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ELCOther· [2019] KEELC 522 (KLR)

County Government of Kilifi v Japheth Noti Charo [2019] KEELC 522 (KLR)

Environment and Land Court (High Court of Kenya, Malindi)
5 December 2019
JOJ. O. Olola
1,296 words in judgment
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The bottom line

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You cannot seize a county government's property to enforce a court judgment in Kenya; instead, the court must compel officials to pay through a mandamus order.

What this practically means

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Executive summary

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This suit was originally instituted by the now defunct Municipal Council of Malindi against Japhet Noti Charo and dismissed for want of prosecution on 8 May 2013, with costs to the defendant. The costs were taxed at Kshs 212,000/-. On 18 May 2016 the court allowed, unopposed, the defendant's application to substitute the County Government of Kilifi for the defunct Council for purposes of executing the decree. The defendant then took out a Notice to Show Cause why execution should not issue against the substituted judgment debtor. The County Government filed a Notice of Preliminary Objection dated 14 December 2018, contending that Section 21(4) of the Government Proceedings Act, Cap 40, Article 176(1) of the Constitution and Order 29 Rule 2(2) of the Civil Procedure Rules prohibit execution against the Government; that a County Government is a Government within the meaning of Article 176(1); and further raising Section 6 of the Civil Procedure Act on sub judice. The parties filed written submissions. Relying on Odunga J in Republic v Otieno Kajwang exparte Sirat and Republic v Attorney General exparte Roki, and Muchemi J in Josephat Gathee Kibuch v Kirinyaga County Council, and on the rationale in Kisya Investments Ltd v Attorney General, Olola J held that a County Government is part of the State and that Section 21(4) bars execution against it, the only mode of realising a judgment against government being mandamus. The preliminary objection was upheld, the Notice to Show Cause was struck out, and each party was ordered to bear its own costs, on 5 December 2019 at Malindi.

Key legal issues

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01

Whether execution can issue against a County Government

Holding

No; Section 21(4) of the Government Proceedings Act bars execution or attachment against the Government, and a County Government is a Government for this purpose

Reasoning

The court adopted Odunga J's reading of Section 21(4) barring execution against the Government and Muchemi J's finding, based on Section 2 of the County Government Act and Article 176 of the Constitution, that a County Government is part of the State. Immunity from execution rests on parliamentary control over public expenditure, decrees being satisfied only through appropriations, with mandamus as the remedy.

p. 2
02

Nature of the two levels of Government under Article 189(1)(a)

Holding

There is one Government exercised at two levels, complementing each other in a spirit of co-operation

Reasoning

The court endorsed Odunga J's holistic reading of Article 189(1)(a): Government at both levels performs functions respecting institutional integrity, and both levels exercise similar powers subject to the Constitution, supporting the conclusion that a County Government falls within the Government Proceedings Act.

p. 2

Legal principles established

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  • Where the Government is found liable in civil proceedings, the only mode of realising the fruits of judgment is by way of an order of mandamus, not execution or attachment
  • A County Government is part of the State or Government, and the provisions of Section 21 of the Government Proceedings Act apply to proceedings relating to a County Government
  • Government's immunity from execution rests on parliamentary control over the raising and expenditure of public revenue; satisfaction of decrees is expenditure requiring statutory authorisation

Court orders

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  1. 1.Notice of Preliminary Objection upheld
  2. 2.Notice to Show Cause struck out
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Government Proceedings Act, Cap 40 Laws of KenyaSection 21(4)
  • Government Proceedings Act, Cap 40 Laws of KenyaSection 32
  • Constitution of Kenya, 2010Article 176(1)
  • Constitution of Kenya, 2010Article 189(1)(a)
  • Civil Procedure Rules, 2010Order 29 Rule 2(2)
  • Civil Procedure Rules, 2010Order 28 Rules 2(1)(a), 2 and 4
  • Civil Procedure ActSection 6
  • County Government ActSection 2
  • Crown Proceedings Act, 1947 (England)Section 37

Cases cited (5)

  • Republic vs Otieno Kajwang & Another Exparte Mohamed Muhumed Sirat
    Nairobi HC Misc Application No. 316 of 2008
  • Kisya Investments Ltd vs Attorney General & Another
    (2005) 1 KLR 74
  • Josephat Gathee Kibuch vs Kirinyaga County Council
    (2015) eKLR
  • Republic vs Attorney General & Another exparte Stephen Wanyee Roki
    (2016) eKLR
  • Auckland Harbour Board vs R
    (1924) AC 318, 326
Jurisdiction invoked
Original civil suit; preliminary objection under Section 21(4) of the Government Proceedings Act, Cap 40, Article 176(1) of the Constitution of Kenya, 2010 and Order 29 Rule 2(2) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "County Government of Kilifi v Japheth Noti Charo [2019] KEELC 522 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/522/eng@2019-12-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.