Court sets aside warrant of arrest against Machakos governorTuesday January 25 2022
A judge has set aside warrants of arrest issued against Machakos governor Alfred Mutua for disobeying an order to pay a man Sh5.5 million after the county government trespassed on private land.
Justice Christine Ochieng said the warrant dated September 1, 2021, and issued by the court's acting deputy registrar was supposed to be directed to the County Government's accounting officer because the dispute concerns the payment of damages.
"As per the Constitution, the Governor is not the Accounting Officer for the county government and on perusal of the judgement, I note it is actually the county government that was ordered to pay exemplary damages," said the judge.
"Insofar as I concur with the landowner that the governor was indeed served, I find that the warrant issued for his arrest in respect to payment of exemplary damages was not proper.”
She directed that the accounting officer be furnished with a fresh notice “to show cause (NTSC) within 14 days, for failing to settle the amount”.
The judge made the ruling after Dr Mutua challenged the warrant of arrest stating that he had been condemned unheard and his rights had been infringed.
The court heard that Dr Mutua is neither an accounting officer nor pay point of the county government and cannot personally make any orders in respect to the payment of the outstanding amounts in his capacity.
The warrant stems from a case filed in 2013 by Mr David Gitau Thairu after the county government dumped waste on his land situated in Machakos Town without permission.
He told the court that the county government had dumped heaps of cotton soil and dug trenches on the land and that as a result, he was unable to build a hotel on the land.
Mr Thairu testified that due to the deposit of the cotton soil on the land, he was unable to build a hotel on the property and he had leased a building for his hotel known as ‘Ikinu’. He said he could not utilise his land since 2013 because of the acts of the devolved unit.
He sought damages of Sh10 million but the court awarded him Sh5 million plus the costs incurred in the case.
The county government had told the court that it had only dumped soil on the plot while constructing a road and a sewerage system through the region. It, however, offered to remove the soil and compensate Mr Thairu.
But the government failed to obey the order regarding payment of damages prompting Mr Thairu to file the contempt application.