Pay litigants against State their dues

In 1989, Isaiah Ochanda, a former Kenya Defence Forces soldier, received a favourable judgment against the government that entitled him to payment of his full pension and compensation after an accident that left him paralysed. Thirty-five years later, he is still waiting for the Ministry of Defence to comply.

Thousands of Kenyans are unable to obtain funds awarded to them by the courts against the government. Two court rulings in recent weeks have brought the state of affairs into sharp focus.

On March 15, the High Court in Nairobi (HCCC No. E411 of 2023, Absa Bank Kenya PLC v Kenya Deposit Insurance Corporation) declared the legal barriers that prevented successful litigants from attaching government funds to satisfy their judgments unconstitutional.

Unfortunately, on April 5, the Nairobi Environment and Land Court (Miscellaneous Application No. E138 of 2021) ruled that they are well-founded.

The two rulings, delivered within three weeks of each other, point to competing schools of thought. Both decisions emanate from courts of the same status; neither is superior to the other. Thus the fate of a creditor depends on which school of thought the judge chooses to apply.

In February, the Pending Bills Verification Committee, tasked with analysing the government’s unsettled bills, said it had received claims worth over Sh146 billion. The National Treasury estimates that the government owes Sh600 billion to small-scale traders. Many may have sought court intervention to no avail.

This situation leaves billions of funds locked out of circulation in one of Africa’s strongest economies. It has also propagated corruption and undermined the rule of law by forcing persons with judgments against the government to pay bribes and seek the intervention of the political elite to obtain what is rightfully theirs.

Despite Kenya enacting one of the most progressive constitutions, respect for court orders and judgments is yet to crystalise. Officials disobey them with impunity. The dire situation has eroded investor confidence in the country as successful litigators are driven into financial distress, bankruptcy and even an early grave.

The Judiciary’s inability to enforce its orders against government bodies erodes public confidence in courts and furthers the narrative that it is all bark and no bite. Definitive legislative and judicial interventions are urgently needed to strike a balance between the interests of the government and successful litigants. Clear timelines must be given for government accounting officers to comply with court orders. Should they not, a successful litigant should be entitled to attach government assets to settle a decree.

Having a government and citizenry that respect the rule of law would foster better governance, investor confidence and economic growth. The injustice that Mr Ochanda has endured for the past three decades is untenable under the new constitutional order and should be consigned to history.

- Ms Omamo is the managing partner, ADRA Advocates LLP. [email protected].