1.The applicant’s application is a motion dated 5 July 2023 expressed to be brought under Order 23 rules 1 and 2 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, cap. 21. The prayers in the application are as follows:
2.The application is supported by the applicant’s own affidavit sworn on 5 July 2023. It has been sworn in this affidavit that on 21 October 2016, the applicant obtained judgment against the respondent for the sum of Kshs. 12,944,373. 85. He was also awarded costs of Kshs. 264,450/=. The decree was issued and served upon the respondent on even date. The applicant brings this application because the decretal amount, costs and interest have not been satisfied.
3.He deposes that the respondent holds an account with the garnishee being account no. [particulars witheld] at the garnishee’s City Hall branch in Nairobi. The applicant believes that the money in that account is sufficient to satisfy the decretal sum.
4.The respondent did not respond to this application but the garnishee raised a preliminary objection to the hearing of the application on the grounds that the application for the execution of the decree is untenable in law because it is contrary to the provisions of Order 29 rule 2 of the Civil Procedure Rules which prohibit the issuance of execution of orders against the government except in accordance with the provisions of the Government Proceedings Act.
5.It is also pleaded on behalf of the garnishee that the respondent being a government within the provision of Article 6(2) of the Constitution, the execution proceedings are contrary to Order 29 rule 4 of the Civil Procedure Rules which expressly prohibits garnishee orders against the government. The proceedings are also against section 21 of the Government Proceedings Act. The garnishee has, therefore, asked this Honourable Court to strike out the applicant’s application because it is incompetent and an abuse of the process of Court.
6.The law on whether the Government can be subjected to process of execution is fairly clear. It is found in Section 21 the Government Proceedings Act, and in particular section 21(4) which prohibits execution process against Government. Subsection (4) reads as follows:21.(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.And if there be any doubt whether this provision applies to County Governments of which the respondent is one, subsection (5) removes such a doubt and states in clear terms that section 21 of the Act applies to County Government as much as it applies to the National Government. This subsection reads as follows:(5)This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.
7.Apart from section 21 of the Government Proceedings Act, Order 29 rule 2 also states expressly that no order can be made against the Government under order 22 rule 2 (2) (b) of the Civil Procedure Rules, in execution of decrees and orders. This particular provision reads:2.(2)No order against the Government may be made under—(a)....(b)Order 22 (Execution of decrees and orders);(c)....(d)....(e)....
8.It is apparent that, in his application, the applicant has invoked Order 22 of the Civil Procedure Rules yet execution of decrees and orders against the Government under this rule is clearly prohibited.
9.In view of the foregoing provisions, I need not say anything more except agree with the garnishee’s learned counsel that the applicant’s application is clearly contrary to the law. It is incompetent and an abuse of the due process of this Honorable Court. I hereby uphold the garnishee’s preliminary objection and strike out the applicant’s application. Considering that the decretal amount is yet to be settled, I will make no order as to costs. It is so ordered.