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ELCDismissedNairobi (Milimani) ELC 252 of 2015· [2021] KEELC 1616 (KLR)

Equilab Technologies Limited v Attorney General & 4 others; Co-pperative Bank (K) Limited (Garnishee) [2021] KEELC 1616 (KLR)

Environment and Land Court
4 October 2021
BEB M Eboso
3,002 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's High Court-aligned Environment and Land Court confirmed you cannot directly garnish county government bank accounts; winning a judgment is only half the battle against government debtors.

What this practically means

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Executive summary

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This ruling by B M Eboso J of the Environment and Land Court disposed of a notice of motion dated 23/11/2020 by the decree holder, Equilab Technologies Limited, seeking to attach Kshs 9,423,968 held by the judgment debtor, Nairobi City County Government, in an account at the Co-operative Bank of Kenya, City Hall Branch, to satisfy a 2016 judgment awarding Kshs 5,000,000 exemplary damages plus taxed costs of Kshs 1,064,392, which remained unsatisfied despite orders of mandamus issued in Nairobi ELC JR No. 45 of 2017. The court framed two questions: whether the decree could be enforced absent a Section 21 Government Proceedings Act certificate, and whether a garnishee order could issue against a county government. On the first, the court held that execution proceeds on the platform of a particular cause; having elected to enforce in this cause rather than the JR cause, the decree holder was obliged to obtain and serve a Section 21 certificate issued in this cause, and the mandamus did not dispense with that requirement. On the second, applying Order 29(4)(1) of the Civil Procedure Rules and following Kisya Investments and Nahashon Omwoha Osiako, the court held that money due from the Government is insulated against attachment, the rationale being parliamentary control over appropriation of expenditure; African Commuter Services was distinguished. The application was declined. The court directed the Deputy Registrar to issue a Section 21 certificate to facilitate lawful enforcement, allowed the decree holder to argue the application dated 6/3/2019 in the cause where it was filed, and ordered the judgment debtor to bear the garnishee's costs, with each of the decree holder and judgment debtor bearing their own costs.

Key legal issues

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01

Whether a Section 21 certificate is a precondition to enforcing a decree against a county government

Holding

Yes. Having elected to enforce on the platform of this cause rather than the JR cause in which mandamus issued, the decree holder was obligated to obtain and serve a Section 21 certificate issued in this cause.

Reasoning

Execution against the Government is carried out on the platform of a particular cause. The decree holder had the option of enforcing the mandamus in Nairobi JR No. 45 of 2017 but elected to enforce the award in this cause. Section 21(4) of the Government Proceedings Act bars execution or attachment in the absence of the certificate, and nothing on record showed that a certificate had been procured and served. Counsel's argument that mandamus disapplied the section was rejected.

p. 3
02

Whether a garnishee order can issue against the Nairobi City County Government

Holding

No. Order 29(4)(1) of the Civil Procedure Rules insulates money due from the Government against attachment, and the court found no basis to depart from the prevailing jurisprudence upholding that insulation.

Reasoning

The court traced the rationale in Kisya Investments (parliamentary control over revenue and appropriation of expenditure) and the post-2010 affirmation in Nahashon Omwoha Osiako, citing Article 206(2) of the Constitution. African Commuter Services was distinguished because the statute creating the Kenya Civil Aviation Authority did not expressly prohibit execution against it. The court therefore found the garnishee order could not issue.

p. 3

Legal principles established

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  • A decree against a county government cannot be enforced in a cause in the absence of a certificate under Section 21 of the Government Proceedings Act issued in that cause; the mandamus obtained in a separate cause does not dispense with the certificate in the cause in which execution is levied.
  • The Government is insulated against execution by attachment under Order 29(4)(1) of the Civil Procedure Rules, and no garnishee order may issue in respect of money due or accruing from the Government.
  • The insulation of Government property from attachment is constitutionally tolerable because satisfaction of decrees is an expenditure requiring appropriation, and money may be withdrawn from the Consolidated Fund only in accordance with an Act of Parliament.

Court orders

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  1. 1.The decree holder's application dated 23/11/2020 is declined on the ground that the money held in the said account is insulated against attachment under Order 29(4)(1) of the Civil Procedure Rules
  2. 2.The decree holder is at liberty to argue the application dated 6/3/2019 in the cause in which the said application was filed
  3. 3.The judgment debtor shall bear the garnishee's costs of this application
  4. 4.As between the decree holder and the judgment debtor, the two parties shall bear their respective costs of this application
  5. 5.The Deputy Registrar shall immediately issue and make available to the parties a certificate under Section 21 of the Government Proceedings Act

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10; Article 206(2)
  • Government Proceedings ActSections 21(1)-(4), 23, 32(1)
  • Public Finance Management Act, No. 18 of 2012Sections 104, 109
  • Civil Procedure RulesOrders 23, 29(4)(1), 41; pre-2010 Order XXVIII rules 2(1)(a), (2) and 4(1)
  • Kenya Civil Aviation Act

Cases cited (6)

  • Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza
    [2012] eKLR
  • Japheth Nzila Muangi v Minister for Land & Environment of the County Government of Mombasa & another
    [2019] eKLR
  • African Commuter Services Ltd v Kenya Civil Aviation Authority & 2 others
    [2014] eKLR
  • Republic v Town Clerk of Webuye County Council & another
    [2014] eKLR
  • Kisya Investments Ltd v Attorney General & another
    [2005] eKLR
  • Nahashon Omwoha Osiako & 66 others v Attorney General; Amicus Curiae Kenya Section of International Commission of Jurists (Open Society Justice Initiative)
    (2017) eKLR
Jurisdiction invoked
Original enforcement jurisdiction of the Environment and Land Court over its own decree; order for garnishee attachment sought under Order 23 as read with Order 29(4)(1) of the Civil Procedure Rules

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, "Equilab Technologies Limited v Attorney General & 4 others; Co-pperative Bank (K) Limited (Garnishee) [2021] KEELC 1616 (KLR)", Case Analysis (2021). Nairobi (Milimani) ELC 252 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1616/eng@2021-10-04

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