1. The application that forms the substance for ruling is this ruling is dated 8th August 2025.
2. The reliefs that are alive in the Application are the following;
a. ) THAT pending the hearing and determination of this Application inter-partes, this Honourable Court be pleased to grant a stay of execution of the Order of 28th July 2025 to the extent that the 1 st Respondent deposits the decretal sum into a joint interest-earning account within fourteen (14) days from the date of the Ruling.
b. ) THAT upon the hearing and determination of this Application inter-partes, this Honourable Court be pleased to review, vary and /or set aside the Order of 28th July 2025 to the extent that the 1 st Respondent deposits the decretal sum into a joint interest-earning account within fourteen (14) days from the date of the Ruling.
c. ) THAT the Respondent's Replying Affidavit sworn on 1 st August 2025 and filed on 8th August 2025 be deemed as properly filed notwithstanding non- compliance with the requirement to deposit the decretal sum in a joint interest earning interest account due to the inability demonstrated by the I st Respondent.
d. ) THAT this Honourable court do issue any such further and appropriate orders in the circumstances of this matter as it deems fit.
The applicants case;
3. The application is supported by the Affidavit of Christine Ireri who argues that she is aware that on 3rd April 2025, Judgement was entered in favour of the Ex- parte Applicant herein.
4. It’s the applicants case that on 8th April 2025, the Respondents filed an Application seeking to set aside the said Judgment of 3rd April 2025 and by way of a Ruling delivered on 28th July 2025, the court allowed the Application on condition that the 1s Respondent deposits the decretal sum into a joint interest-earning account within fourteen (14) days from the date of the Ruling and that should the 1st Respondent fail to make the deposit within that timeframe, the Judgment dated 3rd April 2025 stands.
5. The 1s Respondent is presently unable to deposit the decretal sum amounting to Kshs. 1,338,011,582.76 exclusive of accrued interest because disbursement of such funds must follow established statutory procedures which the 1st Respondent is not immediately in a position to satisfy.
6. It argues that the 1s Respondent operates strictly within the confines of its annually approved budget. Any expenditure must be expressly included in the budget and sanctioned accordingly before disbursement by duly authorized officers.
7. This requirement is grounded firmly in the Constitution of Kenya 2010, the
Public Finance Management Act, 2012 and the County Government Act which collectively prescribe the procedures and limitations governing county level fiscal operations.
8. The Applicant argues that the order issued by the Court on 28th July 2025 coincides with a period in which the 1st Respondent is legally precluded from making such a deposit due to the structure and timing of the statutory budget cycle and the absence of any provision in the approved budget.
9. It is her case that under the Public Finance Management Act (PFMA) 2012 including Section 125 and related provisions, the 1st Respondent must complete a comprehensive budget process before the start of each financial year.
10. This process includes preparing and submitting a County Fiscal Strategy Paper, budget estimates, and the Appropriation Bill by 30 April followed by evaluation and approval by the County Assembly by 30 June.
11. The 1st Respondent's budget for the 2025 -2026 financial year was finalized and enacted well before June 2025 and neither the Appropriation Bill nor any supplementary allocation included a provision for the Court mandated decretal sum amounting to Kshs.1,338,011,582.76 exclusive of accrued interest.As such, no funds existed within current appropriation to satisfy the deposit Order.
12. It is the applicants case that the National Government has approved and allocated funds to county governments for the 2025/2026 financial year.
13. The decretal sum amounting to Kshs.1,338,011,582.76 exclusive of accrued interest court-Ordered deposit was not provided for within the approved county budget for the 2025/2026 fiscal year and thus remains outside the scope of national allocations.
14. It is its case that given that no appropriation or budgetary provision exists for this obligation, any attempt to comply with the Court's directive would amount to unauthorized withdrawal and budgetary breach.
15. Consequently, it is both legally impermissible and practically unfeasible for the 1st Respondent to comply with the Court Ordered deposit of decretal sum amounting to Kshs. 1,338,011,582.76 exclusive of accrued interest at this time.
16. It is their case that under Section 135 of the PFMA, 2012 such an expenditure (unbudgeted and unappropriated) can only proceed via one of two narrowly prescribed routes:
a. A supplementary budget that must meet constitutional and statutory
requirements including public participation and approval by the County
Assembly, with supplementary allocations capped at 10% of the budget unless
exceptional circumstances are demonstrated.
b. Or utilization of the Emergency Fund which itself is subject to strict limitations
and oversight and cannot be deployed for predictable obligations not captured
in the approved budget.
17. It argues that compliance with the Court Order would require initiating either the supplementary budget procedure or lawful use of the Emergency Fund both demanding time, legislative concurrence, and adherence to statutory frameworks.
18. The 1 Respondent prepared the annual cash-flow projection for the 2025/26 financial year and submitted it to the Controller of Budget along with requisite copies to the Intergovernmental Budget and Economic Council and the National Treasury before 15 June 2025, as legally mandated.As such, the 1st
Respondent's funding forecasts and subsequent expenditures for the same in the
current financial year have already been formally planned and registered with the
oversight authorities.
19. Given the financial hardships and inability to even meet basic
payroll obligations, it is presently impossible for the 1s Respondent to effect the decretal deposit as Ordered on 28th July 2025.It is argued that a stay of execution Application is currently under consideration by the Court of Appeal in Nairobi Civil Appeal No.E837 of 2024; Nairobi City County vs. KTK Advocates arising from the said decree of 3rd November 2023.As such, requiring the 1st Respondent to deposit the said decretal amount into a joint interest-bearing account under these circumstances conflicts with the ongoing appellate proceedings.
20. In the further affidavit ,the applicants argues that although national funds were allocated, the exchequer has delayed disbursements to the counties until now.
21. This delay has precipitated a serious liquidity crisis within the 1st Respondent, crippling its ability to meet statutory obligations most urgently, employees salaries. Several County employees are even on industrial action over unpaid wages.
