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ELRCPartially AllowedKisumu ELRC Miscellaneous Civil Application (as extracted; ex-parte applicant's Motion dated 14 December 2023)

Republic v Vencensia Awino Kioge, Clerk County Assembly of Migori & Secretary, Migori County Assembly Service Board & another; Okong’o Wandago & Co Advocates (Exparte Applicant) (Judicial Review Application E019 of 2023) [2024] KEELRC 492 (KLR)

Employment and Labour Relations Court
14 February 2024
1,510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that government officials cannot use lack of budget allocation as an excuse to avoid paying court-ordered debts, and summoned them to explain non-compliance.

What this practically means

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Executive summary

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In this Employment and Labour Relations Court matter at Kisumu, Okong'o Wandago & Co. Advocates, the ex-parte applicant, moved the Court by a Motion dated 14 December 2023 seeking contempt summons and committal to civil jail of Lilian Atieno Onyango (Finance Director, County Assembly of Migori), Vincensia Awino Kionge (Accounting Officer, Authorised Officer, Secretary of the County Assembly Service Board and Clerk), and members of the Migori County Assembly Service Board, for disobeying an order of mandamus issued on 20 June 2023 enforcing a decree dated 19 January 2023 in Kisumu ELRC Miscellaneous Civil Application No. E023 of 2021. The applicant had taxed an advocate/client Bill of Costs and obtained a Certificate of Costs and a Certificate of Order against the Government. The Respondents did not deny the debt, explaining non-compliance by lack of funds and budgetary allocations. The Court first expunged as irregular a Notice of Appointment filed by Brian Mboya, Advocate, since C.O. Obiero & Associates were already on record. Relying on Hardi Enterprises Limited and the line of authority under section 21 of the Government Proceedings Act, the Court endorsed the position that payment of decrees against Government via mandamus is not conditioned on budgetary allocation, dismissing the Respondents' excuse. Noting the mandamus, Certificate of Costs and Certificate of Order were all in place, the Court directed that summons issue to the two named officers to appear on 22 February 2024 to show cause why they should not be cited, punished and committed to civil jail, and awarded costs to the ex-parte applicant. Judgment delivered virtually on 14 February 2024 by Radido Stephen, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondents should be summoned to show cause why they should not be cited, punished and committed to civil jail for contempt of the order of mandamus dated 20 June 2023
  2. 2.Whether lack of funds/budgetary allocations is a defence to non-compliance with an order of mandamus enforcing a decree against the Government
  3. 3.Whether the irregular Notice of Appointment filed by Brian Mboya, Advocate should be expunged from the record

Key legal issues

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01

Whether lack of funds/budgetary allocation excuses non-compliance with mandamus enforcing a decree against the Government

Holding

No. Once a certificate of order against the Government is issued and served, the accounting officer is under a statutory duty to pay, unconditioned by budgetary allocation.

Reasoning

The Court adopted the reasoning in Hardi Enterprises and the underlying authorities: decrees against Government are enforced only by mandamus against the accounting officer under section 21 of the Government Proceedings Act. The certificate of order triggers a statutory duty to pay which is not conditioned on budgetary allocation or parliamentary approval, so the defence of lack of funds fails.

p. 4
02

Whether the Respondents' officers should be summoned to answer for contempt

Holding

Yes. The mandamus order, Certificate of Costs and Certificate of Order against the Government are in place, the debt is not denied, and summons to show cause were warranted.

Reasoning

The Respondents acknowledged service of the mandamus but did not comply, offering only lack of funds. They did not deny owing the sums awarded. The Court endorsed the applicable authorities and the Court of Appeal's obiter remarks deploring litigants who await court orders before paying, then directed that summons issue for the officers to show cause why they should not be committed to civil jail.

p. 4

Legal principles established

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  • An order of mandamus compelling an accounting officer to pay a decree against the Government does not condition payment to budgetary allocation or parliamentary approval
  • A plea of lack of budgetary allocation has no place in judicial review enforcement proceedings

Court orders

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  1. 1.Notice of Appointment filed by Brian Mboya, Advocate expunged from the record as irregular
  2. 2.Summons be issued to Lilian Atieno Onyango, 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 Court on 22 February 2024 to show cause why they should not be cited, punished and committed to civil jail for contempt for failing to comply with the order of mandamus dated 20 June 2023
  3. 3.Costs to the ex-parte applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Judicial review proceedings under leave granted by the Court on 31 May 2023; contempt enforcement of a prior order of mandamus issued by the Court on 20 June 2023 and a decree in Kisumu ELRC Miscellaneous Civil Application No. E023 of 2021

Relief refused

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Immediate citation, punishment and committal to civil jail for six months of the named officers

The Court granted summons to attend and show cause rather than immediate punishment; the named Board members (as a group) were not included in the summons order

p. 4

Denial of audience to the Respondents until they purge their contempt and pay Ksh 781,820/-

Not granted in the final orders

Costs

Costs to the ex-parte applicant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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.
p. 4Statutory duty of accounting officer to pay decrees against Government
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.
p. 3Rejection of lack-of-funds defence
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 for failing to comply with the order of mandamus dated 20 June 2023.
p. 4Final orders - summons for contempt
Costs to the ex-parte applicant.
p. 4Costs order

Issues in the judgment

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minor

Chronological anomaly: the Certificate of Order for Costs is stated to have been issued on 15 May 2023, before the mandamus of 20 June 2023 and the Certificate of Costs of 27 November 2023 which it should follow

minor

The case number of the present application is not expressly stated on the face of the extract; it is only inferable from the referenced Kisumu ELRC Miscellaneous Civil Application No. E023 of 2021 decree

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Vencensia Awino Kioge, Clerk County Assembly of Migori & Secretary, Migori County Assembly Service Board & another; Okong’o Wandago & Co Advocates (Exparte Applicant) (Judicial Review Application E019 of 2023) [2024] KEELRC 492 (KLR)", Case Analysis (2024). Kisumu ELRC Miscellaneous Civil Application (as extracted; ex-parte applicant's Motion dated 14 December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/492/eng@2024-02-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.