Recently, the High Court in Milimani Commercial Case No. E411 of 2023 Absa Bank Kenya PLC Versus Kenya Deposit Insurance Corporation cast doubt on the legality and constitutionality of sections 13A and 21 of the Government Proceedings Act (Cap 40), which have traditionally required a litigant wishing to file suit against government or a government agency (including parastatals) to issue a 30 days’ notice before initiating such proceedings and protects Government from execution/attachment by a party.
In this case, the applicant had moved the court for a declaration that sections 13A and 21 of the Government Proceedings Act are discriminatory to the extent that they confer preferential treatment on Government as a party in litigation, to the detriment of its citizens who are not accorded the same privilege. The applicant further pointed out that section 22 of the Government Proceedings Act allows government to seek default judgement and execute against its citizens without the impediment of having to notify them beforehand, or seek leave of the court to do so, yet the same benefit is not accorded to citizen litigants.
In its holding, the High Court (Justice Prof Sifuna) expressed the view that the Government Proceedings Act was a colonial relic whose usefulness had been outlived. At paragraph 46 of the said Ruling, the Court delivered itself thus:
“To the extent that they offend the letter and spirit of the constitution, sections 13A and 21 of the Government Proceedings Act are hereby declared unconstitutional. They shall henceforth remain suspend inoperative until otherwise vindicated by a higher court or resurrected by parliament in a re-acted form compliant with this constitution. The same shall apply muttais mutandis to order 10 rule 8 of the civil procedure Rules”
The import of the Absa Bank ruling is that one does not require certification or leave of the court to apply for interlocutory judgment against the Government.
However, it is noteworthy that Order 29 Rule 2 of the Civil Procedure Rules 2010 is still intact and has not been declared unconstitutional. The said Order provides that no order may be made against Government under (a) Order 14, rule 4 (Impounding of documents); (b) Order 22 (Execution of decrees and orders); (c) Order 23 (Attachment of debts); (d) Order 40 (Injunctions); and (e) Order 41 (Appointment of receiver).
Therefore, inasmuch as one may obtain an interlocutory judgment, they are still barred from executing such decree or order as against the Government (including state organs, parastatals and county governments). Until this law which specifically deals with proceedings against the Government is repealed or declared unconstitutional, it will continue to bind all persons in any proceedings involving government as a party in litigation.
Interestingly, on 5th April 2024, the Environment and Land Court (Justice Oguttu Mboya) in Tom Ojienda & Associates v Nairobi City County; Cooperative Bank of Kenya (Garnishee) (Miscellaneous Application E138 of 2021) [2024] KEELC 1662 (KLR) took a different stance holding that the High Court in Absa Bank PLC v KDIC only expressed doubts and reservations with the provisions of the Act but did not proceed to declare the said provisions as unconstitutional. Accordingly, the provisions are in full force.
The High Court previously dealt with this issue in Kisya Investments Ltd v Attorney General & Another (2005) eKLR where it declined to declare section 21 of the Government Proceedings Act unconstitutional holding that to do so would be against public interest as persons would be at liberty to execute against Government thereby impeding the activities of Government in running the affairs of a country.
Conclusion
It would appear that the two superior courts had a different verdict on the same issue. Importantly however, it is notable that a prayer for declaration of unconstitutionality within the meaning of article 2(4) of the Constitution 2010 had not been expressly made by a party in the Absa Bank Kenya PLC v KDIC case above. The Court raised the issue and determined it on its motion (suo moto), arguably a misadventure in Kenya’s adversarial legal system. It is hoped that more clarity on the issue will be provided on appeal.
