A Mombasa CEC is facing arrest for contempt of court after the county government failed to pay a private company Sh154 million awarded by the court after the rejection of its plan to establish a data colocation centre in the city.
The county had moved to the Court of Appeal to suspend a High Court order for Evans Ogada's arrest but the bid was declined.
Court of Appeal judges also declined to suspend a judgment finding the CEC in contempt for failing to comply with court orders directing the county to pay Kooba Kenya Ltd the Sh154 million award.
In the latest proceedings, the county government withdrew its application seeking an extension of time to challenge the decision after failing to comply with applicable procedure rules. The withdrawal means the warrant of arrest against Ogada remains in force.
Ogada as the Mombasa county government executive for finance was ordered to pay Kooba a total of Sh154.3 million, comprising Sh151 million in damages and Sh3.3 million in legal costs in 2022.The dispute arose in 2017 when the county government declined to approve Kooba’s proposed development, in what would then have been the first of its kind data colocation centre in the Greater East Africa region comprising Kenya, Tanzania, Uganda, Rwanda, Ethiopia, Burundi, DR Congo, Malawi, Mozambique, Somalia, South Sudan and Zambia. The move prompted the developer to seek the intervention of the court.The High Court found that the county government had violated Kooba’s rights leading to the collapse of the project and resulted in ensuing losses. The court entered judgment in Kooba’s favour.
A decree and certificate of costs were duly issued and served upon the Mombasa county government for settlement. However, the county failed to settle the award.
Kooba returned to court for judicial review proceedings to compel relevant officers of the county government to comply with the judgment and settle the outstanding decretal amount.In the judicial review proceedings, the High Court directing the Mombasa county government executive committee member for finance, Evans Ogada, to take steps to ensure payment.
Kooba, through its managing director, Richard Bell, said the continued failure to honour the orders undermined the authority of the judiciary and raised 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.
In October 2024, a single 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.
In her ruling, Justice Pauline Nyamweya said an extension of time was an equitable remedy granted at the court’s discretion after considering the reasons for the delay and the effect on all parties.
She said an applicant seeking an extension had to provide a satisfactory basis for the delay and demonstrate reasonable grounds for the court to exercise its discretion.
“I accordingly find that the applicant does not merit the exercise of this court’s discretion for the above stated reasons. I consequently hereby dismiss the applicant’s Notice of Motion application dated 22nd April 2024, with costs to the respondent,” Justice Nyamweya said.
When the parties appeared before the appellate court last week, the county government withdrew its application after failing to comply with the applicable procedural rules.
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.
It argued that the facility would serve multinational corporations, content providers, government agencies and financial institutions that rely on data centres in Europe and other regions.
Kooba 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 compensation over losses incurred after the project was frustrated.
