County Government of Nyamira v Obadiah Sobera Isoe

the court clarified that even though a litigant is entitled to payment once a decree is issued, enforcement against the Government can only proceed through mandamus, not attachment. Reference was also made to Five Star Agencies Limited vs. National Land Commission & Another, Civil Appeal No. E290 & 328 of 2023 (Consolidated) [2024] KECA 439 (KLR), where the Court of Appeal reiterated that judicial review and mandamus are the only available remedies. 5. The Appellant also cited Republic vs. Attorney General & Another ex parte Stephen Wanyee Roki [2016] eKLR and Republic vs. County Secretary, Nairobi City County & Another ex parte Wachira Nderitu Ngugi & Co. Advocates [2016] eKLR, where it was held that execution under the Civil Procedure Rules is barred against government property, with mandamus being the only lawful remedy. The Appellant further invoked the decision in Butt vs. Khan [1977] 1 KLR, where the Court of Appeal explained that appellate courts may only interfere with lower court findings where decisions are based on wrong principles or misapprehension of material facts. 6. The Appellant maintained that the trial magistrate’s decision was legally flawed, unconstitutional, and void in principle. 7. The Respondent, on the other hand, supported the trial court’s ruling and argued that the GPA applies only to organs of the national government under the control of the Attorney-General and not to county governments which are independent entities akin to parastatals and public schools. Reliance was placed on the decision in Absa Bank Kenya PLC t/a Absa vs. Kenya Deposit Insurance Corporation, Milimani Commercial Case No. E411 of 2023 (UR), where the court held that the Act applies only to central government organs and expressly excludes county governments and state corporations. The Respondent noted that in the same Absa Bank case, the court declared Section 13A and Section 21(4) of the Act unconstitutional to the extent that they imposed statutory requirements for obtaining a certificate of order and leave before suing or executing against government entities, suspending them as inoperative. 8. The Respondent submitted that execution against the Appellant was legal and regular since the County Government had all along been aware of the decretal sum but failed to settle it. It was the Respondent’s case that the trial court was justified in dismissing the Appellant’s application. 9. I have carefully considered the Record of Appeal and the parties’ rival submissions, I find that the following issues arise for my determination:a. Whether Section 21 of the Government Proceedings Act and Order 29 Rule 2 CPR apply to County Governments. b. Whether execution by attachment of a County Government’s movable property to satisfy a money decree is lawful. c. Whether the trial court erred in dismissing the Appellant’s application to recall and set aside warrants of attachment. d. What orders should issue, including, as to costs. The Law 10. Section 21(1)–(3) GPA stipulates as follows: 21. Satisfaction of orders against the Government (1) Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19378/eng@2025-10-23 2

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(including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twentyone days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order: Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant. (2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General. (3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon: Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein. 11. The above provision imposes a statutory duty on the relevant accounting officer (for national government, through the Attorney-General) to pay the certified sums together with lawfully accruing interest. Section 21(4) GPA states, in mandatory terms, that “save as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government … of any money or costs…”. Critically, Section 21(5) GPA provides that this section shall, with necessary modifications, apply to civil proceedings by or against a county government. 12. Order 29 Rule 2 CPR mirrors the position stated in Section 21(4) GPA by restricting coercive execution processes “by or against the Government” (including orders of attachment, injunction and appointment of a receiver), the evident purpose being the protection of public funds and orderly satisfaction of decrees through budgeted processes. 13. In Kisya Investment Ltd vs. Attorney General & Another HCC 2832 of 1990, the High Court traced the rationale for government immunity from execution to parliamentary control over public expenditure and declared that orders contrary to the GPA are null and void. In ex parte Fredrick Manoah Egunza case (supra), the High Court held that although a successful litigant is entitled to payment, enforcement against government proceeds by certificate and mandamus, not attachment. 14. In Five Star Agencies Ltd vs. National Land Commission & Another [2024] KECA 439 (KLR) the Court of Appeal emphatically reaffirmed that the only lawful remedy to compel payment by a public body is judicial review seeking an order of mandamus after compliance with Section 21 GPA. Similar holdings appear in ex parte Stephen Wanyee Roki [2016] eKLR and ex parte Wachira Nderitu [2016] eKLR, both involving county/public entities, where the courts barred execution and directed resort to mandamus. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19378/eng@2025-10-23 3

