Government Proceedings Act

Section 1. Short title Section This Act may be cited as the Government Proceedings Act.

Section 2. Interpretation Section 2(1) In this Act, except where the context otherwise requires— "agent", when used in relation to the Government, includes an independent contractor employed by the Government; "armed forces" means the military, naval and air forces of the Republic and includes any person who, although not a member of any of those forces, is serving under the control of any of those forces, and whether as a civilian or otherwise; "civil proceedings" includes proceedings in the High Court or a subordinate court for the recovery of fines or penalties; "officer", in relation to the Government, includes the President, the Deputy President, a Cabinet Secretary and any other servant of the Government; "order" includes a judgment, decree, rule, award or declaration; "prescribed" means prescribed by rules of court; "proceedings against the Government" includes a claim by way of set- off or counterclaim raised in proceedings by the Government; "statutory duty" means any duty imposed by or under any written law. Section 2(2) Any reference in this Act to the provisions of this Act shall, unless the context otherwise requires, include a reference to rules of court made for the...

Section 3. Right to sue the Government Section Where any person has a claim against the Government after the commencement of this Act and, if this Act had not been enacted, the claim might have been enforced in accordance with the provisions of the Petitions of Right Ordinance (Repealed), or might have been enforced by a proceeding provided by any statutory provisions repealed by this Act then, subject to the provisions of this Act, the claim may be enforced as of right by proceedings taken against the Government for that purpose in accordance with the provisions of this Act. [Act No. 21 of 1966 , 1st Sch.]

Section 4. Liability of the Government in tort Section 4(1)(a) in respect of torts committed by its servants or agents; Section 4(1)(b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and Section 4(1)(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property: Section 4(2) Where the Government is bound by a statutory duty which is binding also upon persons other than the Government and its officers, then, subject to the provisions of this Act, the Government shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity. Section 4(3) Where any functions are conferred or imposed upon an officer of the Government as such either by any rule of the common law or by any written law, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Government in respect of the tort shall be such as they would have been if those functions had been conferre...

Section 5. Provisions as to industrial property Section 5(1) Where, after the commencement of this Act, any servant or agent of the Government infringes a patent, or infringes a registered trade mark, or infringes any copyright (including any copyright in a design subsisting under the Registered Designs Act, 1949, (12,13, & 14 Geo. 6 c. 88.) of the United Kingdom) and the infringement is committed with the authority of the Government, then, subject to the provisions of this Act, civil proceedings in respect of the infringement shall lie against the Government. Section 5(2) Nothing in subsection (1) of this section or any other provision of this Act shall affect the rights of any Government department under section 46 of the Patents Act, 1949, (12, 13, 14 Geo. 6 c. 87.) or under section 12 of, and the First Schedule to, the Registered Designs Act, 1949, of the United Kingdom. Section 5(3) Save as expressly provided by this section, no proceedings shall lie against the Government by virtue of this Act in respect of the infringement of a patent, in respect of the infringement of a registered trade mark, or the infringement of any copyright as is mentioned in subsection (1). [Act No. 2...

Section 6. Application of law as to indemnity and contribution Section Where the Government is subject to any liability by virtue of this Part of this Act, the law relating to indemnity and contribution shall be enforceable by or against the Government in respect of the liability to which it is so subject as if the Government were a private person of full age and capacity. [Act No. 21 of 1966 , First Sch.]

Section 7. Provisions relating to the Kenya Defence Forces. Section 7(1)(a) at the time when that thing is suffered by that other person, he is either on duty as a member of the Kenya Defence Forces or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the Kenya Defence Forces; and Section 7(1)(b) where that other person is a member of the Kenya Defence Forces, the Cabinet Secretary for the time being responsible for finance certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to a gratuity or pension under any written law relating to the disablement or death of members of the force of which he is a member: Section 7(2)(a) that thing is suffered by him in consequence of the nature or condition of any land, premises, ship, aircraft or vehicle referred to in paragraph (a) of subsection (1), or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces; and Section 7(2)(b) the Cabinet Secretary for the time being responsible for finance certifies as mentioned in paragraph (b) of subsection...

Section 8. Saving in respect of certain acts done under prerogative and statutory powers Section 8(1) Nothing in this Part shall extinguish or abridge any powers or authorities which, if this Act had not been passed, would have been exercisable by virtue of any prerogative, privilege, power or authority vested in the Government by any written law, and in particular nothing in this Part shall extinguish or abridge any powers or authorities exercisable by the Government, whether in time of peace or of war, for the purpose of the defence of Kenya or of training, or maintaining the efficiency of, any of the armed forces. Section 8(2) Where in any proceedings under this Act it is material to determine whether anything was properly done or omitted to be done in the exercise of any prerogative or privilege of the Government, the President may, if satisfied that the act or omission was necessary for any such purpose mentioned in subsection (1), issue a certificate to the effect that the act or omission was necessary for that purpose; and the certificate shall, in those proceedings, be conclusive as to the matters so certified. [Act No. 21 of 1966 , First Sch.]

