Republic v County Secretary, County Government of Kiambu & 3 others; Legorn Feeds International Limited (Ex parte Applicant)

b. That pending the hearing and determination of the application inter partes, this Honourable Court be pleased to stay execution of the summons and punishment for contempt on the orders given on 9th November 2023. c. That this Honourable Court be pleased to set aside the summons against the current Governor of Kiambu County, as he is not a party to the application. d. That the costs of this application be provided for. 2. The Motion is premised on the grounds on its face and on the Certicate of Urgency of Ms. Natalia S. Sanaet, Legal Counsel for the Kiambu County Attorney. It is further supported by the adavit of Waithira Waiyaki, sworn on 5th June 2025. 3. The Ex parte Applicant, Legorn Feeds International Limited, opposes the Motion through the Replying Adavit of its Managing Director, Stephen Waithiru Baiya, sworn on 17th November 2025. 4. For ease of reference, I shall refer to the 1st to 4th Respondents collectively as “the Respondents”, and to Legorn Feeds International Limited as “the Ex parte Applicant”. Background 5. The Ex parte Applicant sued Babayao Ferdinand Ndungu Waititu and the County Government of Kiambu in Thika ELC Case No. 84 of 2019, by a Plaint dated 17th April 2019. The suit arose from encroachment on its land, L.R. No. 4953/1982 (I.R. 99259), and the demolition of its perimeter wall. 6. By a judgment delivered on 9th December 2021 (Gacheru J.), the Court entered judgment for the Ex parte Applicant against both defendants, jointly and severally. The Court awarded damages of Kshs. 15,159,605/=, together with interest until payment in full and the costs of the suit. The decree was issued on 23rd December 2021. 7. A Certicate of Order against the Government was issued on 2nd February 2022 under Order 29 Rule 3 of the Civil Procedure Rules. The Ex parte Applicant’s Party and Party Bill of Costs was taxed on 19th September 2022 at Kshs. 510,082.10/=, and a Certicate of Taxation was issued on 30th September 2022. 8. The decretal sum and costs were not paid. The Ex parte Applicant therefore commenced these judicial review proceedings, seeking an order of mandamus. By a judgment delivered on 9th November 2023 (Eboso J.), the Court issued an order of mandamus compelling the 1st, 2nd and 3rd Respondents to comply with the Certicate of Order dated 2nd February 2022 and to settle the sum in the Certicate of Taxation dated 30th September 2022. The Respondents were given the remaining period of the 2023/2024 nancial year to comply, and each party was to bear its own costs. The decree was issued on 12th January 2024. 9. Contending that the order had not been complied with, the Ex parte Applicant led an application dated 10th March 2025 under Section 5 of the Judicature Act and Part 81.10 of the English Civil Procedure (Amendment No. 2) Rules, 2012. It sought orders that the current Governor of Kiambu County and the current County Executive Committee Member for Finance be summoned to show cause why they should not be punished for contempt of the order of 9th November 2023. In default, it sought that they be committed to civil jail for six (6) months, or be punished in such other manner as the Court may deem appropriate. 10. According to the Ex parte Applicant, that application came up on 8th April 2025, when the Court issued a Notice to Show Cause against the Governor and the County Executive Committee Member https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6134/eng@2026-09-30 2

