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ELCDismissedNot stated in the extract· [2021] KEELC 4442 (KLR)

Marggie Mbogo Macniven t/a Garden of Eden Restaurant v North Lake Limited & 2 others [2021] KEELC 4442 (KLR)

Environment and Land Court
4 February 2021
2,168 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot force a Kenyan county government to pay a court judgment without first obtaining a specific certificate, and you can never attach its bank accounts.

What this practically means

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Executive summary

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This ruling by S. Okong'o, Judge, of the Environment and Land Court at Nairobi determines a Notice of Motion dated 7th July 2020 in which the plaintiff, who had obtained judgment against Nairobi City County Government (the 3rd defendant) on 30th October 2019 for Kshs. 12,777,432.46 plus interest, exemplary damages and costs taxed at Kshs. 741,789.21, sought orders that the County Executive Committee Member for Finance and the Chief Officer for Finance be summoned to present a plan for settling the decree, and that failing this, the county's bank accounts be attached. The application was unopposed. The court held that although the CECM for Finance and the Chief Officer are the accounting officers of the county government with a statutory duty under section 21(3) of the Government Proceedings Act to settle judgments, that duty arises only after the judgment creditor has obtained a certificate of order against the government under section 21(1) in the prescribed form. The plaintiff had not done so; serving the decree and certificate of taxation did not satisfy the requirement, and the certificate must reflect the principal, interest and costs. On attachment, the court held section 21(4) expressly bars all execution against the government, rendering the proposed attachment illegal. It declined to follow Japheth Nzila Muangi and distinguished African Commuter Services, aligning itself with prior decisions. The application was dismissed with costs to be in the cause.

Key legal issues

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01

Whether the accounting officers were obliged to settle the decree without a section 21(1) certificate

Holding

They were only under a duty to pay once the applicant had complied with section 21(1); in the absence of the prescribed certificate, the accounting officer is not under any duty to pay

Reasoning

Section 21(3) obliges the accounting officer to pay the amount appearing by the certificate to be due. The plaintiff served only the decree and the certificate of taxation, which were not in the prescribed form and did not combine the principal amount, interest and costs as required. The certificate of order against the government is therefore a condition precedent to payment.

p. 2
02

Whether the 3rd defendant's bank accounts could be attached in execution

Holding

No - section 21(4) forbids all forms of execution against the government, so such an order would be illegal

Reasoning

The court distinguished the authority African Commuter Services Ltd, which turned on section 43(1) of the Civil Aviation Act barring execution only in respect of particular items, unlike section 21(4) which bars all execution. The court aligned itself with prior decisions holding that attachment against government accounts is impermissible, and noted the prescribed Order 23 procedure had also not been followed.

p. 3
03

Compliance with Order 23 procedure for attachment of bank accounts

Holding

The application was not in accord with the prescribed procedure requiring garnishee banks be summoned to show cause before attachment

Reasoning

Order 23 of the Civil Procedure Rules prescribes the mechanism for attaching monies held in bank accounts, requiring the banks (Kenya Commercial Bank Limited and Co-operative Bank Limited) to be summoned to appear and show cause why the monies should not be paid out. This procedural requirement was an independent bar to the relief sought.

p. 3

Legal principles established

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  • Following the 2015 amendment, section 21 of the Government Proceedings Act applies to civil proceedings against county governments
  • An accounting officer is under no duty to pay a judgment against the government in the absence of a certificate of order against the government issued under section 21(1) in the prescribed form
  • The certificate of order against the government must reflect the principal amount, interest and costs; a decree and certificate of taxation do not suffice
  • No execution or attachment may issue against the government under section 21(4) of the Government Proceedings Act

Court orders

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  1. 1.The Notice of Motion application dated 7th July, 2020 was dismissed
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Government Proceedings Act, Chapter 40 Laws of KenyaSection 21 (including 21(1), 21(3), 21(4), 21(5))
  • Public Finance Management Act, 2012Not specified
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure RulesOrder 23
  • Civil Aviation Act, 2013Section 43(1)

Cases cited (6)

  • Japheth Nzila Muangi v Minister of Lands & 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 Attorney General & another ex-parte Stephen Wanyee Roki
    (2016) KLR
  • Republic v The Attorney General & Another ex parte James Alfred Koroso
    Judicial Review Miscellaneous Application No. 44 of 2012, [2013] eKLR
  • Republic v County Secretary, Nairobi City County & another Ex Parte Wachira Nderitu Ngugi & Co. Advocates
    Miscellaneous Civil Application No. 350 of 2015, [2016] eKLR
  • Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza
    [2012] eKLR
Jurisdiction invoked
Government Proceedings Act, Chapter 40 Laws of Kenya; Public Finance Management Act, 2012; Order 51 Rule 1 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, "Marggie Mbogo Macniven t/a Garden of Eden Restaurant v North Lake Limited & 2 others [2021] KEELC 4442 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4442/eng@2021-02-04

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