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ELCAllowedEnvironment & Land Case 125 of 2016

Gichina (Suing as the administrator of the Estate of the Late Joseph Gichina Muhoro) v County Government of West Pokot (Environment & Land Case 125 of 2016) [2024] KEELC 7104 (KLR)

Environment and Land Court
24 October 2024
7,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenyan courts have confirmed you cannot seize a county government's property to settle a debt; the only lawful route is a mandamus application.

What this practically means

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Executive summary

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The County Government of West Pokot, the judgment debtor, applied by notice of motion dated 20th December 2023 to lift, set aside and/or annul warrants of attachment dated 15th December 2023 and a proclamation of attachment by FEMFA Auctioneers dated 19th December 2023, executed in satisfaction of a taxed monetary decree of about Kenya Shillings 4,348,300 arising from a judgment delivered on 22nd September 2022. The applicant argued that execution against a county government is governed and restricted by Section 21 of the Government Proceedings Act as amended by Act No. 35 of 2015 and by Order 29 Rule 2(2)(b) of the Civil Procedure Rules, and that the proper remedy for a decree holder is an order of mandamus in judicial review. The plaintiff opposed, contending that a county government is a body corporate with perpetual succession, distinct from the national government, and therefore outside the Government Proceedings Act. The court had already disposed of the Order 9 Rule 9 issue in a ruling of 12th February 2024 and declined to revisit it. Applying purposive constitutional interpretation under Article 259 and reading Articles 1(4), 6, 176, 189, 217, 218 and 253 together, Nyagaka J held that county governments are government at the county level, that the reference to 'body corporate' in the County Governments Act is a matter of legislative convenience, and that Section 21 of the Government Proceedings Act applies to them. Execution by attachment against a county government was held unlawful. The court allowed the application in its entirety, declared the warrants and proclamation null and void, set them aside, and ordered the plaintiff to bear the auctioneers' charges and the costs of the application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the mode of execution is lawful insofar as the same is against the County Government
  2. 2.Whether the application violated Order 9 Rule 9 of the Civil Procedure Rules (already decided in the ruling of 12th February 2024, not reconsidered)
  3. 3.Who should bear the costs of the application and the auctioneers' charges

Key legal issues

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01

Whether a County Government falls within the Government Proceedings Act so that attachment of its property in execution of a decree is prohibited

Holding

Yes - a county government is government at the county level, and Section 21 of the Government Proceedings Act as amended applies to it; conventional execution under Order 22 is unavailable.

Reasoning

The court applied purposive constitutional interpretation under Article 259, reading Articles 1(4), 6, 176, 189, 217 and 253 together to conclude that county governments are a level of government and not incorporated business entities. Parliament amended Section 21 of the Government Proceedings Act in 2015 expressly to cover county governments, placing their execution outside Order 22 of the Civil Procedure Rules.

p. 6
02

Whether the reference to a County Government as a 'body corporate with perpetual succession' under Section 6(1) of the County Governments Act removes it from being government

Holding

No - the reference is a matter of legislative convenience for perpetuity and capacity to sue and be sued; the entity remains government.

Reasoning

The court compared Article 253, which expressly designates commissions and independent offices as bodies corporate, with Article 176(1), which does not so designate county governments. It held that attributing a commercial-corporate meaning would produce the absurdity of treating a level of government as a private entity, contrary to the framers' intention that counties exercise sovereign power at the county level.

p. 14
03

Whether the court should revisit the Order 9 Rule 9 issue

Holding

No - that issue was decided in the ruling of 12th February 2024 and was not disturbed.

Reasoning

The court invoked its own earlier ruling, which had found that the County Attorney had not taken over representation from M/S Kidiavai and Company Advocates, so no Order 9 Rule 9 application was required. That finding had neither been set aside nor reviewed, so the court declined to make a further finding on it.

p. 5

Legal principles established

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  • No execution may be levied against the property of a county government in settlement of a decree in a civil case; the lawful remedy is judicial review by way of an order of mandamus.
  • County governments are part of government, and the execution procedure under Section 21 of the Government Proceedings Act, as amended by Act No. 35 of 2015, applies to them.
  • No order against the Government may be made in execution of decrees under Order 22 of the Civil Procedure Rules.

Court orders

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  1. 1.The Warrants of Attachment dated 15th December 2023 and the Proclamation dated 19th December 2023 are declared null and void and contrary to the law
  2. 2.The Warrants of Attachment and Proclamation are set aside
  3. 3.The Plaintiff shall bear the auctioneers' charges
  4. 4.The Plaintiff shall bear the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 22 Rule 22, Order 29 Rule 29(2)(b) and Order 53 Rules 1 and 2 of the Civil Procedure Rules; Section 21 of the Government Proceedings Act; Articles 1, 2, 10, 159, 174, 175, 176(1), 177(1), 185 and Chapter 6 of the Constitution of Kenya, 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This Court finds that the application is merited. It is allowed in its entirety. The Warrants of Attachment dated 15th December, 2023 and the Proclamation dated 19th December, 2023 are declared null and void and contrary to the law. They are set aside. The Plaintifi shall bear the auctioneers’ charges. He shall also bear the costs of this Application.
p. 14Final orders - setting aside of warrants and proclamation against a county government
In my humble view, the provisions above are clear that execution against government made can only be made pursuant to the provisions of the government Proceedings Act, Chapter 40 of the Laws of Kenya.
p. 6Exclusive execution procedure against government
the entities in Kenya known as county governments are part of government and the procedure laid down in the Government Proceedings Act applies to them.
p. 12County governments are government for purposes of the Government Proceedings Act
no execution against the property of the government or County Government in settlement of a civil decree may be levied, but rather that the execution ought to be by way of an application for judicial review for an order of mandamus.
p. 7Mandamus as the proper remedy for a decree holder against a county government

Issues in the judgment

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minor

Date of judgment appears inconsistently stated - the body says judgment was delivered on 22nd September 22 while the plaintiff's affidavit narrative refers to a judgment delivered 'over 15 months before the application' (application dated 20th December 2023)

minor

Typographical contradiction in the applicant's grounds describing the warrants as 'illegal and lawful and untenable'

minor

Respondent's authorities cited without proper citations, marked '(sic)' in the judgment, and cannot be verified from the judgment text alone

minor

Warrants issuance date stated as 15th December 2023 in the grounds but 13th December 2023 in the court's recital of the record

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gichina (Suing as the administrator of the Estate of the Late Joseph Gichina Muhoro) v County Government of West Pokot (Environment & Land Case 125 of 2016) [2024] KEELC 7104 (KLR)", Case Analysis (2024). Environment & Land Case 125 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7104/eng@2024-10-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.