II. The Petitioner/Decree’s case
3.The Petitioner/Decree Holder sought for the following orders therein:-a.Spent.b.That this Honourable Court be pleased to issue an Order Nisi forthwith attaching the principal amount of Kshs 242,950,000.00 together with court interest of Kshs 386,667,886 at 12% of the principal amount from March 21, 2014 to August 11, 2022, mesne profits of 24,000,000.00 and court interest at 12% being Kshs 168,580,645.00 commencing from June 2, 2015 to August 11, 2022, penal interest of Kshs 109,447,144.00 at 12% commencing from June 2, 2015 to August 11, 2022 making a total of Kshs 931,645,675.00 which sum is held to the credit of both the 1st Judgment debtors bank account held by the 1st Garnishee herein Co-operative Bank of Kenya account no xxxx at its Head Office branch Nairobi and the 2nd Judgment debtor account number xxxx held by the 2nd Garnishee herein National Bank of Kenya Limited at is Hill Branch, Nairobi;c.That this Honourable Court be pleased to order the above-named Garnishees and the judgment debtors to attend before the court on a date to be appointed, to show cause why the said garnishee should not pay to the decree holder the decretal balance herein or so much thereof as may be sufficient to satisfy the said sum of Kshs 242,950,000.00 together with court interest of Kshs 386,667,886 at 12% of principal amount from March 21, 2014 to August 11, 2022, mesne profits of Kshs 24,000,000.00 rent of Kshs 168,580,645.00 commencing from June 2, 2015 to August 11, 2022, penal interest of Kshs 109,447,144.00 at 12% commencing from 2nd June 2015 to August 11, 2022 making a total of Kshs 931,645,675.00;d.That upon the inter parties hearing of this Application, this Honourable Court be pleased to issue a Garnishee Order Absolute in terms of prayer 3 herein above and/or in the alternative;e.That pending the hearing and determination of this application and in the interim the Honourable Court be pleased to direct that the amount of Kshs 931,645,675.00 held in both the Respondent/Judgment Debtor’s bank account number xxxx held by the 1st Garnishee Cooperative Bank of Kenya Nairobi and account number xxxx held by the 2nd Garnishee National Bank of Kenya Nairobi, be withheld or placed in a suspense account for security purposes pending further directions of this Honourable Court; andf.That cost of this application be provided by the Respondent/Judgment Debtor.
4.The application is premised on the grounds, testimonial facts on the face of the application and the averments of the 12 Paragraphed Supporting Affidavit sworn by Jack W Matheka dated August 11, 2022 together with two (2) annextures attached thereto. He deponed being an Advocate of the High Court of Kenya with instruction and in conduct of these proceedings by the Petitioner/Decree Holder and therefore competent to swear the Affidavit.
5.He deposed that, judgment was delivered on October 28, 2021 by this Honorable Court against the Respondent/Judgment Debtor in the sum of Kenya Shillings Two Fourty Two Million Nine Hundred and Fifty Thousand (Kshs 242, 950, 000.00) together with Court interest of a sum Kenya Shillings Three Eighty Six Million Six Sixty Seven Thousand Eight Eighty Six hundred (Kshs 386,667,886.00/=) at 12% of principal amount from March 21, 2014 to August 11, 2022, mesne profits of Kenya Shillings Twenty Four Million (Kshs 24,000,000.00), rent of Kenya Shillings One Sixty Eight Million Five Eighty Thousand Six Fourty Five Thousand (Kshs 168,580,645.00) commencing from June 2, 2015 to August 11, 2022, penal interest of a sum of Kenya Shillings One and Nine Million Four Fourty Seven Thousand One Fourty Four Hundred (Kshs 109,447,144.00) at 12% commencing from June 2, 2015 to August 11, 2022 making a total of sum of Kenya Shillings Nine Thirty One Million Six Fourty Five Thousand Six Seventy Five Hundred (Kshs 931,645,675.00), as shown by his annexed copy of the Decree issued on November 17, 2021 marked as ‘1’.
6.He averred that the Respondent/Judgment Debtor had neither settled the decretal sum nor moved the Honorable Court by an application to either set aside or appeal the judgment. He added that the Respondent/Judgment Debtor has no known property under its name that is capable of being attached for purposes of satisfying the judgment of the court.
