Ngoingwa Company Limited v National Land Commission & another (Environment and Land Petition 8 of 2019) [2026] KEELC 3043 (KLR)
The bottom line
#The court blocked the garnishee but ordered the National Land Commission to pay Kshs. 416,112 within 60 days from other funds.
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 Government Proceedings Act, Cap 40, and specifically Section 21(4) thereof, applies to the National Land Commission so as to shield it from Garnishee proceedings
- 2.Whether Account Number 0XXXXXXXXXXX00 held at National Bank of Kenya, Hill Plaza Branch, is a special compensation account not amenable to attachment by way of Garnishee proceedings
- 3.Whether the Judgment Debtor's application dated 29/04/2025 seeking a temporary stay and review of the Garnishee Order Nisi issued on 25/04/2025 is merited
- 4.What orders ought to issue in respect of the two applications
Key legal issues
#Whether Section 21(4) of the Government Proceedings Act shields the National Land Commission from garnishee proceedings
It does not; Section 21 was declared unconstitutional and inoperative in ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation and no party can invoke it
The Court acknowledged tension between the Court of Appeal decision in Five Star Agencies (which assumed Section 21 was valid) and the High Court decision in ABSA Bank which confronted and invalidated Section 21. Relying on Article 2(4) of the Constitution and the Court of Appeal in National Assembly v Okoiti, the Court held invalidation is immediate and effective unless reversed on appeal. The declaration remains unchallenged and Parliament has not reinstated the provisions, so the Judgment Debtor cannot rely on Section 21 as a shield.
Whether the subject account is a special compensation account not amenable to attachment
Yes; the account is a special compensation account under Sections 115(2), 111(1) and 111(1A) of the Land Act and protected by Section 26A of the National Land Commission Act, and the funds are trust monies not available for attachment
Both the Judgment Debtor and the Garnishee deponed that the funds are received from government acquiring agencies and held in trust for project-affected persons. Under Order 23 Rule 1, only debts due from the garnishee to the judgment debtor may be attached; trust monies held for a designated statutory purpose are not such debts, and their attachment would prejudice innocent third parties. Section 26A of the National Land Commission Act expressly prohibits garnishee or charging orders against the Commission's bank accounts. Sewe J's decision in Tom Ojienda & Associates v NLC fortifies this position.
Whether the Judgment Debtor's application for stay and review of the Garnishee Order Nisi is merited
The stay under Order 22 Rule 25 is misconceived as no suit is pending, but the review succeeds to the extent that the order nisi against the protected account cannot be sustained; the Commission is nonetheless directed to pay the decretal sum within 60 days
Order 22 Rule 25 applies only where a suit is pending against the decree-holder, which is not the case here; the judgment of 15/04/2021 remains undisturbed. However, the Court retains inherent discretion to set aside its own orders, and given the finding that the account is statutorily protected, leaving the order nisi in place would serve no useful purpose and disrupt compensation payments. The Court nonetheless censured the Judgment Debtor for admitting the debt while deploying procedural objections to frustrate enforcement, and directed payment within 60 days.
Legal principles established
#- An unconstitutional law ceases to have legal effect immediately upon declaration of invalidity, and no party can seek refuge in its provisions
- For a garnishee order to issue, the monies sought to be attached must be debts due or accruing due from the garnishee to the judgment debtor; trust monies held for a statutory purpose are not attachable
- A successful litigant is entitled to the fruits of their judgment
Court orders
#- 1.The Garnishee Order Nisi issued on 25/04/2025 against Account Number 0XXXXXXXXXXX00 held at National Bank of Kenya, Hill Plaza Branch, is hereby set aside
- 2.The Garnishee application dated 2/04/2025 is dismissed to the extent that it seeks attachment of Account Number 0XXXXXXXXXXX00, being a special compensation account protected by Section 26A of the National Land Commission Act and Sections 115(2), 111(1) and 111(1A) of the Land Act
- 3.The National Land Commission is directed to satisfy the decretal sum of Kshs. 416,112.40 due to the Decree Holder pursuant to the Certificate of Taxation dated 19/07/2022 within sixty (60) days from the date of the Ruling, by payment from such other funds as may be available to the Commission
- 4.In the event of failure to satisfy the decretal sum within the stipulated period, the Decree Holder shall be at liberty to institute such further enforcement proceedings as are available in law, including Judicial Review proceedings by way of an application for an order of mandamus compelling the relevant officer of the Commission to effect payment
- 5.The Judgment Debtor's application dated 29/04/2025 is allowed only to the extent of Order 1 above and is otherwise dismissed
- 6.The costs of both applications shall be borne by the Judgment Debtor, the National Land Commission
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 23 Rule 1 & 2, Order 22 Rule 25 and Order 51 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act
Relief refused
#Garnishee Order Absolute attaching the funds in Account Number 0XXXXXXXXXXX00 at National Bank of Kenya
The account is a special compensation account under the Land Act holding trust monies for project-affected persons and is protected by Section 26A of the National Land Commission Act
Temporary stay of execution under Order 22 Rule 25 of the Civil Procedure Rules
The provision applies only where a suit is pending against the decree-holder, and no such suit exists
Costs
The costs of both applications shall be borne by the Judgment Debtor, the National Land Commission.
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.
The Garnishee Order Nisi issued on 25/04/2025 against Account Number 0XXXXXXXXXXX00 held at National Bank of Kenya, Hill Plaza Branch, is hereby set aside.
this Court hereby directs the National Land Commission to satisfy the decretal sum of Kenya Shillings Four Hundred and Sixteen Thousand One Hundred and Twelve and Forty Cents (Kshs. 416,112.40) due to the Decree Holder pursuant to the Certificate of Taxation dated 19/07/2022, within sixty (60) days from the date of this Ruling
the costs of both applications shall be borne by the Judgment Debtor, the National Land Commission.
once Section 21 of the Government Proceedings Act was declared unconstitutional by a Court of competent jurisdiction, it ceased to have legal efiect and no party can seek refuge in its provisions
the funds in the subject account do not belong to the Commission but are received from government acquiring agencies and held in trust for project-afiected persons awaiting compensation, those funds cannot properly be characterised as debts due to the Judgment Debtor
the ordinary principle is that a successful party is entitled to the fruits of his Judgment or of any decision of the Court giving him success at any stage
Issues in the judgment
#The ruling is stated to have been delivered on 18 May 2026, yet it recites filings and submissions dated 27/10/2025 and 10/11/2025, and the applicant's replying Grounds of Opposition are dated 27/10/2025 against an application filed 29/04/2025 - the chronology is internally consistent but the delivery date is unusually far after submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngoingwa Company Limited v National Land Commission & another (Environment and Land Petition 8 of 2019) [2026] KEELC 3043 (KLR)", Case Analysis (2026). Thika ELC Petition No. 8 of 2019 (Garnishee Proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3043/eng@2026-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.