Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed· [2021] KEELC 2334 (KLR)

Samuel Ngari Githinji v Constituency Development Fund Board & another; Equity Bank Limited (Garnishee) [2021] KEELC 2334 (KLR)

Not expressly named in the judgment (sat in Nairobi, presided over by a Judge)
29 July 2021
SOS. Okong'o
4,667 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Nairobi court halted the attachment of a constituency development fund's bank account, confirming CDF committees are government agencies that can't be attached — creditors must use certificate procedures instead.

What this practically means

#

Executive summary

#
Judgment had been entered against the defendants jointly and severally on 17th November 2017 for Kshs. 12,000,000 (market value of land on which a public road was illegally constructed), Kshs. 7,000,000 general damages for trespass, and costs taxed at about Kshs. 1.1 million. The plaintiff sought and obtained from the Deputy Registrar an order nisi attaching funds in the 2nd defendant's (Dagoretti South NGCDF Committee's) account at Equity Bank, Kawangware Branch, which on 16th February 2021 was made absolute for payment of Kshs. 10,649,487.73. The 2nd defendant appealed, contending it was a government agency protected from execution by section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules, while the plaintiff maintained it was a body corporate citable to garnishee proceedings, relying on authorities holding CDF committees not exempt. The court traced the history of the CDF from the CDF Act 2013 (declared unconstitutional in part) to the NGCDF Act 2015, examined the objects, composition, functions, government control and funding of the Committee, and concluded the CDFC/NGCDFC is a government agency implementing national government functions at constituency level. Section 21(4) of the GP Act therefore barred the attachment, and the plaintiff's proper remedy was a certificate of order under section 21(1) for payment by the accounting officer of the NGCDFB or the Ministry of Devolution and Planning. The appeal was allowed on all grounds, the Deputy Registrar's orders were set aside, the attachment was discharged, the plaintiff's garnishee application dismissed, and each party was ordered to bear its own costs.

Key legal issues

#
01

Whether the NGCDFC (2nd defendant) is a Government agency protected from garnishee execution

Holding

The appellant is a government agency; it is protected from execution under the GP Act and Order 29 of the Civil Procedure Rules.

Reasoning

The court traced the history of the CDF from the CDF Act 2013 to the NGCDF Act 2015, noting the objects of the Acts, the composition of the Committee, the control exercised through the Board, the Ministry of Devolution's policy role and the fact that its funds are public funds from the consolidated fund. It concluded the Committee is a vehicle for implementing national government functions at the constituency level, rejecting the plaintiff's authorities as distinguishable.

p. 4
02

Whether the Deputy Registrar's order nisi and its confirmation were lawful

Holding

The attachment was illegal because section 21(4) of the GP Act forbids execution against the Government; the Deputy Registrar erred in dismissing the application to set aside and in making the order nisi absolute.

Reasoning

Having found the 2nd defendant to be a government agency, the court held that the plaintiff's only lawful route was to obtain a certificate of order under section 21(1) of the GP Act for payment by the accounting officer of the NGCDFB or the Ministry of Devolution and Planning. No such certificate had been applied for or issued, so the garnishee attachment contravened section 21(4).

p. 5
03

How the judgment debt against the NGCDFC should be settled

Holding

The debt should be settled by the accounting officer of the NGCDFB or the Ministry of Devolution and Planning after issuance of a certificate under section 21(1) of the GP Act.

Reasoning

The court noted the NGCDF falls under the Ministry of Devolution and Planning, which ensures budgetary provisions and offers policy direction to the Board administering the Fund through the Committees. Section 21(3) obliges the accounting officer to pay the certified amount, but only after the judgment creditor has obtained the certificate prescribed by section 21(1), which the plaintiff never sought.

p. 5

Legal principles established

#
  • A Constituency Development Fund Committee / NGCDF Committee is a government agency for the implementation of national government functions at constituency level and is protected from execution under the Government Proceedings Act and Order 29 of the Civil Procedure Rules.
  • Section 21(4) of the GP Act bars execution or attachment against the Government; the only lawful route to satisfy a judgment against the Government is a certificate of order under section 21(1) payable by the accounting officer.
  • The term 'the Government' under the GP Act includes Government departments, organs, agencies and officers of the Government.

Court orders

#
  1. 1.Appeal allowed on all grounds
  2. 2.Orders made by Hon. I.N. Barasa, Deputy Registrar on 16th February 2021 set aside and substituted with an order dismissing the plaintiff's application dated 1st December 2020
  3. 3.Orders for attachment of the 2nd defendant's bank account with the Garnishee made on 26th January 2021 and 16th February 2021 discharged
  4. 4.Each party to bear its own costs of the two applications before the Deputy Registrar and of the appeal

Authorities

#

Legislation

  • Government Proceedings Act, Chapter 40 Laws of Kenyasections 2, 12, 19, 21(1), 21(3), 21(4), 21(5)
  • Civil Procedure Act, Chapter 21 Laws of Kenya-
  • Civil Procedure RulesOrder 23, Order 29 Rule 1(1), Order 29 Rule 2, Order 49 rule (7)(2)
  • National Government Constituencies Development Fund Act, 2015sections 2, 4, 5, 6, 14, 43, 57
  • Constituencies Development Fund Act, 2013sections 3, 22, 24(3)(c), 24(3)(f), 37(1)(a)
  • Constitution of KenyaArticle 6(3)
  • Parliamentary Service ActRegulations made pursuant to it (constituency office)

Cases cited (6)

  • Green Star Systems Ltd. v Kenyatta International Convention Centre (KICC) & 2 others
    [2018] eKLR
  • Maina Mwangi v John Kagucia & Mukurwe-ini Constituency Development Fund Committee
    [2017] eKLR
  • Amin Mohamed Ali v Fund Manager Laikipia East Constituency Dvelopment Fund & 3 others
    [2014] eKLR
  • Institute of Social Accountability & another v National Assembly & 4 others
    [2015] eKLR
  • National Assembly of Kenya & another v Institute for Social Accountability & 6 others
    [2017] eKLR
  • Wanjiru Gikonyo & another v National Assembly of Kenya & 8 others
    [2016] eKLR
On appeal from
Deputy Registrar (same court)
Not stated
Jurisdiction invoked
Order 49 rule (7)(2) of the Civil Procedure Rules (appeal from decision of the Deputy Registrar in garnishee proceedings)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Samuel Ngari Githinji v Constituency Development Fund Board & another; Equity Bank Limited (Garnishee) [2021] KEELC 2334 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2334/eng@2021-07-29

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