Republic v Chief Officer Department of Trade, Industry, Tourism & Enterpreneurship County Government of Vihiga & County Executive Committee Member for Finance County Government of Vihiga Exparte Galexon Kenya Limited [2020] KEHC 5708 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

JUDICIAL REVIEW NO. 10 OF 2019

REPUBLIC......................................................................................APPLICANT

VERSUS

CHIEF OFFICER DEPARTMENT OF TRADE,

INDUSTRY, TOURISM & ENTERPRENEURSHIP

COUNTY GOVERNMENT OF VIHIGA .......................1ST RESPONDENT

COUNTY EXECUTIVE COMMITTEE

MEMBER FOR FINANCE

COUNTY GOVERNMENT OF VIHIGA..................... 2ND RESPONDENT

EXPARTE APPLICANT: GALEXON KENYA LIMITED

RULING

The application dated 24th April 2020 asks the Court to find that the Respondents are in contempt of the Orders granted on 27th February 2020.

1. The Applicants requested the Court to commit the Respondents to Civil Jail for a period of 6 months.

2. The Respondents have both confirmed having received the Order made on 27th February 2020.  The said Order was worded as follows;

“1. THAT the Notice of Motion dated24th September, 2019 and filed on27th September, 2019 is allowed asagainst the Respondents as prayedthat is

i. THAT an Order of Mandamuscommanding the Chief Officer,Department of Trade, Tourismand Industry, County Governmentof Vihiga and the County ExecutiveCommittee Member for FinanceCounty Government of Vihiga, tosettle the decretal sum togetherwith interest and costs as awardedin Civil Suit No. 18 of 2017 asfollows;

(a) Kshs 20,798,450/= being thecontract sum;

(b) Kshs 6,190,330/= being interestat 14% as at 22nd July 2019;

(c) Kshs 2,396,554. 99 as taxed bythe Deputy Registrar.

2. . THAT each party to bear its owncosts.”

3. In their Replying Affidavits, the Respondents deponed that they do not have powers to pay or to authorize payment of the decretal amounts.

4. As far as the Respondents were concerned, any liability of expenditure against the County can only be defrayed from money that had been allocated, budgeted and provided by the County.

5. In this instance, the Respondents said that the amounts in issue were not eligible for payment at the time when the Order dated 27th February 2020 was received by them.  They said that;

“Upon receipt of the Court Order, theamounts owed will now be includedin the upcoming auditor’s report asa bill eligible for payment.”

6. The bottom-line is that the Orders commanding the Respondents to pay the decretal amounts has not been complied with.

7. I find that the Orders made by the Court on 27th February 2020 were not subject to the internal procedures or processes of the County Government.

8. It is not the inclusion of the amounts due in the

“upcoming auditor’s report as a bill eligiblefor payment”,

that will determine if or when the money will be paid.

9. The Respondents were ordered to pay the money due to the Applicant.  If the Respondents or either of them believed that they had no powers to pay or to authorize payment, they could have lodged an appeal to challenge the Orders that had been directed at them.

10. As soon as the Respondents were served with the Orders of Mandamus, commanding them to settle the decretal sum together with interest and costs, they were a legal duty to comply with the said Order.

11. In the case of ECONET WIRELESS KENYA LIMITED Vs MINISTER FOR INFORMATION & COMMUNICATION OF KENYA & ANOTHER [2005] 1 KLR 828 Ibrahim J. (as he then was) said;

“It is the plain and unqualified obligation of every person against, or in respect ofwhom, an order is made by a Court ofcompetent jurisdiction, to obey it unlessand until that order is discharged.  Theuncompromising nature of this obligationis shown by the fact that it extends evento cases where the person affected by anorder believes it to be irregular or void.”

12. In this instance, I have not found proof that the Respondents colluded or connived to disobey the court order.

13. Nonetheless, it was not necessary that such proof be tendered before the Respondents could be held to be in contempt of the Court orders.

14. If there were steps that ought to be taken by the Respondents in order to enable them comply with the orders, the onus was upon the Respondents to demonstrate to the Court that they had taken such steps.

15. In the case of KENYA POSTS & TELECOMMUNICATIONS CORPORATION Vs PAUL GACHANGA NDARUA CIVIL APPLICATION NO. NAI 367 OF 2001, the Court of Appeal made it clear that;

“……. the failure by the accountingofficer of a State Organ, governmentdepartment, ministry or corporationto put into motion steps necessary forthe settlement of or obedience of courtdecisions or facilitation of suchsettlement is prima facie evidence ofneglect.  It is simply not enough forsuch officer to say that he or she hadinformed the Treasury about thepending decision.  He or she must showwhat steps he/she has taken in order toensure that the decision is complied with.”

16. The order in question was served upon the Respondents in February 2020.  Since that date, there is no evidence of any steps taken by the Respondents to demonstrate the efforts made by them, with a view to ensuring compliance with the order.

17. In my considered view, it is definitely far from sufficient or reasonable explanation, for the Respondents to say that,

“now the sums will be included in the upcoming auditor’s report as a billeligible for payment.”

18. The Respondents ought to have demonstrated to the court the steps they took over the last 3 months, but they have failed to do so.  I therefore find them to be in contempt of court.

19. Before the Court hands down appropriate punishment, the Respondents will be given an opportunity for mitigation.

DATED, SIGNED and DELIVERED at KISUMU This 27th day of May 2020

FRED A. OCHIENG

JUDGE