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High CourtDismissedApplication dated 25th July, 2019 (arising from suit against the 2nd Defendant/Judgment Debtor)· [2019] KEHC 12066 (KLR)

Plaintiffs v 2nd Defendant (Narok County Government)

High Court of Kenya
6 November 2019
BJB. Thuranira Jaden
1,212 words in judgment
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The bottom line

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Courts cannot force county governments to pay debts from their general operating funds or national treasury allocations.

What this practically means

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Executive summary

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The Plaintiffs obtained a certificate of taxation of party and party costs of Ksh.10,247,610/= against the 2nd Defendant on 14th June, 2016. After the 2nd Defendant failed to pay, the Plaintiffs obtained orders of mandamus in NBI HC Misc. Civil Appl. No. 368 of 2016 on 31st January, 2017, and later commenced contempt proceedings resulting in the conviction of the Executive Finance member on 16th November, 2017, though sentencing was avoided due to cabinet reshuffles. The Plaintiffs then filed this application seeking orders that the 2nd Defendant pay the taxed costs from funds allocated by the National Treasury pursuant to the President's directive during the 56th Madaraka Day celebrations that counties settle pending bills, failing which from its revenue accounts or legal department funds. The application proceeded exparte as the Respondent did not respond or attend despite service. The court applied Section 17 of the Government Proceedings Act, which permits costs orders against government but requires identification of a particular fund, and Section 21(4) and (5), which prohibits execution or attachment against government and county governments. Relying on Kisya Investments Ltd v Attorney General, the court held that satisfaction of judgments against government is expenditure requiring parliamentary appropriation, and that no particular fund had been identified. The court also found no law under which the presidential directive could be enforced through the courts. The application was dismissed with costs on 6th November, 2019.

Key legal issues

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01

Whether a court can direct payment of taxed costs from government-allocated funds

Holding

No - the orders sought amount to execution or attachment against a county government, which Section 21(4) and (5) of the Government Proceedings Act prohibits, and no particular fund was identified

Reasoning

Section 17 permits costs orders against government but requires identification of a particular fund for payment out. The applicant referred only generally to National Treasury allocations and a presidential directive, with no law shown making the directive enforceable. Parliamentary control over public expenditure means no payment out of public funds is legal unless authorised by statute.

p. 2

Legal principles established

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  • No execution or attachment may issue to enforce payment of money or costs by a government or county government; satisfaction of judgments against government requires appropriation by Parliament from a legally authorised fund

Court orders

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  1. 1.The application dated 25th July, 2019 is dismissed with costs

Authorities

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Legislation

  • Government Proceedings ActSection 17
  • Government Proceedings ActSection 21(4) and (5)
  • Government Proceedings ActSection 32 (as cited in Kisya Investments)

Cases cited (1)

  • Kisya Investments ltd v Attorney General & another
    [2005] 1 KLR 74

    History and rationale of government immunity from execution; parliamentary control over public expenditure and appropriation

Jurisdiction invoked
Government Proceedings Act Cap 40 (Sections 17 and 21(4) and (5))

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, "Plaintiffs v 2nd Defendant (Narok County Government)", Case Analysis (2019). Application dated 25th July, 2019 (arising from suit against the 2nd Defendant/Judgment Debtor). Source:

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