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ELCPartially AllowedELC JR NO. E002 OF 2025· [2026] KEELC 5328 (KLR)

Ochieng & another v Managing Director, Kenya Railways Corporation & 2 others (Judicial Review Application E002 of 2025) [2026] KEELC 5328 (KLR)

Environment and Land Court
21 August 2026
4,174 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered three government bodies to pay Kshs. 76.8 million plus costs, ruling that budget excuses cannot justify failing to settle court judgments.

What this practically means

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Executive summary

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The Applicants, judgment creditors in Kisumu ELC Case No. 40 of 2019, where they were awarded Kshs. 76,873,366.00 plus costs and interest against Kenya Ports Authority, Kenya Railways Corporation, the County Government of Kisumu and the Attorney General for unlawful demolition of their property, moved the Court by Notice of Motion dated 14th October 2025 seeking an order of mandamus compelling the Respondents, as accounting officers, to settle the decree amounting to Kshs. 142,410,536.33 as at 14th October 2025. The decree, extracted and the subject of a Certificate of Order against the Government issued on 3rd October 2022 and duly served, remained wholly unpaid more than four years after judgment. Kenya Railways Corporation opposed, citing pending budgetary allocations, its pending appeal (Civil Appeal No. E011 of 2022), and its ignorance of its portion of the joint and several decree. The 2nd and 3rd Respondents filed no response. The Court held that all conditions for mandamus were met; that lack of budgetary allocation is no lawful justification; that the conditional stay granted on 28th March 2023 lapsed by its own terms when the required deposit was not made, leaving no stay in force; and that joint and several liability entitles the decree holder to recover the whole sum from any debtor, apportionment being a matter of contribution inter se beyond the Court's jurisdiction. The Notice of Motion was allowed with costs summarily assessed at Kshs. 100,000.00 against the Respondents jointly and severally.

Key legal issues

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01

Conditions for grant of mandamus against a Government/public body judgment debtor

Holding

Once a certificate of order against the Government is issued and served and payment is not forthcoming, mandamus lies to compel the accounting officer to perform the statutory duty under Section 21 of the Government Proceedings Act.

Reasoning

Mandamus compels performance of a public legal duty imposed by statute where the applicant has a legal right to that performance. Where execution does not lie against the Government, Section 21(1) requires a certificate of order against the Government to be obtained and served on the accounting officer, who is then obligated under Section 21(3) to pay. All prerequisites here were admitted or uncontroverted: judgment of 24th February 2022, taxed costs, certificate issued 3rd October 2022 and served, yet no payment in over four years.

p. 15
02

Whether budgetary constraints justify non-settlement

Holding

Budgetary constraints cannot override Article 159 of the Constitution nor defeat the decree holder's entitlement to the fruits of judgment; public bodies must provision for decrees in their budgets.

Reasoning

In excess of four financial years had passed since judgment without the 1st Respondent placing before the Court any concrete steps to procure a budgetary allocation - no budget proposals, no correspondence with the National Treasury, no partial provisioning. A bare averment that the claim was presented for inclusion in a new financial year fell far short of discharging the duty owed to the Applicants.

p. 19
03

Effect of the pending appeal and lapsed conditional stay

Holding

No stay was in force since the conditional stay lapsed by its own terms when the deposit was not made; pendency of the appeal is no bar to enforcement.

Reasoning

Under Order 42 Rule 6 of the Civil Procedure Rules an appeal does not operate as a stay unless so ordered. The conditional stay granted on 28th March 2023 required deposit of half the decretal sum within 45 days; it was never made, and the 1st Respondent never sought extension, review, or a stay from the Court of Appeal. The stay therefore lapsed automatically.

p. 20
04

Plea of joint and several liability and apportionment

Holding

The invitation to apportion the decretal sum was declined; the decree holder may recover the whole from any judgment debtor, and contribution is a matter inter se.

Reasoning

The trial court found the judgment debtors jointly and severally liable. Under such a decree the whole sum is recoverable from all or any of the debtors; the proportions in which they bear the burden inter se is of no concern to the decree holder and cannot be a condition precedent to compliance. The judicial review court cannot rewrite the decree.

p. 21

Legal principles established

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  • A plea of lack of budgetary allocation, without more, cannot constitute lawful justification for the indefinite non-settlement of a decree of the court.
  • An appeal does not of itself operate as a stay of execution except in so far as the court appealed from may order; a party who disobeys the conditions of a conditional stay cannot continue to enjoy its protection.
  • Under a joint and several judgment, the decree holder may recover the whole decretal sum from all or any of the judgment debtors; apportionment is a matter of contribution inter se.

Court orders

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  1. 1.An Order of Mandamus issued directed at the 1st, 2nd and 3rd Respondents as accounting officers, compelling them to pay the Applicants the decretal sum of Kshs. 76,873,366.00 together with taxed costs of Kshs. 963,543.00 and all accrued interest at court rates per the Judgment and Decree in Kisumu ELC Case No. 40 of 2019 and the Certificate of Order against the Government issued on 3rd October 2022, until payment in full
  2. 2.The Applicants to have costs payable by the Respondents jointly and severally, summarily assessed at Kshs. 100,000.00 all inclusive
Jurisdiction invoked
Article 47 of the Constitution of Kenya, 2010; Sections 8 and 9 of the Law Reform Act, Cap. 26; Sections 7, 8, 9 and 11 of the Fair Administrative Action Act, 2015; Order 53 Rule 3 of the Civil Procedure Rules, 2010

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, "Ochieng & another v Managing Director, Kenya Railways Corporation & 2 others (Judicial Review Application E002 of 2025) [2026] KEELC 5328 (KLR)", Case Analysis (2026). ELC JR NO. E002 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5328/eng@2026-08-21

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