Court jails Mombasa County Finance CEC for contempt

Mombasa County Finance and Economic Planning executive Mariam Mbaruk has been sentenced to 60 days’ imprisonment for contempt of court.

Ms Mbaruk was sentenced in absentia on Tuesday, after she failed to attend court to mitigate before it could sentence her.

Justice Eric Ogola sitting at the High Court in Mombasa directed that the senior county official be arrested and taken to prison to serve her jail term.

“The officer commanding Central Police Station in Mombasa (OCS) to arrest Mariam Mbaruk and take her to serve the sentence at Shimo la Tewa women prison,” Justice Ogola ordered.

Justice Ogola noted that he had given Ms Mbaruk ample time to attend court (to mitigate before sentencing) and that he had no option but to sentence her in absentia.

Ms Mbaruk sentencing comes barely two months after the county’s Chief Officer-Finance and Economic Planning Aisha Abdi was sentenced for the same duration and offence.

The sentencing follows the conviction of Ms Abdi and Ms Mbaruk for contempt following an application by Coastal Bottlers Ltd which seeks to be paid Sh963,361 by the county government of Mombasa.

In his ruling convicting the two officers, Justice Ogola said the argument by the county government that the delay in paying the company had been caused by verification and transfer of assets and liabilities by the county assets and liabilities committee, was not sufficient reason to delay payment for almost ten years.

“In normal operations of the county governments, such payments are factored in the expenditure budget such that when there is a court order, the accounting officer is able to process the payments without problems,” said Justice Ogola.

Justice Ogola noted that once a decree or judgment is obtained against the government, it would require some reasonable time to have it forwarded to its finance and budget departments and auditing officers for scrutiny and approvals for it to be paid.

The court further noted that county departments do not have their own funds to settle decrees or payments and considering structures involved, it might take a long time.

However, Justice Ogola said that in the instant case the county government had exhausted the window of reasonable time as the certificate of costs was issued on May 7 2010 and it has been more than ten years.

“It is not clear why the respondent has been waiting for the verification and transfer of assets and liabilities process so as to pay the applicant but at this point it is important to note that this has been the respondent’s excuse since 2018,” said Justice Ogola.

According to Coastal Bottlers Ltd, its case against the then Municipal Council of Mombasa was withdrawn on June 30 2011 and it was awarded costs.
Coastal Bottlers Ltd said it filed its bill of costs which was settled before it was certified and taxed.

The company told the court that it unsuccessfully followed up with the county government in order to know when it (county government) intended to effect payment in order to comply with the court order.

The court heard that it seemed to the company that the county government and its officials had no regard to the court order.

On its part, the county government had opposed the application saying Ms Abdi and Ms Mbaruk were public officers within the ambit of sections 196 and 197 of the Public Finance Management Act (2012), and are not allowed to spend public funds without authorization.

It argued that it has every intention to comply with the order but the delay was caused by verification and transfer of assets and liabilities to the county assets and liabilities committee.

According to the county government, Coastal Bottlers Ltd did not serve any order on the two officers who were not personally aware of the court order.