The Government Proceedings Act, Cap 40, governs civil legal actions to which the Government is a party. Sections 13A and 21 of the Act have come into sharp scrutiny in recent days in litigation before the High Court of Kenya. Under section 13A of the Act, any action against the Government can only be commenced by giving a 30-day notice to the Attorney General. It has been surmised that the purpose of the notice is for the Government to examine the claim and take any remedial or corrective measures before the suit is filed. On the other hand, section 21 immunises Government assets against attachment by a Claimant who prevails in court against the Government.
In the recent past, two conflicting decisions of the High Court on the import of this Act have served to create jurisprudential chaos surrounding this Act. This article will focus on section 21 of the Act.
ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation High Court Commercial Case No E411 of 2023
In ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation High Court Commercial Case No E411 of 2023, ABSA sought recovery of overpaid insurance premiums to the Kenya Deposit Insurance Corporation (KDIC). KDIC did not file its defence. ABSA sought a judgment in default of defence. KDIC applied to arrest the judgment in default. KDIC based its application on section 13A of the Government Proceedings Act, which requires a notice to the Attorney General before commencing a civil action against the Government. It also premised its application on Order 10 Rule 8 of the Civil Procedure Rules 2010 which provides that no judgement in default of appearance by the Government shall be entered without the leave of the court.
On 15th March 2024, Justice (Prof) Nixon Sifuna dismissed the application by KDIC, and in the same vein, pronounced sections 13A and 21 of the Act and Order 10 Rule 8 of the Civil Procedure Rules as unconstitutional as they impede access to justice by Claimants against the Government. While no submissions were made on section 21 by either party, Justice (Prof) Sifuna saw it apt to pronounce himself on it. As observed earlier, section 21 prohibits execution against the Government. However, section 22 allows the Government to execute against individuals who lose claims against it. Of course, this is discriminatory, which the court did not hesitate to point out. In paragraph 46 of his ruling, Justice (Prof) Sifuna observed:
‘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 suspended until otherwise vindicated by a higher court or resurrected by Parliament in a re-acted (sic) in a form compliant with this Constitution. This shall apply mutatis mutandis to Order 10 Rule 8 of the Civil Procedure Rules.’
Tom Ojienda & Associates v County of Nairobi and Cooperative Bank Environment and Land Court Application No E138 of 2021
Hot on the heels of Absa Bank Kenya PLC v KDIC, on 5th April 2024, came the ruling in Tom Ojienda and Associates v County of Nairobi and Cooperative Bank. In this case, the Applicant, a firm of advocates, sought to garnish an account of the County Government of Nairobi in Cooperative Bank.
The claim arose out of unpaid legal fees owed to the applicant. In its submissions, the applicant firm relied on, among authorities, the case of Absa Bank Kenya PLC v KDIC which held that section 21 of the Government Proceedings Act was unconstitutional. The Court was, however, unconvinced. It held that its sister court in Absa Bank Kenya PLC ‘did not declare section 21 of the Act unconstitutional.’ How does one square this with the order in paragraph 46 of the ruling in Absa Bank PLC, expressly declaring 21 as unconstitutional?
The Court in Tom Ojienda referred to an earlier decision of a two-judge bench of the High Court, Kisya Investments Ltd v Attorney General and R L Odupoy Nairobi High Court Civil Case 2832 of 1990, which held that section 21 of the Government Proceedings Act was constitutional. As such, the Court held that this was the only decision of a superior court addressing itself to the constitutionality of section 21 of the Government Proceedings Act. It is instructive, however, that this case was determined before the Constitution of Kenya, 2010 was enacted.
In Absa Bank Kenya PLC, the court brought to bear the import of the Constitution of Kenya, 2010, in paragraph 33:
‘I refuse to imagine that Kenya was unripe or unready for the ambitious reformative and transformative agenda of this Constitution. Now it is in force, its wind must blow through Kenya’s entire legal system, its law, every institution…, entire Government, and every sector of the Kenyan life.’
In paragraphs 35 and 36, the Court continued:
‘This Constitution unlike its predecessor, has introduced the values and principles that should govern us as a nation. For instance, transparency and accountability. Under these two values for instance, the entire Government, Government entities and Government officers should in performing their functions and legal obligations be transparent, accountable and open to scrutiny. Government like the citizenry should obey court orders, dutifully as well as promptly satisfy the decrees as passed by courts subject themselves uniform court processes, promote equality before the law (sic). This is the irreducible minimum.’
A High Court determination is not binding on another, but it must be treated with great deference to avoid jurisprudential chaos, where one court interprets the law differently from another court of even jurisdiction. In Tom Ojienda and Associates v County of Nairobi and Cooperative Bank, the Court held that a court should be slow to declare a statute’s provisions unconstitutional without hearing submissions by the Attorney General. This is a sound position to take, consistent with the right to be heard. It is equally instructive that the Court in Absa Bank Kenya PLC was rightly concerned with holding the Government to account.
Be that as it may, there are public policy reasons in protecting the Government from execution. The Government’s property is in effect, the public’s property. To the extent that the Government will start taking court judgments seriously, Justice (Prof) Sifuna’s determination is a welcome move. But it cannot go without noting that these two conflicting decisions make for jurisprudential chaos. Ultimately, this is a matter that Parliament must address as a matter of priority.