7.He deponed that both Cooperative Bank of Kenya and National Bank of Kenya limited, the Garnishees, are holding funds to the credit of the 1st Respondent/Judgment Debtor in account number xxxx domiciled with the 1st Garnishee and account number xxxx domiciled with the 2nd Garnishee.
8.He further deposed that the 1st Respondent, in a bid to satisfy the decretal sum transferred to the 2nd Respondent’s bank account Kenya Shillings One Hundred and Fifty Million (Kshs 150,000,000.00) for onward transmission to the Petitioner on July 1, 2022 as per his annexed copy of a letter dated July 1, 2022 marked as ‘2’. He added that the 2nd Respondent had been sitting on their hands and shifting goal posts as to the transfer of funds albeit negligible to the Petitioner/Decree Holder thus necessitating the current application.
9.He deponed that the Petitioner/Decree Holder was at the mercy of the Respondents and their officers, who are acting in bad faith maliciously and in total disregard of not only this Court’s express judgment but also in complete disobedience of the Constitution and the right to compensation upon compulsory acquisition of property.
10.He added that unless the orders sought were granted, the Petitioner/Decree Holder is apprehensive that the judgment debtor may withdraw and/or move the funds held to its credit by the Garnishees. In conclusion, he averred that it is in the interest of justice that the Petitioner/Decree Holder’s application was allowed.
11.The Honorable Court has noted that despite service, none of the Respondents filed any responses to the application by the Petitioner/Decree Holder herein. Thus, the Honorable Court had proceeded to rendering its ruling with the proceeding as it is herein.
III. Analysis and determination
12.I have carefully considered all the issues raised from the Notice of Motion application dated August 11, 2022 by the Petitioner/Decree Holder application, the relevant provisions of the Constitution of Kenya, 2010 and statures.
13.In order to reach an informed, reasonable, Just and fair decision, the Honorable Court has crafted the following three (3) salient issues for its determination in this matter as follows:-
ISSUE No a). Whether the Notice of Motion application dated August 11, 2022 by the Petitioner/Decree Holder has any merit.
14.Under this Sub – heading, this being a Court of Law, its critical to appreciate two broad issues. First the n Order 23 Rules 1 ( 1 ), ( 2 ) and (3), Rule 2, 3 and 4 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 legal nature, scope and effect of the garnishes orders sought by the Petitioner/Decree Holder and secondly the parties in the matter. To begin with, garnishee is one form of execution by way of execution of the decree of Court. It means notifying or warning of certain debt that must be paid before the person is entitled to receive property as an heir and the proceedings have been commenced and an order be issued by Court for the attachment. It may be attachment of a persons salary or property. The provisions of Order 23 Rules 1 ( 1 ), ( 2 ) and (3), Rule 2, 3 of the Civil Procedure Rules, 2010 makes the provision for garnishee. The said provision of the law provides:-
15.On the second issue is on the parties being sued or involved in this matter whereby execution of the Decree is concerned. These are the Kenya National Highway Authority (KENHA) and the National Land Commission (NLC) the 1st and 2nd Respondents herein respectively. While the 1st Respondent/Judgment Debtor is established by the Kenya Roads Act under the provision of Section 3, its functions in section 4 and composition of its board of authority in section 5 is State Corporations established under the State Corporation Act, Cap 446 and Section 3 of the Kenya Roads Act, No 2 of 2007 of the Laws of Kenya. The provision of Section 3 ( 1 ) of both the State Corporation Act and the Kenya Roads Act, provide as follows:-(1).The President may by order establish Corporation as a body corporate to perform the functions specified in order.(2).A state Corporation established under this Section shall:-(a).Have perpetual succession;(b).In its corporate name of suing and being sued.(c).Subject to this Act, be capable of holding and alienating movable and immovable property.For these reasons the application by the Petitioner/Decree Holder has merit.
16.The 2nd Respondent is established as a Constitutional body under Article 67 ( 1 ) of the Constitution and further Article 67 ( 2 ) read with the National Land Act, No 5 of 2012 which makes the provision for the function and powers of the NLC. The transitional and saving provisions of the NLC Act provide that any function, transition, Civil proceedings or other processes in respect of any public land administration matter within the docket of the Ministry of Land before the commencement of the Act is deemed to be carried by the Act as per the provision of Section 30 of the NLC Act. The enactment of the NLC Act is in furtherance of the objects and the principles of devolved government in land management and land administration.
