Centurion Engineers & Builders Limited v Kenya Bureau of Standards

of 9.12.2016 and the arbitral award of Mr. Onesmus Mwangi Gichuri of 5.5.2015 was recognized as binding and adopted as the judgment of the court together with costs. 5. The applicant’s bill of costs was taxed at Kshs. 1,455,562.50/- by the Deputy Registrar of the Court of Appeal through the ruling of 3.4.2025 and a certificate of costs later issued on 15.4.2025. 6. On 6.5.2025, the court noted that there was a possibility of violating the principle of proportionality of remedy if a blanket garnishee order was made on all the accounts. It therefore directed the 1st garnishee, National Bank of Kenya Limited (NBK), to withhold a sum of Kshs. 1,455,562.50/- in one or more of the accounts cited until further orders of the court. Mention of 4.6.2025 7. On 4.6.2025, Mr. Mutua for NBK indicated that account number 0XXXXXXXXXX01 was sufficiently funded to meet the decretal sum. The court directed the 1st garnishee to withhold Kshs. 1,455,562.50/- and to file an affidavit confirming that the account has sufficient funds. Mention of 23.7.2025 8. On 23.7.2025, Mr. Khaemba urged the court to make the order nisi absolute as the 1st garnishee had filed a replying affidavit confirming Mr. Mutua’s earlier position. 9. Mr. Mutua urged the court to assess reasonable costs. 10. Mr. Nura for the respondent, however, stated that the applicant has sought a review of the costs taxed. He questioned how the applicant could seek review and seek to garnish the respondent’s funds. He submitted that the respondent is a protected government institution. He also indicated that the respondent intends to lodge an appeal before the Supreme Court. 11. Mr. Khaemba retorted that despite its review application, the applicant is entitled to its certified costs. He highlighted that the respondent has not filed a cross appeal. He also pointed out that the applicant has garnished the respondent’s funds before and the respondent paid. He contended that a parastatal is not protected. Submissions 12. The respondent submitted that the garnishee application offends section 21 of the Government Proceedings Act. It argued that funds allocated to state organs are not liable to attachment through garnishee or other proceedings. 13. The respondent also submitted that the garnishee application is an abuse of the court process due to the applicant’s pending review application before the Court of Appeal under rule 117 of the Court of Appeal Rules. It faulted the applicant for material non-disclosure of the review application. 14. The respondent highlighted that it has lodged an application for certification for appeal to the Supreme Court against the Court of Appeal’s decision. It argued that allowing the execution of the decree would render its appeal nugatory. 15. The respondent submitted that the rationale for section 21 above is to protect public funds by ensuring parliamentary control and financial accountability. 16. The respondent relied on: 1. Five Star Agencies Ltd & another v National Land Commission & 2 others (Civil Appeal No. E290 of 2023) [2024] KECA 439 (KLR) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19238/eng@2025-12-17 2

page 2 of 6

2. Tom Ojienda & Associates v County Government of Nairobi (Environment and Land Miscellaneous Case E138 of 2021) 3. Five Star Agencies Limited v National Land Commission (Environment & Land Case 445 of 2014) [2014] KEHC 922 (KLR) 4. Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others (Civil Appeal No. 25 of 2002) [2009 eKLR 5. Gitarau Peter Munya v Dickson Mwenda Kithinji & 2 Others (2014) eKLR 6. Zacharia Okoth Obado v Edward Akong'o Oyugi & 2 Others (2014) eKLR 17. The applicant argued that the case is distinguishable in that it dealt with an independent commission established under the Constitution and defined as a state organ under Article 260 of the Constitution. 18. The applicant submitted that the respondent is not a state organ but a state corporation established under section 3 of the Standards Act. 19. The applicant also submitted that the issue of whether the respondent is subject to the Government Proceedings Act in this suit is res judicata because it is not the first time that it is facing garnishee proceedings in this suit. It previously filed a garnishee application dated 11.4.2024. It highlighted that the court in the ruling of 26.9.2024 found that the respondent is not part of Government and is not protected from garnishee proceedings by the Government Proceedings Act. It argued that the finding has not been appealed against, reviewed or set aside. 20. The applicant confirmed that it has challenged the taxation on grounds that the costs were manifestly too low and sought their enhancement. It disputed the respondent’s argument that the application under consideration is an abuse of the court process. It argued that the appeal on the costs does not hamper the execution proceedings as no order of stay of execution has ever been sought or granted. It relied on Order 42 Rule 6 of the Civil Procedure Rules and Rule 5(2) of the Court of Appeal Rules. 21. The applicant urged the court to ignore the issue of the respondent’s intention to appeal to the Supreme Court because it was not raised in its replying affidavit. 22. The applicant relied on: 1. Midrocwater Drilling Co. Ltd v National Water Conservation & Pipeline Corporation [2021] eKLR 2. Coretec Solutions Africa Limited (Formerly Coretec Systems & Solutions Limited) v Export Processing Zones Authority; Kenya Commercial Bank Limited & another (Garnishee) (Civil Suit E005 of 2023) [2024] KEHC 16127 (KLR). 3. Cause Impact Limited v Trustees & 2 others (Environment and Land Appeal E090 of 2021) [2022] KEELC 75 Analysis and Determination 21. The core issue before the court is whether the garnishee order nisi given on 5.6.2025 against the 1st garnishee should be made absolute. 22. The respondent has raised two main grounds of opposition. The first ground is that it is a government institution protected under section 21 (4) of the Government Proceedings Act (GPA). The second https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19238/eng@2025-12-17 3

