary, Ministry of Defence [2017] KEHC 4299 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  148 OF 2013

IN THE MATER OF AN APPLICATION BY ISAIAH ODUOR OCHANDA TO CITE

THEPRINCIPALSECRETARY–MINISTRY OF DEFENCE WITH CONTEMPT

AND

IN THE MATTER OF THE DECREE ISSUED IN HCC NO.  1051 OF 1996

AND

IN THE MATTER OF THE JUDICIAL REVIEW ORDERS OF MANDAMUS

ISSUEDIN J.R. MISC.  APPLICATION NO.  229 OF 2012

ISAIAH OCHANDA......................................................................APPLICANT

VERSUS

THE ATTORNEY GENERAL............................................1ST RESPONDENT

PRINCIPAL SECRETARY, MINISTRY OF DEFENCE...2ND RESPONDENT

JUDGMENT

1. By an amended notice of motion dated 9th December 2016, the exparte applicant Isaiah Ochanda seeks from this court orders:

That the court  be pleased to cite the  Principal Secretary, Ministry of Defence for contempt of the court order issued by this court on  the  21st November, 2012  in Miscellaneous  Judicial Review  Application No. 229  of  2012, and   do order that he be committed to  civil jail  for  a period not  exceeding thirty days, for  failure   to comply with  the same; and costs.

2. The motion was brought  under Order  52  Rule  3(3)  of the Rules  of the Supreme Court  of England, Section 5(1) of the Judicature Act Cap 8 Laws of Kenya, and  pursuant to the leave granted  on 7th May 2013  by Honourable  Odunga J  to apply.

3. The motion is grounded on the reasons that  despite  the  respondents  being served  with the order of  mandamus, they have continued to disobey the said order with  absolute impunity of this country’s system of justice and that such continued disobedience  continues to visit  gross injustice  and  colossal  damage  upon the applicant  and that it is in the interest of  justice that  the  very sacred  rules  of fair play, and  the best  interests  and  welfare  of the applicant  for  whose  prime  benefit  the said order  was  issued; and  that the court  finds  in the applicant’s  favour  and proceeds  to grant  the  prayers  sought.

4. The application is supported by a statutory statement, verifying affidavit of Isaiah Oduor Ochanda and annextures thereto.

5. The exparte applicant’s case as  per his  depositions  made on  9th December 2016   is that  he  was the decree  holder in a  civil suit  which progressed  to the Court of Appeal No. 212 of 2014  vide a judgment delivered  on 9th December  2016, in which the Court of Appeal upheld  the judgment  for  shs  19,078,191. 78 in the decree dated 2nd March  2011 against the   respondent.

6. That a Bill of Costs  was taxed vide ruling   of 6th October  2011 wherein the costs were assessed at Kshs 351,518. 90 and a Certificate of Order Against the  Government was  issued; and  that the  total outstanding  sum in the over 20 year  old  suit is  kshs  22,916,828. 34 as per the annexed Certificate of Order Against the Government, despite efforts to  amicably  seek out  to the  respondent to settle  the claim  arising from an accident.

7. That on 21st November  2012 this court  did issue  Judicial Review  order of mandamus  compelling  the   respondent  to satisfy  the decree  in HCC  1051  of  1996   as per the  proceedings  herein but   that since  service   of the order  upon the respondent on 23rd November 2012, the respondents  continue  to ignore, refuse and  or neglect  to comply  with the  same  and  have  hence  exhibited  gross  impunity and disrespect for the country’s judicial  system.

8. That this application was brought as a last resort for the court to close this very long drawn cause.

9. That todate, the decretal sum is escalated to nearly shs 30,000,000 which should be paid to the applicant to meet his urgent medical and other needs.

10. The application is opposed by the respondents through grounds of opposition dated 10th February 2015 to the effect that:

1. Under Section 21(4) of the Government Proceedings Act, no officer of the government should be held individually liable for payment of money or costs ordered against the government or any government Department or any officer of the government and hence the present application is improper.

2. The order sought against the Principal Secretary, Ministry of Defence is unconstitutional;

3. There was no personal service upon the alleged contemnor as required by law;

4. The order was never endorsed with a penal notice informing the alleged contemnor of the consequences of disobeying the order;

5. The applicant’s application violates  the then  Section 5 of the  Judicature Act  and the law applicable  in the  High Court  of Justice  in England  i.e. Contempt  of  Court Act  of  1981 and Part  81 of the  Procedure set out in the Civil Procedure(Amendment No. 2)  Rules, 2012.

