https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6896

Atlas Plumbers & Builders (K) Limited v Civicon Limited & another; National Land Commission (Garnishee) (Civil Case E262 of 2023) [2026] KEHC 6896 (KLR) (Commercial and Tax) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6896 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case E262 of 2023 F Gikonyo, J May 14, 2026 Between Atlas Plumbers & Builders (K) Limited Decree holder and Civicon Limited Judgment debtor and National Land Commission Garnishee and National Land Commission Garnishee Ruling Garnishee order absolute 1.The decree holder filed the motions on notice dated 16.5.2025 and 15.9.2025 seeking the issuance of a garnishee order nisi and a garnishee order absolute against the garnishee, the National Land Commission (NLC). 2.The nature of the orders sought in the motion of 15.9.2025 is to direct the NLC to release the decretal sums and interest accrued thereon from the compensation sum in respect of the compulsory acquisition of Title No. CR 32008, Plot No. 1883/V/MN. 3.The major grounds are that:-1.On 14.5.2024, judgment was entered in favour of the decree holder for: -i.Kshs. 24,837,699.63 plusii.Interest accruing on Kshs. 20,288,975.63 from October 2018, on Kshs. 4,548,724 from December 2018 andiii.Costs of Kshs. 407,278.83.2.The only known property of the defendant/judgment is Title No. CR. 32008, Plot No. 1883/V/MN.3.The garnishee is in the process of compulsorily acquiring the said property as per the Gazette Notice dated 13.9.2024 on behalf of Kenya National Highways Authority.4.Unless the court grants the orders sought, the decree holder stands to be prejudiced as the compensation sum would be released to the judgment debtor and the decree holder does not know of any other assets owned by it.5.the Court has power to grant the Garnishee Order under Order 23 Rule 1 of the Civil Procedure Rules. 4.The applications are supported by the affidavits sworn by the decree holder’s director, Harish Bhanderi on 16.6.2025 and 15.9.2025. 5.The decree holder exhibited: -1.Copy of the Title Deed to the subject property.2.Gazette notice of 13.9.2024 of the intention to acquire the subject property.3.Certificate of Postal Search dated 10.3.2025 showing that the judgment debtor is the registered owner of the subject property. Notice to Show Cause 6.The court granted the order nisi on 18.6.2025 and directed the NLC to appear in court on 23.9.2025 to show cause why the sums should not be paid towards satisfaction of the decree. 7.On 23.9.2025, Ms. Kemunto for the NLC confirmed that the subject property was for compulsory acquisition. It indicated that the valuation had already been done and an award made for compensation paid out. No responses 8.The record shows that both the judgment debtor and the NLC were served with the application. Despite this, they did not file any responses. Analysis and Determination 9.The issue for determination is whether the applications are merited. 10.Order 29 Rule 2 (2) of the Rules provides: -“(2)No order against the Government may be made 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).” 11.Section 21 (4) of the Government Proceedings Act provides: -“Save as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any money or costs, and no person shall be individually liable under any order for the payment by the Government or any Government department, or any officer of the Government as such, of any money or costs.” 12.In SCAO No. E001 of 2024 Advisory-Opinion-Application-by-the-National-Land-Commission the Supreme Court acknowledged that government under the Government Proceedings Act includes constitutional commissions such as the National Land Commission, the garnishee herein. 13.The Advisory Opinion concerned whether execution against the NLC could proceed by way of garnishee proceedings contemplated under Order 23 rule 1 of the Civil Procedure Rules. 14.The Supreme Court declined to exercise its jurisdiction to render an advisory opinion as the subject matter was related and pertinent to the issues before the Court of Appeal in Five Star Agencies Limited & another v National Land Commission & 2 others (Civil Appeal E290 & 328 of 2023 (Consolidated)) [2024] KECA 439 (KLR) (12 April 2024) (Judgment) 15.In the Five Star Case [supra], the Court of Appeal held that: -“….the garnishee proceedings instituted by Five Star through the notice of motion dated 20th January 2023 and brought under the provisions of Order 23 Rule 1, 2, and 3 of the Civil Procedure Rules, 2010 were incompetent, bad in law and unsustainable as provisions of Order 23 Rule 1, 2, and 3 of the Civil Procedure Rules, 2010 do not apply in execution against the Government and/or State organs. Five Star ought to have commenced execution proceedings against the NLC in strict adherence with the provisions of section 21 of the Government Proceedings Act.” 16.Therefore, guided by the above, I find that the motions which is premised on Order 23 Rule 1 offend Order 29 Rule 2 (2) of the Rules and Section 21 (4) of the Government Proceedings Act. Disposal 17.In the upshot, the motions dated 16.5.2025 and 15.9.2025 are dismissed. No orders as to costs as there were no responses filed. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 14TH DAY OF MAY, 2026-----------------------F. GIKONYO MJUDGEIn the presence of: -Ms. Kendi for ApplicantCA-Ivan/Aggrey