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Blow to suppliers as court rules unpaid bills not unconstitutional
The Labour Relations Court has extended orders barring the Kenya Rural Roads Authority from hiring five cadres of directors and engineers pending a case.
Government suppliers have been dealt a blow after the High Court dismissed a petition by 46 contractors seeking to compel the Garissa County Government to settle nearly Sh488 million in pending bills, ruling that unpaid contractual claims do not automatically rise to constitutional violations.
In a ruling delivered on January 19, Justice John Nyabuto Onyiego upheld a preliminary objection by the county government, finding that the dispute was fundamentally a commercial debt recovery matter that needed to be pursued through ordinary civil litigation rather than a Constitutional petition.
As a result, the court declined to hear the merits of the contractors’ claims and struck out the case, with each party ordered to bear its own costs.
The judge noted that while the petitioners wanted their debts paid from funds set aside for pending bills, a constitutional court was not the right forum to order payment of contractual debts arising from alleged non-payment.
“Ideally, the only suitable forum is a civil court, which will then have the power to interrogate the claim in case there is a dispute over the amount or the claim itself,” added the judge.
A report by the Controller of Budget (CoB) Margaret Nyakang’o, for the quarter ending in September last year, shows that the overall pending bills for the national government rose from Sh524.8 billion in June to Sh525.4 billion.
Outstanding pending bills for the 47 counties stood at Sh176.9 billion as of June 30, 2025, according to data from the CoB.
This comprises Sh126.86 billion for recurrent activities and Sh50.05 billion for development activities. The total pending bills for the County Executive are Sh171.75 billion, while those for the Assemblies amount to Sh5.16 billion.
Most of these pending bills have remained unpaid for years, pushing some suppliers into financial ruin.
The contractors who lodged the petition argued that, despite fulfilling their contractual obligations to the satisfaction of the county government, they had been sidelined while newer contractors were paid using funds that had allegedly been set aside by the National Treasury specifically to clear verified pending bills.
They claimed this amounted to discriminatory treatment, poor financial governance, and unlawful diversion of public resources, all of which are constitutional issues.
The petition further alleged that the prolonged non-payment had caused severe financial distress among suppliers, including poverty, mental anguish, and, in some cases, death.
However, the court refused to hear the case, dealing a blow to a viable effort to resolve the problem of pending bills. A constitutional issue touches the supreme law of the land, not just ordinary legislation or policy.
In refusing to hear the case, the judge relied on a legal concept known as constitutional avoidance, whose objective is to discourage clogging of the High Court with suits or issues which have alternative legal remedies.
A constitutional petition is the preserve of strictly deserving cases, which cannot be resolved through any other mode of dispute resolution.
Garissa County opposed the petition through a preliminary objection, contending that the High Court, sitting as a constitutional court, lacked jurisdiction to entertain what it termed a purely commercial dispute.
The county argued that the contractors were attempting to “constitutionalise” debt recovery claims that should properly be handled by the civil or commercial courts. It further invoked the doctrine of constitutional avoidance, which discourages courts from determining constitutional questions where alternative legal remedies exist.
In response, the petitioners maintained that their case went beyond ordinary debt recovery and raised serious public law questions concerning accountability, lawful management of public funds, and compliance with statutory and constitutional obligations.
They argued that ordinary civil proceedings would be inadequate to address alleged violations involving diversion of funds earmarked for pending bills and sought public law remedies such as mandamus orders to compel performance of statutory duties.