6. The respondent is pursuing an appeal from the judgment of the High Court.

11. The parties’ advocates filed written submissions which they adopted wholly canvassing their respective client’s position.

12. According  to the  exparte applicant  through submissions  filed on  24th March  2017, a similar  application  for contempt of court came up for hearing  and  determination  before Honourable  Justice Korir J who  on  5th December  2013 dismissed  the  application on the grounds  of lack of  personal  service  and  upon the applicant  lodging  an appeal  to the Court of Appeal, vide  CA  212/2014, the learned  Judges of Appeal  vide their judgment  delivered  in  9th December, 2016 found fault  in the High Court’s  finding that  no personal  services was  effected  nor penal notice  given  and  allowed  he  appeal  with costs.  it  was  therefore submitted that  this court  would not  concern itself  with personal  service  as  expressly  stated by the  Court of  Appeal.  That the respondent has not rebutted the  facts of the  application  as  was  the case in the  initial  application which  was  dismissed  by Korir  J but  on appeal, the appellate  court faulted  the High Court.

13. That at  no time  has  the respondent ever  indicated  that it is unable  to satisfy the  decretal sum claimed  and therefore the objections filed are intended to delay  the applicant  justice yet he is  bed ridden  since 1987 out of injuries  sustained in a road accident hence  the court should  bring to  a closure  this case  after nearly  30 years.

14. In the respondent’s submission filed  on 24th February 2017 the respondent’s counsel Mr Kepha Onyiso reiterated the grounds of opposition as reproduced  herein above and maintained that the Principal Secretary  is not guilty of  contempt of court and that therefore  he cannot  be committed  to civil jail  for contempt.

15. On whether the Principal Secretary in the Ministry of Defence is guilty of contempt, it  was   submitted that he  was not served in person and that the affidavit  of  service does not disclose  the name of  legal officer  who was served  in the  Department  of Defence.  Further, that the time of service was not disclosed and no penal notice was endorsed on the court order.

16. In addition, that it was not known which kind of ruling was allegedly served on the Principal Secretary. That under the cited law, personal service could not be dispensed with except   by the order. Reliance was place  on Shimmers  Plaza  Ltd  v NBK  CA 33/2012 e KLR and Ochino & Another V Okombo & 4 Others [1989] KLR 165 and Halsbury’s  Laws of England 9th Edition  VOL. 9.

17. On whether  the Permanent  Secretary can be  committed   to civil jail for contempt, reliance  was  placed on  Section  21(4)of the Government Proceedings Act which  prohibits a government  officer  being  individually  liable for payment of money or costs ordered against the  government or any government department of any  officer of the government. Further reliance was placed on ReZipporah Wambui Mathara, Nairobi HCC bankruptcy Cause No. 19 of 2010.  The respondent urged the court to dismiss the application.

DETERMINATION

18. I have considered the foregoing pleadings and submissions by the parties’ advocates and the authorities relied on. In my view, the following issues flow for determination:-

1. Whether the respondent  should be cited for contempt of court.

2. Whether committal to civil jail for contempt of court is unconstitutional.

3. What   orders should this court make?

4. Who should bear costs of this application for contempt proceedings?

19. On whether the respondent Principal Secretary for defence should be cited for contempt of court orders, it is important to appreciate the history of this case and the orders in issue.

20. The applicant Isaiah Ochanda was employed as a soldier   attached to 75 Artillery Battalion, Air Defence Unit.  He filed a suit vide plaint  dated  5th November  2000  in Nairobi HCC No. 1051 of 1996 against the Attorney General after being injured while on duty thereby suffering very serious  injuries that rendered  him  paraplegic.

21. On  2nd  March  2011, Justice Rawal ( as she then  was  ) entered judgment against the defendant (respondent)  Attorney General  and this is  reflected in the Certificate of Order  Against the  Government  issued on 14th November 2011 for shs  22,916,828. 34 inclusive of costs  and interest at 12%  per annum  from 3rd  March  2010  to 3rd November  2011.  The principal decretal sum was kshs 19,078, 191. 78 whereas costs were assessed at Kshs   351,518. 90.

