[2025] KEHC 8459 (KLR)

Chief Officer, Ministry of Social Services, Youth, Sport & Culture & another v Ndahugah Holdings Limited (Civil Appeal E037 of 2024) [2025] KEHC 8459 (KLR) (4 June 2025) (Judgment)

Neutral citation: [2025] KEHC 8459 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal E037 of 2024

S Mbungi, J

June 4, 2025

Between

Chief Officer, Ministry of Social Services, Youth, Sport & Culture

1st Appellant

County Government of Kakamega

2nd Appellant

and

Ndahugah Holdings Limited

Respondent

(Being an appeal against the ruling and orders of Hon. J.J Masiga – PM delivered on the 6th day of February, 2024 in Kakamega Civil Suit No. 70 of 2020)

Judgment

Background. 1. The Respondent, Ndahugah Holdings Limited, filed Civil Suit No. 70 of 2020 seeking Kshs. 9,210,000/- for goods supplied to the Appellants. The suit culminated in a consent judgment dated 17th October 2022, adopted by the trial court on 28th November 2022, where the Appellants agreed to pay the principal sum, agreed costs of Kshs. 699,980, and were granted stay of execution until 30th April 2023.

2. Upon default, the Respondent applied for execution by way of a Notice to Show Cause dated 11th May 2023. The 2nd Appellant raised a Preliminary Objection citing non-compliance with Order 29 Rule 2 of the Civil Procedure Rules and Section 21 of the Government Proceedings Act.

3. The trial magistrate dismissed the objection, noting that the Appellants had already paid the decretal sum during the pendency of the objection, which rendered the objection moot. The court held that the objection was an abuse of process and amounted to undue reliance on procedural technicalities, contrary to Article 159(2)(d) of the Constitution.

The Appeal 4. Aggrieved, the Appellants lodged the present appeal challenging the trial court’s ruling on the following grounds:a.That the learned trial magistrate erred in fact and in law by holding that legislation can be overtaken by events.b.That the learned trial magistrate erred in fact and in law by failing to appreciate the legal backing of the Preliminary Objection and failing to consider the submissions and authorities relied upon by the appellant.c.That the learned trial magistrate erred in fact by considering and finding in favor of extraneous issues that were not the substance of the Preliminary Objection under consideration.d.That the learned trial magistrate erred in fact and in law by finding that elaborate process of execution against government as outlined in the Civil Procedure Rules, 2010 and the Government Proceedings Act amounts to procedural technicalities.e.That the learned trial magistrate erred in fact and in law by failing to be directed by binding authorities of superior courts without distinguishing the same from the circumstances in this case.f.That the learned trial magistrate erred in fact and in law by placing reliance on a passage in the superior court’s decision in James Mangeli Musoo v Ezeetec Limited [2014] eKLR but failed to be directed by the superior court’s reasoning and determination on the question of procedural technicalities or otherwise.

5. The appellant prayed that the appeal be allowed, the ruling and orders or the subordinate court delivered by Hon. J.J Masiga – PM to be set aside and/or varied and the costs of the appeal and the trial court be awarded to the appellant.

6. The court directed that the appeal be disposed off by way of written submissions. On record are the appellant’s submissions dated 6th December, 2024 and the respondent’s submissions dated 4th February, 2025, which this court has duly considered.

Appellants’ Case. 7. The Appellants submitted that the trial court erred by disregarding express statutory provisions governing execution against the government. They contended that the Respondent’s Notice to Show Cause (NTSC) was incurably defective for failure to comply with the mandatory provisions of Section 21 of the Government Proceedings Act and Order 29 Rule 2 of the Civil Procedure Rules, 2010, which bar direct execution against government entities.

8. They argued that the Respondent’s application dated 11th May 2023 had been made under Order 22 Rule 6 and in the form prescribed under Appendix A Form 14, which was not applicable where the judgment debtor was a government entity. It was their position that the trial magistrate failed to consider the legal import of initiating execution under a procedure expressly ousted by the Civil Procedure Rules.

9. The Appellants further submitted that the learned magistrate misdirected himself in holding that statutory safeguards under the Government Proceedings Act could be overtaken by events such as part-payment of the decretal amount. They argued that unless the statute was repealed or declared unconstitutional by a court of competent jurisdiction, it remained binding, and failure to observe its provisions rendered any contrary action null and void.

10. It was the Appellants’ case that the Preliminary Objection had been grounded on pure points of law, as defined in the locus classicus Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, and was therefore properly raised. They relied on authorities including Boniface Wachira Kariuki v Nyeri County Government [2018] eKLR, Jamleck Waweru Karanja v County Government of Nakuru [2020] eKLR, and Republic v County Secretary Migori County & Another Ex parte Linet Magambo [2020] eKLR, to underscore that execution against government had to follow the elaborate statutory procedure culminating in an order of mandamus, and not direct execution.

11. The Appellants also faulted the learned magistrate for relying on an isolated excerpt from the case of James Mangeli Musoo v Ezeetec Limited [2014] eKLR, without applying the broader ratio decidendi. They contended that the cited passage actually supported the proposition that procedural rules were not mere technicalities but were intended to uphold substantive justice, particularly when dealing with government liabilities.

12. In conclusion, the Appellants prayed the court to find that the trial magistrate’s ruling was legally unsound, occasioned a miscarriage of justice, and ought to be set aside.

Respondent’s Case. 13. The Respondent submitted that the appeal herein was misconceived, an abuse of the court process, vexatious, a delaying tactic, an afterthought, and had been overtaken by events. It was their contention that the appeal had been brought in bad faith and ought to be dismissed with costs.