Section 9. Civil proceedings in the High Court Section 9(1) Subject to the provisions of this Act, all civil proceedings by or against the Government mentioned in the First Schedule to this Act are hereby abolished, and all civil proceedings by or against the Government in the High Court shall be instituted and proceeded with in accordance with rules of court and not otherwise. Section 9(2) In this section, the expression "rules of court" means, in relation to any claim against the Government in the High Court which falls within the jurisdiction of that court as a prize court, rules of court made under section 3 of the Prize Courts Act, 1894 (57 & 58 Vict. c. 39.) [Act No. 21 of 1966 , First Sch.]

Section 10. Civil proceedings in subordinate courts Section 10(1) Subject to the provisions of this Act, and to any written law limiting the jurisdiction of a subordinate court (whether by reference to the subject matter of the proceedings to be brought or by the amount sought to be recovered in the proceedings or otherwise), any civil proceedings against the Government may be instituted in a subordinate court. Section 10(2) Any proceedings by or against the Government in a subordinate court shall be instituted and proceeded with in accordance with rules of court and not otherwise. [Act No. 21 of 1966 , 1st Sch.]

Section 11. Interpleader Section The Government may obtain relief by way of interpleader proceedings, and may be made a party to such proceedings, in the same manner in which a subject may obtain relief by way of those proceedings or be made a party thereto, and may be made a party to those proceedings notwithstanding that the application for relief is made by a court broker or like officer; and all rules of court relating to interpleader proceedings shall, subject to the provisions of this Act, have effect accordingly. [Act No. 21 of 1966 , First Sch.]

Section 12. Parties to proceedings Section 12(1) Subject to the provisions of any other written law, civil proceedings by or against the Government shall be instituted by or against the Office of the Attorney-General, as the case may be. Section 12(2) No proceedings instituted in accordance with this Part of this Act by or against the Office of the Attorney-General shall abate or be affected by any change in the person holding the Office of the Attorney-General. [Act No. 21 of 1966 , 1st Sch.]

Section 13. Service of documents Section All documents required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government in accordance with the provisions of this Act shall be served on the Office of the Attorney-General. [Act No. 21 of 1966 , 1st Sch.]

Section 14. Venue and related matters Section 14(1) In any case in which civil proceedings against the Government in the High Court are instituted by the issue of a plaint out of a District Registry, the Government may enter an appearance either in the District Registry or in the Central Office of the High Court in Nairobi, and, if an appearance is entered in the Central Office, all steps in relation to the proceedings up to the trial shall be taken in Nairobi. Section 14(2) The trial of any civil proceedings by or against the Government in the High Court shall be held at the High Court in Nairobi unless the court, with the consent of the Government, otherwise directs. Section 14(3) Where the Government refuses its consent to a direction under subsection (2) of this section, the court may take account of the refusal in exercising its powers in regard to the award of costs. [Act No. 21 of 1966 , 1st Sch.]

Section 15. Removal and transfer of proceedings Section 15(1) If, in a case where proceedings are instituted against the Government in a subordinate court, an application in that behalf is made by the Government to the High Court, and there is produced to the court a certificate of the Attorney-General to the effect that the proceedings may involve an important question of law, or may be decisive of other cases arising out of the same matter, or are for other reasons more fit to be tried in the High Court, the proceedings shall be removed into the High Court. Section 15(2) Where any proceedings have been removed into the High Court on the production of a certificate as is mentioned in subsection (1) of this section, and it appears to the court by whom the proceedings are tried that the removal has occasioned additional expense to the person by whom the proceedings are brought, the court may take account of the additional expense so occasioned in exercising its power in regard to the award of costs. Section 15(3) Without prejudice to the rights of the Government under the preceding provisions of this section, the provisions of any written law relating to the removal or transfer of p...

Section 16. Nature of relief Section 16(1)(i) where in any proceedings against the Government any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and Section 16(1)(ii) in any proceedings against the Government for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Government to the land or property, or to the possession thereof. Section 16(2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give any relief against the Government which could not have been obtained in proceedings against the Government. [Act No. 21 of 1966 , 1st Sch.]

