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ELRCDismissedCause No 1803 of 2014· [2020] KEELRC 242 (KLR)

Ogwang v National Gender and Equality Commission (Cause 1803 of 2014) [2020] KEELRC 242 (KLR)

Employment and Labour Relations Court
13 November 2020
2,508 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 ruled that independent constitutional commissions can have their property attached to pay court judgments, dismissing the Commission's attempt to block auction.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) determined two twin applications by the Respondent/Applicant, the National Gender and Equality Commission, seeking to set aside warrants of attachment and quash proclamation notices issued by Betabase Auctioneers on 15th and 16th July, 2020 in execution of a decree of Kshs. 16,255,894.33, together with an unconditional stay of execution pending an intended appeal to the Court of Appeal, and release of typed proceedings. The applications were opposed by the Claimant/Decree Holder, who argued that the Commission, being an independent constitutional commission under Chapter 15 of the Constitution, is not 'the Government' or a 'Government department' protected by Section 21 of the Government Proceedings Act, and that the Applicant had repeatedly failed to comply with conditional stay orders, including an order of 4th August, 2020 to deposit half the decretal sum by 11th August, 2020. The court framed a single issue: whether the applications were merited. Relying on Tom Ojienda & Associates v National Land Commission and Ikon Prints Media v KeNHA, the court held that Section 21 of the Government Proceedings Act refers strictly to the Government and Government departments, so independent commissions cannot invoke it to resist execution. The warrants, proclamations and imminent auction were held procedural and legal. Because the Applicant had disobeyed the conditional orders, the court held it could not seek the court's protection. The applications were dismissed with costs, and the Commission was directed to deposit the decretal sum within 7 days, failing which the Claimant may continue execution.

Key legal issues

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01

Whether execution by attachment and proclamation lies against the Respondent, an independent constitutional commission

Holding

The Respondent is not covered by Section 21 of the Government Proceedings Act; the warrants of attachment and proclamation notices are procedural and legal

Reasoning

The court adopted the reasoning in Tom Ojienda & Associates v National Land Commission and Ikon Prints Media, holding that Section 21 refers strictly to the Government and Government departments. An independent commission clothed with constitutional powers to sue and be sued in its own name is amenable to the usual legal consequences of execution, and Parliament did not extend the shield of the Government Proceedings Act to independent commissions.

02

Whether the Applicant was entitled to unconditional stay of execution pending its intended appeal

Holding

No; having failed to comply with the conditional stay orders of 4th August, 2020, the Applicant cannot invoke the Court's discretion

Reasoning

The Court had on 4th August, 2020 granted conditional stay requiring deposit of half the decretal sum by 11th August, 2020. The Applicant did not comply and instead sought unconditional stay. The court held that a party seeking justice must be prepared to do justice, and one who disobeys court orders cannot seek that court's protection. The applications were therefore dismissed.

p. 5

Legal principles established

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  • Independent commissions established under Chapter 15 of the Constitution are not 'the Government' or 'Government departments' for purposes of Section 21 of the Government Proceedings Act and are amenable to ordinary execution of decrees

Court orders

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  1. 1.The Applications dated 21st July, 2020 and 10th August, 2020 are dismissed with costs
  2. 2.The Respondent/Applicant is directed to deposit the decretal sum as directed on 4th August, 2020 within 7 days from the date hereof
  3. 3.Failing such deposit, the Claimant/Decree Holder is at liberty to continue with execution

Authorities

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Legislation

  • Government Proceedings ActSection 21(4); Section 21
  • Constitution of KenyaArticle 59(1); Articles 249(2) and (3); Article 159(2)(d); Article 48
  • National Gender and Equality Commission ActSection 8
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (12)

  • Pravin Bowry v EACC
    (2015) eKLR
  • Republic vs PS Ministry of Internal Security ex parte Fredrick Manoah Egunza
    (2012) eKLR
  • Nahashon Omwoha & 66 Others v AG & Others
    (2017) eKLR
  • Harit Sheth T/A Harit Sheth Advocates v Shamas Charania
    (2010) eKLR
  • Tom Ojienda & Associates v National Land Commission & Another
    (2019) eKLR
  • Ikon Prints Media Company Limited v Kenya National Highways Authority & 2 Others
    [2015] eKLR
  • Greenstar Systems Limited v Kenyatta International Convention Centre (KICC) & 2 Others
    (2018) eKLR
  • Republic v County Secretary (Mombasa County Government) & Another Ex-parte Onyango Malombo Robinson T/A O.M Robinson & Co. Advocates
    (2018) eKLR
  • Kenya Union of Savings and Credit Cooperatives [KUSCCO] Limited v Nairobi City Council [now Nairobi City County & 2 Others
    [2015] eKLR
  • Judicial Service Commission v Salaries and Remuneration Commission & Another
    [2018] eKLR
  • Republic v County Chief Oficer, Finance & Economic Planning, Nairobi City County ex parte David Mugo Mwangi
    [2018] eKLR
  • County Executive of Kisumu v County Government of Kisumu & 8 Others
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction over the decree; applications under civil procedure for stay of execution and setting aside warrants of attachment

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, "Ogwang v National Gender and Equality Commission (Cause 1803 of 2014) [2020] KEELRC 242 (KLR)", Case Analysis (2020). Cause No 1803 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/242/eng@2020-11-13

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