Cheboi & another v Board of Management Kamoi Secondary School (Employment and Labour Relations Cause 27 & 28 of 2018 (Consolidated)) [2023] KEELRC 893 (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 Applicant/Respondent is a Public Entity Subject to the Government Proceedings Act
- 2.Whether the Applicant is entitled to reliefs sought
Key legal issues
#Whether the applicant Board of Management is a public entity subject to the Government Proceedings Act
Yes - it is an agent of the Cabinet Secretary exercising delegated functions and wholly government-funded, hence a government institution protected from execution.
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.
Whether the execution proceedings against the applicant were proper
No - execution against government property in enforcement of a money decree is improper; the claimant must follow section 21 of the Government Proceedings Act.
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.
Legal principles established
#- 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
#- 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.The execution proceedings are declared a nullity and the warrants of attachment and sale are lifted
- 3.The auctioneer costs are to be borne by their client (the claimant)
- 4.Each party to bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Each party to bear own costs of the application; auctioneers' costs to be borne by their client (the claimant).
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.
In the upshot the application dated 8th February 2023 is held as merited and allowed as follows:
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.
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.
Government property cannot be attached in enforcement of money decree.
Issues in the judgment
#The judgment refers to section 83 of the Basic Education Act when quoting the financing provision earlier cited as section 86
The preamble to the Government Proceedings Act is mislabeled 'Government Proceedings Education Act'
Citation of Board Management Pumwani Girls Secondary School case is given as '2109 e KLR', an apparent typographical error
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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wasike v BOM the Salvation Army Kabuchai Girls & another (Civil Suit E177 of 2025) [2025] KEMC 411 (KLR)[2025] KEMC 411 (KLR)25 Nov 2025
Cite this brief
#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.