No gvmt budget to pay damages’ award is no excuse – high court

21 February 2019 · Carmel Rickard

What is a litigant supposed to do when the government simply ignores court orders to pay damages? The problem can be starkly seen in this case of a Kenyan man who nearly lost his life when he was attacked and severely beaten by soldiers almost 30 years ago. Decades later, George Waithaka is still struggling to get the compensation due to him on the orders of the court. Faced by authorities who do nothing to ensure his payment, Waithaka has now won a contempt of court order against the official who should have signed the cheque.

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During 1991, taxi operator George Waithaka was brutally beaten by Kenyan soldiers. He lost consciousness for four days and needed metal implants in his legs. After some initial difficulties, he finally won judgment in September 2014, stipulating that he be paid damages. Months later an official order against the government was issued by the court for payment of damages amounting to KShs 3,858,528 This represented damages plus interest up to that date.

But despite several court hearings since then, the money has still not been paid and it is now close to 30 years since that almost fatal attack.

Waithaka – anyone would forgive him if he was losing hope – has finally asked the court to find that the accounting officer in the defence ministry has committed contempt of court for not making payment as ordered.

Last month Judge Pauline Nyamweya did just that, declaring the relevant official culpable for non-payment and in contempt. However, the principal secretary of the ministry of defence has been thrown yet another lifeline: the judge said he could purge his contempt by making arrangements to pay before a hearing on sentence is called.

Putting his side of the story, the present accounting officer and principal secretary in the Ministry of Defence, Saitoti Torome, said that while he knew about the judgment order he could do nothing to pay it because the department had no budget for such payments.

Even worse, he disclosed that the department owed many billions of shillings, due as a result of court orders related to Waithaka and other litigants as well.

He argued that government expenditure had to come from money provided for by parliament, but that no such provision had been made and that parliament “has not provided any monies or adequate funds for it to settle any claims”.

The Ministry of Defence alone had several outstanding decrees in excess of “four billion shillings” and it could settle none of them because of its financial situation, he said.

He further claimed that since he had not received any money he could not be held personally liable for a “public debt”.

But Judge Nyamweya was unimpressed with his argument. She quoted settled law in Kenya, derived from earlier judgments, saying that if judgment was given against the government, “it does not enjoy any special privileges” related to its liability to pay.

Once the usual process of obtaining a court certificate of order against the government was complete, there was a statutory duty on the relevant accounting officer to pay. This statutory duty was not conditional on parliament’s budget or government approval of funds.

Judge Nyamweya added, “Non-allocation of funds by Parliament is not an acceptable defence or justifiable excuse for non-payment of decretal sums”. This was particularly so when, as here, there was no evidence by the relevant officer about what had been done to start the process of allocating money to pay the ordered damages. In this case, though contempt of court proceedings had begun in April 2017, there was still no indication of what, if anything, had been done since then to make the payment.

Although the situation had been made more complicated by a recent court declaration that the Contempt of Court Act was unconstitutional, the court could still make such orders via provisions in other legislation and its own inherent power, she found.

The judge declared that Torome was aware of the orders issued by the court in 2016 to pay damages to Waithaka, and he had not shown that any steps had been taken to obey these orders. Torome was thus “culpable of disobeying the same and for contempt of court”.

However, she added, as Torome had asked for more time to make the payments, she would give him a chance to purge his contempt which, if he did, would mitigate his sentence.

She therefore put off passing sentence on him and said another date would be set by the court for sentencing once she had heard from Waithaka and Torome as to what (if anything) had been done on the question of payment.

For an outsider reading judgments from Kenya, it is shocking to see how often court orders to pay damages are blatantly ignored by government. What would amount to a constitutional crisis in other jurisdictions – with the courts squared up against the government over the crucial issue of obeying judicial orders – appears to be almost an everyday occurrence.

Will this case be any different? – Jifa intends to keep tabs on the story and record the final outcome.

Carmel Rickard

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