22. The copy of judgment by Honourable Rawal J, Decree, Certificate of order Against the Government and Certificate of Taxation are all annexed to the verifying affidavit   and supporting affidavits of the exparte applicant.  The exparte applicant   also annexed  several letters  addressed to  the Attorney  General  asking for  settlement  of the decretal  sum which documents  bear stamps of  acknowledgment by the office of  the  Attorney General.

23. When it became apparent that payment was not  forthcoming the applicant filed Judicial Review  proceedings in this matter and  after  obtaining leave from  Honourable Korir J, filed an  application for judicial review order of  mandamus  which application was allowed on 21st November, 2012.

24. The applicant  then commenced contempt proceedings  before Honourable  Korir J  as  aforestated  which application  was  dismissed on the grounds that the exparte applicant had not served the order personally upon the Respondent Principal Secretary and that no penal notice was given thereby prompting  the  applicant  to lodge  an appeal to the  Court of Appeal. The Court of Appeal vide Civ. Appeal No. Nairobi 212 of 2014 did reverse the order of dismissal and allowed the appeal, directing that the application for contempt be reheard afresh by another judge other than Honourable  Korir J.

25. The Court of Appeal  found that  the  High Court fell  in error  by dismissing  the application on the grounds   that  no personal service was  effected nor  penal notice  given.

26. The Court of Appeal also  made it clear that in this case,  there  was  no necessity  for personal  service  nor penal notice and  even if  the Court  would have so found the said penal notice and personal service be necessary, it would have in the circumstances  of the case dispensed with  general rules.

27. The court  was also emphatic  that procedural protection should not be construed in a manner  that  abrogates or renders  the  jurisdiction  of the court to punish for disobedience of its order practically  inoperative and that  in appropriate cases, the court retains the discretion to dispense with procedural  protection in the interest of justice, moreso, now that Article 159(2) (d) of the Constitution ordains  that justice  shall be administered without  undue regard  to procedural technicalities.

28. From the above  findings  by the Court of Appeal which findings  bind this court  and  as I have  no good  reason to distinguish them as no such  submission for  distinction was  placed before me, I must  find, from  the  onset, that the issue of personal  service and  or penal notice  is spent  as it  was  determined  by the  Court of Appeal not to have been necessary in the circumstances  of this case  where there is a judgment of  a  court of competent   jurisdiction  which judgment has not been challenged by the respondent and a decree, certificate of costs and  certificate  of  order against the government duly  served upon the respondent’s office  and  acknowledged  by way of an official  stamp which  again the Court of Appeal  concluded was more than sufficient, noting that there are several letters and notices served  on the respondent  calling for payment  of the  decretal  sum; which the  Court of Appeal concluded   was for all intents, and purposes, an effectual penal notice as the object of the general rules had been  substantially  achieved.

29. In this case, the applicant’s list  and  copy of documents  filed on 23rd December 2016  shows that  the Department  of  Defence,  Legal Service  Branch received  the order of   mandamus  on  22nd August  2016 which order  is dated  21st November 2012 was also served on the Attorney  General the Principal Legal advisor to the National Government and also the Principal  defendant/respondent in the main suit.  There is also a letter by Y.K. Kirui  Colonel for  Principal Secretary, dated 31stAugust 2016 addressed to the applicant’s advocate Ngugi B.G. and Company Advocates  referring to the letter of 15th August  2016  and  requesting  to be provided  with the extracted  order to enable  them action as  appropriate.

30. The  question is, is  Mr Kepha Onyiso  litigation  counsel who signed the grounds of opposition in this matter and who filed submissions opposing this application for contempt of court being honest  with his submissions  and  grounds  of  opposition  filed  on behalf  of the respondent  when  he claims  that the  affidavit of service  filed  by the applicant  lacked  material particulars?

31. The outright answer is a resounding no.  I find that  the  respondent  who has not filed any affidavit denying that there  is a valid  judgment and decree and or  certificate  of order against the government  and or stating that  there is  an appeal  or stay  of  execution of decree, is being  mischievous  and  dishonest with the court and obstructive of the administration of justice.  He   is to say the least, by conduct, obstructing  the  cause of justice  by deliberately using  procedural technicalities to defeat  justice  and  to circumvent  the rule  of  law.

32. The decree in question has remained unenforced for over 20 years now.  The case  in the High Court  was heard  by Rawal J(as she then was), interpartes and  the  respondent  was and  has for  all these years  known or been made  aware of the judgment of the court  and actively  participated in the  Judicial Review proceedings for mandamus before  contempt of court proceedings were initiated.  That being the case, the respondent cannot be heard to pretend not to know which court order is due for compliance.

