1.By the Notice of Motion herein dated 16th January 2023, Peter Muthoni Advocates, styling themselves as the Advocates for the Applicants (hereinafter “the Applicants”) pray for orders framed as follows:
2.The application which is supported sworn by an Affidavit by Mr. Peter Mwangi Muthoni Advocate is based on the grounds stated on the face thereof as follows:
3.The National Land Commission named as the Plaintiff/Respondent in the Motion is opposed to the application. In a Replying Affidavit sworn on its behalf by its Director, Legal Affairs and Dispute Resolution Department Brian Ikol, the Respondent avers that it is an independent Commission established under Article 67(1) of the Constitution and is operationalised by the National Land Commission Act No. 5 of 2012 and that it has as its fundamental functions, the management of public land on behalf of the National and County Governments.
4.The Respondent avers that on 23rd June 2021, this Honourable Court inter alia made an order for the release of Kshs.10,000,000/- out of the compensation money herein set aside for advocates costs in the matter, as well as the maintenance of the late Wambugu Mathangani’s grave, the Advocates costs being Kshs.8,500,000/- to be shared amongst certain Law Firms.
5.The Respondent avers that it was never served with any summons to enter appearance or any application herein and that the matter proceeded ex-parte without their knowledge. The Respondent asserts that the previous proceedings herein were between the Commissioner of Lands as then represented by the Honourable the Attorney General on the one side and the Applicants on the other. The Respondent was not in existence when the cause of action arose and hence it never participated in the proceedings.
6.The Respondent further avers that despite the Applicants being aware of its existence as a successor in title to the office of the Commissioner of Lands, the Applicants did not serve them with any documents and no evidence was adduced of any service upon themselves.
7.The Respondent avers further that neither the Ministry of Lands and Physical Planning nor the defunct office of the Commissioner of Lands has ever transferred the alleged compensation funds to itself and hence the said funds are neither in its custody and/or possession. In the circumstances, the Respondent avers that the orders ought to be addressed to the Attorney General who fully participated in the proceedings.
8.The Central Bank of Kenya, named as the 1st Garnishee herein did not enter appearance and/or respond to the application.
9.The National Bank of Kenya cited as the Second Garnishee is equally opposed to the application. In a Replying Affidavit sworn on its behalf by its Hill Branch Operations Manager Davis M. Miriti, the 2nd Garnishee avers that it has not denied the National Land Commission access to withdraw any money from accounts allegedly held with themselves for whatever purposes.
10.The 2nd Garnishee asserts that the Applicant has not tendered any sufficient evidence to show why nisi orders should issue against them as no execution pleadings have been annexed to show attempts made to recover the alleged debt from the debtor.
11.I have carefully perused and considered the application as well as the responses thereto. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the Parties herein.
12.As I have indicated at the beginning of this Ruling, the application before this Court was instituted by the Law Firm Peter M. Muthoni Advocates as the Advocates for “the Applicants”. Those Applicants apparently consist of a group of seven (7) Law Firms which had taken up various roles in these proceedings. There did not however appear to be much consensus amongst the said Applicants as one of them Messrs Wanyiri Kihoro & Company Advocates representing a number of beneficiaries of the Estate of the late Wambugu Mathangani actually filed Grounds of Opposition dated 8th February, 2023 objecting to the application.
13.Be that as it may, by their application before the Court, the Applicants urged the Court to issue a Garnishee Order nisi against both the Central Bank of Kenya and the National Bank of Kenya in respect of some undisclosed accounts said to be at their branches within the City of Nairobi. It was the Applicants’ case that this Court should order the immediate attachment of all the monies deposited, lying or held in those accounts which were to the credit of the National Land Commission to satisfy a claim of Kshs.8,500,000/- said to be due to the Applicants.
14.The Applicants told the Court that the Respondent Commission had unreasonably declined to comply with orders issued against them by the Court on 17th June, 2021 and that by so doing, they had greatly exposed the Learned Counsels to great financial peril that had affected the Counsel’s pecuniary well-being and their respective legal practices.
15.The Applicants asserted that as a Chapter 15 Commission established under the Constitution of Kenya 2010, the Respondent was bound to uphold the Constitution and the rule of law and that having so failed to do, this Court ought to compel them to do so by issuing the orders sought herein.
16.As it were Garnishee proceedings are a special specie of process by which a Judgment creditor may attach (or garnishee) debts due in satisfaction of the Judgment debt. In such an instance the debt owed by the third party to the Judgment debtor, on being attached, shall ultimately be paid by him to the Judgment creditor on the order of the Court.
17.In that regard, Garnishee proceedings serve to facilitate the process of satisfaction of Judgment debts and execution of decrees to enable the decree-holder to realise the fruits of the decree. A perusal of Order 23 of the Civil Procedure Rules under which the application is premised reveals that it prescribes a two-steps process in Garnishee proceedings. The first is a Ganishee Order nisi. Nisi is Norman-French meaning “unless”. It is thus an order to the Bank communicating that unless there is some sufficient reason why the Bank should not pay the decree, it will be required to pay money held in the Judgment Debtor’s account. If no sufficient reason appears, the Garnishee order is made absolute.
18.In the matter before me, it was difficult to ascribe the terms “Judgment-creditor” and Judgment-debtor” to the Parties before the Court. The Applicants in the strict sense of the word were not the real beneficiaries of these proceedings as the subject of the proceedings who were awarded compensation had appealed on the issue of quantum which matter remained pending for determination as at the time this application was instituted.
19.Secondly, those proceedings had been instituted by the Respondent’s predecessor the Office of the Commissioner of Lands which had sought to compulsorily acquire L.R No. Aguthi/Gatitu/3447 and to compensate the previous owners. While it was settled that the Respondent had taken over the functions of that now defunct office, there was nothing placed before the Court to demonstrate that the Respondent herein had been substituted for the said office and/or that they had been enjoined herein and had thus assumed the debts that may have been owing from the Office of the Commissioner of Lands. It was not even clear if the Respondent had any account known to the Applicants with the two Garnishee Banks as none was specified.
20.Perhaps even more fundamentally, it was not in dispute that the Respondent is an independent Constitutional Commission established under Article 67 of the Constitution and tasked with the duty of managing public land on behalf of the National and County Governments and that the resulting order was thus an order made against the Government. Such bodies are protected under Sections 21(4) of the Government Proceedings Act which provides thus:
21.Under Order 29 of the Civil Procedure Rules which provides for proceedings by or against the Government, the term “order against the Government” is defined to mean.”
22.For the avoidance of any doubt, Order 29 Rule 2(2) of the Civil Procedure Rules provides thus:(2)No order against the Government may be made under –(a)Order 14, Rule 4 (impounding of documents);(b)Order 22 (execution of decrees and orders);(c)Order 23 (Attachment of debts);(d)Order 40 (injunctions); and(e)Order 41 (Appointment of receiver).
23.The rationale or the objective for the above provisions in law were well spelt out in Kisya Investments Limited -vs- Attorney General & Another (2006) 1 KLR 74, wherein the Court observed as follows:
24.Arising from the foregoing, it was clear to me that even where the Applicants were to be considered to wield a proper decree for execution against the Respondent, the execution thereof must be done within the purview of the Government Proceedings Act.
25.The result is that the Garnishee proceedings herein against the National Land Commission were misconceived, irregular and incompetent. The Motion dated 16th January, 2023 is dismissed.
26.I make no order as to costs.