Mwaura t/a Karuru Mwaur & Co. Advocates v County Secretary, Kiambu County & 2 others [2025] KEHC 6071 (KLR)

Mwaura t/a Karuru Mwaur & Co. Advocates v County Secretary, Kiambu County & 2 others (Judicial Review Application E083 of 2022) [2025] KEHC 6071 (KLR) (Judicial Review) (13 May 2025) (Ruling)

Neutral citation: [2025] KEHC 6071 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E083 of 2022

RE Aburili, J

May 13, 2025

Between

Daniel K. Mwaura t/a Karuru Mwaur & Co. Advocates

Applicant

and

The County Secretary, Kiambu County

1st Respondent

Chief Officer, Finance/County Treasurer

2nd Respondent

County Government of Kiambu

3rd Respondent

Ruling

1. The history of this matter is as has been submitted by Mr. Oyugi Advocate for the applicant. The contemnor now before this court is Mr. William Kinyanjui Kimani who has come to court under a warrant of arrest issued against him for failing to attend court on several occasions since 17/10/2024 upon being convicted for being in contempt of court orders of mandamus issued on 27/6/2023 for non-settlement of decree in this matter.

2. The contemnor is the accounting officer for Kiambu County Government and when he appeared in court on 17/10/2024, a consent was recorded for payment of Kshs.2,000,000 on or before 22/10/2024 upon which warrants of arrest were suspended until 23/10/2024 and that in default, the contemnor would be liable to be committed to civil jail for contempt of court.

3. The contemnor never paid the Kshs.2,000,000 out of the over 50 million pending decretal sum and never attended court on 23/10/2024 and has never appeared in court until today. On subsequent dates, the court was informed by his Advocate and the County Attorney for Kiambu County Government that the contemnor herein had vanished.

4. Even the police could not trace him and neither could his Counsel Mr. Mbithi trace him on phone. The Advocate expressed his frustrations trying to locate the contemnor to advise him on his statutory mandate. His (the contemnor’s) CECM Finance was in court on 17/3/2025 together with Chief Inspector Patrick Macharia from Kiambu County Police Headquarters and they were categorical that this contemnor, Mr. Kimani could not be found. The warrants of arrest remained in force for the contemnor to be brought to court for mitigation and sentence.

5. The contemnor is here and his mitigation is that he has now tried and raised Kshs. 2 million and issued cheques to court dated 17/3/2025. Those copies of cheques are here but originals are not presented to court as part settlement of the decree.

6. It is clear to this court that although the contemnor says he is sorry and pleads for leniency in his mitigation, he has treated this court with contempt and has no regard for court orders requiring him to perform a statutory duty and to appear in court and explain any difficulties experienced and the efforts being made to settle decree.

7. The court on 17/10/2024 was concerned and it remains concerned of interest accruing, a burden to the people of Kiambu County and gave an allowance for a payment plan on the decretal sum. Today, there is no payment plan meaning, they won’t pay, they can’t pay.

8. There is every reason for this court to believe the Applicant’s Counsel Mr. Oyugi in his submissions on 16/1/2025 that the contemnor deceived the court on 17/10/2024 and is daring the court and acting with impunity. The contemnor is a public servant and is expected to be available when called upon by the court. His disrespect for the court is apparent.

9. His Advocate Mr. Mbithi has done his best. The court too has done its part. The authority of the court is not to be exercised in vain for decree holders who carry barren or paper decrees. The decree holder is deprived of his right to his property under Article 40 of the Constitution and that deprivations is by none-other than the County Government.

10. The Bill of Rights binds all. It is expected that public servants obey the law so that they do not have to be dragged to court as if they are dangerous criminals. But when they show disregard for court processes, due processes must be followed.

11. Having heard the mitigations and submissions by the contemnor Mr. Kimani and his Advocate Mr. Mbithi and responses by the Applicant’s Counsel, I am satisfied that the remedy at the moment is for committal of the contemnor Mr. William Kinyanjui Kimani, Chief Officer Finance, Kiambu County Government to civil jail for being in contempt of court orders of mandamus issued by this court on 22/6/2023, which is his statutory duty to comply, noting that he has not demonstrated what efforts he has made since 17/10/2024 to settle decree, following the consent orders of 17/10/2024, and with no payment plan in place.

12. As to what period he shall serve civil jail, I hereby commit him to serve civil jail in prison at Nairobi Industrial Area for a period of six months from the date of committal until the entire decretal sum of Kshs.52,983,816. 75 plus interest accruing as per the decree is paid or until these orders are reviewed by the court.

13. The applicant will pay for the upkeep in civil jail as part of costs. I so order.

14. Mention on 24/6/2025 for further orders. Ruling to be typed.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 13TH DAY OF MAY, 2025R.E. ABURILIJUDGE