Republic v Kenya Wildlife Service & 2 others

2. The ex-parte applicants obtained an order of mandamus from this court on 4th June 2025 compelling the 1st respondent, the Kenya Wildlife Service (KWS) to pay them KShs 5,000,000/= (Five million), as compensation for the estate of Umazi Nguzo (deceased), their daughter, who died from injuries inflicted upon her by elephants on 13th September 2021. 3. On 7th July 2025, the ex-parte applicants commenced execution proceedings against the KWS by way of garnishee proceedings for the payment of the decretal sum arising out of the court’s judgment. A garnishee order nisi was issued to the Garnishee to show cause why the 1st respondent’s account no. 110…712 held with the Garnishee should not be attached in satisfaction of the order of this court for the sum of KShs 5,000,000/=. The court also directed that the application be served upon the respondents and the Garnishee for their responses. 4. Kenya Wildlife Service (KWS), the 1st respondent opposed the application by filing grounds of opposition dated 15th July 2025. It avers that KWS is a government agency whose duty is the conservation and management of wildlife for the benefit of the public. To carry out its said mandate it receives funds as may be approved and allocated to it by the National Assembly as part of the budget process. 5. It avers further that the ex-parte applicant has not complied with section 21 of the Government Proceedings Act (Cap. 40) Laws of Kenya to obtain a certificate of order against the Government with regard to execution of the decree herein. 6. Further that the 1st respondent’s garnished Bank Account no. 110… 712 is not an account specifically dedicated to the moneys provided by Parliament, therefore, any such action to garnish the account will adversely interfere with the public mandate of the 1st Respondent. 7. The other ground is that pursuant to Order 23 rule 4 of the Civil Procedure Rules, execution against a garnishee is for debt due or claimed to be due from the judgment debtor to decree holder and in this case, the decree sought to be executed was not for debt due but an order by way of mandamus to compel the respondent to compensate the ex-parte applicants for injuries sustained (it was actually for the death of their daughter). The respondent reiterates that for garnishee proceedings to ensue, there should be a debt due from the judgment debtor under a decree which shall then be attached. That in this case, the ex-parte applicants do not owe it any monies in the form of debt capable of being executed by way of garnishee proceedings. 8. Further that garnishee proceedings are not a proper and standard mode of execution for the judgment in this case. 9. The Garnishee, Kenya Commercial Bank (KCB) responded through a replying affidavit sworn on 9th August 2025 by Joseph Wambugu, the manager, corporate services, corporate banking at the Garnishee’s Moi avenue branch. The Garnishee confirmed that the Judgment Debtor, KWS operated an account no. 110… 712 at the Garnishee’s Moi avenue branch in Nairobi and as at 14th July 2025, the account had a net balance of KShs 1, 114,980.39 which had been locked pursuant to the court’s order nisi dated 7th July 2025. 10. The Garnishee also deposed that due to insufficient funds in the Judgment Debtor’s (JD) account with it to satisfy the decretal sum, the Garnishee order nisi should be discharged and the court declines to issue a Garnishee order absolute for want of attachable funds and that the costs of the application be awarded to the Garnishee. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19352/eng@2025-11-06 2

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11. Subsequently, on 30th September 2025, the ex-parte applicants filed a chamber summons application, supported by the affidavit of Nguzo Mriphe Mashudi sworn on 30th September 2025 in which their main contention was that they had information that the JD’s account with the Garnishee had sufficient funds to satisfy the entire decretal sum. They therefore prayed for a decree nisi to cover the entire decretal sum awaiting the court’s judgment. 12. The court issued the second decree nisi on 1st October 2025. The respondent said that it would rely on the grounds of opposition filed earlier. The Garnishee was given an opportunity to file a reply to the application but did not. 13. The application was disposed of on written submissions. 14. Although the application is by the ex-parte applicant and ordinarily it would be the one whose submissions are considered first, the nature of the response by the 1st respondent which amounts to a preliminary objection to the application requires that its submissions be considered first before those of the ex-parte applicant and the Garnishee. 15. It is the 1st respondent’s contention that it is a government agency and subject to the provisions of the Government Proceedings Act. In that respect, the 1st respondent submits as follows. 