33. Court orders are never issued in vain.  They are issued for compliance, however idiotic so that the person who considers the order idiotic is at liberty to challenge it.  The respondent has not challenged the Judicial Review order of   mandamus issued in this matter by Honourable Korir J.  the application for contempt  of court was  dismissed   but the Court  of Appeal  handed  the applicant a lifeline. It is therefore disturbing that the respondent is raising the same  technicalities  as he did  prior  to the Court of Appeal’s  decision and which  technicalities  have the effect  of reviewing  the Court of Appeal decision.

34. The conduct  of  the  respondent   betrays  the  rule of  law, not the dignity  of the judge  who issued  the  order of  mandamus  compelling  the  Permanent  Secretary to settle  decree  in HCC 1051 /1996  by way of making  payment  to the applicant.  The order was re-served on the office of the Permanent Secretary on 23rd November 2016   which was not the first time of service.

35. This court cannot  help  but find that the Permanent Secretary Ministry of Defence   had deliberately and  brazenly  disobeyed  the order of this court  issued  on 22nd  November  2012  dated 21st November 2012  compelling  him to pay  to the  applicant  decretal sum  in HCC 1051/1996 as per  the  certificate  of order  against  the  government.

36. The respondent is hiding  under the provisions of Section 21(4) of the  Government  Proceedings  Act That  provision  cannot cushion the Permanent Secretary against  the  order of mandamus which commands  performance  of  a public  duty by the accounting officer.

37. Mandamus  is a Judicial Review  remedy issued  directed  at a public officer or administrator, compelling  performance  of a public duty and  in this  case the public duty   is the satisfaction of decree  of this court  by way of making payment  to the  applicant, from  public resources, as  ordered by  Korir J  on 21st November  2012.

38. And  where  such  mandamus   is issued  and there is no compliance, the remedy is in citing the responsible public officer to whom the order was directed for  compliance for contempt  of  court order.  The legislative   intention of the law of contempt was for the protection and promotion of the rule of law.  Court  orders, as earlier stated, must be obeyed by all and   sundry  and  where there is demonstrable  evidence of brazen disobedience as is the case herein, the court  must as of necessity punish for  contempt.

39. A person who is in contempt of court cannot claim that the punishment of committal to civil jail is unconstitutional because it deprives him or her of their   constitutional liberty. The respondent has been accorded a fair hearing as stipulated in Article 50(1) of the Constitution.

40. As  was  held in Republic  v  Permanent  Secretary, Ministry of State  for Provincial  Administration and  Internal Security  Exparte  Fredrick Manoah  Egunza [2012] e KLR , though  persuasive  but good  law made  by Githua J. that:

“ The  only requirement  which serves  as  a condition precedent  to the satisfaction or enforcement of decrees for money issues  against  the government  is found in Section  21(1) and  (2)  of the  Government  Proceedings  Act which provides that payment  will be based  on a  certificate  of costs obtained  by the  successful litigant  from the court issuing  the decree  which should  be  served on the Honourable Attorney General.  The certificate  of order  against  the government  should be  issued by  the court  after  expiration  of  21 days after entry  of judgment.  Once  the  certificate  of  order against  the  government  is served on the  Honourable  Attorney General, Section 21(3) imposes  a  statutory   duty on the accounting officer to pay the sums  specified  in the said order to the person  entitled or to his advocate  together  with any   interest  lawfully accruing  thereon.”

41. It should also be noted that the law does not condition settlement of decree on budgetary allocation.  In any case, the  decree  subject  of these  proceedings  is over  20  years old and each year   that has passed, the  Ministry of Defence is allocated   funds for  a case which  proceeded  interpartes and  no  doubt, provision for  settlement  of decrees  emanating  from courts is  something   each  Government Ministry must make.

42. In Republic vs Permanent Secretary of State for Provincial Administration (supra)   the court stated and I agree:

“This provision does not condition payment to budgetary allocation and parliamentary approval of government expenditure in the financial year subsequent to which government liability accrues.  The  respondent’s  claim that the  applicant should have  waited  until  the  start  if the next  financial  year  to enforce payment  of the decree issued in his favour  cannot be  sustained  firstly because it has  no legal  basis and  secondly because  it is the responsibility of the government to make  contingency  provisions for its liabilities  in tort  in each  financial  year  so that  successful  litigants who obtain  decrees against  the  government   are not  left without  a remedy.”

