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Siaka v County Government of Kakamega & 3 others (Judicial Review 4 of 2020) [2023] KEHC 1488 (KLR) (28 February 2023) (Ruling)
Neutral citation:
[2023] KEHC 1488 (KLR)
Republic of Kenya
Judicial Review 4 of 2020
PJO Otieno, J
February 28, 2023
Between
Isaac Fula Siaka
Petitioner
and
County Government of Kenya
1st Respondent
County Director of Survey
2nd Respondent
Kenya Rural Roads Authority
3rd Respondent
Kenya Commercial Bank Limited (Kakamega Branch)
4th Respondent
Ruling
1.By a Notice of Motion dated October 21, 2022 the ex-parte Applicant prayed in the main that a garnishee order nisi issues attaching the 1st Respondent’s credit on account No. 1141xxxxxx at Kenya Commercial Bank Limited, Kakamega Branch towards satisfaction of the sum of Kshs. 101,067/= being the balance decretal sum due to the ex-parte applicant upon a consent decree issued on the 3/11/2020. It further seeks that a garnishee order absolute issues attaching the said credit in the said account to answer and satisfy the said decree.
2.When the matter was placed before the Court on October 25, 2022, the Court directed that it be served for hearing inter-partes. It is of note that no garnishee order nisi was issued. In response to the application both Respondent and the garnishee did file Replying Affidavits on the December 2, 2022 and November 18, 2022 respectively.
3.The essence of the response by the Respondent is that the garnishee as a mode of execution against the Respondent is unlawful and offend section 21 Government Proceedings Act and Order 29 Rule 2 and order 29 Rule 2 and 4 of the Civil Procedure Rules prohibiting direct execution against the property of government. On the merits it was contended that no sum was due on the decree as the entire sum of Kshs. 1,503,036/= was paid on the March 11, 2021 and that what is claimed as outstanding is actually retained taxes due from the decree holder which fact was explained to the ex-parte applicant in letters dated March 29, 2021 and March 30, 2021, annexed and marked VK 2.
4.The Affidavit exhibited the payment voucher and correspondence to support its position on payment. For the garnishee, the gist of the response was that it indeed held sums to the credit of the Respondent sufficient to meet the decree and only prayed that the garnishee’s costs be met from the said account.
5.After service with the responses, the ex-parte applicant then filed a Supplementary Affidavit specifically purposed to respond to the Respondent’s position on whether the sum due was due and payable. In that Supplementary Affidavit, the ex-parte applicant contends that the mode of execution adopted is not unlawful and that the sum sought to be recovered was a decretal sum due in Kakamega ELC Pet. No. 9 of 2015 then gave the history of the litigation in this Judicial Review file to underscore that an admission was indeed filed. The documents illustrating such history were duly exhibited.
6.Thereafter parties were directed to file submissions in which the ex-parte applicant isolated three issues for determination. The first of those issues is the propriety of an order of garnishee against the government as a tool of execution which the ex-parte applicant maintained was proper by citing Shamz Enterprises Ltd v Isiolo County Government [2018] eKLR for the proposition that garnishee proceedings would be taken against the government. Several other decisions were quoted to permit taking out of execution proceedings by way of garnishee against the government.
7.On the second question whether garnishee proceedings may issue before garnishee order nisi is issued, the ex-parte applicant maintains that the Court retains the discretion to issue such order as subsequent order and that by the orders of 3/11/2022 the Court did comply with Order 23 Rule 1 and the current proceedings are procedural and lawful and should not be declined on the procedural requirement that a garnishee order nisi precedes the order absolute. It was then submitted that with the garnishee admitting holding money to the credit of the Respondent, the Court’s only task is to determine whether there is money due for payment for the ex-parte applicant. The decision in Simon Ogada Andiwoi v Safaricom PLC [2021] eKLR was cited for the proposition that rules of procedure should not overshadow the substance and that article 159 exists to cure such procedural lapses.
8.On the last question as to who pays the costs, the decision in Cecilio Murunga Mwenda v Isiolo County Government [2017] eKLR was cited for the proposition that where a party necessitates the litigation which ends against it, it ought to pay the costs.
