Gichina (Suing as the administrator of the Estate of the Late Joseph Gichina Muhoro) v County Government of West Pokot (Environment & Land Case 125 of 2016) [2024] KEELC 7104 (KLR)
The bottom line
#Kenyan courts have confirmed you cannot seize a county government's property to settle a debt; the only lawful route is a mandamus application.
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 mode of execution is lawful insofar as the same is against the County Government
- 2.Whether the application violated Order 9 Rule 9 of the Civil Procedure Rules (already decided in the ruling of 12th February 2024, not reconsidered)
- 3.Who should bear the costs of the application and the auctioneers' charges
Key legal issues
#Whether a County Government falls within the Government Proceedings Act so that attachment of its property in execution of a decree is prohibited
Yes - a county government is government at the county level, and Section 21 of the Government Proceedings Act as amended applies to it; conventional execution under Order 22 is unavailable.
The court applied purposive constitutional interpretation under Article 259, reading Articles 1(4), 6, 176, 189, 217 and 253 together to conclude that county governments are a level of government and not incorporated business entities. Parliament amended Section 21 of the Government Proceedings Act in 2015 expressly to cover county governments, placing their execution outside Order 22 of the Civil Procedure Rules.
Whether the reference to a County Government as a 'body corporate with perpetual succession' under Section 6(1) of the County Governments Act removes it from being government
No - the reference is a matter of legislative convenience for perpetuity and capacity to sue and be sued; the entity remains government.
The court compared Article 253, which expressly designates commissions and independent offices as bodies corporate, with Article 176(1), which does not so designate county governments. It held that attributing a commercial-corporate meaning would produce the absurdity of treating a level of government as a private entity, contrary to the framers' intention that counties exercise sovereign power at the county level.
Whether the court should revisit the Order 9 Rule 9 issue
No - that issue was decided in the ruling of 12th February 2024 and was not disturbed.
The court invoked its own earlier ruling, which had found that the County Attorney had not taken over representation from M/S Kidiavai and Company Advocates, so no Order 9 Rule 9 application was required. That finding had neither been set aside nor reviewed, so the court declined to make a further finding on it.
Legal principles established
#- No execution may be levied against the property of a county government in settlement of a decree in a civil case; the lawful remedy is judicial review by way of an order of mandamus.
- County governments are part of government, and the execution procedure under Section 21 of the Government Proceedings Act, as amended by Act No. 35 of 2015, applies to them.
- No order against the Government may be made in execution of decrees under Order 22 of the Civil Procedure Rules.
Court orders
#- 1.The Warrants of Attachment dated 15th December 2023 and the Proclamation dated 19th December 2023 are declared null and void and contrary to the law
- 2.The Warrants of Attachment and Proclamation are set aside
- 3.The Plaintiff shall bear the auctioneers' charges
- 4.The Plaintiff shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 22 Rule 22, Order 29 Rule 29(2)(b) and Order 53 Rules 1 and 2 of the Civil Procedure Rules; Section 21 of the Government Proceedings Act; Articles 1, 2, 10, 159, 174, 175, 176(1), 177(1), 185 and Chapter 6 of the Constitution of Kenya, 2010
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.
This Court finds that the application is merited. It is allowed in its entirety. The Warrants of Attachment dated 15th December, 2023 and the Proclamation dated 19th December, 2023 are declared null and void and contrary to the law. They are set aside. The Plaintifi shall bear the auctioneers’ charges. He shall also bear the costs of this Application.
In my humble view, the provisions above are clear that execution against government made can only be made pursuant to the provisions of the government Proceedings Act, Chapter 40 of the Laws of Kenya.
the entities in Kenya known as county governments are part of government and the procedure laid down in the Government Proceedings Act applies to them.
no execution against the property of the government or County Government in settlement of a civil decree may be levied, but rather that the execution ought to be by way of an application for judicial review for an order of mandamus.
Issues in the judgment
#Date of judgment appears inconsistently stated - the body says judgment was delivered on 22nd September 22 while the plaintiff's affidavit narrative refers to a judgment delivered 'over 15 months before the application' (application dated 20th December 2023)
Typographical contradiction in the applicant's grounds describing the warrants as 'illegal and lawful and untenable'
Respondent's authorities cited without proper citations, marked '(sic)' in the judgment, and cannot be verified from the judgment text alone
Warrants issuance date stated as 15th December 2023 in the grounds but 13th December 2023 in the court's recital of the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichina (Suing as the administrator of the Estate of the Late Joseph Gichina Muhoro) v County Government of West Pokot (Environment & Land Case 125 of 2016) [2024] KEELC 7104 (KLR)", Case Analysis (2024). Environment & Land Case 125 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7104/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.