Automated Summary
Key Facts
Daasanach Construction Limited sought to attach the County of Marsabit's accounts at Kenya Commercial Bank via a garnishee order. The court partially allowed the application on January 23, 2023, but later ruled that attaching county government accounts is prohibited under section 21 of the Government Proceedings Act. The ruling cited precedents including Kennedy Wainaina Ngenga v County Government of Nairobi (2017) and others, emphasizing that garnishee proceedings against county governments are legally improper. The notice of motion was struck out, and the order nisi discharged.
Issues
The court addressed whether garnishee orders issued under the Civil Procedure Act are applicable to county government accounts, determining that such orders cannot be sustained as the Government Proceedings Act prescribes a different procedure for government entities, including county governments, which excludes execution under the Civil Procedure Act. This issue was resolved by citing precedents that affirm the inapplicability of garnishee proceedings against county governments under the Civil Procedure Act, while the debt remains valid under the court's order.
Holdings
- The court adopts the reasoning from Kennedy Wainaina Ngenga (2017), confirming that garnishee proceedings against the County Government of Nairobi are improper in law, though the judgment debt remains valid. County governments are exempt from execution under the Civil Procedure Act and must be addressed via the Government Proceedings Act.
- The court determines that garnishee orders against a county government cannot be sustained under the Government Proceedings Act, as execution against government entities must follow the procedures outlined in that Act, not the Civil Procedure Act. This aligns with the precedent set in Kennedy Wainaina Ngenga v County Government of Nairobi & Cooperative Bank of Kenya (2017) and other similar cases.
- The court orders the Notice of Motion dated January 14, 2023, to be struck out, discharges the Garnishee Order Nisi, and dismisses the application. No costs are awarded to either party.
Remedies
The Notice of Motion dated January 14, 2023 is struck out and the order nisi discharged. There shall be no order as to costs.
Tax Issue Category
Other
Legal Principles
The court applied section 21(5) of the Government Proceedings Act, which modifies the execution process for civil proceedings involving county governments. It clarified that garnishee orders against county governments cannot be sustained under this act, as opposed to the Civil Procedure Act. This principle was reinforced through precedents like Kennedy Wainaina Ngenga v County Government of Nairobi (2019) and others.
Precedent Name
- Takaful Insurance of Africa (Kenya) v County Government of Garissa and 2 Others; Governor Central Bank of Kenya
- Kilimanjaro Safari Club Limited v The Governor - Kajiado County Government and Kenya Commercial Bank
- Kennedy Wainaina Ngenga v County Government of Nairobi & Cooperative Bank of Kenya
Cited Statute
- Civil Procedure Act (Chapter 21)
- Government Proceedings Act (Chapter 40)
Judge Name
Das Majanja
Passage Text
- The Notice of Motion dated January 14, 2023 is struck out and the order nisi discharged. There shall be no order as to costs.
- "The above legal provisions confirm that the process of execution with regard to Government Institutions is prescribed by the Government Proceedings Act. The Civil Procedure Act & rules 2010 also prescribe the execution process and exempts the Government from the said process. This means although execution is a right enforced by a decree holder against a judgment debtor execution shall be carried down where it involves government and it shall be within the purview of Government Proceedings Act. Therefore, the Garnishee proceedings herein against the Judgement Debtor; the County Government of Nairobi are improper in law to the extent of the recovery process. However, the judgement debt remains unchallenged and a valid order and decree of this court."
- It is thus clear that in light of the Government Proceedings Act, the garnishee orders cannot be sustained (see also Kilimanjaro Safari Club Limited v The Governor - Kajiado County Government and Kenya Commercial Bank ML HC Misc Application No 442 of 2011 [2014]eKLR and Takaful Insurance of Africa (Kenya) v County Government of Garissa and 2 Others; Governor Central Bank of Kenya (Garnishee) GRS HCCC No 8 of 2020 [2021] eKLR).