Gituthi & 2 others (All Petitioners suing on their own behalf and on behalf of other 57 Petitioners/Decree -Holders) v National Land Commission & another; National Bank of Kenya Limited & another (Garnishee) (Environment & Land Petition 5 of 2018) [2024] KEELC 5856 (KLR)
The bottom line
#A Kenyan court froze government-linked bank accounts to pay Kshs 8.3 million, confirming the National Land Commission is not shielded from debt collection.
What this practically means
#Executive summary
#Key legal issues
#Whether the National Land Commission is shielded from garnishee proceedings as a government entity
The NLC is not the government or a government department; garnishee proceedings lie against it
Guided by Tom Ojienda & Associates v National Land Commission and Ikon Prints Media v KeNHA, the court held that although the NLC is independent and government-funded, it is a constitutional commission with power to sue and be sued in its own name, and its organic statute (the National Land Commission Act) contains no provision shielding it from execution. Judgments against it are not judgments against the government.
Whether the garnishee proceedings followed the prescribed procedure
Since the NLC is not the government, the Government Proceedings Act procedure (certificate of order and mandamus) does not apply and the proceedings comply with the applicable procedure
The 1st Respondent's complaint about procedure rested entirely on its characterisation as a government department. Once the court found it amenable to garnishee proceedings, the procedural objection collapsed and the garnishee route under Order 23 was proper.
Effect of joint liability and the 2nd Respondent's part-payment of half the taxed costs
Part-payment of half did not discharge the 2nd Respondent; each joint debtor is liable for the full sum, with contribution rights
Relying on Republic v PS Internal Security ex parte Joshua Mutua Paul, Dubai Electronics v Total Kenya and Africa Planning & Design Consultants v Sololo Outlets, the court held that under joint liability each debtor is liable to settle the full liability. The paying party cannot recover more than the total decreed but is entitled to reimbursement from co-debtors.
Legal principles established
#- The National Land Commission is not the government or a government department for purposes of the Government Proceedings Act and Order 29 Rule 2 of the Civil Procedure Rules, and is therefore amenable to garnishee proceedings
- Under joint liability, each joint debtor is liable to settle the full liability, and payment of half by one debtor does not discharge it from the remaining sum; the paying party may seek reimbursement from the co-debtor
Court orders
#- 1.A Garnishee Order Nisi issued against the National Bank of Kenya, Hill Plaza Branch (1st Garnishee) in respect of Bank Account Number 0132980000 and against Co-operative Bank of Kenya Limited (2nd Garnishee) in respect of Bank Account Number 01136084618500, or any other of the Judgment-Debtors' accounts, attaching all monies to the credit of National Land Commission and Athi Water Services Board to satisfy Kshs.8,314,364/- being the decretal sum and costs
- 2.The 1st and 2nd Garnishees having failed to show cause why they should not pay the debt, the Garnishee Order Nisi was made absolute and the monies in the said accounts attached to settle the Decree and Certificate of Taxation dated 17th January 2023 in the sum of Kshs.8,314,364/- plus costs of the garnishee proceedings
- 3.The costs of the application to be borne by both Respondents/Judgment-Debtors and recovered and retained out of the money under the Garnishee Order
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 23, Rules 1, 2, 8 and 10 and Order 51, Rules 1 and 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gituthi & 2 others (All Petitioners suing on their own behalf and on behalf of other 57 Petitioners/Decree -Holders) v National Land Commission & another; National Bank of Kenya Limited & another (Garnishee) (Environment & Land Petition 5 of 2018) [2024] KEELC 5856 (KLR)", Case Analysis (2024). Murang'a ELC Constitutional Petition (Garnishee Proceedings) – Notice of Motion dated May 8, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5856/eng@2024-08-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.