16. That KWS is established under section 6(1) of the Wildlife Conservation and Management Act (Cap 376) (WCMA) with the overall mandate to conserve and manage wildlife in Kenya. That, its function generally revolving around wildlife conservation, which is a public function, which is overseen by the Ministry of Tourism and Wildlife. That KWS largely relies on the ministry and the government on matters to do with compensation for claims resulting from human – wildlife conflict, such as the case herein. That the service is dependent on the government for funding in order to undertake its public function of wildlife conservation. 17. The 1st respondent has cited the case of Five Star Agencies Limited v National Land Commission; Kenya National Highways Authority (Intended Respondent); National Bank of Kenya (Garnishee) [2023] KEELC 16631 (KLR) to support its submissions on the test to be applied to determine that KWS is a government agency. The ELC in that case said: “ The High Court in the case of Association of Retirement Benefits Schemes v Attorney General & 3 others [2017] KEHC 8534 (KLR) cited with approval the Indian Supreme Court case of Shetty v Airport Authority of India & others (1979) 1 S.C.R 1042 in which the test for determining whether an entity was a Government body or not, was stated as follows: “(a) Consider whether any share capital of the corporation is held by the Government and if so that would indicate that the corporation is an instrumentality or agency of Government. (b) Where the financial assistance of the State is so much as to meet almost the Entire expenditure of the Corporation, that fact would afford some indication of the corporation being impregnated with Governmental character; (c) It may also be relevant to consider whether the corporation enjoys monopoly status conferred by the State. (d) Whether the body has deep and pervasive State control, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19352/eng@2025-11-06 3

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(e) Whether the functions of the corporation are of public importance and closely related to Governmental functions then that would be a relevant factor in classifying the corporation as an instrumentality or agency of Government and (f) If a Department of a Government is transferred to a corporation then it becomes an instrumentality or agency of the Government.” 18. The 1st respondent invites this court to consider that the involvement of the government through the Ministry of Tourism and Wildlife is quite extensive especially as elucidated in Section 14 - (Sources of funds of the Service); Section 7(e) - (Collecting of revenue levies and charges due to the government from wildlife…); Section 24 - (The Wildlife Compensation Scheme) and Section 25(1), (2), (3) (Compensation) and considering the test in the Five Star case (supra) it is certain that the 1st respondent is subject to section 21 of the Government Proceedings Act in relation to execution herein. 19. The 1st respondent submits further, referring to this court’s judgment of 4th June 2025, leading to the present execution proceedings, that this court acknowledged that it is the Ministry of Tourism and Wildlife which pays compensation claims on behalf of the 1st respondent and therefore the two cannot be separated only for purposes of execution proceedings. 20. The other issue raised by the 1st respondent is that the account sought to be garnished by the exparte applicant is not an account holding funds defrayed for the purpose of payment of compensation and therefore such an account cannot be garnished. The 1st respondent submits that the account sought to be garnished is the operational account for the 1st respondent yet there is a special fund for compensation for victims of human-wildlife conflict created under section 24 of the WCMA on the other hand which clearly provides that there shall be a scheme established by the government for the purposes of compensation claims resulting from human – wildlife conflict. The said section provides as follows: “ (1) (2) 21. The Government shall establish a Wildlife Compensation Scheme that shall consist of— (a) monies specifically allocated for this purpose through the budget process; (b) an insurance scheme to be established by the Cabinet Secretary responsible for matters relating to finance; and (c) monies from any other source approved by the Cabinet Secretary for the time being responsible for matters relating to finance; and The Wildlife Compensation Scheme shall be used for financing compensation claims for human death or injury or crop and property damage caused by wildlife.” The 1st respondent submits therefore, that section 32(1) of the Government Proceedings Act as read together with section 24 of the WCMA provide that any such money sought by the applicant can only be recovered from the Wildlife Compensation Fund and such funds must be as a result of an allocation for the specific purpose by the National Assembly. According to KWS, the account sought to be garnished by the applicant is a general operations account of the 1st respondent and if the garnishee order is allowed, the 1st respondent’s public function will be crippled. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19352/eng@2025-11-06 4