9.Both Respondent and Garnishee did not file submissions and elected to rely on the Affidavits filed then brief oral submissions. For the Respondent, the decision in Kennedy Wainaina Njoroge v County Government of Nairobi was cited for the proposition that garnishee order as a means of execution is improper as against the government. Kiliminjaro Safari Club Ltd v Govenrnor Kajiado [2014] eKLR was cited for the proposition that County Government as a level of government is covered by provisions of the County Government Act.
10.There was then the alternative submissions by the respondent that the law aside, the Judgment was settled in full and nothing outstands to warrant a garnishee order issuing. What is claimed by the Applicant is actually withheld tax for which certificate ought to have been issued but none had been issued. On the propriety of the garnishee proceedings ongoing without an order nisi having been issued, Counsel for the Respondent took the position that an order absolute cannot issue prior to the one nisi.
11.For the garnishee, the position taken was that pursuant to article 6 of the Constitution, a County Government is government and thus execution against it is prohibited by both Section 21 of the Government Proceedings Act as well as Order 29 Rule 2 and 4 of the Rules and cited Takaful –vs- County Government of Garissa [2021] eKLR for the proposition that garnishee order cannot issue against government.
12.Having reviewed the material availed to Court, the Court considers the dispute here to be principally whether there is a decree in the sum of Kshs. 101,067 pending satisfaction by the Respondent. The resolution to that question then asks what weight is to be given to the assertion by the Respondent that it did pay the sum in full by withholding the sum now claimed on account of taxes.
13.Payment of taxes is a duty to every Kenyan, natural and juristic1. By the Tax Procedures Act, Parliament legislated for purposes of harmonization and consolidation of the Procedural Rules for the administration of taxes and connected purposes. One can call the statute a statute of general application in matter of procedure in the field of Revenue administration. Section 41 and 43 under Part VII – Collection and Recovery of Tax and Refund of Tax – stipulate for the withholding of Value Added Tax and provide for penalties for a withholding agent who fails to withhold or withholds and fails to remit to the Authority within the set timelines.
14.The general theme of part VII is that due tax is deemed a debt due to the government and mandatorily made payable to the Commissioner General. Section 42 gives the Commissioner the power to appoint withholding agent for purposes of any taxes due while 42A is specific to V.A.T. One may ask, what is the rationale of appointing agents for purposes of withholding tax? To this Court the purpose is to broaden the tax net so that once a portion of the tax is withheld, and with the use of technology, the Authority is notified of the earnings of a taxpayer and his obligation. It also facilitates payment of advance tax.
15.In this matter the Replying Affidavit by the County Attorney exhibits a payment voucher with an aggregate payment of Kshs. 1,503,036/= aggregated to be made up as follows: -A210702380891xxxx 2% 25,914.40A21070664329xxxx 5% 75,151.80A21070947849xxxx - 1,401,969.80T O T A L 1,503,036.00
16.To the Court, the Respondent has accounted for the sum due to the ex-parte applicant pursuant to the Judgment of 3/11/2022. In fact the ex-parte applicant should have disputed that the withheld tax had not been credited to its tax account by getting a communication from the Authority of none payment so that the obligation to pay tax for the common goal is achieved.
17.To the extent that the Respondent has demonstrated that it did pay the sums claimed as a tax obligation upon the ex-parte applicant to the Authority, I do find that there is no sum due to the ex-parte applicant from the Respondent. For a garnishee order to issue, there must be a demonstration that there is a sum due upon a decree that pends satisfaction. Where there is no Judgment debt, there cannot be any justification to issue any execution process against any litigant before the Court. On that basis the application dated October 21, 2022 is dismissed with costs.
18.The foregoing determines the matter before the Court on the substance but other issues were raised by the Court and have been addressed by the parties which the Court has a duty to comment upon.
