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ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 315 (KLR)

Barus v County Assembly of Baringo & 3 others (Petition 7 of 2019) [2023] KEELRC 315 (KLR)

Employment and Labour Relations Court
31 January 2023
HWHellen Wasilwa
1,549 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot enforce a court judgment against a Kenyan county government without first obtaining a certificate of order under the Government Proceedings Act.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court (Hon. Lady Justice Hellen Wasilwa, delivered virtually on January 31, 2023) determines a preliminary objection raised by the respondent, the County Government of Baringo, on October 27, 2022 against a notice to show cause issued on October 18, 2022 for payment of Kshs 1,307,475, being the decretal sum plus interest, cost of execution and court collection fees. The objection contended that the execution application was incompetent, defective and abusive, offending section 21(4) of the Government Proceedings Act. The petitioner, who obtained judgment in her favour on June 25, 2021, contended she served the notice to show cause twice, on the old and new county regime, and had followed due process under Order 22, relying on Grand Creek LLC v Nathan Chesang Moson and Solomon Muriithi Gitandu v Jared Maingi Mburu (citing Braeburn Limited v Gachoka). The respondent relied on Nahashon Omwoha Osiako v Attorney General, citing Odunga J in the Koroso case on mandamus as the remedy for realizing decrees against government. The court held that execution against a county government requires compliance with the Government Proceedings Act, and the petitioner failed to demonstrate that a certificate of order against the Government had been applied for and allowed. The preliminary objection was accordingly allowed, with liberty granted to the petitioner to institute proper execution procedures under the law. No express costs order is recorded in the ruling.

Key legal issues

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01

Compliance with section 21(4) of the Government Proceedings Act in execution against a county government

Holding

The preliminary objection was merited because the petitioner failed to show that a certificate of order against the Government was applied for and allowed before execution was attempted

Reasoning

The court noted that execution was being initiated against the County Government of Baringo, an entity falling under the Government Proceedings Act, Cap 40. The petitioner asserted she served notice to show cause and followed Order 22 process, but the respondent maintained no certificate of order against the Government had been obtained as section 21 requires. The court found the petitioner had not demonstrated that such an application for a certificate of order was made and allowed, and therefore the proper process was not followed.

p. 4

Legal principles established

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  • Before execution can issue against a government entity, the decree-holder must obtain a certificate of order against the Government and follow the process under the Government Proceedings Act

Court orders

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  1. 1.The preliminary objection dated October 27, 2022 is allowed
  2. 2.The petitioner is free to institute proper procedures for execution based on the law

Authorities

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Legislation

  • Government Proceedings Act (Cap 40)section 21(4)
  • Government Proceedings Act (Cap 40)section 38
  • Civil Procedure Actsections 38 and 40
  • Civil Procedure RulesOrder 22 rule 18(1)
  • Civil Procedure RulesOrder 22 rules 31, 33, 34

Cases cited (5)

  • Grand Creek LLC & Another v Nathan Chesang Moson
    [2015] eKLR
  • Solomon Muriithi Gitandu & another v Jared Maingi Mburu
    [2017] eKLR
  • Braeburn Limited v Gachoka and another
    [2007]
  • Nahashon Omwoha Osiako & 66 Others v Attorney General
    [2017] eKLR
  • Republic v Attorney General & Another ex parte James Alfred Koroso
    NRB HC JR Misc Appl No 44 of 2012
Jurisdiction invoked
Enforcement/execution jurisdiction following judgment delivered in the petitioner's favour on June 25, 2021; procedure under the Government Proceedings Act (Cap 40)

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, "Barus v County Assembly of Baringo & 3 others (Petition 7 of 2019) [2023] KEELRC 315 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/315/eng@2023-01-31

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