22. Given that the decretal sum was not included in the 2025/2026 fiscal year budget, and according to the plain wording of Section 135(3) of the Public Finance Management Act, 2012 (PFMA), such a sum can only be appropriated in the following financial year, Section 135(3) stipulates that any supplementary budget must relate to the fiscal responsibilities and objectives already determined for the year in question hence, the decretal sum cannot lawfully be folded into the 2025/2026 supplementary budget and must await the next year for appropriation.
23. The 1st Respondent has appeared before the Hon. Lady Justice Aburili on multiple occasions during which time a schedule of outstanding decrees was presented.
24. Following deliberations in those sessions, a prioritized list of judgement debtors decrees to be settled first was agreed upon by the parties and confirmed by the Court.
25. Acting on that agreement, the 1 st Respondent allocated the full amount from that list as expenditure in its 2025/2026 financial year estimates.
26. To now require the 1 st Respondent to deposit Kshs. 1,338,011,582.76 (exclusive of accrued interest) in respect of the Ex-parte Applicant's decree would disrupt the Order reached before Hon. Lady Justice Aburili.
27. It argues that by imposing the requirement for the deposit Of decretal sum of Kshs. 1,338,011,582.76 (exclusive of accrued interest) which amount is substantial, this Honourable Court has effectively diminished and in fact defeated the Respondents' rights under Article 50 of the Constitution of Kenya.
28. The directive by this Honourable Court requiring the Ft Respondent deposit the substantial decretal sum of Kshs. 1,338,011,582.76 (exclusive of accrued interest) before it may be permitted to defend this suit imposes an undue barrier to its right of access to justice.
29. Such requirement contravenes Article 48 of the Constitution, 2010 which guarantees the right of access to justice.
30. This Honourable Court has discretion to impose a condition precedent to setting aside of Judgment, such conditions should be informed by the prevailing circumstances and be reasonable so as not to impair the very right to be heard or lock out a party from the alter of justice due to inability to meet the same.
31. It further argues that such conditions must not be seen to already punish, suppress or disenfranchise such a party who only seeks to be given an opportunity to be heard before a decision is made one way or the other.
32. The right of access to justice is expressly guaranteed by the Constitution under Article 48. Such a right can only be limited by law, and only to the extent that the limitation is reasonable and justifiable in an open and democratic society founded on human dignity, equality, and freedom.
33. The right to a fair hearing is a non-derogable right under Article 25 of the Constitution and that it is this right that the 1 st Respondent is seeking from this Honourable Court.
34. Taking into account the nature of this matter as that involving general public importance and noting that the 1st Respondent's appeal before the Court of Appeal is yet to heard on merit and the Court of Appeal having previously acknowledged the existence of urgency in the 1 st Respondent's Application seeking stay of execution of the decree dated 3rd November 2023,it is only fair, just and in the interest of justice that this Honourable Court reviews its Order of 28th July 2025 which was issued as a condition precedent to the disposal of the suit herein.
35. In response to Paragraphs 10 through 16 of the Ex-parte Applicant/Respondent s (hereinafter "Ex-parte Applicant") Replying Affidavit sworn on 18th August 2025 the issues raised therein particularly those touching on the alleged incompetence of the appeal pending before the Court of Appeal are matters squarely within the jurisdiction of that Court.
36. The Applicant argues that the 1 st Respondent's Advocates are in the process of securing a hearing date for the said Application seeking stay of execution of the decree of 3 rd November 2023, a fact well known to the Ex-parte Applicant. The delay in securing that hearing date despite the Application having been certified as urgent is due to a backlog in the Court of Appeal registry at Nairobi.
37. While the Respondents acknowledge the existence of the decree and Judgement of this Honourable Court as to the mandamus order, the Judgement and decree of Nairobi ELC Misc No. E056 of 2020: KTK Advocates vs. Nairobi City County are challenged on very solid and plausible grounds.
38. The 1 st Respondent is a County Government established under Article 176 of the Constitution of Kenya and as such, there is no risk of extinction by the time the Court makes its finding and so it would be in the best interest of the 1 st Respondent and the members Of the public at large if the Court makes its determination on merit upon affording the 1 stRespondent the chance of being heard.
39. It argues that the 1 st Respondent deals with tax payers funds and indeed has no money of its own and so it is of paramount importance that just on account of the public interest aspect that the 1 st Respondent is afforded a chance to be heard and the Court renders itself otherwise it would mean the public would then be denied a chance of being heard.
40. The Ex-parte Applicant has not demonstrated any prejudice that would be met which cannot be remedied by costs if the instant application is allowed and the 1 st Respondent is given a chance of being heard in the substantive application dated 16th October 2024.
41. The sum in question is extremely humongous and the public is following this case so keenly, closely and with a lot of concerns.
42. Allowing the Respondent to be heard would not only be just but should be a positive thing even to the conscience of the Ex-parte Applicant as it will also guard against any perception, allegation and imputation that the Ex-prate Applicant has obtained orders based on sharp practice or short cuts.
Applications submissions:
43. The application seeks a review of this Court's Orders of 28th July 2025.The said Orders inter -alia directed that the 1 st Respondent to deposit the decretal sum into a joint interest-earning account within fourteen (14) days from the date of the Ruling.
44. In default, the Judgement dated 3 rd April 2025 would remain in force.
45. Reliance is placed in Republic v County Chief Officer, Finance & Economic
Planning, Nairobi City County (Ex Parte David MugoMwangi)
[20181 KEHC 8750 (KLR) the Hon. Mr.Justice Odunga underscored the sanctity of Court Orders in the following terms:-
a. "It must however be remembered that Court orders are not made in vain and are meant to be complied with, If for anv reason a party has difficulty in complying therewith the honourable thing to do is to come back (o court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal.
46. It The 1 5t Respondent is bound by compelling legal and fiscal limitations that render immediate compliance impossible.
