Case ID:158533

Republic v Chief Officer Department of Trade,

Industry, Tourism & Enterpreneurship County Government of Vihiga & another Exparte Galexon Kenya Limited [2020] eKLR

Case Metadata

Case Number:

Judicial Review 10 of 2019

Parties:

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

Date Delivered:

27 May 2020

Case Class:

Civil

Court:

High Court at Kisumu

Case Action:

Ruling

Judge(s):

Fred Andago Ochieng

Citation:

Republic v Chief Officer Department of Trade,

Industry, Tourism & Enterpreneurship County Government of Vihiga & another Exparte Galexon Kenya Limited [2020] eKLR

Court Division:

Judicial Review

County:

Kisumu

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

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 .......................1

ST

RESPONDENT

COUNTY EXECUTIVE COMMITTEE

MEMBER FOR FINANCE

COUNTY GOVERNMENT OF VIHIGA..................... 2

ND

RESPONDENT

EXPARTE APPLICANT:

GALEXON KENYA LIMITED

RULING

The application dated 24

th

April 2020 asks the Court to find that the Respondents are in contempt of the Orders granted on 27

th

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 27

th

February 2020. The said Order was worded as follows;

“1. THAT the Notice of Motion dated

24

th

September, 2019 and filed on

27

th

September, 2019 is allowed as

against the Respondents as prayed

that is

i. THAT an Order of Mandamus

commanding the Chief Officer,

Department of Trade, Tourism

and Industry, County Government

of Vihiga and the County Executive

Committee Member for Finance

County Government of Vihiga, to

settle the decretal sum together

with interest and costs as awarded

in Civil Suit No. 18 of 2017 as

follows;

(a) Kshs 20,798,450/= being the

contract sum;

(b) Kshs 6,190,330/= being interest

at 14% as at 22

nd

July 2019;

(c) Kshs 2,396,554.99 as taxed by

the Deputy Registrar.

2.. THAT each party to bear its own

costs.”

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 27

th

February 2020 was received by them. They said that;

“Upon receipt of the Court Order, the

amounts owed will now be included

in the upcoming auditor’s report as

a 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 27

th

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 eligible

for 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 of

whom, an order is made by a Court of

competent jurisdiction, to obey it unless

and until that order is discharged. The

uncompromising nature of this obligation

is shown by the fact that it extends even

to cases where the person affected by an

order 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 accounting

officer of a State Organ, government

department, ministry or corporation

to put into motion steps necessary for

the settlement of or obedience of court

decisions or facilitation of such

settlement is prima facie evidence of

neglect. It is simply not enough for

such officer to say that he or she had

informed the Treasury about the

pending decision. He or she must show

what steps he/she has taken in order to

ensure 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 bill

eligible 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 27

th

day of May 2020

FRED A. OCHIENG

JUDGE