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ELRCPartially AllowedNot stated in the judgment text

Cheboi & another v Board of Management Kamoi Secondary School (Employment and Labour Relations Cause 27 & 28 of 2018 (Consolidated)) [2023] KEELRC 893 (KLR)

Employment and Labour Relations Court
14 April 2023
5,225 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Following judgment delivered on 14 April 2021 and a money decree dated 26 January 2023 in favour of the claimant, execution commenced against a public school's property through Lister Auctioneers, prompting the Attorney General to move the court by notice of motion dated 8 February 2023 seeking leave to come on record post-judgment, stay of execution, setting aside of the attachment and proclamation, and a declaration that the execution proceedings were a nullity. The court framed two issues: whether the applicant Board of Management is a public entity subject to the Government Proceedings Act, and whether it is entitled to the reliefs sought. Weighing rival lines of authority, the court applied the instrumentality test from the Indian Supreme Court as adopted in Association of Retirement Benefits Schemes and endorsed in Greenstar Systems v KICC. It held the Board performs delegated functions of the Cabinet Secretary under section 53 of the Basic Education Act, is funded by monies provided by Parliament under section 83, and has as its accounting officer the head teacher, a Teachers Service Commission employee. The Board was therefore an agent of the Cabinet Secretary and a government institution for which the Government Proceedings Act applies. Since execution is unavailable against government, which requires the certificate procedure under section 21, the attachment and proclamation were set aside and quashed, the execution proceedings declared a nullity, and the warrants of attachment and sale lifted. The auctioneers' costs were to be borne by their client, and each party was ordered to bear its own costs of the application, the court noting the claimants remain entitled to the fruits of their judgment.

Questions the Court framed

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

  1. 1.Whether the Applicant/Respondent is a Public Entity Subject to the Government Proceedings Act
  2. 2.Whether the Applicant is entitled to reliefs sought

Key legal issues

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01

Whether the applicant Board of Management is a public entity subject to the Government Proceedings Act

Holding

Yes - it is an agent of the Cabinet Secretary exercising delegated functions and wholly government-funded, hence a government institution protected from execution.

Reasoning

The court applied the test from Association of Retirement Benefits Schemes (adopting the Indian Supreme Court's instrumentality criteria) as endorsed in Greenstar Systems v KICC. It found the applicant performs delegated functions of the Cabinet Secretary under section 53 of the Basic Education Act, is funded under section 83 by monies provided by Parliament, and its accounting officer is the head teacher appointed by the commission. No external financier or income source existed, and the attached items were the school's own furniture and computers, hence government property.

p. 10
02

Whether the execution proceedings against the applicant were proper

Holding

No - execution against government property in enforcement of a money decree is improper; the claimant must follow section 21 of the Government Proceedings Act.

Reasoning

Having determined the applicant is a government institution, section 21(1) of the Government Proceedings Act prescribes the certificate procedure for enforcing money decrees against government, and section 21(4) bars execution or attachment against government. The proclamation and attachment by Lister Auctioneers therefore had no legal basis and were declared a nullity, with warrants lifted and the attachment set aside.

p. 10

Legal principles established

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  • A Board of Management of a public school, acting as agent of the Cabinet Secretary under the Basic Education Act and funded by Parliament, is a government institution to which the Government Proceedings Act applies.
  • Execution proceedings are not available against the government; a money decree against the government is enforceable only through the certificate procedure under section 21 of the Government Proceedings Act.

Court orders

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  1. 1.The notice of attachment dated 01/02/2023 in execution of the money decree and the proclamation by Lister Auctioneers are set aside and quashed
  2. 2.The execution proceedings are declared a nullity and the warrants of attachment and sale are lifted
  3. 3.The auctioneer costs are to be borne by their client (the claimant)
  4. 4.Each party to bear its own 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
Article 159(2)(d) of the Constitution; proceedings to set aside execution of a decree issued by this court

Relief refused

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Costs of the application against the claimant

The court held the claimants are entitled to the fruits of their judgment which is yet to be settled, and in the interest of justice made no order on costs

p. 10

Costs

Each party to bear own costs of the application; auctioneers' costs to be borne by their client (the claimant).

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.

In the upshot the application dated 8th February 2023 is held as merited and allowed as follows:
p. 10disposition
The court hereby sets aside and quashes the notice of attachment dated 01/02/2023 in execution of money decree and the proclamation by Lister Auctioneers attaching property belonging to the applicant herein. The execution proceedings are declared a nullity and the warrants of attachment and sale are hereby lifted.
p. 10final orders - setting aside execution
the applicant is a agent of the Cabinet Secretary of the Ministry of Education hence a government institution for which the Government Proceedings Act properly applies.
p. 10status of Board of Management
Government property cannot be attached in enforcement of money decree.
p. 10immunity from execution

Issues in the judgment

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minor

The judgment refers to section 83 of the Basic Education Act when quoting the financing provision earlier cited as section 86

minor

The preamble to the Government Proceedings Act is mislabeled 'Government Proceedings Education Act'

minor

Citation of Board Management Pumwani Girls Secondary School case is given as '2109 e KLR', an apparent typographical error

minor

The court notes it could not locate the Kimoi Ruto authority as supplied and instead relied on the passage as cited in Ngayau Mutia

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cheboi & another v Board of Management Kamoi Secondary School (Employment and Labour Relations Cause 27 & 28 of 2018 (Consolidated)) [2023] KEELRC 893 (KLR)", Case Analysis (2023). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/893/eng@2023-04-14

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