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Analysis Applicability of Section 21 GPA and Order 29 CPR to County Governments 15. Section 21(5) GPA expressly extends Section 21 to county governments “with necessary modifications.” My take is that the textual command of the said section leaves no room for exclusion of counties. The “necessary modifications” simply adapt references, for example, service on AttorneyGeneral, to the appropriate county accounting officer within the meaning of the Public Finance Management Act and Article 226 of the Constitution. I find that the binding Court of Appeal guidance in Five Star Agencies (supra) applies to public bodies beyond the national executive and is consistent with the numerous High Court decisions concerning counties. 16. My further finding is that the Respondent’s reliance on Absa Bank Kenya PLC (supra) does not dislodge the position stated in Five Star Agencies (supra) as it is a decision of a court of coordinate jurisdiction at which is at best, only persuasive and cannot override clear statutory provisions and Court of Appeal authority. I further note that the case is distinguishable as it concerned a state corporation/statutory body and examined specific subsections (Sections 13A and 21(4)) of GPA on constitutional grounds. Whatever was said in the Absa case does not erase Section 21(5) nor the longstanding principle that direct execution is barred in order to preserve budgetary control. I therefore hold that Section 21 GPA and the attendant regime apply to County Governments. Lawfulness of Attachment Against a County Government 17. Having regard to the findings that I have made hereinabove, the answer to the legality of the attachment against the County Government is equally clear. Section 21(4) GPA expressly prohibits execution or attachment “save as provided in this section”. The section provides only for issuance and service of a certificate of order against the Government. I therefore find that where payment is not forthcoming, the available avenue is judicial review for mandamus directing the relevant accounting officer to satisfy the certified sum. This means that execution by attachment of movable property against a county government is unlawful. 18. It is my humble view that the trial court’s reasoning that attachment could issue was per incuriam as it overlooked Section 21(5) GPA, Order 29 Rule 2 CPR, and the above binding precedents. The Respondent’s argument that the County’s awareness of the decree and failure to pay justified execution cannot confer jurisdiction to deploy a prohibited mode of enforcement. Whether the Trial Court Erred 19. An appellate court may interfere with the trial court’s decision where a court misdirected itself on the law, applied wrong principles, or reached a plainly wrong conclusion. (See Butt vs. Khan [1977] 1 KLR; also Mbogo vs. Shah [1968] EA 93). It is my finding that by authorizing a mode of execution that is barred by statute, the trial court misapprehended the law and exercised discretion on a wrong footing. Disposition 20. In conclusion, I find that the instant appeal is merited and I therefore issue the following orders: a. The appeal is allowed. b. The ruling of the Chief Magistrate in Nyamira CMCC No. E017 of 2020 dated 28th August 2024 permitting execution by attachment against the Appellant is set aside in its entirety. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19378/eng@2025-10-23 4

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21. c. The warrants of attachment issued against the County Government of Nyamira are recalled and vacated. d. For avoidance of doubt, satisfaction of the decree shall proceed in accordance with Section 21 of the Government Proceedings Act, namely: issuance of a certificate of order by the proper officer; service upon the County’s accounting officer; and, if payment is not made, the Respondent is at liberty to pursue judicial review seeking an order of mandamus in the usual manner. e. Costs of this appeal are awarded to the Appellant. Costs of the application before the trial court shall abide the outcome of any subsequent proceedings for satisfaction of the decree. It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 23RD DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19378/eng@2025-10-23 5

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