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for Finance. The Respondents have separately led Grounds of Opposition dated 23rd June 2025 in response to the contempt application. That application is not the subject of this ruling. 11. It is against this background that the Respondents led the present Motion, seeking to stay and set aside the summons as against the Governor. The Respondents’ Case 12. The Respondents’ case is that the current Governor of Kiambu County faces an imminent threat of being summoned to show cause why he should not be punished for contempt of the order of 9th November 2023, and of being committed to civil jail. They say this is so even though he was not a party to the judicial review application and is not an accounting ocer of the County. 13. The Respondents contend that the Governor is not a member of the County Treasury established under Section 103 of the Public Finance Management Act, Cap. 412A. Under that section, the County Treasury comprises the County Executive Committee Member for Finance, the Chief Ocer, and the department or departments responsible for nancial and scal matters, with the County Executive Committee Member for Finance as its head. They also rely on the denitions of “County Executive Committee member for nance”, “Chief Ocer” and “County Treasury” in Section 2 of that Act. 14. The Respondents further contend that the Governor’s functions do not fall within the responsibilities of a County Treasury under Section 104 of the Public Finance Management Act. Those responsibilities include preparing and implementing the county budget, mobilising resources, managing the county’s public debt and other obligations, and ensuring proper management and control of, and accounting for, county nances. It would therefore, they argue, be against the law to hold the Governor accountable for duties outside his scope. 15. The Respondents point to Section 30 of the County Governments Act, No. 17 of 2012, which sets out the Governor’s functions. These include executing the functions provided for in the Constitution and legislation, representing the county, appointing and chairing the county executive committee, assigning responsibilities to its members, and providing leadership in the county’s governance and development. On this basis, they submit that the Governor has no role in dealing with county nances and is not an accounting ocer. 16. The Respondents urge that the summons to show cause against the Governor be set aside unconditionally. They say no prejudice will be occasioned to any party if the orders are granted. Otherwise, the Governor stands to suer loss that cannot be compensated by damages, since his liberty would be curtailed without justiable reason. 17. In the supporting adavit, Waithira Waiyaki, the County’s Legal Advisor in the Oce of the County Attorney, reiterates these grounds. She adds that judicial proceedings can only be brought against the persons obliged to perform the specic functions in question. The Court would therefore be issuing summons in vain if it compelled the Governor to show cause over payment of the decretal sum. She prays that the application dated 10th March 2025 be dismissed with costs to the Respondents. The Ex Parte Applicant’s Response 18. In his Replying Adavit, Stephen Waithiru Baiya depones that the Motion is an abuse of the court process. He describes it as a calculated attempt to shield the County Government from accountability and to delay compliance with a valid decree of this Court. 19. He avers that the judgment of 9th November 2023 compelled payment of the decretal sum of Kshs. 15,159,605/=, together with interest and the taxed costs of Kshs. 510,082.10/=. He says these amounts https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6134/eng@2026-09-30 3

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remain wholly unpaid despite repeated demands and ample time for compliance. The Respondents’ deliberate failure to comply necessitated the contempt application dated 10th March 2025, which was duly served. 20. He depones that when that application came up on 8th April 2025, the Court issued a Notice to Show Cause against the Governor and the County Executive Committee Member for Finance. He says both are ocers entrusted with ensuring that the County Government operates lawfully and obeys court orders. 21. Responding to paragraphs 5 to 9 of the supporting adavit, he states, on advice of counsel, that Sections 103 and 104 of the Public Finance Management Act establish the County Treasury and vest in it the duty to manage county nances and settle lawful obligations. He maintains, however, that those provisions do not remove the Governor’s overall constitutional and executive responsibility for the proper functioning and compliance of the County Government. 22. He relies on Article 179(4) of the Constitution and Sections 30(2)(h) and 30(3)(f) of the County Governments Act. Under these provisions, he says, the Governor is the Chief Executive of the County Government, chairs the County Executive Committee, and is accountable for the management and use of county resources. By virtue of that role, the Governor bears the ultimate duty to ensure that court orders and the lawful obligations of the County Government are honoured. 23. He further depones that, while counties enjoy institutional autonomy, the Governor remains the apex authority and the face of county accountability. The Governor cannot abdicate his constitutional duties by passing blame to subordinates or by invoking internal administrative arrangements. In his view, the Governor is therefore not improperly joined to the contempt proceedings, and the County’s wilful disobedience of the Court’s orders is, in law and in fact, an act under the Governor’s watch. He terms the Governor’s claim of non-involvement disingenuous. 24. He contends that granting the orders sought would set a dangerous precedent, allowing county governments to hide behind bureaucratic layers to defeat the authority of the Court and the rights of decree holders. He says the County Government has long been aware of the decree yet has failed to take any steps to comply, leaving contempt as the only remaining avenue for enforcement. 25. He also relies on Article 10 of the Constitution, which binds all State organs and State ocers, and states that obedience to court orders is a constitutional obligation. Finally, he depones that staying or setting aside the Notice to Show Cause would undermine public condence in the administration of justice. It would also greatly prejudice the Ex parte Applicant by defeating the only remaining avenue for enforcing the decree, prolonging an already inordinate delay. He prays that the Motion be dismissed. Issues For Determination 26. Having considered the Motion, the supporting adavit and the Replying Adavit, I nd that the following issues arise for determination: i. Whether the Notice to Show Cause issued on 8th April 2025 ought to be set aside as against the Governor of Kiambu County, on the grounds that he was not a party to the judicial review proceedings and is not a member of the County Treasury or an accounting ocer. ii. Whether the Respondents have made out a case for a stay of the Notice to Show Cause and of the contempt proceedings. iii. Who should bear the costs of the application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6134/eng@2026-09-30 4

