Republic v Kioge, Clerk County Assembly of Migori & Secretary, Migori County Assembly Service Board & another; Okong’o Wandago & Co Advocates (Exparte Applicant) (Judicial Review Application E018 of 2023) [2024] KEELRC 491 (KLR)
The bottom line
#A Kenyan court ruled that government officers cannot use lack of budget allocation as an excuse for ignoring court orders to pay debts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondents should be cited, punished and committed to civil jail for contempt of the order of mandamus dated 20 June 2023 and the decree of 19 January 2023
- 2.Whether lack of funds or budgetary allocation excuses the Accounting Officers' failure to comply with the mandamus
- 3.Whether the Respondents should be denied audience until they purge their contempt
Key legal issues
#Whether lack of funds/budgetary allocation is a defence to contempt for non-compliance with mandamus
It is not; the statutory duty to pay on issuance and service of a certificate of order against the government is not conditioned on budgetary allocation
The Court adopted the reasoning in Hardi Enterprises and the authorities cited therein, holding that once a certificate of order against the government is served, Section 21(3) of the Government Proceedings Act imposes a statutory duty on the Accounting Officer to pay, and this duty is not conditional on budgetary allocation or parliamentary approval. The Respondents did not deny owing the sums; their only explanation was lack of funds.
Whether the Respondents are in contempt of the mandamus order
The named officers were found in contempt and summons to show cause were issued
The mandamus of 20 June 2023, the decree of 19 January 2023, the taxed advocate/client Bill of Costs and the Certificate of Order for Costs were all in place, service was acknowledged, and the Respondents opted not to participate in the mandamus Motion and offered no excuse beyond lack of funds.
Irregular representation by a second firm of advocates
A Notice of Appointment filed by Brian Mboya Advocate while another firm was on record was expunged
The proper procedure would have been a Notice of Change of Advocates; filing a fresh Notice of Appointment was irregular and was expunged.
Legal principles established
#- A plea of lack of budgetary allocation does not excuse an Accounting Officer's failure to comply with an order of mandamus enforcing a monetary decree against the government
Court orders
#- 1.Summons be issued to Lilian Atieno Onyango, the Finance Director, County Assembly of Migori and Vincensia Awino Kionge, Accounting Officer, Authorised Officer, Secretary of the County Assembly Service Board and Clerk of the County Assembly Migori to appear in this Court on 22 February 2024 to show cause why they should not be cited, punished and committed to civil jail for contempt of court for failing to comply with the order of mandamus dated 20 June 2023
- 2.Costs to the ex-parte applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction under leave granted on 31 May 2023 to commence judicial review orders against the County Assembly Service Board; contempt jurisdiction over breach of an order of mandamus issued by this Court
Relief refused
#Immediate citation, punishment and commitment to civil jail for six months of the named officers
The Court instead issued show-cause summons returnable on 22 February 2024
Order denying the Respondents audience until they purge their contempt
The Court did not include a denial-of-audience order in its final orders
Costs
Costs to the ex-parte applicant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Respondents argument that they are unable to pay as a result of lack of a budgetary allocation has no place in Judicial review cases, and I dismiss that argument.
This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.
Summons be issued to Lilian Atieno Onyango, the Finance Director, County Assembly of Migori and Vincensia Awino Kionge, Accounting Oficer, Authorised Oficer, Secretary of the County Assembly Service Board and Clerk of the County Assembly Migori to appear in this Court on 22 February 2024 to show cause why they should not be cited, punished and committed to civil jail for contempt of court
Costs to the ex-parte applicant.
Issues in the judgment
#Certificate of Order for Costs dated 15 May 2023 appears to predate the mandamus order of 20 June 2023, though the judgment presents it as issued 'Thereafter'
The numbered conclusion and orders at paragraph 17-18 are misformatted: the directive appears under 'i.' with the substantive text numbered '18.'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kioge, Clerk County Assembly of Migori & Secretary, Migori County Assembly Service Board & another; Okong’o Wandago & Co Advocates (Exparte Applicant) (Judicial Review Application E018 of 2023) [2024] KEELRC 491 (KLR)", Case Analysis (2024). Judicial Review Miscellaneous Application (Motion dated 14 December 2023), Kisumu ELRC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/491/eng@2024-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.