Nthiga v County Government of Embu & another (Employment and Labour Relations Petition 15 of 2017) [2023] KEELRC 1913 (KLR)
The bottom line
#A Kenyan court ruled that county government officials cannot be jailed for government debts, but the county still had to pay its judgment debt in full.
What this practically means
#Executive summary
#Key legal issues
#Proper mode of executing a decree against a county government
Execution against a government entity must follow section 21 of the Government Proceedings Act through a Certificate of Order served on the Accounting Officer; warrants of arrest and committal to civil jail of a public officer for a government debt are irregular and illegal, and the proper remedy for non-payment is mandamus in judicial review proceedings.
Section 21(4) of the Government Proceedings Act prohibits execution or attachment against the Government and bars individual liability of government officers for government debts, including county governments via section 21(5). The petitioner sidestepped this procedure by obtaining warrants of arrest against the County Secretary, who was not even the Accounting Officer, thereby misleading the Deputy Registrar. The only route against a public officer is judicial review for mandamus after service of the Certificate of Order.
Whether leave should issue for payment of the decretal sum by instalments
Leave granted; the outstanding decretal sum to be paid in two equal instalments by August 31, 2023 and September 30, 2023, given the applicants' undertaking and part-payment of Kshs 1,000,000.
The applicants acknowledged the decree and undertook to settle it by September 30, 2023. By the date of the ruling they had paid Kshs 1,000,000. The court treated this as demonstrating bona fides and sufficient time having been had to raise the balance, and therefore granted leave to settle the outstanding decretal sum in two equal instalments on or before August 31, 2023 and September 30, 2023.
Legal principles established
#- No execution or attachment may issue against a government or county government except through the certificate procedure in section 21 of the Government Proceedings Act, and no officer of the government shall be individually liable for the government's debts; the remedy for non-payment is an order of mandamus against the Accounting Officer under Order 53.
Court orders
#- 1.The order of the Deputy Registrar made on November 23, 2022 issuing warrants of arrest against Johnson Ngao Nyagah is set aside
- 2.Leave granted to the applicants to settle the outstanding decretal sum by two equal instalments, the first on or before August 31, 2023 and the last on or before September 30, 2023
- 3.Applicants' Notice of Motion dated December 9, 2022 allowed as prayed, subject to the instalment directions
- 4.Costs of the application denied to the applicants
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 22 Rule 22 and Order 50 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nthiga v County Government of Embu & another (Employment and Labour Relations Petition 15 of 2017) [2023] KEELRC 1913 (KLR)", Case Analysis (2023). Not stated in the excerpt (ELRC matter, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1913/eng@2023-08-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.