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ELCOtherNot stated in the judgment· [2020] KEELC 2161 (KLR)

Jane Kendi Ikinyua v Nairobi City County; Co-operative Bank of Kenya Limited (Garnishee) [2020] KEELC 2161 (KLR)

Environment and Land Court (first-instance court; court name not expressly stated in the judgment)
11 June 2020
1,160 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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You cannot seize a county government's bank accounts to settle a court judgment in Kenya — your only route is a mandamus order compelling payment.

What this practically means

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Executive summary

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This ruling determines a preliminary objection dated 12th June 2018 raised by the garnishee, the Cooperative Bank of Kenya Limited, against a chamber summons dated 27th November 2017 in which the plaintiff/decree holder sought to execute, by garnishee proceedings, a certificate of taxation issued on 11th October 2017 against the County Government of Nairobi's revenue accounts held at the garnishee's City Hall Branch. The garnishee argued that Order 29 rules 2 and 4 of the Civil Procedure Rules 2010 and Section 21 of the Government Proceedings Act prohibit execution against the government; that county governments enjoy the same immunity under Section 21(4) of the Government Proceedings Act; that attaching county revenue accounts offends Articles 207(2) and (3) of the Constitution and Section 109 of the Public Finance Management Act; and, further, that one of the two attached accounts had been closed in January 2014 while the other did not exist. Neither the plaintiff nor the defendant filed responses; only the garnishee filed submissions. Relying principally on Mativo J's decision in the Salima Enterprises case and Odunga J's decision in the Kosoro case, Komingoi J held that execution orders against the government are expressly prohibited and that the decree holder's only remedy is mandamus. The preliminary objection was upheld and the chamber summons dismissed with costs to the garnishee and the defendant.

Key legal issues

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01

Whether execution/garnishee proceedings may issue against a county government's revenue accounts

Holding

They may not. Order 29 rules 2(2) and 4(1) of the Civil Procedure Rules 2010 and Section 21 of the Government Proceedings Act prohibit execution orders against the government, and counties enjoy the same immunity as the national government under Section 21(4) of the Government Proceedings Act.

Reasoning

The court relied on Order 29 rule 2(2)(b) which bars orders under Order 22 against the government, and rule 4(1) which bars attachment of debts due from the government. It adopted Mativo J's and Odunga J's statements that the only route to realize a judgment against the government is mandamus against the accounting officer. The garnishee order attaching revenue accounts at the garnishee bank therefore offended these provisions and the constitutional scheme for county revenue accounts under Articles 207(2) and (3).

p. 2
02

Whether the preliminary objection dated 12th June 2018 should be upheld

Holding

Yes; it was upheld and the chamber summons dated 27th November 2017 dismissed with costs to the garnishee and the defendant.

Reasoning

Only the garnishee filed submissions; neither the decree holder nor the defendant responded. The court found the authorities conclusive that execution against the government is prohibited, that the garnishee order nisi attached an illusory or non-existent account, and that the chamber summons was premature and incompetent, warranting dismissal in terms of the preliminary objection.

p. 2

Legal principles established

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  • No execution orders may be issued against the government except in accordance with the Government Proceedings Act; garnishee orders do not lie against county government revenue accounts
  • A judgment creditor barred from executing against the government may only realize the judgment through mandamus

Court orders

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  1. 1.The preliminary objection dated 12th June 2018 is upheld
  2. 2.The chamber summons dated 27th November 2017 is dismissed
  3. 3.Costs of the chamber summons awarded to the garnishee and the defendant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 29 rule 2 and rule 2(2)(b); Order 29 rule 4 and 4(1); Order 22; Order 23; Order 41
  • Government Proceedings ActSection 21; Section 21(4)
  • Constitution of Kenya, 2010Article 6(2); Article 176; Article 207(2) and (3)
  • County Governments ActSection 2
  • Public Finance Management ActSection 109

Cases cited (8)

  • Republic vs Attorney General and Another exparte Ongata Works Limited
    [2016] eKLR
  • Kilimanjaro Safari Club Limited vs Gonor – Kajiado County (in place of County Council of Ol Kejuodo
    [2014] eKLR
  • National Housing Corporation vs Nairobi City Council & Another
    [2002] eKLR
  • Kisya Investments Limited vs Attorney General & Another
    [2005] eKLR
  • Kennedy Wainaina Njenga vs County Government of Nairobi; Cooperative Bank of Kenya Limited (Garnishee)
    [2019] eKLR
  • Republic vs Governor, Nairobi City County & 2 Others exparte Salima Enterprises; Cooperative Bank of Kenya Ltd Interested Party
    [2019] eKLR
  • Republic vs County Secretary Nairobi City County & Another exparte Wachira Nderitu Njugi & Co Advocates
    [2016] eKLR
  • Republic vs the Attorney General & Another exparte James Alfred Kosoro
    [2013]
Jurisdiction invoked
Original jurisdiction over garnishee/execution proceedings; preliminary objection under Order 29 rule 2 and 4 of the Civil Procedure Rules 2010 and Section 21 of the Government Proceedings Act (specific enabling provision not stated in the judgment)

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, "Jane Kendi Ikinyua v Nairobi City County; Co-operative Bank of Kenya Limited (Garnishee) [2020] KEELC 2161 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2161/eng@2020-06-11

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