43. For the reasons stated above, I find that the respondent Permanent Secretary has brazenly disobeyed the order of Mandamus issued by this court on 21st November, 2012 by refusing to settle decree in HCC 1051 of 1996.

44. On the issue of whether punishment for contempt of court is unconstitutional, petition No. 190/2011 in Beatrice Wanjiku & Another is relevant where it was   held:

“The Civil Procedure Act and Rules provide legal regime of arrest and committal as a means of enforcement of a judicial debt.  Article 11 of the ICCPR states that “no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.”

I read  merely  as  used above  to mean that  one cannot  be imprisoned  for the sole  reason of inability to fulfill a contractual  obligation.  It means that additional reasons   other then inability to pay should exist for one to be imprisoned.  Article  11  recognized  that in fact  there  may be instances  where imprisonment  for inability  to fulfill  a contractual  obligation  may be  permitted. As there  is no  inconsistency  between Article  11 of the  convection and the general tenor of the committal  regime under the Civil Procedure  Act and  Rules, the  Provisions of Article 11 of the Convention are at best an  interpretative  aid.”

45. And in Jayne Wangu Gachoka vs KCB Ltd Petition No. 51 of 2010 it was stated:

“ The  deprivation of liberty  sanctioned  by Sections  38 and  40  of the Civil  Procedure Act  is permissible  and is not in violation of either the Constitutional or the  International Covenant on the Civil and Political  Rights.  The caveat, however, which has  been emphasized  in all the cases  set out  above, is that before  a person  can be committed  to civil jail for nonpayment  of  a debt,  there must  be strict  adherence  to the  procedure  laid down  in the Civil Procedure Act and  Rules which  proved the  due process safeguards  essential  to making  the limitation of the right  to liberty  permitted  in this case  acceptable  in  a  free and  democratic   society.”

46. The above position is fortified  by the decision  in Kenya  Bus Services  Ltd  & Others v  Attorney  General and Others  [2005] 1 EA  111where it   was held:

“Fundamental  rights cannot  be  enjoyed  in isolation  and  by a  select   few while   they trample on others or tread  upon their rights since the enjoyment  of fundamental   rights  and freedoms contemplates mutuality and an  atmosphere  of respect for law   and  order including  the rights  of others and the upholding  of the  public  interest. The function of  the court when faced with the task of  establishing or determining the limitation and  restrictions on  the other  hand is to do a  balancing  act and  in this balancing  act are  principles, values, objectives  to be attained, a sense of proportionality and public interest and public policy  considerations.

There cannot be  a  cause of  action based  on a lawful  exercise of right  of execution by interested  parties  since it is  a serious  contradiction to suggest that  creditors  who are enforcing their rights under the private law  should be stopped  from doing  so because there  are allegation of violation of the  constitution by the state  or government.”

47. In this case, my  view is  that provided  the  procedure for citing  the  alleged contemnor/creditor  is followed in the manner provided for in law, the  requirement of due process  comparable to that in Article 50(1)  of the Constitution is guaranteed  to the contemnor.

48. Consequently, the respondent’s submission that committal to civil jail is unconstitutional is cheap, escapist and devoid of any legal substance.  The case of  Zipporah  Wambui  Mathara relied on by the respondent is outmoded and is  distinguishable  as the judge therein  (Koome J as she then was) was  clear that  there were  other alternative  modes of executing decree, before resorting to committal to civil jail which should have been the last resort. Moreso, the case in question did not involve decree against the Government but against a private person.

49. Throughout  the  proceedings leading to these contempt of court proceedings, the respondent  has not  indicated  any reason why the decree subject matter of  these mandamus   proceedings  has not  been settled for over 20 years, despite  several  pleas by  the  exparte applicant decree holder who is said to be paraplegic and whose life  expectancy continues  to shrink day by day   such that he may never live to enjoy the fruits of his lawful judgment.

50. The exparte  applicant  has for the  last  over 20 years  been  rendered  a  pious  explorer   and  beggar  in the judicial process. His human dignity has in my view been abused by the refusal to settle a money decree in his favour. I take judicial notice of the fact that treatment for a paraplegic is costly in the absence of medical insurance for majority of Kenyans.