17.Primarily, the first issue to ponder is whether NLC should be treated strictly as Government per se on matters of execution of Court Decrees. An analysis of the functions of the Respondents/Judgment Debtors leaves no doubt in the court’s mind that NLC is a government agency or organ. Government is not defined either in the Government Proceedings Act, Cap 40 or the Civil Procedure Act, Chapter 21 Laws of Kenya and the rules made thereunder. However, reading of Sections 2, 12, 19 and 21 of the Government Proceedings Act as to what constitutes civil proceedings by and against the Government, and orders against the Government, which is reproduced in Order 29 Rule 1(1) of the Civil Procedure Rules, leaves no doubt that the Government includes Government departments, Government organs, agencies of the Government and officers of the Government.
18.Having established that the 2nd Respondent/Judgment Debtor herein is a government agency, it follows that the laid-out procedure in law in executing decrees against the Government is provided through the law. To begin with, the provision of Order 29 Rule 2 (2) of the Civil Procedure Rules 2010 provides as follows:Further, the provisions of Order 29 Rule 4 (1) of the Civil Procedure Rules, 2010 provides:
19.The upshot of the above provisions of law and rules is that although execution is a right enforced by a Decree Holder against Judgment Debtor, execution of decrees against Government agencies should be carried out within the purview of Government Proceedings Act or seeking specific prerogative writs in form of 'Mandamus' or 'Prohibition' under the Administrative Law in form of Judicial Review proceedings. For these reasons therefore, the execution intended by the Petitioner/Decree – Holder against the 2nd Respondent Judgement/Debtor in the manner envisaged from the filed Notice of Motion application dated August 11, 2022 is far fetched and hence disallowed.
20.There is no doubt or challenge from any of the parties that a Judgment Debt exists. In fact, a perusal of the court record shows that on June 8, 2022 this matter came up a Notice to show cause against the 1st and 2nd Respondents/Judgment Debtors and their Learned Counsels informed the Honorable Court that they were making strides to comply with the Decree issued by the Court on November 17, 2021 despite budgetary constraints. This shows cooperation on the Respondents/Judgement Debtors part and the Court is aware to the fact that the process of complying with the said Decree on the part of any Government agency may be a long and bureaucratic one.
21.Nonetheless, the Petitioner/Decree Holder obtained Judgment for a total of Kenya Shillings Nine Thirty One Million Six Fourty Five Thousand Six Seventy Five Thousand (Kshs 931,645,675.00/=) against the 1st and 2nd Respondents/Judgement Debtors and is entitled to enjoy the fruits of the said judgement. My view is that this sustainable as far as the 1st Respondent Judgement/Decree Holder is concerned. However, as it is evident that the 2nd Respondent/Judgement Debtor is a Government agency and therefore, the Garnishee proceedings herein against it is improper in law to the extent of the recovery procedure. What then is the recourse available to the Petitioner/Decree Holder as far as the 2nd Respondent Judgement/Debtor is concerned?
23.There is no evidence that the Petitioner/Decree Holder has made any effort to apply for the certificate of costs to be served upon the Attorney General and the accounting officer for execution of the decree as per Section 21 of the Government Proceedings Act, which is the proper procedure for execution of decrees against the Government. Judgment debts due from or to Government carry interest as prescribed under Section 26 of the Civil Procedure Act, Cap 21 and Section 20 of the Government Proceedings Act.ISSUE No c). Who will bear the costs of the application.
24.It is now well established that the issue of costs in any suit is at the discretion of the Court. Costs mean the award a party is awarded at the conclusion of any legal action or process in litigation. The proviso under Section 27 (1) of the Civil Procedure Act, Cap 21 holds that costs follow the event. By event it means the result or outcome of the said legal action. This position was supported by the Supreme Court decision of 'Jasbir Rai Singh – Versus – Tarchalon Singh (2014) eKLR.
25.In the instant case, the result is that the Petitioner/Decree Holder has partially succeeded in prosecuting its application as far as the orders are issued against the 1st Respondent Judgement/Debtor but not against the 2nd Respondent Judgement/Holder. Therefore, it is just fair, reasonable and equitable that the Petitioner/Decree Holder be granted Costs against the 2nd Respondent Judgement/Debtor and 1st and 2nd Garnishee herein.