Simonash Investment Ltd v Kenya National Highways Authority & 2 others (Constitutional Petition 15 of 2019) [2024] KEELC 6503 (KLR)
The bottom line
#You cannot seize KeNHA property to enforce a court judgment in Kenya; you must instead compel its Director-General to pay through a mandamus order.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st Respondent is a Government agency/department protected from execution by Section 21(4) of the Government Proceedings Act
- 2.Whether the warrants of attachment and sale issued on 26th March 2024 and the resultant proclamation of 2nd April 2024 were irregularly obtained contrary to Section 68 of the Kenya Roads Act, 2007
- 3.Whether the attachment should be lifted, the warrants set aside, and attached motor vehicles released
- 4.Who should bear the costs of the application and of the unlawful execution process
Key legal issues
#Status of KeNHA as a Government agency and the applicable execution regime
KeNHA is an agency/department of the Government of Kenya, but its protection from execution flows from Section 68 of the Kenya Roads Act, not Section 21(4) of the Government Proceedings Act.
The court examined Sections 3 and 4 of the Kenya Roads Act establishing KeNHA as a body corporate responsible for national roads. From the statutory objectives and functions, the court agreed KeNHA is a Government agency. However, the specific execution bar is in Section 68, which directs the Director-General to pay monetary judgments out of the Authority's revenue, displacing the general Government Proceedings Act procedure.
Regularity of the execution by attachment against the 1st Respondent
The warrants of attachment and sale and the resultant proclamation were irregularly issued as they contravened Section 68 of the Kenya Roads Act, and were liable to be set aside.
Section 68 prohibits execution or attachment against an Authority and bars seizure of its property without the Director-General's prior written permission. The proper course was to require the Director-General to satisfy the decree and, in default, to seek mandamus. The Petitioner conceded execution was subject to Section 68, yet attachment proceeded directly against the 1st Respondent's vehicles, making the process unlawful.
Correct procedure for enforcing judgments against bodies exempt from execution
The decree-holder must call on the Director-General to satisfy the decree and, in default, seek an order of mandamus by judicial review to compel performance of the statutory duty, with contempt available on defiance.
Relying on the mandamus principle from Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge and the Court of Appeal decision in Five Star Agencies Ltd v National Land Commission consolidated with KeNHA v Five Star Agencies Ltd, the court held that execution against bodies protected from attachment proceeds only through mandamus against the accounting officer, not through attachment and sale of the body's property.
Legal principles established
#- The Kenya National Highways Authority, though a Government agency, is protected against execution not by Section 21(4) of the Government Proceedings Act but by Section 68 of the Kenya Roads Act, which prohibits attachment or execution against its property and requires payment out of the Authority's revenue by the Director-General.
- Where execution is prohibited against a Government body, the decree-holder must seek an order of mandamus to compel the accounting officer to satisfy the decree, and may pursue contempt proceedings if the order is defied.
- Warrants of attachment issued against the Authority contrary to Section 68 of the Kenya Roads Act are irregular and liable to be set aside.
Court orders
#- 1.The 1st Respondent's Notice of Motion dated 16th April 2024 is allowed in terms of prayer 4 thereof (setting aside the warrants of attachment and sale issued 26th March 2024 and lifting the attachment/proclamation against the 1st Respondent, which were irregularly issued contrary to Section 68 of the Kenya Roads Act)
- 2.No order as to the costs of the application
- 3.The auctioneers' costs, if any, shall be borne by the Petitioner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the High Court/ELC over the pending suit; application brought under Section 68 of the Kenya Roads Act, 2007 as read with Section 21(4) of the Government Proceedings Act and Order 29 Rule 2(1) and (2) of the Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, I find merit in the 1st Respondent’s application dated 16th April 2024. The application is allowed in terms of prayer 4 thereof.
There shall be no order as to costs of the application while the auctioneers’ costs if any shall be borne by the Petitioner.
I agree with the 1st Respondent that the mode of execution that the Petitioner adopted against the 1st Respondent was unlawful as it was contrary to the express provisions of the Act.
where any judgment or order has been obtained against an Authority, no execution or attachment, or process in the nature thereof, shall be issued against such Authority or against its property
an order of mandamus will compel the performance of a public duty which is imposed on a person or body of person by a statute and where that person or body of persons has failed to perform the duties to the detriment of a party who has a legal right to expect the duty to be performed.
Issues in the judgment
#The case number/neutral citation of the underlying petition and the immediate application are not stated anywhere in the judgment, though the reference number appears in the related Court of Appeal appeal title.
Names of the 2nd and 3rd Respondents are not given in the judgment; only the 1st Respondent is named.
The court does not reproduce the text of prayer 4 of the application; the specific order allowed is inferred from the court's findings on setting aside the warrants.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simonash Investment Ltd v Kenya National Highways Authority & 2 others (Constitutional Petition 15 of 2019) [2024] KEELC 6503 (KLR)", Case Analysis (2024). Not stated in judgment (application dated 16th April 2024 within the petition in which judgment was entered on 21st December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6503/eng@2024-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.