Kenya’s independent electoral commission boss faces possible jail over contempt of court

11 November 2022 · Carmel Rickard

The head of Kenya’s independent electoral and boundaries commission has been found in contempt of court and will be staring some serious punishment in the face when he appears in court for sentencing. An office technology company brought an application against commission CEO, Marjan Hussein Marjan, asking that he be fined and/or jailed for six months for having ‘deliberately disobeyed’ earlier court orders and a 2016 judgment to pay the company. The judge who heard the company’s application had some tough words for Marjan about heeding court orders.

Read judgment

At stake in this application was Ksh 7,243,568 still owed by Kenya’s independent electoral and boundaries commission. This after the commission had run up a total debt to Office Technologies Ltd of Ksh 200,440,000 and the court gave summary judgment for this amount plus interest as from March 2013. Although some of the amount has been paid, the commission still owes a substantial sum and has been dragging its feet about payment.

Judge Anthony Ndung’u, who dealt with the matter earlier this month, pointed out that the deputy registrar of the court had clarified the amount still owing and that this had been served on the commission and its lawyers.

Great danger

The judge said that the rule of law would be in great danger if the courts failed to ensure compliance with court orders. ‘Without enforcement through punishing for contempt of court, the orders of court would remain mere rhetoric not worth the paper they are written on.’

‘… [A] judge who fails to enforce his orders through punitive measures to those who disobey them has no business conducting the next trial, for, of what use would be court proceedings whose outcome is of no consequence?’

He agreed with earlier court decisions to the effect that court orders were ‘not meant for cosmetic purposes’ and that a court order ‘is not a mere suggestion or an opinion or a point of view’. It had to be complied with, and to see the question any other way ‘is to open the door to chaos and anarchy, and this court will not be the one to open that door.’

Delaying tactics

In the case before him, Office Technologies had shown the earlier judgment in its favour. When a dispute arose about the total sum payable, the deputy registrar resolved the matter and established that the outstanding amount due was Ksh 7,243,568. According to the company, all the necessary steps had then been taken to ensure that the commission was officially informed about the sum payable.

A yet further hearing came before another judge and clarified again the outstanding sum due.

At this point, the focus of the court shifted to the way that the commission was using delaying tactics.

Evade

In a similar case a few years before, the court had seen similar tactics used, and found that there was a ‘discernible, deliberate attempt to evade the real issue in controversy.’

The judge hearing that matter commented that, instead of acting in good faith, the real essence of the dispute was lost as ‘lofty arguments are made about misnaming of parties and/or service, leaving a successful litigant clutching at straws despite having a valid and enforceable judgment of court.’

In this case, said Judge Ndung’u, there was evidence that the commission had been served with the required notice and the order to pay was known to it.

Technical straws

‘The terms of the order on payment are clear and unambiguous and are binding on [Marjan] as the accounting officer. [He] has breached the order to pay with no plausible explanation given.’

The judge said that the history of the matter militated against allowing Marjan ‘to continue clinging on technical straws to avoid carrying out the duty to pay the sum due to [the company].’

The court therefore allowed the application and found Marjan to be in contempt of court for disobedience of the court orders. Judge Ndung’u then order a summons to be issued against Marjan to appear in court on a date to be set, for sentencing.

Marjan became CEO of the IEBC in March, but had been acting CEO for five years before that.

Carmel Rickard

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