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22. On his part, learned counsel for the ex-parte applicant submits that the contention by KWS that the proceedings herein are subject to the Government Proceedings Act is a misunderstanding of the law because its status was clarified in the case of Oguna & another v Kenya Wildlife Service; Kcb Bank Ltd (Garnishee) [2025] KEHC 6074 (KLR) where it was held by the High Court that KWS is a parastatal with a common seal capable of suing and being sued in its name and therefore, it cannot seek refuge under the Government Proceedings Act. 23. On the same issue, learned counsel for the ex-parte applicant cited the case of Ikon Prints Media Company Limited v Kenya National Highways Authority & 2 others [2015] KEHC 1517 (KLR) where the High Court considering the status of the Kenya National Highways Authority created under the Kenya Roads Act (Cap. 409) Laws of Kenya held that: “ Foremost though, it is important to point out that it would not be tenable to invoke the Government Proceedings Act (Cap 40) as a bar to any execution herein. The 1st Respondent is a body corporate with perpetual succession and a common seal. It is a corporate entity capable of subsisting independently. It is dependent on Government funding but it is not government or servant of or agent of Government for the purposes of the Government Proceeding Act. The 1st Respondent is an independent judicial person capable of being sued and suing. Its litigation does not involve the Government. Any judgments decreed against the 1st Respondent are not judgments against the government but against an independent juridical body.” 24. The case of Greenstar Systems Limited v Kenyatta International Convention Centre (KICC) & 2 others [2018] KEHC 2360 (KLR) also cited by counsel for the ex-parte applicant followed the reasoning in the Ikon Prints Media Company case [supra] and arrived at a similar finding that a state corporation is not shielded from garnishee proceedings by virtue of the provisions of section 21(4) of the GPA. The said section provides that: “ Save as aforesaid no execution or attachment or process in nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no persons shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such of any money or costs.” 25. The several other cases cited by learned counsel on the issue reiterate this position. 26. Learned counsel also submits that the deposition by the Garnishee that the application should be dismissed on grounds that there are insufficient funds available to satisfy the garnishee order nisi of Ksh. 5, 000, 000/- as it had only KShs. 1, 114, 980.39 available sum in the bank account is not tenable. Learned counsel submits that even if it was only this sum that was available, it was still payable to the ex-parte applicant and so the decree nisi thereof should be made absolute in partial realization of the decree. He cited the case of Gitutho Architects and Planners Limited v Kenya Utali College; Cooperative Bank of Kenya Limited & another (Garnishee) [2024] KEHC 11558 (KLR) to support that submission. 27. However, I do not think there is much that remains of that deposition by the Garnishee, seeing that in their submissions, the Garnishee appears to have abandoned that position and taken the view that it is available to abide by the court’s orders as issued. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19352/eng@2025-11-06 5

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28. Furthermore, in its later application of 30th September 2025, the ex-parte applicants attached a bank statement of the JD’s bank account with the Garnishee showing that as at 24th July 2025, the JD’s bank account had funds in the tune of KShs. 28, 463, 041.70/- sufficient, to satisfy the decretal sum. A subsequent garnishee order nisi was issued for the Garnishee to hold such a sum that would be adequate to satisfy the decretal sum. Neither the JD nor the Garnishee responded to that application, an indication that they were not challenging that averment by the ex-parte applicants. It is therefore proper to infer that following the second garnishee order nisi the funds held by the Garnishee would be adequate to satisfy the decretal sum. 29. The Garnishee submitted on three issues for the court’s consideration. First, that its role in the garnishee proceedings ministerial and it is not called upon to contest the merits of the decree or to advance the position of either the Decree Holder or the Judgment Debtor. Here it relied on the case of Oguna (supra) where the Court underscored the Garnishee’s duty as being confined to disclosure and to abiding by the orders of the Court. It is therefore the Garnishee’s position that it has disclosed the true financial position of the 1st Respondent’s account and placed the available sum under lien in obedience to the order nisi. None of the other parties contests this position and so it is. 30. Secondly, the Garnishee submits that that the garnishee’s liability is limited to the funds in its custody at the time of the order nisi, and no more. It has cited the case of Gitutho Architects & Planners Ltd above and Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Company Limited; Co-operative Bank of Kenya(Garnishee) [2020] KEHC 5274 (KLR) where the courts held that once the Garnishee discloses the funds in its hands, attachment can only be made to that extent. 