Health Cabinet Secretary Aden Duale has escaped a possible jail term after the High Court accepted his apology and declined to impose a punitive sentence for contempt of court over the establishment of a controversial Ebola quarantine facility in Nanyuki.
Justice Patricia Nyaundi of the Milimani High Court on Tuesday accepted Duale's apology after finding that he had submitted himself to the authority of the court and expressed remorse over the violation of court orders that had stopped the establishment of the facility.
In her ruling, Justice Nyaundi said she had carefully considered the mitigation filed by the Health CS as well as submissions made by the petitioners and interested parties.
"I have had the opportunity to consider the mitigation that was submitted by the Honourable Duale," the judge said.
"I have also considered these powerful submissions. I have taken the submissions very seriously by the petitioners, Katiba Institute and LSK and the interested parties and the weight that should be given on the duty of this court to safeguard the integrity of this court."
The court noted that Duale had complied with directions requiring him to personally appear before the court and offer mitigation following the contempt finding.
"I have noted that Mr Duale has indeed submitted himself to the authority of this court," Justice Nyaundi said.
"He has, as was required of him, tendered his mitigation and I note he has rendered an apology."
The judge said she was persuaded to accept the apology despite concerns raised by petitioners regarding the need to uphold respect for court orders.
"I will give my detailed reasons on the matter later. But I will accept the apology by Duale," she ruled.
Lawyers for the Law Society of Kenya (LSK) and Katiba Institute had urged the court to impose a custodial sentence of 15 months without the option of a fine, arguing that Duale had wilfully disobeyed two court orders barring the establishment of the Ebola quarantine facility.
However, the court opted for a less punitive approach, issuing what it described as a strict warning.
"I have been invited to issue a warning. I will clarify that it is a strict warning and that any hint of non-compliance with the orders of the court will be noted," Justice Nyaundi warned.
The judge further observed that this was the first contempt finding against the CS and said the court would extend him the benefit of the doubt.
"Since this is the first instance, the minister is responding to this. I will give him the benefit of the doubt," she said.
Justice Nyaundi noted that Duale had expressly acknowledged the authority of the court and committed himself to future compliance with court orders.
"So, for that reason, I will accept the apology that has been tendered, especially as he has been categorical that he recognises the authority of the court," the judge stated.
The court also declined to award costs against Duale despite the successful contempt proceedings.
She then formally discharged the contempt proceedings while cautioning that future violations would attract serious consequences.
"With that, my order of admonition is discharged," the judge said.
The ruling came hours after Duale personally appeared before the court and expressed regret over the actions that led to the contempt finding.
In his mitigation, the Health CS told the court that the Ministry of Health had acted based on scientific and technical advice aimed at protecting public health and not out of any intention to undermine the judiciary.
Duale further informed the court that he had since issued directives halting all construction works, site preparations and related activities at the disputed Nanyuki Ebola quarantine facility pending the hearing and determination of the petition filed by Katiba Institute and the Law Society of Kenya.
He apologised for any actions that may have been perceived as non-compliance and pledged full adherence to court orders going forward.