47. The Order of 28th July 2025 coincides with a period in which the 1 st Respondent is statutorily barred from depositing the decretal sum of Kshs. 1,338,011,582.76 (exclusive of accrued interest) as the approved County Budget does not contain any provision for such payment.
48. It is submitted that the decretal sum in question is substantial and honour the Order, the amount must be deliberately planned, explicitly appropriated and clearly accounted for in the budget process to avoid contravening statutory and constitutional fiscal requirements.
49. The 1 st Respondent operates strictly within its legally approved annual budget. Under the Constitution of Kenya (2010), the Public Finance Management Act, 2012 (PFMA), and the County Governments Act any expenditure must be properly budgeted approved and disbursed by authorized officers. No deviation is permissible.
50. It submits that Under Sections 125—128 of the PFMA, 2012, the budget process must be completed before the commencement of each financial year. This involves the preparation and submission of the County Fiscal Strategy Paper, budget estimates, and the Appropriation Bill to be approved by the County Assembly by 30th June each year.
51. It further submits that In this instance, the 2025/2026 County Budget process was finalized and enacted prior to June 2025. Neither the Appropriation Bill nor any supplementary allocations included a provision for the decretal sum of Kshs. 1,338,011,582.76. Consequently, no funds exist within the approved budget to satisfy the Court's directive.
52. While the National Government has allocated approximately Kshs. 405 billion in equitable share to counties for 2025/2026, this Court-ordered sum was not included in the 1 st Respondent's approved budget, and hence lies outside the scope of those national allocations.
53. Withdrawals of public funds must be authorized by the Controller of Budget and must align with an approved appropriation. Absent budgetary provision, any attempt to make the deposit would amount to an unauthorized expenditure, in direct violation of statutory norms.
54. Compliance with the Order of 28th July 2025 is, as matters now stand, both legally impermissible and practically impossible.
55. Section 135 of the PFMA does provide for limited recourse for unbudgeted, unappropriated expenditures:
a) A supplementary budget, subject to public participation and approval by the County Assembly, with a cap of 10% unless exceptional circumstances are shown; or
b) Use of the Emergency Fund, itself tightly regulated and not available for predictable, unprovidedobligations.
56. It submits that to lawfully comply, the 1 st Respondent must initiate either the supplementary budget process or the carefully controlled use of the Emergency Fund both of which demand time, institutional cooperation, and adherence to statutory procedure.
57. In compliance with Section 127(1) of the PFMA, the 1 st Respondent prepared and submitted its cash flow projections for the 2025/2026 financial year to the Controller of Budget, the Intergovernmental Budget & Economic Council and the National Treasury by 15th June 2025. Those projections were based on realistically anticipated revenues and pre-existing obligations, and they have already been committed through legally approved expenditures. Accordingly, it is now infeasible to accommodate the court-ordered deposit without compromising the integrity of the approved framework. Moreover, given the substantial amount involved , such an undertaking would inevitably precipitate fiscal distress.
58. It is submitted that athough national funds were allocated, the exchequer has delayed disbursements to the counties until now.
59. This delay has precipitated a serious liquidity crisis within the 1 st Respondent, crippling its ability to meet statutory obligations most urgently, employees salaries. Several County employees are even on industrial action over unpaid wages.
60. In light of this financial distress and the impossibility of even meeting basic payroll obligations, it is not feasible for the 1 st Respondent to effect the decretal deposit as Ordered.
61. The 1 st Respondent has appeared before the Hon. Lady Justice Aburili on multiple occasions during which time a schedule of outstanding decrees was presented, Following deliberations in those sessions, a prioritized list of judgement debtors decrees to be settled first was agreed upon by the parties and confirmed by the Court.
62. Acting on that agreement, the 1 st Respondent allocated the full amount from that list as expenditure in its 2025/2026 financial year estimates.
63. To now require the I stRespondent to deposit Kshs. 1,338,011,582.76 (exclusive of accrued interest) in respect of the Ex-parte Applicant's decree would disrupt the Order reached before Hon. Lady Justice Aburili.
64. The 1 st Respondent is a County Government established under Article 176 of the Constitution of Kenya and as such, there is no risk of extinction by the time the Court makes its finding and so it would be in the best interest of the 1 st Respondent and the members of the public at large if the Court makes its determination on merit upon affording the 2st Respondent the chance of being heard,
65. On the other hand, they submit that every person is guaranteed to have any dispute that can be resolved by application of the law decided in a fair and public hearing before a court of law.
66. As such, by imposing the requirement for the deposit of decretal sum of Kshs. 1,338,011,582.76 (exclusive of accrued interest) which amount is substantial, this Honourable Court has effectively diminished and in fact defeated the Respondents' rights under Article 50 of the Constitution of Kenya.
67. The directive by this Honourable Court requiring the 1 stRespondent to deposit the substantial decretal sum of Kshs. 1,338,011,582.76 (exclusive of accrued interest) before it may be permitted to defend this suit imposes an undue barrier to its right of access to justice.
68. Such requirement contravenes Article 48 of the Constitution, 2010 which guarantees the right of access to justice.
69. While this Honourable Court has discretion to impose a condition precedent to setting aside of Judgment, such conditions should be informed by the prevailing circumstances and be reasonable so as not to impair the very right to be heard or lock out a party from the alter ofjustice due to inability to meet the same.
70. Reliance is placed on the caseof Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others [20231 KESC 11 (KLR) where the Supreme Court affirmed as follows:-
a) We state that the final result in such a balance must be reasonable and modest. An order for additional security must neither impede access to justice nor Stifle genuine claims and most definitely must not be oppressive, A court is not bound to make an order Of a substantial amount. It is paramount that the order be just and not impede access to iustice. '
71. The right of access to justice is expressly guaranteed by the Constitution under Article 48. Such a right can only be limited by law and only to the extent that the limitation is reasonable and justifiable in an open and democratic society founded on human dignity, equality, and freedom.
