Marggie Mbogo Macniven t/a Garden of Eden Restaurant v North Lake Limited & 2 others [2021] KEELC 4442 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the accounting officers were obliged to settle the decree without a section 21(1) certificate
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
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.
Whether the 3rd defendant's bank accounts could be attached in execution
No - section 21(4) forbids all forms of execution against the government, so such an order would be illegal
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.
Compliance with Order 23 procedure for attachment of bank accounts
The application was not in accord with the prescribed procedure requiring garnishee banks be summoned to show cause before attachment
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 7th July, 2020 was dismissed
- 2.Costs of the application to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.