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Analysis And Determination 27. I have carefully considered the Motion, the grounds on its face, the supporting adavit and the Replying Adavit. I will rst set out the legal framework on contempt, and then address the issues in turn. The law on contempt of court 28. The Contempt of Court Act, No. 46 of 2016 was declared unconstitutional in Kenya Human Rights Commission v Attorney General & another [2018] eKLR. Since then, the courts have relied on Section 5 of the Judicature Act, which confers the same power to punish for contempt as is for the time being exercised by the High Court of Justice in England. This Court, being of the same status as the High Court under Article 162(2)(b) and (3) of the Constitution, exercises that power. It is also guided by Section 29 of the Environment and Land Court Act, which makes it an oence to refuse, fail or neglect to obey an order or direction of this Court. 29. The obligation to obey court orders is fundamental to the rule of law. In Hadkinson v Hadkinson [1952] 2 All ER 567, Romer L.J. stated that it is the plain and unqualied 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. Kenyan courts have repeatedly armed that principle, including in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] eKLR. 30. At the same time, contempt proceedings are quasi-criminal in nature, and the liberty of the alleged contemnor is at stake. The standard of proof is therefore higher than the civil standard of a balance of probabilities, although not as high as proof beyond reasonable doubt: see Mutitika v Baharini Farm Ltd [1985] KLR 227. 31. To establish civil contempt, an applicant must prove that the terms of the order were clear, unambiguous and binding on the alleged contemnor. They must also prove that the alleged contemnor had knowledge or proper notice of the order, acted in breach of it, and did so deliberately. These elements were set out in Samuel M. N. Mweru & others v National Land Commission & 2 others [2020] eKLR. 32. Contempt is personal. A person is punished for his own disobedience, not for the default of another. A person who is not a party to, or named in, an order may still be liable for contempt. However, this is only where, with knowledge of the order, he aids and abets its breach or knowingly acts to frustrate it: Seaward v Paterson [1897] 1 Ch 545. Mere oce or position, without more, does not suce. Issue (i): Whether the Notice to Show Cause should be set aside as against the Governor 33. The starting point is the order said to have been disobeyed. The decree of 9th November 2023, issued on 12th January 2024, provides in material part: “ 1. That an order of Mandamus be and is hereby issued compelling the 1st, 2nd and 3rd Respondents to comply with the Certicate of Order against the County Government of Kiambu issued on 2nd February, 2022 for payment of the decretal sum and the settlement of the sum in the Certicate of Taxation dated 30th September, 2022 … https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6134/eng@2026-09-30 5