72. It is further submitted that the right to a fair hearing is a non-derogable right under Article 25 of the Constitution and that it is this right that the 1 stRespondent is seeking from this Honourable Court,
73. The 1 5t Respondent deals with tax payers funds and indeed has no money of its own and so it is of paramount importance that just on account of the public interest aspect that the 1 st Respondent is afforded a chance to be heard and the Court renders itself otherwise it would mean the public would then be denied a chance of being heard.
74. The Ex-parte Applicant has not demonstrated any prejudice that would be met which cannot be remedied by costs if the instant application is allowed and the 1 st Respondent is given a chance of being heard in the substantive application dated 16 th October 2024.
75. Reliance is placed in Nairobi Civil Appeal No. E837 of 2024 : Nairobi City County vs. KTK Advocates, arising from the decree dated 3rd November 2023. As such, requiring the 1 st Respondent to deposit funds while this appeal is pending would directly conflict with ongoing appellate proceedings, and would prejudice the 1 stRespondent's rights.
The Respondent’s case;
76. It is the respondent’s case that the grounds and the reasons advance to support the application go outside the ruling of 28 July 2025.
77. The respondent brings to the attention of the court the fact that the applicant did not extract nor annex any order that they seek to set aside and or review to their application.
78. It is further the respondent’s case that the applicant did not deposit the decretal sum in the joint account as directed by the court.
79. The respondent argues that the court of appeal did not grant any interim orders.
Analysis and determination:
The issue for determination is whether;
1) The Application has merit.
2) Who shall bear the costs.
The Principles of setting aside an order;
80. Republic v Jubilee Party & another Ex parte John Kieru Wambui & another [2021] eKLR;
a. “5. The applicable law for setting aside or review of a judgment or decree of the court is section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides as follows:
b. “Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
c. 6. Order 45 Rule 1 of the Civil Procedure Rules elaborates on the grounds on which a judgment or decree can be set aside as follows:
a) “(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
81. Paul Gathingu Gachie v Cabinet Secretary for Land & Physical Planning [2021] eKLR;
“5. The court has carefully considered the grounds on the notice of motion, the affidavit evidence by both parties, the submissions by learned counsel, the superior courts decisions cited therein, and come to the following conclusions;
(a) That Order 51 Rule 15 of the Civil Procedure Rules provides for setting aside of ex parte orders in appropriate cases. The court in the case of ZEBEDEE MMATA INJERA V BENSON ANUBI LUHONG; JOANNE C.K. LUHONGO (INTERESTED PARTY) [2021] eKLR, expressed itself as follows on Order 51 Rule 15;
b) “… while Order 51 Rule 15 of the Civil Procedure Rules gives the court power to set aside any order made ex parte, the court's discretionary power should, however, be exercised judiciously, with the overriding objective of ensuring that justice is done to all the parties. That the court's discretion to set aside an ex parte ruling/judgment is not restricted, but should be so exercised not to cause injustice to the opposite party. It is incumbent upon the party seeking the court's favor or discretion to adduce sufficient and plausible reasons that are demonstratable, and persuasive to the court…”
82. Republic v Vice Chancellor Moi University & 3 others Ex-Parte Benjamin J. Gikenyi Magare [2018] eKLR;
“14. Jurisdiction to vary and or set aside the orders of this Honorable Court is one which is sparingly exercised and the reasons for invoking that jurisdiction must be specified and must be on solid basis. In Judicial Review Handbook, 3rd Edition by Michael Fordham at pages 360 and 361 it is stated that:
a. “At the request of a defendant or an interested party, the Court can set aside permission previously granted. However, this is a very restricted power. It was never popular with judges, who required there to be a very clear-cut case before discharging the permission...The jurisdiction to set aside is one which is sparingly exercised and the reason for invoking that jurisdiction in a particular case must be specified….”
Based on Aga Khan Education Service Kenya v Republic Ex-parte Ali Seif & 3 Others (2004) eKLR the position that this is a jurisdiction that should be very sparingly exercised; that the whole purpose of the [permission] stage would be vitiated if the grant of [permission] were to be regularly followed by an application to set it aside; that whereas it may very well be that [the claimants] will face great, perhaps insuperable, difficulties when the case is finally heard, this was never a case for an application to set aside [permission]” as such an application is not to be brought merely on the footing that a [defendant] has a very powerful, even overwhelming case.
16. The most recognized grounds for varying and or setting aside judicial review permission/order include instances of material non -disclosure, concealment of material particulars/documents , misrepresentation and where the application for leave/permission/order granted is an abuse of the process of Court. In the Matter of an Application by Justus Nyangaya & Others, High Court of Kenya at Nairobi, Misc. Civil Case No. 1133 of 2002 where it was observed at page 9 thus:
b. “However, the Courts have set aside ex-parte orders obtained in judicial review proceedings following non-disclosure of material facts, concealment of material documents and on misrepresentation.”
17. These are the principles under which the Courts do exercise their discretion in granting an order for stay. However, it is not in doubt that such an order, if granted ex parte, may be set aside at a later stage if the Court finds that the stay ought not to have been issued in the first place or that the change in circumstances no longer warrant the continued existence of the orders of stay. Parties and their counsel are, however, cautioned that the grant of an order of stay ought not to be followed by an application seeking to vacate the same. It is only in cases where the Court is convinced that the conduct of the applicant at the ex parte stage when the stay was granted does not justify the grant either by non-disclosure of material facts or misrepresentation of the same or due to subsequent events that the Court will set aside the stay granted. This is due to the fact that Courts do not grant orders of stay as a matter of course and where the Court is in doubt, the Court is now at liberty to direct that the prayer seeking the stay be heard inter partes even in cases where the leave has been granted.
18. Whether the court has powers to vary, set aside or discharge an order of stay is to be found under Order 53 rule (1)4 which states:-
c. “the grant of leave ……………………..shall, if the judge so directs, operate as a stay of the proceedings in question until the judge orders otherwise.”
