Dembena International Limited v National Land Commission; National Bank of Kenya (Garnishee) (Enviromental and Land Originating Summons E005 of 2023) [2025] KEELC 4396 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Decree Holder complied with the required statutory procedure under Section 21 of the Government Proceedings Act and Order 29 Rule 2(2)(c) of the Civil Procedure Rules before initiating contempt proceedings
- 2.Whether the Garnishee Order Nisi should be set aside or Garnishee Order Absolute issued
Key legal issues
#Whether contempt proceedings against NLC officers were premature for non-compliance with Section 21 of the Government Proceedings Act and Order 29 Rule 2(2)(c) of the Civil Procedure Rules
Yes - contempt proceedings were premature as the Decree holder had not exhausted the statutory execution procedure
The court noted the NLC is a government entity under Article 260 of the Constitution. Section 21 prescribes the exclusive mode of executing decrees against government: certificate of order, service on the Attorney-General, payment by the Accounting Officer. Since the Decree holder did not dispute non-adherence to that procedure, contempt could not yet lie; willful disobedience could not be established where the statutory route to mandamus had not been followed.
Whether the Garnishee Order Nisi issued on 7th November 2024 should be set aside
Yes - the Order Nisi was incompetent, null and void because garnishee proceedings do not apply in execution against the Government
Relying on Section 21(4) of the Government Proceedings Act, Five Star Agencies (Court of Appeal) and Tom Ojienda & Associates v Nairobi City County, the court held that Order 23 of the Civil Procedure Rules does not apply to execution against State organs. The rationale of protecting public coffers applied even where the NLC held funds for project affected persons; the funds still emanate from public sources. The Order Nisi was therefore set aside and the Garnishee released.
Legal principles established
#- No execution or attachment, including garnishee proceedings, may issue against the Government except in strict compliance with Section 21 of the Government Proceedings Act
- Contempt proceedings against government officers cannot be initiated before the Section 21 procedure (certificate of order, mandamus) is exhausted
Court orders
#- 1.The Decree holder's Notice of Motion dated 5th November 2024 (garnishee order absolute) is disallowed/dismissed
- 2.The Decree holder's Notice of Motion dated 13th November 2024 (contempt citations) is disallowed/dismissed
- 3.The Judgement debtor's Notice of Motion dated 15th November 2024 is allowed
- 4.The Garnishee Order Nisi issued on 7th November 2024 is set aside as incompetent, null and void, and the Garnishee is released
- 5.Each party to bear their own costs of the three applications
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over execution/contempt applications arising from its own decree, including the garnishee applications and the application to set aside the Order Nisi
Relief refused
#Garnishee order nisi made absolute against NLC's accounts at National Bank of Kenya
Garnishee proceedings against a government entity are premature and incompetent absent compliance with Section 21 of the Government Proceedings Act
Citation of NLC and its officers (Kabale Tache Arero, Gershom Otachi, Ben Cherutich) for contempt
The statutory execution procedure under Section 21 of the Government Proceedings Act had not been exhausted, making contempt proceedings premature
Costs
Each party do bear their own costs of the three applications
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I opine that the Garnishee Order Nisi issued on 7th November, 2024 was hence incompetent, null and void and should set aside. I hence proceed to set aside the Garnishee Order Nisi issued on 7th November, 2024 and release the Garnishee.
I find the Decree holder's two Notice of Motion applications dated the 5th November, 2024 and 13th November, 2024 unmerited and will disallow them. I however find the Judgement debtor's Notice of Motion application dated the 15th November, 2024 merited and will allow it.
I direct that each party do bear their own costs of the three applications.
it follows therefore that the garnishee proceedings instituted by Five Star through the notice of motion dated 20th January 2023 and brought under the provisions of Order 23 Rule 1, 2, and 3 of the Civil Procedure Rules, 2010 were incompetent, bad in law and unsustainable
Issues in the judgment
#Discrepancy in the decretal sum quoted in the garnishee application - supporting affidavit refers to ksh.924,400,095.12 while the Notice of Motion seeks ksh.929,400,095.12
Discrepancy in the decree issuance date - 11th October 2024 in the application, 2nd October 2024 in the judgement debtor's affidavit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dembena International Limited v National Land Commission; National Bank of Kenya (Garnishee) (Enviromental and Land Originating Summons E005 of 2023) [2025] KEELC 4396 (KLR)", Case Analysis (2025). Not stated in the ruling (three Notices of Motion dated 5th November 2024, 13th November 2024 and 15th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4396/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.