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2. That the Respondents shall have the remaining period of the 2023/2024 Financial Year to comply with the order of Mandamus.” 34. The order was directed at three specic oces: the County Secretary, the Chief Ocer, Finance, and the County Executive Committee Member for Finance. The Governor was not a party to the judicial review proceedings, and no order was directed at him. It was the Ex parte Applicant that chose the oces against which to seek mandamus. That choice was consistent with the law, since mandamus lies against the ocer on whom the law places the duty to act. 35. The statutory scheme conrms where that duty lies. Under Section 103 of the Public Finance Management Act, the County Treasury comprises the County Executive Committee Member for Finance, the Chief Ocer and the relevant department, with the County Executive Committee Member for Finance at its head. Under Section 104(1)(e), the County Treasury manages the county government’s public debt and other obligations. Under Section 148, the County Executive Committee Member for Finance designates the accounting ocers responsible for managing county nances. The County Secretary, under Section 44 of the County Governments Act, heads the county public service and is secretary to the County Executive Committee. These are the ocers the law charges with settling the County’s obligations, and it is against them that the mandamus issued. 36. The Ex parte Applicant relies on Article 179(4) of the Constitution and Sections 30(2)(h) and 30(3) (f) of the County Governments Act. I accept that the Governor is the chief executive of the county, chairs the County Executive Committee, and is accountable for the management and use of county resources. That accountability is real, and it is owed to the people of Kiambu, to the County Assembly and, ultimately, under the Constitution. However, general executive accountability is not the same thing as being bound by a specic order of this Court. Contempt punishes personal disobedience. It is not a vehicle for vicarious or institutional responsibility. To hold otherwise would expose a Governor to committal for the default of every county oce against which an order is made, whether or not he had any hand in it. 37. Could the Governor nonetheless be liable as a non-party who has aided or abetted the breach? For that, the Ex parte Applicant needed to show, by cogent evidence, that the Governor, knowing of the order, took steps to obstruct or frustrate compliance. That might be, for instance, directing ocers not to pay, or blocking provision for the debt in the budget. The Replying Adavit makes no such averment. It rests entirely on the Governor’s oce. The only link on record between the Governor and the order is that the demand letter dated 15th August 2024 was copied to the Oce of the Governor. That may go to knowledge. It says nothing about personal participation in the breach. 38. I am not persuaded that the show-cause hearing is the better forum for these questions. A notice to show cause is not a nding of guilt, and ordinarily a person so summoned should appear and explain himself. Here, however, it is plain on the face of the record that the Governor is not bound by the order and that no personal act of disobedience is alleged against him. Requiring him to answer quasicriminal proceedings, with committal to civil jail sought, would serve no useful purpose. In the words of the supporting adavit, the summons would be issued in vain. 39. I am alive to the Ex parte Applicant’s concern that county governments may hide behind bureaucratic layers to defeat decree holders. The concern is legitimate. The Court does not take lightly that a judgment delivered in December 2021 remains unpaid some four years later. Nor does it overlook that the Respondents’ own Grounds of Opposition dated 23rd June 2025 acknowledge the debt and ask only for more time. The answer, however, lies in pursuing those who are bound by the order, not in extending contempt to a person against whom no order was made. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6134/eng@2026-09-30 6

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40. The Ex parte Applicant is not left without a remedy. The contempt application remains alive against the County Executive Committee Member for Finance, who is the head of the County Treasury and a party bound by the order. Nothing in thisruling bars the Ex parte Applicant from moving the Court against the other ocers bound by the order. Nor does it bar proceedings against any other person, the Governor included, should evidence emerge of personal obstruction of the Court’s orders. 41. Accordingly, I nd that prayer (c) of the Motion has merit. Issue (ii): Whether a stay should issue 42. Prayer (b) sought a stay of the summons and of any punishment for contempt, pending the inter partes hearing of the Motion. That prayer was interim in nature, and it is spent now that the Motion has been heard and determined. To the extent that the Respondents seek a wider stay of the contempt proceedings, no basis has been laid for it. The Motion itself was directed only at the Governor. There is no reason to halt the contempt application against the County Executive Committee Member for Finance, who is bound by the order. Issue (iii): Costs 43. Under Section 27 of the Civil Procedure Act, costs follow the event, although the Court retains a discretion. The Respondents have succeeded on the principal prayer. However, the Motion arises from the Respondents’ continued failure to satisfy a decree they do not dispute. In the circumstances, the just order is that each party bears its own costs. 44. For the reasons set out above, I make the following orders: a. The Notice of Motion dated 5th June 2025 is allowed in terms of prayer (c). b. The Notice to Show Cause issued on 8th April 2025 is hereby set aside to the extent that it relates to the Governor of Kiambu County. c. Prayers (a) and (b) of the Motion are spent. d. The application dated 10th March 2025 shall proceed to hearing as against the County Executive Committee Member for Finance, County Government of Kiambu, on a date to be xed by the Court. e. Each party shall bear its own costs of the Motion. DATED, SIGNED AND DELIVERED, VIRTUALLY AT MALINDI THIS 30TH DAY OF SEPTEMBER 2026 …………….………….. J. M. ONYANGO JUDGE In the presence of: Ms Kamau for Mr. Njoroge Kugwa for the Applicant No Appearance for the Respondents Court Assistant: Happy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6134/eng@2026-09-30 7

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