19.The first is the question whether a garnishee order, as a tool of execution by which money owed by a third party to the decree, technically called the garnishee, is issuable against the Government as Judgment debtor. Parties have cited to Court different decisions, most, persuasive, and one by the Court of Appeal with a binding effect on the Court. The Court has had a chance to read those decisions and it boils down to the question whether any of the decisions conclude that, notwithstanding, Section 21 (4) of the Government Proceedings Act as read with Order 29 Rule 2 & 4 of the Civil Procedure Rules are otiose or just inoperative. For clarity purposes, those two provisions read: -Section 21 (4) & (5) Government Proceedings Act
20.My reading of Shanz’s case (Supra) Blueshield Insurance Case (Supra) and even Joseph Nyanamba v Kenya Railways Corporation [2019] eKLR case does not reveal that any of the Courts invalidated the two provisions, I have reproduced hereinabove. To be precise, Ong’injo J, in Shamz’s case did dismiss the Preliminary Objection challenging the application for garnishee order against the County Government for reasons that the Judgment was by consent, was not impugned and the County Government had taken no steps to discharge its liability under the decree. Even though the Court, issued a garnishee order absolute, I do not read the Judgment to have invalidated Section 21 Government Proceedings Act and Order 29 Rule 2.
21.That decision of Shanz and that in Blueshield Insurance Company’s case are to this Court only persuasive and the Court in the circumstances of this case is not persuaded to follow them. However, both Courts were persuaded by the decisions African Commuter Services Ltd v The Kenya Civil Aviation Authority in which the Judge stressed the need for parties litigating before the Court to enjoy equal treatment and application of the law. That decision upon reading its full text did not invalidate Section 21 Government Proceedings Act and Order 29 Rule 2. Instead the decision interrogated the provisions of Section 43 of the Civil Aviation Act not Section 21 of the Government Proceedings Act.
22.While the reasoning would lead one to the conclusion that provisions in any statute that seeks to unfairly protect any individual, whether public entity or private person from equal application and benefit of the law is to be frawned upon, the constitutionality of the two provisions under consideration here has not been determined and before me no submissions were offered urging me to make such a declaration. A Court of law must be moved for it to retain its position as an independent and uninterested arbiter.
23.I adopt the same reasoning and find that even the decision of the Court of Appeal in Joseph Nyanamba’s case did not invalidate the provisions under consideration in this ruling. To the contrary, I am persuaded by the decision in Nahashon Omwuaho Osiako & 66 Others v Attorney General [2017] eKLR where the Court did uphold the constitutionality of the two provisions and said: -
24.It is crystal clear that the law remains that the enforcement of a monetary decree against the government, and indeed all decrees, is done by way of mandamus only and not otherwise.
25.In this matter, even though the notice of motion dated 5.2.202o sought orders of mandamus, the same continues to pend undetermined. Instead parties converted the special vehicle called judicial review into an ordinary civil suit and entered judgment on admission. That order, to this court, was most inappropriate in a judicial review matter. Judicial review application can only result in the three orders of Certiorari, Prohibition or the Mandamus issuing. It ought not to duplicate, as it has done here, a decree earlier on issued in a civil matter. It must always be remembered that judicial review is a special procedure and vehicle that is neither civil nor criminal, but sui generis and must be used so and as specially designed remedy.
26.The improper invitation of the application of Order 13 in a matter that was explicitly governed by order 53 was untidy and confusing. It is so confusing that the entry of judgment gives the impression that the matter is concluded when it is not.
27.For purposes of neatness of the court records, let the ex-parte applicant elect how to proceed with the notice of motion dated February 5, 2020. Let the election be made within 60 days from today so that parties attend court on the for further directions
28.For the foregoing reasons, I find that it is not legally tenable to initiate and sustain the process of execution against government by way of attaching money held to its credit by a bank like the garnishee here or by any other debtor.
29.On the propriety of proceeding with garnishee proceedings inter-partes before a garnishee order nisi is issued, the Court’s view is that it is for the neatness and efficacy of the order absolute to be issued after parties are heard that it is critical to have an order nisi issued ex-parte, and before service upon the decree holder and a garnishee. Order nisi is a conservatory or preservatory in nature intended to preserve the debt so that it is not disposed before the final determination is made. It is therefore the finding of the court that failure to issue an order nisi is not fatal to the garnishee proceeding, but it reduces the efficiency of the ultimate order absolute, when issued, where a mischievous judgment-debt may choose to defeat the court process before the order absolute is made and enforced.
DATED, SIGNED AND DELIVERED IN KAKAMEGA THIS 28TH DAY OF FEBRUARY 2023.PATRICK J. O. OTIENOJUDGEIn the presence ofMr. Alego holding brief for Bwonchiri for ApplicantMs. Munihu for the RespondentMr. Atira for the GarnisheeCourt Assistant: Polycap
