Unusual case with unusual ruling – Contempt of court in Mombasa

21 Oct 2019

In this unusual case, resulting in an equally unusual ruling, three top officials in the Mombasa government are to be punished for not paying counsel’s fees.

The three officials are the county secretary, the cabinet secretary for finance and the ‘county executive ’ of the finance department, all of the Mombasa county government.

They were responsible for the payment of KSh6 612 000 due to legal firm, V.Chokaa & Co. The lawyers had gone to court several times about the payment, and the court had issued an order that the county government pay the legal bill.

That order was served on the county government as well as on the three individual, principal officials involved, in June 2019.

After that, the lawyers followed up and persistently asked the county government when it would be paying the money that was owed.

Finally, the lawyers went back to court saying it was apparent that the county government and its officials had ‘absolutely no regard to the order of the court’. The entire bill had first been approved by the court in July 2015, with interest at 12% per annum with effect from 1 January 2014, yet the county government ‘has not even paid a single cent’.

In the view of the lawyers concerned, Mombasa county government and its officials would only take the issue of payment seriously ‘when the court flexes its muscles by punishing the three named principal officers’ for their contempt. And there was, in any case, no way of enforcing recovery of the funds owed other than through a contempt action.

Once the contempt application was filed by the law firm, the government and its officials sprung into action. They said that their non-payment was not because of ‘willful disobedience’ of the court’s orders. Among other reasons for non-payment was that ‘the interest on the amount’ awarded by the court had not been ‘verified by the deputy registrar’, and the officials concerned had not been ‘personally served’ with the application. The application was ‘fatally defective’ and should be thrown out, with costs.

Judge Eric Ogola, however, was not impressed with those arguments. He said he had considered the replies to the application. On 4 June, 2019 the court had issued an order of mandamus compelling the payment of KSh6 612 000 against the responsible authorities of the Mombasa county government, with interest as stipulated.

In reply to the legal firm’s most recent action, the officials had given a number of reasons for not having complied. However, ‘I do not find these objections merited,’ said the judge.

He added that there was no ‘merited defence to the application’ and concluded: ‘The application is allowed as prayed.’

That last sentence is surprising and leaves a reader with some questions. That is because the court did not give more details about exactly what was included in its order. The application with which the court was dealing reads that ‘warrants be issued for the arrest and committal to civil jail’ of the three named officials, and that the regional police commander has to ‘effect’ these arrests and committal to jail.

But for how long? The order applied for by the law firm asks that the three officials should be ‘punished by way of committal to civil jail for such a long period of time as the court may deem reasonable’ for their failure to comply with the order to pay the bill owed to V. Chokaa.

In the final words of his decision, the judge says that the application ‘is allowed as prayed’. With no imprisonment period stipulated, this is going to be a difficult order to implement.

How did it happen that the court did not specify a jail time? The Kenyan judiciary has a web site in which the names and background of its members appear.

Under the comments supplied by Judge Ogola, he speaks about his great passion for upholding the rule of law and that he prides himself on his ability to interact positively with ‘the various consumers of justice’ and to address pertinent issues concerning the justice system.

Then he adds the following: ‘As a judge, though I am occasionally provoked to anger by counsel, litigants or witnesses who try to frustrate the court process. I am, however, able to understand their situation, control myself and firmly, yet courteously and fairly, deal with the situation.’

Could it be that the county government’s obvious attempt to ‘frustrate the court process’ irritated the judge and that that is why his order is less than clear on this occasion?

Judgment – http://kenyalaw.org/caselaw/cases/view/181653/

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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