19. The wording of this sub-rule clearly indicates that the court has jurisdiction to rev
[...truncated]
2. The reliefs that are alive in the Application are the following;
a. ) THAT pending the hearing and determination of this Application inter-partes, this Honourable Court be pleased to grant a stay of execution of the Order of 28th July 2025 to the extent that the 1 st Respondent deposits the decretal sum into a joint interest-earning account within fourteen (14) days from the date of the Ruling.
b. ) THAT upon the hearing and determination of this Application inter-partes, this Honourable Court be pleased to review, vary and /or set aside the Order of 28th July 2025 to the extent that the 1 st Respondent deposits the decretal sum into a joint interest-earning account within fourteen (14) days from the date of the Ruling.
c. ) THAT the Respondent's Replying Affidavit sworn on 1 st August 2025 and filed on 8th August 2025 be deemed as properly filed notwithstanding non- compliance with the requirement to deposit the decretal sum in a joint interest earning interest account due to the inability demonstrated by the I st Respondent.
d. ) THAT this Honourable court do issue any such further and appropriate orders in the circumstances of this matter as it deems fit.
The applicants case;
3. The application is supported by the Affidavit of Christine Ireri who argues that she is aware that on 3rd April 2025, Judgement was entered in favour of the Ex- parte Applicant herein.
4. It’s the applicants case that on 8th April 2025, the Respondents filed an Application seeking to set aside the said Judgment of 3rd April 2025 and by way of a Ruling delivered on 28th July 2025, the court allowed the Application on condition that the 1s Respondent deposits the decretal sum into a joint interest-earning account within fourteen (14) days from the date of the Ruling and that should the 1st Respondent fail to make the deposit within that timeframe, the Judgment dated 3rd April 2025 stands.
5. The 1s Respondent is presently unable to deposit the decretal sum amounting to Kshs. 1,338,011,582.76 exclusive of accrued interest because disbursement of such funds must follow established statutory procedures which the 1st Respondent is not immediately in a position to satisfy.
6. It argues that the 1s Respondent operates strictly within the confines of its annually approved budget. Any expenditure must be expressly included in the budget and sanctioned accordingly before disbursement by duly authorized officers.
7. This requirement is grounded firmly in the Constitution of Kenya 2010, the
Public Finance Management Act, 2012 and the County Government Act which collectively prescribe the procedures and limitations governing county level fiscal operations.
8. The Applicant argues that the order issued by the Court on 28th July 2025 coincides with a period in which the 1st Respondent is legally precluded from making such a deposit due to the structure and timing of the statutory budget cycle and the absence of any provision in the approved budget.
9. It is her case that under the Public Finance Management Act (PFMA) 2012 including Section 125 and related provisions, the 1st Respondent must complete a comprehensive budget process before the start of each financial year.
10. This process includes preparing and submitting a County Fiscal Strategy Paper, budget estimates, and the Appropriation Bill by 30 April followed by evaluation and approval by the County Assembly by 30 June.
11. The 1st Respondent's budget for the 2025 -2026 financial year was finalized and enacted well before June 2025 and neither the Appropriation Bill nor any supplementary allocation included a provision for the Court mandated decretal sum amounting to Kshs.1,338,011,582.76 exclusive of accrued interest.As such, no funds existed within current appropriation to satisfy the deposit Order.
12. It is the applicants case that the National Government has approved and allocated funds to county governments for the 2025/2026 financial year.
13. The decretal sum amounting to Kshs.1,338,011,582.76 exclusive of accrued interest court-Ordered deposit was not provided for within the approved county budget for the 2025/2026 fiscal year and thus remains outside the scope of national allocations.
14. It is its case that given that no appropriation or budgetary provision exists for this obligation, any attempt to comply with the Court's directive would amount to unauthorized withdrawal and budgetary breach.
15. Consequently, it is both legally impermissible and practically unfeasible for the 1st Respondent to comply with the Court Ordered deposit of decretal sum amounting to Kshs. 1,338,011,582.76 exclusive of accrued interest at this time.
16. It is their case that under Section 135 of the PFMA, 2012 such an expenditure (unbudgeted and unappropriated) can only proceed via one of two narrowly prescribed routes:
a. A supplementary budget that must meet constitutional and statutory
requirements including public participation and approval by the County
Assembly, with supplementary allocations capped at 10% of the budget unless
exceptional circumstances are demonstrated.
b. Or utilization of the Emergency Fund which itself is subject to strict limitations
and oversight and cannot be deployed for predictable obligations not captured
in the approved budget.
17. It argues that compliance with the Court Order would require initiating either the supplementary budget procedure or lawful use of the Emergency Fund both demanding time, legislative concurrence, and adherence to statutory frameworks.
18. The 1 Respondent prepared the annual cash-flow projection for the 2025/26 financial year and submitted it to the Controller of Budget along with requisite copies to the Intergovernmental Budget and Economic Council and the National Treasury before 15 June 2025, as legally mandated.As such, the 1st
Respondent's funding forecasts and subsequent expenditures for the same in the
current financial year have already been formally planned and registered with the
oversight authorities.
19. Given the financial hardships and inability to even meet basic
payroll obligations, it is presently impossible for the 1s Respondent to effect the decretal deposit as Ordered on 28th July 2025.It is argued that a stay of execution Application is currently under consideration by the Court of Appeal in Nairobi Civil Appeal No.E837 of 2024; Nairobi City County vs. KTK Advocates arising from the said decree of 3rd November 2023.As such, requiring the 1st Respondent to deposit the said decretal amount into a joint interest-bearing account under these circumstances conflicts with the ongoing appellate proceedings.
20. In the further affidavit ,the applicants argues that although national funds were allocated, the exchequer has delayed disbursements to the counties until now.
21. This delay has precipitated a serious liquidity crisis within the 1st Respondent, crippling its ability to meet statutory obligations most urgently, employees salaries. Several County employees are even on industrial action over unpaid wages.
