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ELCPartially AllowedNotice of motion dated 15.10.2019 (Meru ELC)· [2020] KEELC 2345 (KLR)

Ayub Muthuri Ikiara v County Government of Meru [2020] KEELC 2345 (KLR)

Environment and Land Court
20 May 2020
LMLUCY N. MBUGUA
1,165 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot seize a county government's property or arrest its officials to enforce a court decree in Kenya; instead, you must pursue a mandamus order through judicial review.

What this practically means

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Executive summary

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The County Government of Meru, as applicant/defendant, moved the court by notice of motion dated 15 October 2019 under sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Article 159 of the Constitution and section 21(1) and (4) of the Government Proceedings Act, seeking to stay and to review, vary or vacate warrants of arrest issued on 14 October 2019 against the County Secretary, Joseph Miriti Mwereria, following a notice to show cause. The plaintiff, a decree holder who had obtained judgment in 2018 after 16 years of litigation together with costs of Shs.176,735, opposed the application, contending that no appeal was filed and that the applicant should indicate how it would settle the outstanding Shs.536,518. The court analysed section 21 of the Government Proceedings Act, noting that subsection (5), introduced by the Government Proceedings (Amendment) Act of 2015, places county governments at par with the national government in matters of execution. Relying on the Koroso and Stephen Wanyee Roki authorities, the court held that execution cannot issue against a county government and that the decree holder's recourse lies in judicial review proceedings by way of mandamus. Although the court found the application merited, it faulted the defendant for requesting time on 4 September 2019 to prepare a settlement plan and then instead filing the application, and accordingly condemned the applicant to pay costs. The application dated 15 October 2019 was allowed, and the ruling was delivered electronically under the COVID-19 practice directions, with parties deemed to have waived compliance with Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Whether execution in the nature of warrants of arrest may issue against a county government

Holding

Execution is barred against county governments under section 21(4) as applied by section 21(5) of the Government Proceedings Act; the remedy is mandamus in judicial review

Reasoning

Section 21(4) of the Government Proceedings Act bars execution or attachment or process in the nature thereof against the Government, and section 21(5), introduced by the Government Proceedings (Amendment) Act 2015, extends this to county governments. The court relied on authorities holding that decree holders must pursue judicial review mandamus. Accordingly the warrants of arrest against the County Secretary could not stand.

p. 2

Legal principles established

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  • No execution or attachment may issue against a government or county government; the decree holder's remedy is judicial review by way of mandamus

Court orders

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  1. 1.The application dated 15.10.2019 is allowed (warrants of arrest against the County Secretary, Meru County Government, stayed/vacated)
  2. 2.The applicant/defendant is condemned to pay costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Constitution of KenyaArticle 159
  • Government Proceedings ActSection 21(1) & (4)
  • Government Proceedings (Amendment) Act2015 (introducing section 21(5))
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (3)

  • Republic vs The Attorney General & another exparte James Alfred Koroso
    Judicial Review Miscellaneous Application No. 44 of 2012
  • Republic vs Attorney General exparte Stephen Wanyee Roki
    (2016) KLR
  • Republic vs County Secretary Migori County Government and another
    (2019) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A of the Civil Procedure Act; Article 159 of the Constitution; section 21(1) & (4) of the Government Proceedings Act

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, "Ayub Muthuri Ikiara v County Government of Meru [2020] KEELC 2345 (KLR)", Case Analysis (2020). Notice of motion dated 15.10.2019 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2345/eng@2020-05-20

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