31. That position is correct, save to add that in the present case, the Garnishee having failed to respond to or deny the ex-parte applicant’s application of 30th September 2025 indicating that the account held sufficient funds to satisfy the decretal sum, it must be presumed against it that indeed the funds are available to satisfy the entire decretal sum. 32. Therefore, the Garnishee’s submission that it has demonstrated that it holds KShs. 1,114,980.39 only for the Judgment Debtor and that attachment can only issue up to that extent cannot be accepted. There was a second decree nisi securing the entire decretal sum as deposed by the ex-parte applicants in their application and so, if required to, it can only be that the Garnishee secured the entire sum pursuant to the order nisi as it awaits further directions of this court and will release the entire sum if called upon to. 33. The third issue was that the Garnishee was entitled to costs as it has been compelled to participate in these proceedings and consequently incurred costs in doing so. That will be considered at the appropriate time. 34. There are two issues for the court’s determination: whether the Government Proceedings Act provides immunity to the KWS against garnishee proceedings in the circumstances of this case and whether the application by the ex-parte applicants meets the threshold for grant of garnishee orders. 35. I have no difficulty in finding that the KWS is a government agency, whether referred to as a state corporation or a parastatal. Its creation, mandate and operations under the WCMA make it so. I am satisfied that KWS meets the test of a government body as set out in the case cited in the case of Five Star Agency Ltd case (supra). 36. This issue has been considered extensively by the Court of Appeal in the case of Five Star Agencies Limited & another v National Land Commission & 2 others [2024] KECA 439 (KLR) when affirming the decision of the ELC in the same case above. The Court of Appeal stated that the normal rules of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19352/eng@2025-11-06 6

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procedure under Order 23 Rule 1 of the CPR are not available for enforcement of a decree against the government and that the procedure with regard to execution against the government is stipulated under the GPA. “ Having therefore established that the NLC is a State organ and therefore for all purposes part of government, what mode of execution should be adopted against it? The procedure adopted by Five Star is as laid down under Order 23 rule 1 of the Civil Procedure Rules 2010. Order 23 rule 1 provides the normal rules applicable to normal execution proceedings. However, Order 29 Rule (2) (c) of the Civil Procedure Rules 2010 stipulates that: “(2) No order against the Government may be made under— a. ....; b. ....; c. Order 23 (Attachment of debts);” “ Our interpretation of the provisions of Order 23 rule 1 as read with Order 29 Rule (2) (c) of the Civil Procedure Rules 2010 is that execution under the Civil Procedure Rules (including garnishee proceedings) is barred in so far as the Government is concerned. The procedure with regard to execution of decrees against the Government is stipulated in the Government Proceedings Act…. Section 21 (4) of the Government Proceedings Act prohibits execution against the Government… Having stated the foregoing, and since decrees will from time to time be issued against the Government, what then is the option available to a party who holds a decree against the Government? The only remedy available to such a person is to institute judicial review proceedings and seek an order of mandamus to compel the Government to settle the decree in question …” 37. On enforcement of an order of mandamus as is the case herein, the Court of Appeal again went ahead to reiterate the procedure as laid out in the GPA as follows: “ An application that seeks to compel the Government to satisfy a decree is subjected to a very elaborate procedure. Before the court issues such an order, there must be proof that the provisions of section 21 of the Government Proceedings Act have been complied with. In the case of Republic v Permanent Secretary Office of The President Ministry of Internal Security & Another ex-parte Nassir Mwandihi [2014] eKLR, Odunga, J (as he then was), held as follows:“…It must be remembered that an application for an order of mandamus seeking an order compelling the Government to satisfy a decree is a very elaborate procedure. Before the Court issues such an order, there must be proof that the provisions of the Government Proceedings Act have been complied [with] with respect to issuance of certificate of costs and certificate of order against the Government. After the issuance of the aforesaid documents, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19352/eng@2025-11-06 7

