Prof. Tom Ojienda & Associates v Nairobi City County & Cooperative Bank of Kenya (Garnishee)
The bottom line
#Kenya's High Court blocked a law firm's attempt to attach a county government's bank funds, confirming government accounts remain shielded from execution.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 21(4) of the Government Proceedings Act was declared unconstitutional in the Absa Bank case and is thus inoperative
No declaration of invalidity was made in the Absa Bank case; the judge's observations on discrimination were not precipitate declaratory orders under Articles 2(4) and 23. The only precipitate decision on Section 21 is Kisya Investments Ltd v Attorney General, which upheld the constitutionality of the prohibition on execution against the Government.
The court examined the paragraphs of the Absa ruling relied on by the Applicant and found them to be observations, not express declaratory orders. A declaration of invalidity has serious ramifications and courts must speak with clarity. The Kisya Investments decision, by a two-judge bench, considered and upheld Section 21, and remains binding absent an appellate reversal.
Whether the Applicant established grounds for a garnishee order Nisi against funds of the County Government
The order Nisi was declined because it would constitute execution and attachment against the County Government contrary to Sections 21(4) and (5) of the Government Proceedings Act, which remain alive on the statute books.
Relying on the Macfoy dictum on void acts and the Rule of Law under Article 10(2), the court held that an order issued contrary to express statutory provisions is illegal, void and would create absurdity and anarchy. The court noted, however, that the Applicant may still compel compliance with the decree through judicial review mechanisms.
Opportunity for the Attorney General where constitutionality of a statute is in question
Superior courts interrogating the constitutionality of a statute should afford the Attorney General an opportunity to address the court, in line with Articles 10(2) and 156 of the Constitution.
The court, for the sake of posterity and observance of national values, advised that the Attorney General be heard whenever the constitutionality of an Act of Parliament is under consideration, reflecting the Attorney General's role as principal legal adviser to the Government.
Legal principles established
#- A declaration of unconstitutionality and invalidity must be explicit and unequivocal under Articles 2(4) and 23 of the Constitution and cannot be inferred by supposition, speculation or inference.
- Observations by a judge that a statute is discriminatory do not amount to a declaration of invalidity absent express declaratory orders.
- An order of the court made contrary to the express provisions of a statute is illegal, void and bad in law and inimical to the Rule of Law.
- The immunity from execution in Section 21(4) of the Government Proceedings Act does not render the Government immune from compliance with judgments, which may be pursued through judicial review under Article 47, the Fair Administrative Actions Act, the Law Reform Act and Order 53.
Court orders
#- 1.The request for an Order Nisi is declined.
- 2.No execution by way of attachment can be commenced or maintained against the Government or County Government while Section 21 of the Government Proceedings Act remains undeclared unconstitutional in a suitable constitutional petition.
- 3.It is so ordered (ruling dated, signed and delivered at Nairobi on 5th April 2024).
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Orders 23 Rule 1 and 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prof. Tom Ojienda & Associates v Nairobi City County & Cooperative Bank of Kenya (Garnishee)", Case Analysis (2024). Not stated in the judgment (arising from decree issued 19th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1662/eng@2024-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.