Jacob Nyaa Mbao t/a Buttex Enterprises v Nairobi City County; Cooperative Bank of Kenya (Garnishee) [2023] KEHC 25987 (KLR)

Jacob Nyaa Mbao t/a Buttex Enterprises v Nairobi City County; Cooperative Bank of Kenya (Garnishee) (Miscellaneous Application 698 of 2017) [2023] KEHC 25987 (KLR) (Judicial Review) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 25987 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application 698 of 2017

J Ngaah, J

December 1, 2023

Between

Jacob Nyaa Mbao t/a Buttex Enterprises

Plaintiff

and

Nairobi City County

Respondent

and

Cooperative Bank of Kenya

Garnishee

Ruling

1. The applicant’s application is a motion dated 5 July 2023 expressed to be brought under Order 23 rules 1 and 2 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, cap. 21. The prayers in the application are as follows:“1. This Honourable court be pleased to certify this application as urgent to be heard ex parte in the 1st instance.2. This Honourable Court be pleased to issue an order nisi to the garnishee to show cause why the respondent’s account with them should be attached in satisfaction of the applicant’s decree.3. This Honourable Court be pleased to issue an order for the attachment of the respondent’s bank account [particulars witheld] with the garnishee to answer and or satisfy the decree issued by this Honourable Court.4. This Honourable Court be pleased to issue an order to the garnishee to pay over the amount of (Kenya shillings 49,435,024. 04/=) shillings plus interest at 21% per annum accruing from the date of judgement to the date of payment in full to the applicant herein to satisfy the decree.5. The costs of this application be provided for.”

2. The application is supported by the applicant’s own affidavit sworn on 5 July 2023. It has been sworn in this affidavit that on 21 October 2016, the applicant obtained judgment against the respondent for the sum of Kshs. 12,944,373. 85. He was also awarded costs of Kshs. 264,450/=. The decree was issued and served upon the respondent on even date. The applicant brings this application because the decretal amount, costs and interest have not been satisfied.

3. He deposes that the respondent holds an account with the garnishee being account no. [particulars witheld] at the garnishee’s City Hall branch in Nairobi. The applicant believes that the money in that account is sufficient to satisfy the decretal sum.

4. The respondent did not respond to this application but the garnishee raised a preliminary objection to the hearing of the application on the grounds that the application for the execution of the decree is untenable in law because it is contrary to the provisions of order 29 rule 2 of theCivil Procedure Rules which prohibit the issuance of execution of orders against the government except in accordance with the provisions of the Government Proceedings Act.

5. It is also pleaded on behalf of the garnishee that the respondent being a government within the provision of Article 6(2) of the Constitution, the execution proceedings are contrary to Order 29 rule 4 of the Civil Procedure Rules which expressly prohibits garnishee orders against the government. The proceedings are also against section 21 of the Government Proceedings Act. The garnishee has, therefore, asked this Honourable Court to strike out the applicant’s application because it is incompetent and an abuse of the process of Court.

6. The law on whether the Government can be subjected to process of execution is fairly clear. It is found in Section 21 the Government Proceedings Act, and in particular section 21(4) which prohibits execution process against Government. Subsection (4) reads as follows:21. (4)Save as aforesaid, no execution or attachment or process in the 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 person 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.And if there be any doubt whether this provision applies to County Governments of which the respondent is one, subsection (5) removes such a doubt and states in clear terms that section 21 of the Act applies to County Government as much as it applies to the National Government. This subsection reads as follows:(5)This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.

7. Apart from section 21 of the Government Proceedings Act, order 29 rule 2 also states expressly that no order can be made against the Government under order 22 rule 2 (2) (b) of theCivil Procedure Rules, in execution of decrees and orders. This particular provision reads:2. (2)No order against the Government may be made under—(a)....(b)Order 22 (Execution of decrees and orders);(c)....(d)....(e)....

8. It is apparent that, in his application, the applicant has invoked order 22 of the Civil Procedure Rulesyet execution of decrees and orders against the Government under this rule is clearly prohibited.

9. In view of the foregoing provisions, I need not say anything more except agree with the garnishee’s learned counsel that the applicant’s application is clearly contrary to the law. It is incompetent and an abuse of the due process of this Honorable Court. I hereby uphold the garnishee’s preliminary objection and strike out the applicant’s application. Considering that the decretal amount is yet to be settled, I will make no order as to costs. It is so ordered.

SIGNED, DATED AND DELIVERED AT NAIROBI ON 1 DECEMBER 2023NGAAH JAIRUSJUDGE