The High Court in Mombasa has summoned Attorney-General Kihara Kariuki and Interior Principal Secretary Dr Karanja Kibicho to appear before it for mitigation before sentencing them for contempt of court.
Justice Eric Ogola issued the order on Thursday and directed that it be served to the senior government officials through litigation counsel at the AG’s chambers in Mombasa.
It all started when Ms Ng’ang’a filed a case at the magistrate court in 2013, as a representative of the estate of Edward Ng’ang’a Kuria, who was unlawfully shot dead by a police officer on September 24, 2009 while driving on the Mombasa-Nairobi Highway.
She told the court that the police had used excessive force, breached procedure regarding arrests and acted negligently and illegally when they fatally shot the deceased, then aged 32.
She was then awarded millions in compensation by the lower court but years later, it has never been paid.
On January 26 this year, the High Court found that Mr Kariuki and Dr Kibicho were in contempt for disobeying a court order issued on October 2019 compelling them to pay Ms Ng’ang’a Sh5.3 million to satisfy a court decree issued in 2016.
Through her lawyer, Ms Ng’ang’a told the court Thursday that the money is yet to be paid and wants Mr Kariuki and Dr Kibicho sentenced.
However, Justice Ogola said the two cannot be sentenced before they appear in court for mitigation.
A lawyer from the AG's chambers argued that Ms Ng’ang’a had been listed for payment among other people and that there may have been some bureaucratic challenges blocking disbursement.
In January, the court had given Mr Kariuki and Dr Kibicho 90 days to satisfy the decree issued in favour of Ms Ng’ang’a by the magistrate’s court in Mombasa.
“If the respondents fail to comply (within 90 days), they shall personally come to this court on May 5, 2021 to show cause why they should not be punished for contempt of court,” said Justice Ogola at the time.
He further noted that the decree was issued in 2016 and that it has been in effect for more than a year.
“Despite that, the applicant (Ms Ng’ang’a) has not been paid. The respondents have a duty to the applicant which they have not been faithful to,” said Justice Ogola, adding that the actions of the respondents are devoid of good faith.
In his application, which the court found to have not been proved, the AG sought to have his name and that of Dr Kibicho struck from the suit.
The AG 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, as well as disgracing the Executive arm of government.
He wanted Ms Ng’ang’a’s application struck out with costs for non-compliance with the rule of law since the orders cannot be issued against them in person.
The AG said he and Dr Kibicho did not have the capacity to satisfy the sum issued in the 2016 decree.
He also argues that Dr Kibicho is protected from personal liability for acts done in good faith in his official capacity, and that the suit by Ms Nga’ng’a was a non-starter.
The AG had also argued he is a necessary party to all suits against government ministries, departments and officers in his official capacity and not a personal one.
Mr Kariuki and Dr Kibicho are expected in court on October 26.