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just like in any application for mandamus, there must be a demand for payment made by or on behalf of the decree holder to the relevant department seeking payment since in an application for an order of mandamus, the law as a general rule requires a demand by the applicant for action and refusal as a prerequisite to the granting of an order, though there are exceptions to the rule…The said elaborate procedure is further meant to give adequate notice to the Government to make arrangement to satisfy the decree. The procedure, in my view, is not meant to relieve the Government from meeting its statutory obligations to satisfy decrees and orders of the Court.” [Emphasis by the Court of Appeal].”… Having noted as above, it follows therefore that the garnishee proceedings instituted by Five Star through the notice of motion dated 20th January 2023 and brought under the provisions of Order 23 Rule 1, 2, and 3 of the Civil Procedure Rules, 2010 were incompetent, bad in law and unsustainable as provisions of Order 23 Rule 1, 2, and 3 of the Civil Procedure Rules, 2010 do not apply in execution against the Government and/or State organs. Five Star ought to have commenced execution proceedings against the NLC in strict adherence with the provisions of section 21 of the Government Proceedings Act.” 38. Being guided by the Court of Appeal in that decision, I wish to, with respect, differ with the findings of the court in Oguna & another v Kenya Wildlife Service; Kcb Bank Ltd (Garnishee) [2025] KEHC 6074 (KLR) where it was held by the High Court that KWS as a parastatal with a common seal capable of suing and being sued in its name and therefore, it cannot seek refuge under the Government Proceedings Act. On the same issue, learned counsel for the ex-parte applicant cited the case of Ikon Prints Media Company Limited v Kenya National Highways Authority & 2 others [2015] KEHC 1517 (KLR) where the High Court was considering the status of the Kenya National Highways Authority. I note that in the Oguna case, the High Court did not refer to the Five Star Agency case above as decided by the Court of Appeal both on the issue of KWS being a government agency and garnishee proceedings being available in execution proceedings against it. 39. My approach would be that, as submitted by the 1st respondent, the particular function of compensation of victims of human-wildlife conflict is shared between KWS and the ministry. Whereas KWS cannot escape the responsibility as the lead agency, when it comes to provision of funds for that function, the same have been separated from the funds of KWS discharging its other operational mandate. Section 24 of the WCMA provides for the establishment of the Wildlife Compensation Scheme from where funds for compensation to victims of human-wildlife conflict will be sourced. The administration of this scheme appears different from that of the KWS as a parastatal even as KWS is a major player therein. 40. Consequently, I find that the operations of KWS with respect to compensation for victims of humanwildlife conflict brings it within the purview of the Government Proceedings Act and enforcement of a decree against it in that respect must follow the provisions of the Act. 41. It needs no reiteration therefore that the ex-parte applicants herein ought to follow the procedure laid out under section 21 of the GPA for the enforcement of their decree of mandamus issued herein. 42. The other issue for the court’s determination is whether as contended by the 1st respondent, the account sought to be garnished is a general operations account of the 1st respondent and not the account for the Wildlife Compensation Fund. On this issue of whether the account from which the funds are sought can be the subject of a garnishee order, the onus was on the ex-parte applicants to prove that the KWS is holding funds in the account meant for compensation, the funds having been sent there from the compensation scheme, if at all it happens that way (see the case of Five Star above). That onus was not discharged by the ex-parte applicants herein. Furthermore, there is no indication https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19352/eng@2025-11-06 8