22. Given that the decretal sum was not included in the 2025/2026 fiscal year budget, and according to the plain wording of Section 135(3) of the Public Finance Management Act, 2012 (PFMA), such a sum can only be appropriated in the following financial year, Section 135(3) stipulates that any supplementary budget must relate to the fiscal responsibilities and objectives already determined for the year in question hence, the decretal sum cannot lawfully be folded into the 2025/2026 supplementary budget and must await the next year for appropriation.
23. The 1st Respondent has appeared before the Hon. Lady Justice Aburili on multiple occasions during which time a schedule of outstanding decrees was presented.
24. Following deliberations in those sessions, a prioritized list of judgement debtors decrees to be settled first was agreed upon by the parties and confirmed by the Court.
25. Acting on that agreement, the 1 st Respondent allocated the full amount from that list as expenditure in its 2025/2026 financial year estimates.
26. To now require the 1 st Respondent to deposit Kshs. 1,338,011,582.76 (exclusive of accrued interest) in respect of the Ex-parte Applicant's decree would disrupt the Order reached before Hon. Lady Justice Aburili.
27. It argues that by imposing the requirement for the deposit Of decretal sum of Kshs. 1,338,011,582.76 (exclusive of accrued interest) which amount is substantial, this Honourable Court has effectively diminished and in fact defeated the Respondents' rights under Article 50 of the Constitution of Kenya.
28. The directive by this Honourable Court requiring the Ft Respondent deposit the substantial decretal sum of Kshs. 1,338,011,582.76 (exclusive of accrued interest) before it may be permitted to defend this suit imposes an undue barrier to its right of access to justice.
29. Such requirement contravenes Article 48 of the Constitution, 2010 which guarantees the right of access to justice.
30. This Honourable Court has discretion to impose a condition precedent to setting aside of Judgment, such conditions should be informed by the prevailing circumstances and be reasonable so as not to impair the very right to be heard or lock out a party from the alter of justice due to inability to meet the same.
31. It further argues that such conditions must not be seen to already punish, suppress or disenfranchise such a party who only seeks to be given an opportunity to be heard before a decision is made one way or the other.
32. The right of access to justice is expressly guaranteed by the Constitution under Article 48. Such a right can only be limited by law, and only to the extent that the limitation is reasonable and justifiable in an open and democratic society founded on human dignity, equality, and freedom.
33. The right to a fair hearing is a non-derogable right under Article 25 of the Constitution and that it is this right that the 1 st Respondent is seeking from this Honourable Court.
34. Taking into account the nature of this matter as that involving general public importance and noting that the 1st Respondent's appeal before the Court of Appeal is yet to heard on merit and the Court of Appeal having previously acknowledged the existence of urgency in the 1 st Respondent's Application seeking stay of execution of the decree dated 3rd November 2023,it is only fair, just and in the interest of justice that this Honourable Court reviews its Order of 28th July 2025 which was issued as a condition precedent to the disposal of the suit herein.
35. In response to Paragraphs 10 through 16 of the Ex-parte Applicant/Respondent s (hereinafter "Ex-parte Applicant") Replying Affidavit sworn on 18th August 2025 the issues raised therein particularly those touching on the alleged incompetence of the appeal pending before the Court of Appeal are matters squarely within the jurisdiction of that Court.
36. The Applicant argues that the 1 st Respondent's Advocates are in the process of securing a hearing date for the said Application seeking stay of execution of the decree of 3 rd November 2023, a fact well known to the Ex-parte Applicant. The delay in securing that hearing date despite the Application having been certified as urgent is due to a backlog in the Court of Appeal registry at Nairobi.
37. While the Respondents acknowledge the existence of the decree and Judgement of this Honourable Court as to the mandamus order, the Judgement and decree of Nairobi ELC Misc No. E056 of 2020: KTK Advocates vs. Nairobi City County are challenged on very solid and plausible grounds.
38. The 1 st Respondent is a County Government established under Article 176 of the Constitution of Kenya and as such, there is no risk of extinction by the time the Court makes its finding and so it would be in the best interest of the 1 st Respondent and the members Of the public at large if the Court makes its determination on merit upon affording the 1 stRespondent the chance of being heard.
39. It argues that the 1 st Respondent deals with tax payers funds and indeed has no money of its own and so it is of paramount importance that just on account of the public interest aspect that the 1 st Respondent is afforded a chance to be heard and the Court renders itself otherwise it would mean the public would then be denied a chance of being heard.
40. The Ex-parte Applicant has not demonstrated any prejudice that would be met which cannot be remedied by costs if the instant application is allowed and the 1 st Respondent is given a chance of being heard in the substantive application dated 16th October 2024.
41. The sum in question is extremely humongous and the public is following this case so keenly, closely and with a lot of concerns.
42. Allowing the Respondent to be heard would not only be just but should be a positive thing even to the conscience of the Ex-parte Applicant as it will also guard against any perception, allegation and imputation that the Ex-prate Applicant has obtained orders based on sharp practice or short cuts.
Applications submissions:
43. The application seeks a review of this Court's Orders of 28th July 2025.The said Orders inter -alia directed that the 1 st Respondent to deposit the decretal sum into a joint interest-earning account within fourteen (14) days from the date of the Ruling.
44. In default, the Judgement dated 3 rd April 2025 would remain in force.
45. Reliance is placed in Republic v County Chief Officer, Finance & Economic
Planning, Nairobi City County (Ex Parte David MugoMwangi)
[20181 KEHC 8750 (KLR) the Hon. Mr.Justice Odunga underscored the sanctity of Court Orders in the following terms:-
a. "It must however be remembered that Court orders are not made in vain and are meant to be complied with, If for anv reason a party has difficulty in complying therewith the honourable thing to do is to come back (o court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal.
46. It The 1 5t Respondent is bound by compelling legal and fiscal limitations that render immediate compliance impossible.
