A Mombasa County executive committee member faces arrest for contempt of court over the county government’s failure to pay a private company Ksh.154.4 million after rejecting its plan to establish a data colocation centre in the coastal city.
Evans Ogada faces arrest after the Court of Appeal declined to suspend a judgment that found him in contempt for failing to comply with court orders directing payment to Kooba Kenya Ltd.
The dispute dates back to 2017, when the county government declined to approve Kooba’s proposed data centre, which the company intended to make the first of its kind in the Greater Eastern Africa region.
In judicial review proceedings, the High Court issued mandatory orders directing Ogada, then the county executive committee member responsible for finance, to take steps to ensure payment of the judgment debt.
However, the county government failed to settle the amount, prompting contempt proceedings against the official responsible for implementing the orders.
The court subsequently found Ogada in contempt and issued warrants for his arrest.
Kooba, through its managing director, Mr Richard Bell, says the continued failure to comply with court orders undermines the authority of the Judiciary and raises questions about public officials’ obligation to obey court decisions.
The county government has made several attempts to challenge the judgment through appeals and applications before the Court of Appeal.
A judge of the appellate court rejected its application for a stay of execution and an extension of time to file an appeal, prompting the county government to seek a hearing before a three-judge bench.
However, when the parties appeared before the bench last week, the county government withdrew its application after failing to comply with the applicable procedural rules.
The withdrawal leaves the judgment and the arrest warrants against Ogada in force.
In a judgment delivered on April 13, 2017, the High Court found that the county government had violated Kooba’s right to fair administrative action under Article 47 of the Constitution. It awarded the company Sh151 million, together with interest and costs.
The costs were subsequently taxed at Sh3.397 million, bringing the amount sought by the company to about Ksh.154.4 million.
Kooba says it has made several demands for payment without success.
The company was established in 2015 to develop and operate a carrier-neutral data colocation centre serving Kenya and the wider Greater Eastern Africa region, including Tanzania, Uganda, Rwanda, Ethiopia, Burundi, the Democratic Republic of Congo, Malawi, South Sudan and Zambia.
Kooba argued that such a facility would serve multinational corporations, content providers, government agencies and financial institutions that rely on data centres located in Europe and other regions.
It acquired land in Mombasa’s Kizingo area, citing the site’s strategic location about 200 metres from the Seacon landing station and its proximity to the landing points of the TEAMS, LION and EASSY submarine cables.
Bell said the dispute had grown beyond the company’s quest for redress over the losses it suffered after the project was frustrated.
He said it was now a matter of principle involving enforcement of a High Court judgment and the obligation of public institutions and their officers to comply with court orders.