51. In my humble view justice has been delayed and denied to the exparte applicant.  The state should be the last entity to deny its citizens justice and or subject them to deplorable state of hopelessness due to the mental, physical and psychological torture associated with paraplegic state.  There is absolutely no justification for such torture   being meted   out to the   exparte applicant.  The law  and the court exist  to vindicate  the  suffering of  innocent persons and  therefore  access  to  justice cannot be said to have been ensured when persons  in whose favour  judgments have been decreed  by courts of law  or tribunals of competent  jurisdiction  cannot enjoy  the fruits  of their  judgments due to  road  blocks  placed  on their paths by actions or inactions of others and  especially when it is the  state which is charged with the primary responsibility of promoting  and protecting  those rights that is overtly trampling on its  own citizens’  rights  through  defeatist  contentious  and  frivolous and vexatious objections and submissions.

52. Article  159  of the Constitution  mandates  this court  to ensure  that  justice is administered without undue  regard to technicalities and  that  justice is  not delayed.  The respondent  has  regrettably  taken the  exparte  applicant  through  and   into a circular  frolic  expedition and more so  when sufficient  time  and concessions   have been  availed  to the  respondent  to settle  the  decree.

53. In the end, the respondent’s maneuvers have turned the legal process into a theatrical absurdity.  I say so because  the  respondent  is not denying  that there is a  decree in favour of the  exparte  applicant, for  execution  and  neither are  they saying that due  process is not being  followed  in the enforcement  of the said decree.  The respondent is, with the help of some officers in the Office of the Principal Government Legal advisor-Hon Attorney General, procrastinating in the settlement of the court decree through technical ploys while the decretal sum continues to accrue interest to the detriment of Kenyan taxpayers.

54. There can be no rights of a top public servant which rights are not equal to the rights of an ordinary citizen of Kenya.  The Constitution of Kenya, 2010 is clear at Article 27 that all persons are equal before the law and they all deserve equal treatment.  There is no alternative mode of executing decree against   the government.  Therefore, is no reason why the respondent, from the date of decree/judgment has not challenged the decretal award before the Court of Appeal and if that had been done, a decision would not have taken 20 years to be rendered by the Court of Appeal.

55. It is for the above reasons that I find this application for contempt merited and allegations for brazen disobedience of the mandamus order made by  Honourable Korir J on 21st November 2012 and issued on 22nd November, 2012 proved to the required standard of beyond the balance of probability and beyond reasonable doubt.

56. Accordingly, I find the office holder  and  accounting officer Principal  Secretary, Ministry  of Defence  guilty  of contempt  of court order  dated 21st November 2012  and  issued  on 22nd November 2012 and convict him accordingly for contempt  of court order of 21st November 2012  in failing to make payment to the exparte applicant decree holder in HC  1051 of 1996 as compelled by the judicial review order in the nature  of mandamus, and that committal to jail for such disobedience of court order would not be unconstitutional.

57. On what  punishment  the court  should mete out  to the Principal  Secretary, Ministry of Defence, the court does appreciate  that the Principal Secretary  is an office  holder  and that before  punishing him for contempt of court, he should be accorded  an opportunity  to give his  mitigation  and  to even purge the contempt for which he has  been found guilty and been convicted by this court before  he is sentenced  or punished  as by  law  established.

58. Accordingly, I order that this matter shall be  mentioned  on 17thJuly, 2017 when the Principal Secretary/ Accounting  officer, Ministry of Defence shall appear personally  before this court and with his  advocate  to mitigate  before the court  can consider what is the appropriate  sentence to be meted out.

59. For that reason, I direct the  Deputy Registrar of this court to forthwith  issue summons  to appear and cause the  same summons  to be served upon the Principal Secretary Ministry of Defence  together with a certified copy of this judgment  for his perusal and compliance with regard to the purging of the contempt and making an appearance on 17th July  2017  for mitigation and  sentencing.

60. To avoid taxpayers money going into litigation  proceedings  which have  been in  court for  nearly 30 years and to bring  to an  end this  legal battle,  I shall  exercise  my discretion and order that each party shall  bear their own costs of these contempt of court proceedings.

Dated, signed and delivered in open court at Nairobi this 24th day of May, 2017.

R. E. ABURILI

JUDGE

In the presence of:

Mrs Maina for the Respondent

Mrs Ochanda (exparte applicant’s spouse)

CA: George