Section 17. Costs in civil proceedings to which the Government is a party Section in the case of proceedings to which by reason of any written law or otherwise the Attorney-General, a Government department or any officer of the Government as such is authorised to be made a party, the court or arbitrator shall have regard to the nature of the proceedings and the character and the circumstances in which the Attorney- General, the department or officer of the Government appears, and may in the exercise of its or his discretion order any other party to the proceedings to pay the costs of the Attorney-General, department or officer, whatever may be the result of the proceedings; and

Section 18. Appeals and stay of execution Section Subject to the provisions of this Act, any written law relating to appeals and stay of execution shall, with any necessary modifications, apply to civil proceedings by or against the Government as they apply to proceedings between subjects. [Act No. 21 of 1966 , 1st Sch.]

Section 19. Scope of Part Section 19(1)(a) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been enacted, might have been enforced or vindicated or obtained by any such proceedings mentioned in paragraph 1 of the First Schedule; Section 19(1)(b) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been enacted, might have been enforced or vindicated or obtained by an action at the suit of any Government department or any officer of the Government as such; Section 19(1)(c) all such proceedings as the Government is entitled to bring by virtue of this Act, and the expression "civil proceedings by or against the Government" shall be construed accordingly. Section 19(2)(a) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been enacted, might have been enforced or vindicated or obtained by any such proceedings as are mentioned in paragraph 2 of the First Schedule; Section 19(2)(b) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act...

Section 13A. Notice of intention to institute proceedings Section 13A(1) No proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing in the prescribed form have been served on the Government in relation to those proceedings. Section 13A(2)(a) the full names, description and place of residence of the proposed plaintiff; Section 13A(2)(b) the date upon which the cause of action is alleged to have accrued; Section 13A(2)(c) the name of the Government department alleged to be responsible and the full names of any servant or agent whom it is intended to join as a defendant; Section 13A(2)(d) a concise statement of the facts on which it is alleged that the liability of the Government and of any such servant or agent has arisen; Section 13A(2)(e) the relief that will be claimed and, so far as may be practicable, the value of the subject matter of the intended proceedings or the amount which it is intended to claim. Section 13A(3) The provisions of this section shall not apply to such part of any proceedings as relates to a claim for relief in respect of which the court may, by virtue of proviso (i) to section...

Section 20. Interest on debts, damages and costs Section 20(1) Section 26 of the Civil Procedure Act ( Cap. 21 ), (which provides that a judgment debt shall carry interest) shall apply to judgment debts due from or to the Government. Section 20(2) The provisions of any written law empowering a court to award interest on costs shall apply to orders made in any proceedings by or against the Government. Section 20(3) The provisions of any written law empowering a court to award interest on debts and damages shall apply to orders made in any proceedings by or against the Government. Section 20(4) This section shall apply both in relation to proceedings pending at the commencement of this Act and in relation to proceedings instituted thereafter. [Act No. 21 of 1966 , 1st Sch.]

Section 21. Satisfaction of orders against the Government Section 21(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 (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 twenty-one 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. Section 21(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. Section 21(3) If the order provides...

Section 22. Execution by the Government Section 22(1) Subject to the provisions of this Act, any order made in favour of the Government against any person in any civil proceedings to which the Government is a party may be enforced in the same manner as an order made in an action between subjects, and not otherwise. Section 22(2) Subsection (1) of this section shall apply both in relation to proceedings pending at the commencement of this Act and in relation to proceedings instituted thereafter. Section 22(3) Nothing in this section shall affect any procedure which immediately before the commencement of this Act was available for enforcing an order made in favour of the Government in proceedings brought by the Government for the recovery of any fine or penalty, or the forfeiture or condemnation of any goods, or the forfeiture of any ship or any share in a ship. [Act No. 21 of 1966 , 1st Sch.]

Section 23. Attachment of moneys payable by the Government Section 23(1)(a) deleted by ActNo. 6 of 1979, Sch.; Section 23(1)(b) money which is subject to the provisions of any written law prohibiting or restricting assignment or charging or taking in execution; or Section 23(1)(c) money payable by the Government to any person on account of a deposit in the Kenya Post Office Savings Bank. Section 23(2) The provisions of subsection (1) of this section shall, so far as they relate to forms of relief falling within the jurisdiction of a subordinate court, have effect in relation to subordinate courts as they have effect in relation to the High Court. [Act No. 21 of 1966 , 1st Sch., Act No. 6 of 1979 , Sch.]

