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ELCDismissedGarnishee proceedings arising from Notice of Motion dated 22/4/2024· [2025] KEELC 3234 (KLR)

Mbaraka & 8 others v Kenya Electricity Transmission Co Ltd & 2 others; Governor, County Government of Tana River & another (Interested Parties); Kcb Bank Kenya Limited & 3 others (Garnishee) (Environment & Land Petition 9 of 2021) [2025] KEELC 3234 (KLR)

Environment and Land Court
8 April 2025
MNMwangi Njoroge
7,856 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Tana River County lost its bid to garnish KETRACO's bank accounts because KETRACO counts as government, so the special government-execution procedure must be used first.

What this practically means

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Executive summary

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The 3rd Respondent (Tana River County Government, the decree holder) and the 1st Interested Party (the Governor) moved the court by Notice of Motion dated 22/4/2024 seeking garnishee orders (nisi and absolute) to attach funds held in KETRACO accounts at KCB, NCBA, Co-operative Bank and Standard Chartered Bank sufficient to satisfy a decretal sum of Kshs. 68,557,865.71 plus interest from 15 March 2023. KETRACO raised a preliminary objection and replying affidavit arguing that garnishee execution against it contravenes section 21(1), (4) and (5) of the Government Proceedings Act and Order 29(2) and (4) of the Civil Procedure Rules; it further asserted the garnished accounts were donor-funded project accounts and that the consent order and 14/3/2023 ruling provided no interest on compensation. The 1st Garnishee (KCB) confirmed the account balance could satisfy the decree and sought costs out of the judgment debtor's account. Framing three issues, the court held that KETRACO, though a body corporate under the State Corporations Act, performs core governmental functions (electricity transmission) created under Sessional Paper No. 4 of 2004 and is subject to deep and pervasive State control; applying the Shetty v Airport Authority of India test and the reasoning in Kisya Investments and Five Star Agencies (ELC and CoA), execution against KETRACO equals execution against government. The proper route is a certificate of order under section 21 GPA enforced by mandamus, which was not followed. The court dismissed the application with costs to the respondents and the garnishees and discharged the garnishee order nisi of 26/4/2024 and all consequential orders.

Key legal issues

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Whether KETRACO enjoys immunity from execution under the Government Proceedings Act

Holding

KETRACO is a public entity infused with governmental character; execution against it equals execution against government and must follow section 21 of the GPA

Reasoning

The court examined the State Corporations Act and found that a state corporation cannot come into being, operate financially, employ staff or be governed without government control at every stage. Applying the Shetty v Airport Authority of India test, KETRACO performs core governmental functions (electricity transmission), was created pursuant to Sessional Paper No. 4 of 2004, and is under deep and pervasive State control. It is therefore another face or extension of government notwithstanding its corporate personality.

p. 15
02

Whether garnishee proceedings could issue against KETRACO

Holding

No; the garnishee application was flawed because the proper government execution process had not been followed

Reasoning

The court noted courts' caution against absolute bars to execution, since that would stifle access to justice, but held that the restrictions in the GPA are safeguards, not absolute immunities. KETRACO is not absolved from paying the decree; the decree holder must use the certificate-of-order and mandamus procedure under section 21 GPA. Since that procedure was not followed, the garnishee order nisi could not stand and the application was dismissed with costs.

p. 16

Legal principles established

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  • A state corporation performing core governmental functions with deep and pervasive State control is an extension of government, and execution against it must follow the Government Proceedings Act procedure
  • There is no law in Kenya absolutely barring execution against government bodies; statutory restrictions are safeguards and the proper process must still be followed

Court orders

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  1. 1.The Notice of Motion application dated 22/4/2024 is dismissed
  2. 2.The Garnishee order nisi dated 26/4/2024 and all consequential orders are discharged
  3. 3.Costs awarded to the respondents and the garnishees

Authorities

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Legislation

  • Civil Procedure Actsection 27(1), section 38(c)
  • Civil Procedure RulesOrder 9 rules 9 and 10; Order 23 rules 1, 2, 3, 4 and 10; Order 29 rules 2 and 4; Order 51 rule 1; Order 22 rule 42; Order 41
  • Government Proceedings Act (Cap. 40)section 21(1), (2), (3), (4) and (5)
  • State Corporations Actsections 3, 4, 5, 6, 7, 10A, 11, 12, 13, 27; definition of state corporation
  • Constitution of Kenya 2010Articles 232(2), 253, 260
  • Interpretations and General Provisions Actsection 3(1)(d)
  • Kenya Roads Act (Cap 409)section 68
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rule 26(1) and (2)
  • Land Act
  • Companies Act (Cap. 486)
  • Public Procurement and Asset Disposal Act (Cap. 412C)
  • Sessional Paper No. 4 of 2004 on Energy

Cases cited (12)

  • Kenya Electricity Transmission Company Limited v Spedag Interfreight Kenya Limited & 4 Others
    Civil Appeal E028 of 2021 [2024] KECA 542 (KLR)
  • Council of Governors v AG & 7 Others
    [2019] eKLR
  • Greenstar Systems Limited v Kenyatta International Convention Centre (KICC) & 2 Others
    [2018] eKLR
  • Kimoi Ruto & another v Samuel Kipkosgei Keitany & another
    [2014] eKLR
  • Ikon Prints Media Company Limited v Kenya National Highways Authority & 2 Others
    [2015] eKLR
  • KETRACO v Ecobank Kenya Limited & 2 Others
    Civil Appeal E445 of 2021 [2024] KEHC 2048 (KLR)
  • Beta Metals KE Limited v CS, Mining, Blue Economy and Marine Affairs & Another; Okoth (Intended Defendant)
    [2024] KEELC 13681 (KLR)
  • Association of Retirement Benefits Schemes v AG
    [2022] eKLR
  • Five Star Agencies Limited v NLC and National Bank of Kenya
    Civil Appeal No. E290 of 2023
  • Kisya Investments Ltd v Attorney General & another
    [2005] KEHC 3226 (KLR)
  • Five Star Agencies Limited v National Land Commission; Kenya National Highways Authority (Intended Respondent); National Bank of Kenya (Garnishee)
    Civil Case 445 of 2014 [2023] KEELC 16631 (KLR)
  • Shetty v Airport Authority of India & others
    (1979) 1 S.C.R 1042
Jurisdiction invoked
Original jurisdiction under section 38(c) of the Civil Procedure Act and Order 23 of the Civil Procedure Rules (garnishee proceedings)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mbaraka & 8 others v Kenya Electricity Transmission Co Ltd & 2 others; Governor, County Government of Tana River & another (Interested Parties); Kcb Bank Kenya Limited & 3 others (Garnishee) (Environment & Land Petition 9 of 2021) [2025] KEELC 3234 (KLR)", Case Analysis (2025). Garnishee proceedings arising from Notice of Motion dated 22/4/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3234/eng@2025-04-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.