Court demands KeNHA plan to pay Sh2.1bn debt owed to Swiss contractor

The High Court has given the Kenya National Highways Authority (KeNHA) Director-General Luka Kimeli a final chance to explain how the agency plans to settle more than Sh2.1 billion owed to Swiss contractor SBI International Holdings (Kenya).

The CEO was directed to personally appear in court on October 27 to explain how KeNHA will meet its obligations from the 2026/2027 financial year.

“Should nothing tangible emerge from that, I shall have no option but to move this matter to the next stage, which is to take mitigation from him before he is sentenced to pay for his disobedience of the mandamus orders that commanded him to discharge his duty as an accounting officer,” the court said.

SBI was awarded the money under five court decrees arising from road construction disputes. The decrees, issued in June 2021, were followed by compelling orders in September 2023 requiring payment of Sh2.11 billion in aggregate.

The company said that despite repeated settlement discussions, only about Sh90 million had been paid by July 27, 2026.

“The amounts due and owing are colossal, yet the payments are coming in a trickle, for the total amount paid so far can only be described as a drop in the ocean,” it said.

In the five awards, the largest is Sh782.2 million, while the lowest is Sh90 million.

The proceedings followed demands by SBI after KeNHA failed to settle the decrees. In 2023, the court issued orders compelling the Director-General to pay the amounts.

In one ruling, the court held that the Director-General had failed to perform a public duty under the Kenya Roads Act and ordered payment within seven days. The dispute then moved into contempt proceedings. An application filed in October 2023 seeking committal to civil jail was dismissed in April 2025 because the court found it premature.

A second application produced a different result after the court found the KeNHA accounting officer in contempt over the unpaid orders and convicted him. KeNHA had earlier told the court that it did not dispute its obligation to pay. Mr Kimeli said the agency had made partial payments and was following a structured plan agreed with SBI in December 2023.

The agency said the plan involved six equal instalments beginning in January 2024. It also said some funds were tied up in litigation and that it had sought additional budget allocation from the State Department for Roads.

In the earlier 2025 contempt proceedings, KeNHA said it had paid Sh1.2 billion and was pursuing funds for the balance. The latest ruling, however, records total payments of only Sh90 million by July 27: Sh30 million paid by December 19, 2025, another Sh20 million by April 13, 2026 and Sh10 million by June 23.

The court rejected a request to summon the Controller of Budget and the head of the Kenya Roads Board, saying responsibility for settling the decrees lay with the accounting officer.

The court said the decrees concerned services rendered or works completed.

“It would be immoral to get contractors to render services or carry out works, and then not pay them thereafter,” said the judge.

He also noted that interest continues to accumulate as settlement is delayed.

The court said the decrees should have been factored into the 2024/25, 2025/26 and 2026/27 annual budgets, adding that “not much appears to have been done”.

Granting the KeNHA boss an opportunity before mitigation and sentencing, the court emphasised that “a court order is not a suggestion nor a proposition; it is for compliance, and failure to comply has consequences”.

“I would also reiterate that those who take up public office, where they incur statutory and legal duties and obligations, must be ready to pay the price, when they fall short so far as discharge of those duties is concerned. It is nothing personal, for it comes with the territory, occupation of public office, upon which certain duties are imposed or accrued,” said the judge.

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jwangui@ke.nationmedia.com

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