47. The Order of 28th July 2025 coincides with a period in which the 1 st Respondent is statutorily barred from depositing the decretal sum of Kshs. 1,338,011,582.76 (exclusive of accrued interest) as the approved County Budget does not contain any provision for such payment.
48. It is submitted that the decretal sum in question is substantial and honour the Order, the amount must be deliberately planned, explicitly appropriated and clearly accounted for in the budget process to avoid contravening statutory and constitutional fiscal requirements.
49. The 1 st Respondent operates strictly within its legally approved annual budget. Under the Constitution of Kenya (2010), the Public Finance Management Act, 2012 (PFMA), and the County Governments Act any expenditure must be properly budgeted approved and disbursed by authorized officers. No deviation is permissible.
50. It submits that Under Sections 125—128 of the PFMA, 2012, the budget process must be completed before the commencement of each financial year. This involves the preparation and submission of the County Fiscal Strategy Paper, budget estimates, and the Appropriation Bill to be approved by the County Assembly by 30th June each year.
51. It further submits that In this instance, the 2025/2026 County Budget process was finalized and enacted prior to June 2025. Neither the Appropriation Bill nor any supplementary allocations included a provision for the decretal sum of Kshs. 1,338,011,582.76. Consequently, no funds exist within the approved budget to satisfy the Court's directive.
52. While the National Government has allocated approximately Kshs. 405 billion in equitable share to counties for 2025/2026, this Court-ordered sum was not included in the 1 st Respondent's approved budget, and hence lies outside the scope of those national allocations.
53. Withdrawals of public funds must be authorized by the Controller of Budget and must align with an approved appropriation. Absent budgetary provision, any attempt to make the deposit would amount to an unauthorized expenditure, in direct violation of statutory norms.
54. Compliance with the Order of 28th July 2025 is, as matters now stand, both legally impermissible and practically impossible.
55. Section 135 of the PFMA does provide for limited recourse for unbudgeted, unappropriated expenditures:
a) A supplementary budget, subject to public participation and approval by the County Assembly, with a cap of 10% unless exceptional circumstances are shown; or
b) Use of the Emergency Fund, itself tightly regulated and not available for predictable, unprovidedobligations.
56. It submits that to lawfully comply, the 1 st Respondent must initiate either the supplementary budget process or the carefully controlled use of the Emergency Fund both of which demand time, institutional cooperation, and adherence to statutory procedure.
57. In compliance with Section 127(1) of the PFMA, the 1 st Respondent prepared and submitted its cash flow projections for the 2025/2026 financial year to the Controller of Budget, the Intergovernmental Budget & Economic Council and the National Treasury by 15th June 2025. Those projections were based on realistically anticipated revenues and pre-existing obligations, and they have already been committed through legally approved expenditures. Accordingly, it is now infeasible to accommodate the court-ordered deposit without compromising the integrity of the approved framework. Moreover, given the substantial amount involved , such an undertaking would inevitably precipitate fiscal distress.
58. It is submitted that athough national funds were allocated, the exchequer has delayed disbursements to the counties until now.
59. This delay has precipitated a serious liquidity crisis within the 1 st Respondent, crippling its ability to meet statutory obligations most urgently, employees salaries. Several County employees are even on industrial action over unpaid wages.
60. In light of this financial distress and the impossibility of even meeting basic payroll obligations, it is not feasible for the 1 st Respondent to effect the decretal deposit as Ordered.
61. The 1 st Respondent has appeared before the Hon. Lady Justice Aburili on multiple occasions during which time a schedule of outstanding decrees was presented, Following deliberations in those sessions, a prioritized list of judgement debtors decrees to be settled first was agreed upon by the parties and confirmed by the Court.
62. Acting on that agreement, the 1 st Respondent allocated the full amount from that list as expenditure in its 2025/2026 financial year estimates.
63. To now require the I stRespondent to deposit Kshs. 1,338,011,582.76 (exclusive of accrued interest) in respect of the Ex-parte Applicant's decree would disrupt the Order reached before Hon. Lady Justice Aburili.
64. The 1 st Respondent is a County Government established under Article 176 of the Constitution of Kenya and as such, there is no risk of extinction by the time the Court makes its finding and so it would be in the best interest of the 1 st Respondent and the members of the public at large if the Court makes its determination on merit upon affording the 2st Respondent the chance of being heard,
65. On the other hand, they submit that every person is guaranteed to have any dispute that can be resolved by application of the law decided in a fair and public hearing before a court of law.
66. As such, by imposing the requirement for the deposit of decretal sum of Kshs. 1,338,011,582.76 (exclusive of accrued interest) which amount is substantial, this Honourable Court has effectively diminished and in fact defeated the Respondents' rights under Article 50 of the Constitution of Kenya.
67. The directive by this Honourable Court requiring the 1 stRespondent to deposit the substantial decretal sum of Kshs. 1,338,011,582.76 (exclusive of accrued interest) before it may be permitted to defend this suit imposes an undue barrier to its right of access to justice.
68. Such requirement contravenes Article 48 of the Constitution, 2010 which guarantees the right of access to justice.
69. While this Honourable Court has discretion to impose a condition precedent to setting aside of Judgment, such conditions should be informed by the prevailing circumstances and be reasonable so as not to impair the very right to be heard or lock out a party from the alter ofjustice due to inability to meet the same.
70. Reliance is placed on the caseof Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others [20231 KESC 11 (KLR) where the Supreme Court affirmed as follows:-
a) We state that the final result in such a balance must be reasonable and modest. An order for additional security must neither impede access to justice nor Stifle genuine claims and most definitely must not be oppressive, A court is not bound to make an order Of a substantial amount. It is paramount that the order be just and not impede access to iustice. '
71. The right of access to justice is expressly guaranteed by the Constitution under Article 48. Such a right can only be limited by law and only to the extent that the limitation is reasonable and justifiable in an open and democratic society founded on human dignity, equality, and freedom.
