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ELRCDismissedNot stated in the judgment (garnishee notice of motion dated 1st July 2020)· [2020] KEELRC 55 (KLR)

Francis Karongo Wagana v National Union of Water & Sewerage Employees (NUWASE); Nyeri Water & Sanitation Company Ltd & 4 others (Garnishee) [2020] KEELRC 55 (KLR)

Employment and Labour Relations Court
28 September 2020
NMNzioki wa Makau
1,923 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked garnishee execution against county-linked water companies, holding they must be treated like government when enforcing debts.

What this practically means

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Executive summary

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The Claimant obtained judgment on 9th April 2019 against the Respondent union, with costs assessed and a decree issued on 4th September 2019. Unable to execute against the Respondent's Buru Buru office because it was not operational, the Claimant moved by notice of motion dated 1st July 2020 under Order 23 Rule 1 of the Civil Procedure Rules and Sections 1, 2, 3 and 3A of the Civil Procedure Act seeking garnishee orders nisi attaching union dues payable to the Respondent by various water companies joined as garnishees. The Respondent opposed, arguing the decree was irregularly extracted and that it had no members in most of the garnishee companies. The 1st Garnishee, through its Managing Director Peter Gichaaga, deponed that its employees had ceased union membership in 2016, joined KCGWU under a recognition agreement, and that as an agent and instrumentality of the County Government the Government Proceedings Act and Order 29 applied, barring execution. Only the 1st Garnishee filed submissions, citing Mengich and water company authorities. The court framed a single issue: whether garnishee orders could issue against the Garnishees. It held that although limited liability companies, the garnishees are agents and instrumentalities of County Governments, and construed 'Government' in the Government Proceedings Act to cover both levels of government under Article 189(1)(a) and the Sixth Schedule. No demonstration was made that the garnishees held monies for the Respondent. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether garnishee orders can issue against the Garnishees

Holding

No - the application was dismissed

Reasoning

The court accepted the 1st Garnishee's submissions that although a limited liability company, it is an agent and instrumentality of the County Government, bringing it within the Government Proceedings Act and Order 29 of the Civil Procedure Rules, so garnishee execution is irregular. Further, the applicant failed to demonstrate that the Garnishees held union dues owing to the Respondent; the 1st Garnishee's employees had ceased membership and remitted dues to KCGWU.

p. 3
02

Whether the Government Proceedings Act extends to County Governments

Holding

Yes - 'Government' is construed to cover both levels of government

Reasoning

The Act does not define 'Government'. Relying on Section 2 of the Interpretation and General Provisions Act, Article 189(1)(a) of the Constitution and section 7 of the Sixth Schedule, the court held there is only one Government exercised at two levels, and both levels must be treated equally, including with respect to execution proceedings. The pre-2010 Act must be construed with adaptations to conform with the Constitution.

p. 3

Legal principles established

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  • The Government Proceedings Act applies to County Governments and their agents and instrumentalities, so execution against them must follow the procedure for execution against Government
  • The only proper garnishee is a third party actually indebted to and holding monies for the judgment-debtor

Court orders

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  1. 1.Application dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 23 Rule 1
  • Civil Procedure Rules, 2010Order 21 Rule 8(2)
  • Civil Procedure Rules, 2010Order 29
  • Civil Procedure ActSections 1, 2, 3 and 3A
  • Government Proceedings ActSection 17
  • Interpretation and General Provisions Act, Cap 2Section 2
  • Constitution of Kenya, 2010Article 189(1)(a); Article 258; Section 7 of the Sixth Schedule
  • Labour Relations Act(recognition agreement)

Cases cited (3)

  • Mengich t/a Mengich & Co. Advocates v Joseph Mabwai & 10 Others
    [2018] eKLR
  • Kennedy Wainaina Ngenga v County Government of Nairobi; Co-operative Bank of Kenya Limited (Garnishee)
    [2019] eKLR
  • Barnabas Kariuki v Nyeri Water & Sewerage Company Ltd
    MELC No. 65 of 2018 (Unreported)
Jurisdiction invoked
Order 23 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1, 2, 3 and 3A of the Civil Procedure Act (Cap 21)

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, "Francis Karongo Wagana v National Union of Water & Sewerage Employees (NUWASE); Nyeri Water & Sanitation Company Ltd & 4 others (Garnishee) [2020] KEELRC 55 (KLR)", Case Analysis (2020). Not stated in the judgment (garnishee notice of motion dated 1st July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/55/eng@2020-09-28

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