Attorney-General Kihara Kariuki and Interior Principal Secretary Karanja Kibicho are battling to avoid jail for contempt of court in a five-year-old tussle between the state and a woman over compensation dues.
Ms Lucy Nduta Ng’ang’a had sued the two over their failure to pay her Sh5.3 million in compensation following the fatal shooting of her kin Edward Kuria on September 24, 2009 as he was driving on the Mombasa-Nairobi Highway.
Ms Ng’ang’a filed the case in 2013 as a representative of Kuria’s estate. She argued that police used excessive force, breached the procedure regarding arrests, and acted negligently and illegally. Kuria was 32. In 2016, the court issued the compensation order but, five years later, she’s yet to get a penny from the state.
The High Court cited Mr Kariuki and Dr Kibicho for contempt for disobeying an order issued in October 2019 compelling them to honour a decree issued in 2016 by paying her the money.
It had summoned the two to appear before it on September 20 for sentencing. But yesterday, Mr Kariuki sought to have permanent suspension of their sentencing until the payment is done. In his application, the AG also asked for a permanent extension of time as they await the National Treasury to remit the money to Ms Ng’ang’a.
“The applicants have demonstrated to court that they are willing to see to it that the decree is paid in full,” said the AG, adding that the Solicitor General had, in a March 9 letter, requested the PS to settle the amount. Mr Kariuki apologised for the inordinate delay in payment and requested for an extension of 90 days pending hearing and determination of the application.
The AG argued that sentencing them would bring “great disrepute to the court”, adding that it’s in the interest of justice that they be granted an extension of time to enable them to pay.
“The punishment for contempt of court is an irreversible event and it’s unfair to punish state officers who have demonstrated that they are carrying on their duties in accordance with the judgment and court orders,” argued the AG in his application.
Through her lawyer, Mr Origi Owino, Ms Ng’ang’a had last month told the court that the money had not been paid and wanted the court to sentence Mr Kariuki and Dr Kibicho.
However, Justice Eric Ogola in Mombasa said the two cannot be sentenced before they appear in court for mitigation. The court had in January given the AG and the PS 90 days to honour the decree. Ms Ng’ang’a had argued in her application that, despite personal knowledge of the order, the respondents had wilfully disobeyed it.
In his application, the AG had sought to have the court strike out his name and that of Dr Kibicho from the case as they did not have the capacity to honour the decree. He also argued that Dr Kibicho is protected from personal liability for acts done in good faith in his official capacity and that the suit was a non-starter.
He said orders sought in Ms Ng’ang’a’s application were not only drastic but would lead to unnecessary embarrassment to the office holders in their personal capacity and to the executive.
Mr Kariuki said he is a necessary party in all suits against government ministries and departments only in his official capacity. The AG said he is a presidential appointee, yet threatened with committal to civil jail in his personal capacity for performing his statutory duty in good faith.