page 3 of 6

ground is that the garnishee application is an abuse of the court process as the applicant has contemporaneously filed a review application against the taxation ruling. Whether the garnishee application ofiends section 21 (4) of the GPA 21. This court is alive to the provisions of section 21 (4) of the GPA to the effect that no execution or attachment process shall be issued enforcing payment by the Government except as provided in that section. 22. The applicant has raised the objection that the respondent’s argument is res judicata. The doctrine of res judicata is underpinned by section 7 of the Civil Procedure Act which precludes the court from determining a matter that has been adjudged. One of the elements of res judicata is that the subject matter of the dispute is the same. I do not think that the issue is res judicata as it stems from a different set of facts. 23. Through the ruling of 26.9.2024, the court considered the question of whether the respondent was a government institution protected under section 21 (4) of the GPA. The court relied on Ikon Prints Media Company Limited v Kenya National Highways Authority & 2 others [2015] eKLR and Miscellaneous Civil Application No. 278 of 2017: Greenstar Systems Limited v Kenyatta International Convention Centre (KICC) & 2 Others [2018] eKLR, and found at para. 22 that: “ the respondent is a state corporation capable of suing and being sued in its own capacity. The provisions of the Government Proceedings Act do not necessarily preclude the applicant from pursuing this application for that reason.” 21. There has been no appeal or review of the court’s findings. 22. The court concurs with the above. 23. Therefore, the first ground of opposition fails for want of merit. Abuse of the court process 21. The second ground is that the garnishee application constitutes an abuse of the court process because the applicant has contemporaneously filed a review application in respect of the taxation ruling. 22. Abuse of the court process is the improper use of the judicial process in litigation. It can comprise of instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. It can also comprise the institution of different actions between the same parties simultaneously in different courts even though on different grounds. Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR) 23. The court’s considered view is that there is no law that precludes the applicant from pursuing execution of the decree emanating from the taxation ruling while seeking to review the costs upwards. 24. A certificate of costs was issued on 15.4.2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19238/eng@2025-12-17 4

page 4 of 6

25. Once costs have been certified they are final unless reversed or set aside or reviewed by the court. Rule 113 (2) of the Court of Appeal Rules provides that: “ For the purpose of execution in respect of costs, the decision of the Court directing taxation and the certificate of the taxing officer as to the result of such taxation shall together be deemed to be a decree.” 21. Notably, the applicant has moved to challenge the quantum of the costs on the ground that it is manifestly low. 22. The respondent has indicated that it has applied for certification of its appeal to the Supreme Court. However, the respondent has not applied for or obtained a stay of execution of the decree. 23. A well-established rule is that, no appeal shall operate as a stay of execution or proceedings under a decree or order appealed from. Order 42 Rule 6 of the Civil Procedure Rules. 24. To the court’s mind, therefore, the applicant is not precluded from executing the decree on costs even if seeking a review of the quantum of the costs. 25. The second ground of opposition also fails. 26. I now turn to consider whether the garnishee order nisi should be made absolute. 27. Order 23 Rule 4 of the Civil Procedure Rules provides: “ If the garnishee does not dispute the debt due or claimed to be due from him to the judgment debtor, or, if he does not appear upon the day of hearing named in an order nisi, then the court may order execution against the person and goods of the garnishee to levy the amount due from him, or so much thereof as may be sufficient to satisfy the decree, together with costs of the garnishee proceedings; and the order absolute shall be in Form 17 or 18 of Appendix A, as the case may require.” 21. From the 1st garnishee’s replying affidavit, the 1st garnishee does not dispute the debts due or claimed to be due from it to the respondent. It confirmed it withheld Kshs. 1,455,562.50 in account no. 0XXXXXXXXXX01 in the respondent’s name. 22. Accordingly, the court is satisfied that the garnishee order nisi in respect of the subject account held by the 1st garnishee ought to be made absolute. Disposal 21. In conclusion, the application dated 5.5.2025 is found to be merited. 22. The court makes the following orders: 1. A garnishee order absolute be issued directing the 1st garnishee, National Bank of Kenya Limited, to release or remit to the applicant Kshs. 1,455,562.50 held in account number 0XXXXXXXXXX01 in favour of the respondent to satisfy the Certificate of Costs/ Decree issued on15.4.2025. 2. Kshs. 50,000/- is awarded to the 1st garnishee as its costs in the garnishee proceedings to be paid from the account of the judgment-debtor independent of the amount in (1) above. 3. The costs of the application are awarded to the applicant.. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19238/eng@2025-12-17 5

page 5 of 6

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER, 2025 THROUGH MICROSOFT TEAMS ONLINE APPLICATION ----------------F. GIKONYO M JUDGE In the presence of: Bulowa for Khaemba for Applicant Ms. Kiende for Nura for Respondent Mutua for Garnishee – NBK Ms. Kavuva for Coop Bank CA - Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19238/eng@2025-12-17 6

page 6 of 6