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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether lack of funds/budgetary allocations is a defence to non-compliance with an order of mandamus enforcing a decree against the Government
- 3.Whether the irregular Notice of Appointment filed by Brian Mboya, Advocate should be expunged from the record
Key legal issues
#Whether lack of funds/budgetary allocation excuses non-compliance with mandamus enforcing a decree against the Government
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.
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.
Whether the Respondents' officers should be summoned to answer for contempt
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.
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.
Legal principles established
#- 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
#- 1.Notice of Appointment filed by Brian Mboya, Advocate expunged from the record as irregular
- 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.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 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
#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
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
#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.
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.
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.
Costs to the ex-parte applicant.
Issues in the judgment
#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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.