Mombasa County official faces arrest over Sh154m debt
The Mombasa County Assembly offices.
A Mombasa County executive committee member faces arrest for contempt of court after the county government failed to pay a private company Sh154.4 million over the rejection of its plan to establish a data colocation centre in the coastal city.
Mr Evans Ogada faces arrest after the Court of Appeal declined to suspend a judgment finding him in contempt for failing to comply with court orders directing payment to Kooba Kenya Ltd.
In the latest proceedings, the county government withdrew its application seeking an extension of time to challenge the decision after failing to comply with the applicable procedural rules, leaving the judgment and arrest warrants against Mr Ogada in force.
The dispute dates back to 2017, when the county government declined to approve Kooba’s proposed data centre, which the company intended to make the first of its kind in the Greater Eastern Africa region.
In judicial review proceedings, the High Court issued mandatory orders directing the county executive committee member responsible for finance to take steps to ensure payment of the debt.
However, the county government failed to settle the amount, prompting contempt proceedings against the official responsible for implementing the orders. The court subsequently found Mr Ogada in contempt and issued warrants for his arrest.
Kooba accused the county government and its officials of deliberately disregarding the court orders, saying the continued failure to pay had prolonged the losses suffered by the company.
“The Respondents' flagrant and deliberate disregard of the Court's Orders continues to exacerbate the loss and damage sustained by the ex parte Applicant at the hands of the Respondents. The Ex parte Applicant is subjected to significant prejudice as it continues to be deprived of the benefits of its Judgment, which sought to compensate the ex parte Applicant for Constitutional violations suffered as far back as 2017,” the company said in its contempt application.
Mombasa County Executive Committee member Evans Ogada faces active arrest warrants after the Court of Appeal declined to stay contempt proceedings over an unpaid Sh154.4 million court award.
The firm argued that despite the clear terms of the court decree, the county government and its officials had made no efforts to comply.
Kooba, through its managing director, Mr Richard Bell, said the continued failure to honour the orders undermined the authority of the Judiciary and raised questions about public officials’ obligation to obey court decisions.
The county government has made several attempts to challenge the judgment through appeals and applications before the Court of Appeal.
In October 2024, a single judge of the appellate court rejected its application for a stay of execution and an extension of time to file an appeal, prompting the county government to seek a hearing before a three-judge bench.
In her ruling, Justice Pauline Nyamweya said an extension of time was an equitable remedy granted at the court’s discretion after considering the reasons for the delay and the effect on all parties.
She said an applicant seeking an extension had to provide a satisfactory basis for the delay and demonstrate reasonable grounds for the court to exercise its discretion.
“I accordingly find that the Applicant does not merit the exercise of this Court’s discretion for the above stated reasons. I consequently hereby dismiss the Applicant’s Notice of Motion application dated 22nd April 2024, with costs to the Respondent,” Justice Nyamweya said.
When the parties appeared before the appellate court last week, the county government withdrew its application after failing to comply with the applicable procedural rules.
The withdrawal leaves the judgment and arrest warrants against Mr Ogada in force.
In a judgment delivered on April 13, 2017, the High Court found that the county government had violated Kooba’s right to fair administrative action under Article 47 of the Constitution. It awarded the company Sh151 million, together with interest and costs.
The costs were subsequently taxed at Sh3.397 million, bringing the amount sought by the company to about Sh154.4 million.
The company was established in 2015 to develop and operate a carrier-neutral data colocation centre serving Kenya and the wider Greater Eastern Africa region, including Tanzania, Uganda, Rwanda, Ethiopia, Burundi, the Democratic Republic of Congo, Malawi, South Sudan and Zambia.
It argued that the facility would serve multinational corporations, content providers, government agencies and financial institutions that rely on data centres in Europe and other regions.
Kooba acquired land in Mombasa’s Kizingo area, citing the site’s strategic location about 200 metres from the Seacon landing station and its proximity to the landing points of the TEAMS, LION and EASSY submarine cables.
Mr Bell said the dispute had grown beyond the company’s quest for compensation over losses incurred after the project was frustrated.
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