Republic v County Secretary, Narok County Government & another; SEC & M Company Limited (Exparte) (Judicial Review E045 of 2021)  KEHC 617 (KLR) (Judicial Review) (9 February 2023) (Ruling)
Neutral citation:  KEHC 617 (KLR)
Republic of Kenya
Judicial Review E045 of 2021
AK Ndung'u, J
February 9, 2023
The County Secretary, Narok County Government
The Chief Officer Finance, Narok County Government
SEC & M Company Limited
1.The application before this Court is the Notice of Motion dated May 17, 2022 filed under Section 5 of the Judicature Act and Order 51 rule 1 of the Civil Procedure Rules.
2.The motion seeks the following orders:i.That this Honorable court be pleased to ?nd that The County Secretary, Narok County Government and the Chief Officer Finance, Narok County Government are in contempt of court for disobeying and /or willfully disregarding the orders of Mandamus made on February 17, 2022 compelling payment of the decretal sum arising from the decree issued on September 23, 2015 by the High Court of Kenya at Nairobi, Milimani Commercial & Admiralty Division, Miscellaneous Civil Case No 71 of 2014.ii.That pursuant to 1 above, The County Secretary, Narok County Government and the Chief Officer Finance, Narok County Government do show cause why they should not be committed to civil jail for disobeying and or willfully disregarding the orders and directions given herein on February 17, 2022.iii.That in default of suf?cient cause being shown, this Honorable court be pleased to commit The County Secretary, Narok County Government And The Chief Officer Finance, Narok County Government to civil jail for a period of six months or such other period as the Honorable Court shall deem ?t, or in the alternative and / or in addition thereto, that the said person be required to pay a ?ne of such amount as may be ordered by this Honourable court for the said contempt.iv.That this Honourable Court be pleased to issue such other orders as may seem just and expedient.v.That costs of the application and suit be provided for.'
3.The application is supported by the grounds on its face and a Supporting Affidavit sworn by Humphrey Kaburu Michael who swears to be the Director of the Ex parte Applicant.
4.A brief summary of the Ex parte applicant’s case is that this Honorable Court vide a Judgment delivered on February 17, 2022 issued an order of Mandamus directing the Respondents to settle the decretal sum arising from the decree issued on September 23, 2015 by the High Court of Kenya at Nairobi in Milimani Commercial & Admiralty Division, Miscellaneous Civil Case No 71 of 2014.
5.It is the deponent’s case that the said Decree has been served upon the Respondents on two occasions and that further that the Judgement culminating in the Decree was delivered in the presence of counsel representing the said parties. It is argued that the Respondents are fully aware of the existence of the said Decree which is still in force as the same is yet to be set aside or varied.
6.I note from the record that there is no response to the application by the Respondents despite this court having granted them an opportunity to respond to the application on two occasion that is on July 4, 2022 and on September 27, 2022 where in the presence of counsel for the Respondent the court stated that the same was the last adjournment.
7.The issues that arise from the application, the affidavit in support and documents attached therein are as follows:i.Whether the Respondents are guilty of disobeying the orders of court emanating from the Judgment made by this Court on February 17, 2022 thus rendering them in contempt of court?ii.What orders should issue?iii.Who bears the costs of the application?
8.The obligation of every person to obey court orders was summed up in the case of Hadkinson v Hadkinson  2 ALL ER56 as follows;
9.It is trite thatif the courts failed to make sure that court orders were followed, the rule of law would be seriously jeopardized. Without enforcement of court orders through the imposition of penalties for contempt of court, court orders would remain mere rhetoric, not worth the paper they are printed on. In my opinion, a judge who fails to impose sanctions on individuals who disregard his orders is unfit to preside over the next trial. After all, of what use are judicial processes if the results are in vain?
10.I am in agreement with the decision in Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex Parte Stanley Muturi where it was held as follows;
11.The ingredients to be proved in a contempt application are well settled. The court in Felicity Mutete Mutula v Nairobi County Government  eKLR laid down the requirements thus;
12.These ingredients are summed up in the book Contempt in Modern New Zealand as follows;
13.In our instant case I note that the fact that there is a valid subsisting order of this court that is yet to be set aside or varied has not been controverted, and further, that service having been effected on the Respondents they are aware that there is an existing court order that ought to be satisfied. Counsel representing the Respondents was also in court when Judgment was rendered by this court and in subsequent proceedings before this court thereafter. This is enough proof that the Respondents are aware of the existing order. This court appreciates that any lapse in enforcement of court orders is a sure invite to a total breakdown of law and order and the rule of law as we know it.
14.Having established as much, I find the respondents in contempt of the orders of this court for which they should be punished. Accordingly, I order that the 1st and 2nd Respondents appear in person before this court on a date to be advised to show cause why they should not be committed to civil jail. In default of appearance, a warrant of arrest is to issue. The Applicant will have the costs of the application.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF FEBRUARY 2023..............................................A. K. NDUNG'UJUDGE