Bius Clement Ochieng & another v Board of Management Ngere Kagoro Secondary School & 4 others

NGERE KAGORO SECONDARY SCHOOL.…….….2ND RESPONDENT SECRETARY BOARD OF MANAGEMENT NGERE KAGORO SECONDARY SCHOOL……...…3RD RESPONDENT THE ACCOUNTANT/BURSAR NGERE KAGORO SECONDARY SCHOOL………………...…4TH RESPONDENT THE PRINCIPAL SECRETARY STATE DEPARTMENT FOR BASIC EDUCATION……...…..5TH RESPONDENT RULING 1. Pursuant to leave granted on 17th February 2026, the Applicants have filed the present Notice of Motion dated 23rd February 2026 seeking an order of mandamus compelling the Respondents to pay the decretal sum of Kshs. 2,314,128.40 together with costs of Kshs. 167,053/- arising from the judgment in Kisumu CMELRC E235 of 2021, Bius Clement Ochieng & another v Board of Management, Ngere Kagoro Secondary School. They also seek the costs of the application. 2. The application is premised on the four grounds set out on its face and is supported by the accompanying statement of Page 2 of 10

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facts and verifying affidavit. The Applicants contend that although judgment was delivered on 1st December 2023 and costs were assessed on 16th April 2024, the decretal amount and costs remain unpaid to date. They further contend that there is no impediment to settlement of the decree, noting that the Respondents’ appeal, Kisumu ELRCA No. E019 of 2024, was struck out on 13th March 2025, while the garnishee proceedings instituted by the Applicants on 16th September 2025 were similarly dismissed. The Applicants therefore urge the Court to allow the application, pointing out that they have obtained a Certificate of Costs and a Certificate of Order against the Government, both annexed as “BCO-4”. 3. The application is opposed by the Respondents through a Replying Affidavit Respondent’s sworn Secretary, by on Rose 17th Ogama, March the 2026. 1st The Respondents contend that they have at all material times been willing to settle the decretal amount but have been constrained by the lack of government capitation. In support of this contention, they refer to the statements annexed as “RO1”. They consequently propose to pay each Applicant Page 3 of 10

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Kshs. 10,000/- per month with effect from March 2026 and to settle the party-and-party costs on the same terms. They further state that they are ready to make an initial payment of Kshs. 80,000/-, as evidenced by the minutes of the Board meeting annexed as “RO2”. 4. In rejoinder, the 1st Applicant swore a Further Affidavit on 13th July 2026. The Applicants contend that the School has other sources of income besides government capitation, such as school fees, and that its continued operation despite the alleged absence of capitation demonstrates the existence of alternative sources of income. They further contend that the Respondents’ proposed mode of payment is untenable, as it would take approximately 13 years to settle the decretal sum. On that basis, they urge the Court to allow the application, arguing that the Respondents have failed to demonstrate good faith in settling the decree. 5. The application was canvassed submissions. Applicants’ Submissions Page 4 of 10 by way of written

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6. The Applicants submit that the order of mandamus sought is warranted, being the appropriate means of compelling the Respondents to satisfy the decree. In support of that proposition, they rely on Republic v County Executive Member, Finance & Economic Affairs, Narok County Government & 2 others; Tom Ojienda & Associates (Ex-parte) [2024] KEHC 11393 (KLR), for the argument that an order of mandamus is the appropriate means through which an accounting officer of a government department may be compelled to satisfy a decretal amount. They further rely on Oloo v CEC Finance Kisumu County & 3 others [2025] KEELRC 1622 (KLR), in which the Court issued an order of mandamus after being satisfied that, notwithstanding a consent for payment, the Respondent had failed or refused to settle the decretal amount. 7. In view of the foregoing the Applicant urges the Court to allow the application given the Respondent’s demonstrated unwillingness to settle the decreed amounts. Respondents’ Submissions Page 5 of 10

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8. The Respondents, on the other hand, submit that they have at all times been willing to settle the decretal amount and costs, albeit by way of instalments. They therefore urge the Court to exercise its discretion under Order 21 Rule 12(2) of the Civil Procedure Rules and permit settlement by instalments. They contend that this would enable the school to discharge the debt without crippling its operations. In support of that position, they rely on Wachira Nderitu Ngugi Co. Advocates v Town Clerk, City Council of Nairobi [2015] KEHC 6739 (KLR), in which the Court permitted payment by instalments having regard to the Respondent’s financial circumstances. 9. Against that background, the Respondents identify the following issues for determination: (i) Whether the legal threshold for issuance of an order of Mandamus has been satisfied; (ii) Whether the grant of an order of mandamus will bring the School to its knees; and (iii) Who should bear the cost of the Application. Page 6 of 10

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10. On the first issue, the Respondents submit that the delay in settling the decretal amount has not been deliberate but is largely attributable to the fact that the Certificate of Order against the Government was served on 20th November 2025, by which time the budget for the current financial year had already been approved and allocated. They further contend that the Applicants did not respond to their proposal for payment by instalments contained in their letter dated 11th February 2026. It is therefore their submission that an order of mandamus cannot issue in the circumstances because there has been no deliberate refusal to satisfy the decree. They rely on Obiero t/a C Obiero Associates Advocates v Clerk Homa Bay County Assembly & 2 others [2026] KEHC 7146 (KLR). 11. On the second issue, the Respondents submit that compelling the School to settle the decretal amount in a lump sum would cripple its operations. They reiterate that payment by instalments would enable the School to discharge the debt while continuing to operate. In support of their financial position, they refer to the statements annexed Page 7 of 10

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to the Replying Affidavit, which they contend demonstrate that no government capitation was received between July 2025 and January 2026. They further assert that the Applicants have not made a counter-proposal to facilitate negotiations on an alternative mode of payment. The Respondents consequently urge the Court to have regard to the need to protect the continued operation of the learning institution, arguing that disruption of its operations would ultimately prejudice the students. 12. As regards costs, the Respondents submit that, should the application be dismissed, they ought to be awarded the costs thereof. They rely on Party of Independent Candidate of Kenya v Mutula Kilonzo & 2 others [2013] eKLR. 13. In the premises, the Respondents urge the Court to dismiss the application, maintaining that they have demonstrated good faith and have taken active steps towards settling the decretal amount. Disposition Page 8 of 10

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14. The Respondents have a judgment to meet. In the case before me, a decretal sum of Kshs. 2,314,128.40 together with costs of Kshs. 167,053/- is owing and due to the Applicant. This sum is what the Respondents propose to pay by making a lumpsum of Kshs. 80,000/- and monthly instalments which make the averred intent to pay farcical. In my considered view, any party seeking to pay a debt by instalment must demonstrate keenness to settle the debt. 15. The payment of debt by Government is structured and in the event there is no payment evidenced and there is need to compel payment, there is only one avenue – mandamus. In this case, the Respondents have not made any efforts to settle the debt and as such the order of mandamus is to issue. The Respondents must demonstrate outmost good faith in settlement of the decretal sum. The motion therefore is successful and the Applicant will have the costs of the application before this Court as well. It is so ordered. Dated and delivered at Kisumu this 21st day of September 2026 Page 9 of 10

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Nzioki wa Makau, MCIArb. JUDGE Page 10 of 10

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