72. It is further submitted that the right to a fair hearing is a non-derogable right under Article 25 of the Constitution and that it is this right that the 1 stRespondent is seeking from this Honourable Court,
73. The 1 5t Respondent deals with tax payers funds and indeed has no money of its own and so it is of paramount importance that just on account of the public interest aspect that the 1 st Respondent is afforded a chance to be heard and the Court renders itself otherwise it would mean the public would then be denied a chance of being heard.
74. The Ex-parte Applicant has not demonstrated any prejudice that would be met which cannot be remedied by costs if the instant application is allowed and the 1 st Respondent is given a chance of being heard in the substantive application dated 16 th October 2024.
75. Reliance is placed in Nairobi Civil Appeal No. E837 of 2024 : Nairobi City County vs. KTK Advocates, arising from the decree dated 3rd November 2023. As such, requiring the 1 st Respondent to deposit funds while this appeal is pending would directly conflict with ongoing appellate proceedings, and would prejudice the 1 stRespondent's rights.
The Respondent’s case;
76. It is the respondent’s case that the grounds and the reasons advance to support the application go outside the ruling of 28 July 2025.
77. The respondent brings to the attention of the court the fact that the applicant did not extract nor annex any order that they seek to set aside and or review to their application.
78. It is further the respondent’s case that the applicant did not deposit the decretal sum in the joint account as directed by the court.
79. The respondent argues that the court of appeal did not grant any interim orders.
Analysis and determination:
The issue for determination is whether;
1) The Application has merit.
2) Who shall bear the costs.
The Principles of setting aside an order;
80. Republic v Jubilee Party & another Ex parte John Kieru Wambui & another [2021] eKLR;
a. “5. The applicable law for setting aside or review of a judgment or decree of the court is section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides as follows:
b. “Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
c. 6. Order 45 Rule 1 of the Civil Procedure Rules elaborates on the grounds on which a judgment or decree can be set aside as follows:
a) “(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
81. Paul Gathingu Gachie v Cabinet Secretary for Land & Physical Planning [2021] eKLR;
“5. The court has carefully considered the grounds on the notice of motion, the affidavit evidence by both parties, the submissions by learned counsel, the superior courts decisions cited therein, and come to the following conclusions;
(a) That Order 51 Rule 15 of the Civil Procedure Rules provides for setting aside of ex parte orders in appropriate cases. The court in the case of ZEBEDEE MMATA INJERA V BENSON ANUBI LUHONG; JOANNE C.K. LUHONGO (INTERESTED PARTY) [2021] eKLR, expressed itself as follows on Order 51 Rule 15;
b) “… while Order 51 Rule 15 of the Civil Procedure Rules gives the court power to set aside any order made ex parte, the court's discretionary power should, however, be exercised judiciously, with the overriding objective of ensuring that justice is done to all the parties. That the court's discretion to set aside an ex parte ruling/judgment is not restricted, but should be so exercised not to cause injustice to the opposite party. It is incumbent upon the party seeking the court's favor or discretion to adduce sufficient and plausible reasons that are demonstratable, and persuasive to the court…”
82. Republic v Vice Chancellor Moi University & 3 others Ex-Parte Benjamin J. Gikenyi Magare [2018] eKLR;
“14. Jurisdiction to vary and or set aside the orders of this Honorable Court is one which is sparingly exercised and the reasons for invoking that jurisdiction must be specified and must be on solid basis. In Judicial Review Handbook, 3rd Edition by Michael Fordham at pages 360 and 361 it is stated that:
a. “At the request of a defendant or an interested party, the Court can set aside permission previously granted. However, this is a very restricted power. It was never popular with judges, who required there to be a very clear-cut case before discharging the permission...The jurisdiction to set aside is one which is sparingly exercised and the reason for invoking that jurisdiction in a particular case must be specified….”
Based on Aga Khan Education Service Kenya v Republic Ex-parte Ali Seif & 3 Others (2004) eKLR the position that this is a jurisdiction that should be very sparingly exercised; that the whole purpose of the [permission] stage would be vitiated if the grant of [permission] were to be regularly followed by an application to set it aside; that whereas it may very well be that [the claimants] will face great, perhaps insuperable, difficulties when the case is finally heard, this was never a case for an application to set aside [permission]” as such an application is not to be brought merely on the footing that a [defendant] has a very powerful, even overwhelming case.
16. The most recognized grounds for varying and or setting aside judicial review permission/order include instances of material non -disclosure, concealment of material particulars/documents , misrepresentation and where the application for leave/permission/order granted is an abuse of the process of Court. In the Matter of an Application by Justus Nyangaya & Others, High Court of Kenya at Nairobi, Misc. Civil Case No. 1133 of 2002 where it was observed at page 9 thus:
b. “However, the Courts have set aside ex-parte orders obtained in judicial review proceedings following non-disclosure of material facts, concealment of material documents and on misrepresentation.”
17. These are the principles under which the Courts do exercise their discretion in granting an order for stay. However, it is not in doubt that such an order, if granted ex parte, may be set aside at a later stage if the Court finds that the stay ought not to have been issued in the first place or that the change in circumstances no longer warrant the continued existence of the orders of stay. Parties and their counsel are, however, cautioned that the grant of an order of stay ought not to be followed by an application seeking to vacate the same. It is only in cases where the Court is convinced that the conduct of the applicant at the ex parte stage when the stay was granted does not justify the grant either by non-disclosure of material facts or misrepresentation of the same or due to subsequent events that the Court will set aside the stay granted. This is due to the fact that Courts do not grant orders of stay as a matter of course and where the Court is in doubt, the Court is now at liberty to direct that the prayer seeking the stay be heard inter partes even in cases where the leave has been granted.
18. Whether the court has powers to vary, set aside or discharge an order of stay is to be found under Order 53 rule (1)4 which states:-
c. “the grant of leave ……………………..shall, if the judge so directs, operate as a stay of the proceedings in question until the judge orders otherwise.”
19. The wording of this sub-rule clearly indicates that the court has jurisdiction to rev
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