Reaping the fruits of judgment Against Kenyan Government: What are Kenyan Courts Saying?
In the realm of legal proceedings that involve government, two recent court decisions have sparked discussions on obtain payments after a judgement against the government. The cases of Miscellaneous Application E138 of 2021; Tom Ojienda & Associates v Nairobi City County and Cooperative Bank of Kenya and HCCC E411 of 2023: Absa Bank Kenya PLC v Kenya Deposit Insurance Corporation, offer contrasting viewpoints on the extent to which government bodies are shielded from execution.
In his ruling delivered on 5 April 2024 in Miscellaneous Application E138 of 2021, Justice Mboya reaffirmed the longstanding position that no execution or attachment process can be issued against the government. To support his findings, the judge cited Section 21(4) of the Government Proceedings Act and Order 29 Rule 4 of the Civil Procedure Rules.
Justice Mboya's decision emphasised the importance of upholding the rule of law, particularly in matters concerning the government. By declining to grant an ex parte order nisi for garnishee proceedings against Nairobi City County, the court in my view was saying that litigants cannot be treated equally where the government is involved; and there is statutory provisions backing the viewpoint.
On the other hand, the High Court decision in HCCC E411 of 2023 which was rendered on 15 March 2024 represents a significant departure from the well-established position that a successful litigant cannot attach government properties in execution of a decree. In a landmark judgment, Justice Prof. N Sifuna declared sections 13A and 21 of the Government Proceedings Act unconstitutional.
Some of the people in Kenya who have been unable to reap fruits of judgment due to impediment placed by the aforesaid provisions have celebrated the decision by Justice Sifuna. The decision emphasized the principle of equality before the law, arguing that all litigants should have equal standing before the court, without preferential treatment for the government.
The decision in in HCCC E411 of 2023 challenges the notion of immunity enjoyed by government entities in legal proceedings. Litigants with judgment against state can now find a reason to be happy. By striking down provisions that hindered the execution of judgments against the government entitles, the court sought to uphold the principle of equality of arms and ensure that rules of procedure apply equally to all parties including the government agencies or bodies. The judgment has been hailed by some Kenyans as a victory for fairness, impartiality and justice especially where government is involved.
It is important to note that both decisions emanate from the High Court. Therefore, unless the court of appeal gives a proper clarification, a successful litigant against the government will be left at the mercies of a judge who will decide which school of thought to embrace.