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ELRCDismissedNot stated in judgment· [2024] KEELRC 2721 (KLR)

Munje v County Assembly of Tana River & 2 others; Majimbo & 2 others (Interested Parties) (Petition E005 of 2023) [2024] KEELRC 2721 (KLR)

Environment and Land Court (not expressly named in the judgment)
7 November 2024
MMM. Mbarũ
1,369 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot directly seize a Kenyan county government's assets to enforce a court judgment; instead, you must obtain a certificate of order and seek a mandamus order through judicial review.

What this practically means

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Executive summary

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The petitioner, holding a decree of Ksh.2,425,500 dated 17 May 2024 and a Certificate of Taxation for Ksh.700,000 dated 21 August 2024, applied on 21 August 2024 for judgment against the 2nd respondent, costs against the 1st respondent and a 3rd interested party, and leave to execute against the respondents and their accounting officers (the County Executive Officer for Finance, the County Chief Finance Officer/Treasury and the Clerk of the County Assembly). The 1st respondent filed preliminary objections contending that the application contravened Sections 21(1) and 21(4) of the Government Proceedings Act, which bar execution, attachment and injunctions against government and prescribe a certificate-of-order procedure. The 2nd and 3rd respondents supported the objections, citing Five Star Agencies (Court of Appeal) and Republic v Attorney General ex-parte Stephen Wanyee Roki for the position that a decree-holder against a county government must seek mandamus in judicial review. The petitioner, through counsel Steve Biko, argued he holds a valid judgment with a legitimate expectation of enforcement and that the objections raised facts rather than pure points of law. The court held that the respondents constitute 'government' under the Government Proceedings Act, that enforcement is regulated by Sections 21(1)-(3), and that direct execution against county governments cannot issue; the petitioner's only remedy is judicial review for mandamus. Adopting Naciti Engineers, the court found the objections justified and the application premature, but declined to penalise the petitioner in costs, ordering each party to bear its own costs. Judgment delivered at Mombasa on 7 November 2024 by M. Mbarũ, Judge.

Key legal issues

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01

Whether execution may issue directly against a county government and its officers

Holding

No. County governments fall within 'government' under the Government Proceedings Act; immunity from attachment under Section 21(4) applies and Section 21(1)-(3) prescribes the mandatory certificate-of-order procedure.

Reasoning

The court held that the 1st respondent is a government, the 2nd respondent its executive head and the 3rd its legislative arm. Under Section 21(1) and (2) the applicant must obtain a Certificate of Costs/Certificate of Order and serve it, whereupon Section 21(3) imposes a statutory duty on the accounting officer to pay. Because execution against county governments is barred, the petitioner's direct execution application is premature; mandamus in judicial review is the sole avenue.

p. 3
02

Whether the 1st respondent's preliminary objection succeeds

Holding

Yes - the objections are justified as the application is premature, but the petitioner is not punished in costs.

Reasoning

The objection was founded on Sections 21(1) and 21(4) of the Government Proceedings Act. The court agreed execution against the government is prohibited and the certificate procedure not yet followed. However, since the petitioner was seeking to secure a valid judgment in his favour, he should not bear costs.

p. 4

Legal principles established

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  • Enforcement of money decrees against a county government proceeds only through a Certificate of Order under Section 21 of the Government Proceedings Act, enforced by mandamus, not by execution

Court orders

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  1. 1.The application dated 21 August 2024 is premature
  2. 2.The petitioner is not punished in costs for seeking to secure his rights
  3. 3.Each party bears its costs
Jurisdiction invoked
Original jurisdiction to secure a judgment already issued in the petitioner's favour; enforcement regulated by Section 21 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, "Munje v County Assembly of Tana River & 2 others; Majimbo & 2 others (Interested Parties) (Petition E005 of 2023) [2024] KEELRC 2721 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2721/eng@2024-11-07

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