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that KWS has received any compensation money for the ex-parte applicants from the ministry and hence there is no way it can be ordered to release funds from its operations account in satisfaction of the decree. 43. The final issue for this court’s consideration is the 1st respondent’s submission that an order of mandamus cannot be executed through a garnishee order. 44. The 1st respondent submits that the ex-parte applicant invoked section 106 (2)(c) of the WCMA, among other provisions of the law, while approaching this Honourable Court for an order of mandamus. The section provides that: “ (2) Any person who has reason to believe that the provisions of this Act have been, are being, or are about to be violated, may petition the High Court for..... (c) the writ of mandamus against an officer or a person who has failed to perform a duty imposed by or under this Act; or any remedy at law or equity for preventing or enforcing the provisions of this Act.” 45. The 1st respondent submits that an order of mandamus cannot be executed through garnishee order as it is an order against an officer or a person who despite being responsible for performing a certain duty, has failed or refused to perform such duty. 46. The ex-parte applicants here are aggrieved in several ways. First, they lodged their claim with the 1st respondent who failed to act upon it even after acknowledging that their claim was valid. Secondly, they obtained an order of mandamus against the 1st respondent to enforce the statutory duty imposed upon it. In spite of the 1st respondent acknowledging that a compensation fund is created under the Act for payment of claims like the one herein, it has failed to offer any reason why it is not paying the ex-parte applicants. It does not even state for instance, that is in a queue and is likely to be reached at what point in time. The position it has taken is tantamount to declining to pay without offering any reason. The reason it has clang to throughout, that it is not the one to pay but the parent ministry, has been dismissed even by the Court of Appeal, as stated in the judgment issuing the order of mandamus. The 1st respondent will not hear that. 47. The 1st respondent submits further that the WCMA at section 106(2)(c) provides that orders of mandamus should be executed through compelling an officer or a person who has failed to perform a duty imposed by or under the WCMA to perform such act and where such an officer fails to perform such duties, the Applicant can only enforce such an action through contempt of court proceedings and not garnishee. 48. He has called to his aid the case of Republic v Town Clerk, Kisumu Municipality Ex-parte East African Engineering Consulstants [2007] KEHC 147 (KLR) , where it was held that: “ No such relief as garnishee proceedings is stipulated in the Act donating the jurisdiction i.e. the Law Reform Act. (2) The orders are issuing in the name of the Republic and in the case of mandamus order its officers are compelled to act in accordance with the law. The State so to speak by the very act of issuing the orders frowns upon its own officers for not complying with the law. The orders are supposed to be obeyed by the officers as a matter of honour/ https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19352/eng@2025-11-06 9

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and as ordered by the State. Execution as known in the Civil Procedure process was not contemplated and this includes garnishee proceedings.” 49. The Court went ahead to hold that the Law Reform Act does not provide for the relief of garnishee order. 50. I have considered the said decision and I find that it is in line with the Court of Appeal holding in the Five Star Agency Limited case cited above. I am persuaded to follow that decision and find that a garnishee order cannot issue for execution of the decree herein. 51. Having found so, I am quite bafied with the silence by the 1st respondent on why it will not settle claims for compensation for the ex-parte applicants herein when by its own admission, it has assessed and found as valid and without offering any reason for that. That’s quite unfortunate. However, it is not that the ex-parte applicants have no recourse in law. The recourse is in scrupulously following the provisions of the GPA and eventually citing the concerned accounting officers for contempt of court. It is a winding and tiring process, but that is as it is for enforcement of decrees against the government. 52. Consequently, I find that that ex-parte applicants’ applications dated 4th July 2025 and 30th September 2025 have no merit and the same are dismissed and the garnishee orders nisi issued earlier vacated. 53. In spite of having dismissed the applications, I find that the party to bear the costs of this application is not the ex-parte applicant but the 1st and 2nd respondents. As indicated above, they are causing the exparte applicants all the expenses of running around seeking to enforce payment of monies which they have acknowledged that are long due to them. 54. Orders accordingly. RULING DELIVERED, DATED AND SIGNED IN OPEN COURT ON THE VIRTUAL PLATFORM TEAMS THIS 6TH DAY OF NOVEMBER 2025. ANDAYI W.F. JUDGE In the presence of: Mwendwa for the Ex-parte Applicants. Ruwa for the Garnishee. N/A for the 1st Respondent. N/A for the 2nd and 3rd Respondents. Ummu - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19352/eng@2025-11-06 10

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