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 for violating court orders that had halted 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 submitted by Honourable Duale,” the judge said.
“I have also considered the powerful submissions by the petitioners, Katiba Institute and the Law Society of Kenya (LSK), as well as the interested parties, and the weight that should be accorded to this court’s duty to safeguard its integrity.”
The judge noted that Duale had complied with the court’s directions requiring him to personally appear and offer mitigation following the contempt finding.
“I have noted that Duale has indeed submitted himself to the authority of this court,” Justice Nyaundi said.
“He has, as required, tendered his mitigation and rendered an apology.”
The court said it was persuaded to accept the apology despite concerns raised by the petitioners on the need to uphold respect for court orders.
“I will give my detailed reasons later, but I will accept the apology by Duale,” the judge ruled.
Lawyers representing the LSK and Katiba Institute had urged the court to impose a 15-month custodial sentence 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 and issued what it described as a strict warning.
“I have been invited to issue a warning. I wish to clarify that it is a strict warning and that any hint of non-compliance with court orders will be noted,” Justice Nyaundi warned.
The judge further observed that this was the first contempt finding against the Cabinet Secretary and said the court would give him the benefit of the doubt.
“Since this is the first instance, the minister is responding to this finding. 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.
“For that reason, I will accept the apology that has been tendered, especially because he has been categorical that he recognises the authority of the court,” she stated.
The court also declined to award costs against Duale despite the successful contempt proceedings.
Justice Nyaundi then formally discharged the contempt proceedings while cautioning that any 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 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 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 LSK.
He apologised for any actions that may have been perceived as non-compliance and pledged full adherence to court orders going forward.
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