Stephen Mwallyo Mbondo v County Government of Kilifi [2021] KEELRC 42 (KLR)
The bottom line
#A Kenyan court confirmed you cannot seize government property to enforce a judgment, but an advocate must be heard before being made to pay costs personally.
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 trial court erred in lifting the impugned execution against the Respondent
- 2.Whether the trial magistrate, in setting aside the ex-parte judgment, exercised her discretion capriciously
- 3.Whether the trial court acted with bias against the Appellant and his Advocates on record
- 4.Whether the trial court erred in condemning the Appellant's Advocates to pay the costs of the auctioneers for the nullified execution
- 5.Whether the Appellant is entitled to the orders sought in the Appeal
Key legal issues
#Lawfulness of execution by attachment against a government body
The trial court was correct: section 21 of the Government Proceedings Act forbids enforcement of decrees against government and county governments by attachment of assets, and the procedure must be strictly followed
The Respondent is a government body, so attachment of its assets to satisfy a decree is impermissible. Section 21 GPA provides the sole mode of execution against government and applies to county governments with modifications. The rationale is to shield agencies from being incapacitated by attachments, since only budgeted funds can lawfully be paid. Article 159 does not permit disregarding clear statutory procedure, especially where the opponent would be prejudiced.
Whether the setting aside of the ex-parte judgment was a capricious exercise of discretion
No - the magistrate considered the presence of a triable issue (the disputed Ksh. 508,000 claim), absence of prejudice (curable by costs), and limited delay; the discretion was properly exercised
The tests are whether there is a defence on the merits, whether there would be prejudice, and whether there is an explanation for delay. The disputed claim of Ksh. 508,000 raised a triable issue; a triable issue need not ultimately succeed. Prejudice could be cured by costs, which were awarded, and the suit was barely a year old. The appellate court will not disturb such a discretionary decision absent misdirection.
Whether the trial court was biased against the Appellant and his advocates
No bias was established; the court considered the Appellant's evidence on the proclamation and had power under section 27 of the Civil Procedure Act to give directions on costs, including auctioneers' costs, without the issue being pleaded
The court had dismissed the Respondent's claim of non-compliance with the Auctioneers Rules based on the Appellant's own evidence, showing consideration of his case. Section 27 of the Civil Procedure Act vests wide discretion over costs incidental to a suit, including auctioneers' costs, and section 7 of the Auctioneers Rules does not cover a case where the judgment has been set aside and no debtor/creditor relationship exists.
Whether the advocates could be condemned to pay the auctioneers' costs personally without a hearing
The trial court erred: before making a wasted costs order the advocate must be heard; the order condemning the advocates to pay the auctioneer's costs was set aside
Although the court had power to deal with costs summarily without pleading, natural justice required that counsel be heard first before a personal costs order. Counsel might have shown that it was the court, not the advocate, that granted the irregular warrant. Auctioneers are officers and agents of the court, so the trial court's assertion that the advocates appointed them was inaccurate. The auctioneer may apply for determination of who bears his costs; the Respondent is not liable as victim of an irregular attachment.
Legal principles established
#- Decrees against government and county governments cannot be enforced by attachment of assets; the procedure in section 21 of the Government Proceedings Act must be strictly followed
- Article 159 of the Constitution is not a licence to disregard clear statutory procedure
- An appellate court will not interfere with a trial court's exercise of discretion unless it misdirected itself or was clearly wrong
- An advocate is entitled to be heard before being condemned to pay costs personally (wasted costs)
- Auctioneers executing decrees are agents of the court, not of the decree holder's advocates
Court orders
#- 1.The appeal succeeds only in part: the execution against the Respondent was unlawful and the trial court's lifting of the attachment and setting aside of the ex-parte judgment are affirmed
- 2.The order that the Appellant's advocate pays the costs of the auctioneer is set aside; the auctioneer may move the court for a determination on whether his costs are payable and by whom
- 3.The trial court's finding that the Respondent is not liable to settle the auctioneer's costs is upheld
- 4.Each party to bear his/its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- The trial court (ELRC subordinate registry, magistrate's court)
- Not stated
- Jurisdiction invoked
- First appeal from the trial court's ruling of 13th August 2020 (appeal jurisdiction not expressly cited in the judgment)
Relief refused
#The grounds of appeal challenging the trial court's lifting of the execution and setting aside of the ex-parte judgment
The trial court correctly applied section 21 of the Government Proceedings Act and did not exercise its discretion capriciously
Grounds of appeal founded on alleged bias of the trial magistrate
No evidence of bias was established
Costs
As both parties have partially succeeded in this appeal, each party bears his/its own costs
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 procedure clearly forbids enforcement of decrees against government (including county governments) through attachment of assets.
This provision is not a license for the court to overlook every procedural rule in the book in pursuit of substantive justice.
A defense that raises a triable issue is not one that must ultimately succeed. Rather, it is one that raises a matter that is deserving of further interrogation at a full trial.
Suffice to add that before the order is made, the Advocate in question is entitled to be heard in rebuttal.
auctioneers, while executing decrees of the courts, are indeed agents of the Court.
As both parties have partially succeeded in this appeal, I shall order that each party bears his/its own costs.
Accordingly, the auctioneer may move the court for a determination regarding whether his costs are payable and by whom.
Issues in the judgment
#The judgment is titled an appeal yet refers to the Appellant as having claimed pending allowances from the Respondent, blurring the parties' underlying roles; also the case number and court station are not stated
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mudavadi (Suing as the Administrator of the Estate of Rosebella Jerono Mudavadi - Deceased) & 7 others v Kariuki (Sued as Administrator of the Estate of David Kariuki Waiganjo - Deceased) & 3 others (Environment and Land Case 140 of 2019) [2025] KEELC 5891 (KLR)[2025] KEELC 5891 (KLR)6 Aug 2025
- Nkaduda v County Assembly of Tana River & 4 others (Petition 6 of 2021) [2025] KEELRC 1244 (KLR)[2025] KEELRC 1244 (KLR)5 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Stephen Mwallyo Mbondo v County Government of Kilifi [2021] KEELRC 42 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/42/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.