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ELRCDismissedNot stated in judgment· [2023] KEELRC 547 (KLR)

Ilukol v Board of Management Father Okodoi Secondary School; Co-operatie Bank of Kenya Limited (Garnishee) (Cause 102 of 2017) [2023] KEELRC 547 (KLR)

Employment and Labour Relations Court
2 March 2023
JKJ. W. Keli
2,262 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The decree holder, a law firm, moved the court by Notice of Motion dated 14th November 2022 under Order 23 Rules 1 and 2 of the Civil Procedure Rules 2010 seeking a garnishee order over the judgment debtor's bank account held at the Cooperative Bank, Malaba Branch, to satisfy an unsettled decree and certificate of costs of Kes.519,637. The garnishee bank swore a replying affidavit showing a balance of only Kes.7,507.65 as at 5th December 2022. The judgment debtor, the board of management of a public secondary school, admitted the outstanding decretal amount, showed it had paid Kes.129,904.24 by cheque as partial settlement under a proposed payment plan, and opposed garnishee proceedings on the ground that it is a government institution. It relied on the Basic Education Act (Sections 43, 53 and 86) and Section 21(4) of the Government Proceedings Act, which bars execution or attachment against the Government. After considering written submissions from all three parties, the court found no dispute that a valid, partially satisfied decree existed, but held that the judgment debtor, being established and managed under the Basic Education Act as a government institution, was shielded by Section 21(4) of the Government Proceedings Act. Applying the Kennedy Wainaina Njenga and Takaful Insurance of Africa decisions, the court held that garnishee proceedings are not available against the judgment debtor. The application was dismissed with costs to the garnishee, payable by the applicant, the court noting the judgment debtor had already paid a first instalment under its payment plan, though the debt remains outstanding for settlement by other lawful means.

Key legal issues

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01

Whether garnishee proceedings lie against a public school's board of management

Holding

They do not; the board is a government institution shielded by Section 21(4) of the Government Proceedings Act.

Reasoning

The court found the decree holder was aware the judgment debtor was established under the Basic Education Act, qualifying as a government institution. Section 21(4) bars execution or attachment out of any court for enforcing payment by the Government. The court applied the Kennedy Wainaina Njenga and Takaful Insurance decisions holding that no garnishee proceedings can be brought against government.

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02

Whether the garnishee application was merited on the state of the account

Holding

The application failed in law regardless of the balance, since attachment of a government account is barred; additionally the account held only Kes.7,507.65 against a decree of Kes.519,637.

Reasoning

The garnishee's replying affidavit showed an insufficient balance; however the decisive ground was the statutory bar on execution against government. The court held the application bad in law for seeking to attach a government institution's account contrary to Section 21(4).

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Legal principles established

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  • Garnishee proceedings are not available against a government institution, including institutions managed on behalf of the Government such as a public school board of management.

Court orders

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  1. 1.The application dated 14th November 2022 is dismissed
  2. 2.Costs of the garnishee to be paid by the Applicant
  3. 3.The debt remains outstanding for settlement

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 23 Rules 1, 2 and 4
  • Evidence ActSection 176
  • Basic Education Act No 14 of 2013Sections 43, 53 and 86
  • Government Proceedings ActSection 21(4)
  • Civil Procedure ActNot specified

Cases cited (7)

  • Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation; Kenya Commercial Bank Group Limited (Garnishee)
    2021 eKLR
  • Nyagwa Ngigi & Kibet Advocates v Invesco Assurance Co. Ltd; NCBA Bank Kenya PLC & Another (Garnishee)
    2021 eKLR
  • Citizens International Bank Limited v SCOA Nigeria Ltd & another
  • Ngaywa Ngigi & Kibet Advocates v Invesco Assurance Company Limitted; Diamond Trust Bank (Tom Mboya & Koinange Street Branches) (Garnishee)
    2020 eKLR
  • International Air Transport Association (IATA) & another v Akarim Agencies Company Limited & 2 others; Equity Bank Limited (Garnishee)
    (2021) eKLR
  • Kennedy Wainaina Njenga v County Government of Nairobi & Cooperative Bank of Kenya (Garnishee)
    2019 eKLR
  • Takaful Insurance of Africa Limited (Kenya) v County Government of Garissa & 2 Others; Governor Central Bank of Kenya (Garnishee)
    (2021) eKLR
Jurisdiction invoked
Order 23 Rules 1 & 2 of the Civil Procedure Rules 2010 (garnishee proceedings); execution immunity under Section 21(4) of the Government Proceedings Act

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, "Ilukol v Board of Management Father Okodoi Secondary School; Co-operatie Bank of Kenya Limited (Garnishee) (Cause 102 of 2017) [2023] KEELRC 547 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/547/eng@2023-03-02

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