Ochieng & another v Managing Director, Kenya Railways Corporation & 2 others (Judicial Review Application E002 of 2025) [2026] KEELC 5328 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Conditions for grant of mandamus against a Government/public body judgment debtor
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.
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.
Whether budgetary constraints justify non-settlement
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.
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.
Effect of the pending appeal and lapsed conditional stay
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.
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.
Plea of joint and several liability and apportionment
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.
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.