Section 24. Discovery Section 24(1) Subject to and in accordance with rules of court, in any civil proceedings in the High Court or a subordinate court to which the Government is a party, the Government may be required by the court to make discovery of documents and produce documents for inspection or answer interrogatories: Provided that this section shall be without prejudice to any rule of law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest. Section 24(2) Any order of the court made under the powers conferred by paragraph (b) of subsection (1) of this section shall direct by what officer of the Government the interrogatories are to be answered. Section 24(3) Without prejudice to the proviso to subsection (1) of this section, any rules of court made for the purposes of this section shall be such as to secure that the existence of a document will not be disclosed if, in the opinion of a Cabinet Secretary, it would be injurious to the public interest to disclose the existence thereof. [Act No. 21 of 1966 , 1s...

Section 25. Exclusion of proceedingsin remagainst the Government Section 25(1) Nothing in this Act shall authorise proceedings in rem in respect of any claim against the Government, or the arrest, detention or sale of any Government ship or aircraft, or of any cargo or other property belonging to the Government, or give to any person any lien on any such ship, aircraft, cargo or other property. Section 25(2) Where proceedings in rem have been instituted in the High Court or in a subordinate court against any such ship, aircraft, cargo or other property, the court may, if satisfied, either on an application by the plaintiff for an order under this subsection or an application by the Government to set aside the proceedings, that the proceedings were so instituted by the plaintiff in the reasonable belief that the ship, aircraft, cargo or other property did not belong to the Government, order that the proceedings shall be treated as if they were in personam duly instituted against the Government in accordance with the provisions of this Act, or duly instituted against any other person whom the court regards as the proper person to be sued in the circumstances, and that the proceedings...

Section 26. Limitation of actions Section Nothing in this Act shall prejudice the right of the Government to rely upon any written law relating to the limitation of time for bringing proceedings against public authorities. [Act No. 21 of 1966 , 1st Sch.]

Section 27. Application to the Government of certain written laws Section This Act shall not prejudice the rights of the Government to take advantage of the provisions of any written law although not named therein; and in any civil proceedings against the Government the provisions of any written law which could, if the proceedings were between subjects, be relied upon by the defendant as a defence to the proceedings, whether in whole or in part, or otherwise, may, subject to any express provision to the contrary, be so relied upon by the Government. [Act No. 21 of 1966 , 1st Sch.]

Section 28. No abatement on change of Government Section No claim by or against the Government, and no proceedings for the enforcement of any such claim, shall abate or be affected by any change of the Government. [Act No. 21 of 1966 , 1st Sch.]

Section 29. Abolition of certain writs Section No writ of extent or diem clausit extremum shall issue after the commencement of this Act.

Section 30. Rules of court Section 30(1) Any power to make rules of court to provide for any matters relating to the procedure of civil courts shall include power to make rules of court for the purpose of giving effect to the provisions of this Act, and any such rules may contain provisions to have effect in relation to any proceedings by or against the Government in substitution for or by way of addition to any of the provisions of the rules applying to proceedings between subjects. Section 30(2)(a) for providing for service of process, or notice thereof, in the case of proceedings by the Government against persons, whether citizens of Kenya or not, who are not resident in Kenya; Section 30(2)(b) for securing that where any civil proceedings are brought against the Government in accordance with the provisions of this Act the plaintiff shall, before the Government is required to take any step in the proceedings, provide the Government with such information as the Government may reasonably require as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the departments and officers of the Government concerned; Section 30(2)(c) for prov...

Section 32. Financial provisions Section 32(1) Any expenditure incurred by or on behalf of the Government by reason of this Act shall be defrayed out of moneys provided by Parliament. Section 32(2) Except in so far as Parliament may otherwise authorise, any sum payable to the Government by reason of this Act shall be paid into the Consolidated Fund. [Act No. 21 of 1966 , 1st Sch.]

Section 33. Repeal Section The Acts of the United Kingdom set out in the Second Schedule shall cease to apply to Kenya to the extent specified in the third column of that Schedule.

Section 34. Savings Section 34(1)(a) affect the law relating to prize salvage, or apply to proceedings in causes or matters within the jurisdiction of the High Court as a prize court or to any criminal proceedings; or Section 34(1)(b) subject the Government to any greater liabilities in respect of the acts or omissions of any independent contractor employed by the Government than those to which the Government would be subject in respect of such acts or omissions if it were a private person; or Section 34(1)(c) subject the Government, in its capacity as a highway authority, to any greater liability than that to which a local authority is subject in that capacity; or Section 34(1)(d) affect any rules of evidence or any presumption relating to the extent to which the Government is bound by any written law; or Section 34(1)(e) affect any rights of the Government to control or otherwise intervene in proceedings affecting its rights, property or profits; or Section 34(1)(f) affect any liability imposed on the Public Trustee by the Public Trustee Act (Cap. 168). Section 34(2) Where any property vests in the Government by virtue of any rule of law which operates independently of the acts o...