14. The Respondent contended that following the Appellants’ failure to honor the consent judgment by 30th April 2023, it lawfully applied for execution by way of a Decree and a Notice to Show Cause dated 11th May 2023. The Respondent maintained that this execution was proper and in accordance with the terms of the consent judgment.

15. In reaction to the execution, the Appellants filed a Preliminary Objection dated 16th May 2023. The Respondent asserted that the objection was a mere afterthought and a dilatory tactic, which had been rendered moot by the Appellants' own conduct.

16. The Respondent pointed out that during the pendency of the objection, the Appellants voluntarily paid the decretal sum of Kshs. 9,210,000/= via bank transfer on 12th June 2023, leaving a balance of accrued interest and costs. Further, in December 2023, the Appellants paid the agreed costs of Kshs. 699,980/=, again leaving the interest outstanding.

17. It was the Respondent’s submission that by making these payments, the Appellants had acquiesced to the execution process and could not turn around to challenge it. The Respondent invoked the doctrine of estoppel, arguing that a party who participates in and benefits from a legal process cannot later disown it.

18. The Respondent further submitted that the mode of execution adopted by issuance of a Notice to Show Cause, was directed at individual officers and not at attachment of government property. As such, the execution did not contravene the Government Proceedings Act.

19. The Respondent emphasized that courts have repeatedly held that litigation must come to an end and parties must not be permitted to frustrate the ends of justice by raising procedural objections once substantive obligations have been fulfilled in part.

20. Citing Article 159(2)(b) and (d) of the Constitution, the Respondent urged the court to adopt a substantive approach to justice and to disregard undue reliance on procedural technicalities. The Appellants’ conduct, it was argued, offended the principles of natural justice and equity.

21. In conclusion, the Respondent prayed that the appeal be dismissed with costs and that the Notice to Show Cause dated 11th May 2023 be allowed to proceed to recovery of the outstanding interest on the decretal amount.

Analysis and Determination 22. I have looked at the memorandum of appeal, the submissions by both parties, the proceedings from the lower court and the trial court’s ruling.

23. The appeal arises from the trial magistrate’s ruling dismissing a Preliminary Objection filed by the Appellants objecting to execution proceedings commenced by the Respondent.

24. The main issue for determination is whether the trial magistrate erred in dismissing the Preliminary Objection and in finding that the execution process employed was lawful and did not contravene the Government Proceedings Act or the Civil Procedure Rules.

25. The Appellants raised six grounds of appeal, key among them being that the trial magistrate erred in holding that legislation can be overtaken by events; that he disregarded binding legal provisions and authorities; and that he improperly characterized statutory safeguards as procedural technicalities.

26. The Appellants relied on Section 21 of the Government Proceedings Act which provides that no execution or attachment shall be issued against the government or its property in satisfaction of a decree. They also cited Order 29 Rule 2 of the Civil Procedure Rules, which prescribes the manner in which suits against government officials should be instituted and decrees enforced. It was their position that the issuance of a Notice to Show Cause against the Chief Officer, an officer of the County Government, was a violation of these provisions.

27. However, the trial court noted, and this court concurs, that the Notice to Show Cause issued was not a mode of attachment or execution against government property. It was a procedural step to compel an accounting officer to appear and explain why the decree remained unsatisfied. This distinction is critical.

28. In James Mangeli Musoo v Ezeetec Limited [2014] eKLR, which was relied on by the trial court, the High Court held that a Notice to Show Cause directed at an accounting officer of a public entity does not contravene Section 21 of the Government Proceedings Act because it does not amount to attachment or execution against government property. The court further noted that shielding officers from accountability using procedural barriers would defeat the ends of justice and promote impunity.

29. Moreover, the conduct of the Appellants is telling. The court record shows that during the pendency of the Preliminary Objection, the Appellants paid the entire principal sum of Kshs. 9,210,000/= and later the agreed costs of Kshs. 699,980/=, all pursuant to the consent judgment recorded on 17th October 2022 and adopted on 28th November 2022. These payments were made directly into the Respondent’s and its advocates’ accounts via bank transfers. The payments were not made under protest and were in full compliance with the terms of the consent judgment.

30. The doctrine of waiver and estoppel by conduct becomes applicable in such circumstances. As was stated in Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR, a party who unequivocally elects to comply with a judgment and makes payment under it cannot later be heard to question its validity or the procedure by which execution was pursued. The same principle was reiterated in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, where the Supreme Court held that a party cannot approbate and reprobate.

31. The Respondent submitted, and this court agrees, that by voluntarily complying with the judgment and satisfying the decretal sum and costs, the Appellants effectively conceded the lawfulness of the process. The Preliminary Objection became moot, as the very acts of compliance overtook the objections raised. Indeed, it would be contrary to the principle of finality in litigation to allow a party who has benefitted from a consent judgment and participated fully in proceedings to later raise technical objections to delay or obstruct its final execution.

32. The Appellants also faulted the trial magistrate for invoking Article 159(2)(d) of the Constitution to downplay statutory provisions. It is true that procedural provisions cannot override clear and mandatory legal provisions. However, in this case, the trial magistrate did not disregard the law. Rather, he correctly interpreted the Notice to Show Cause as falling outside the scope of prohibited enforcement mechanisms under the Government Proceedings Act. To me, the use of Article 159(2)(d) was merely to reinforce the constitutional imperative that justice shall not be delayed due to undue reliance on technicalities, particularly when parties have voluntarily performed their obligations under a judgment.

33. The court notes that the Appellants did not challenge the validity of the consent judgment itself. In fact, their actions affirmed it. Execution proceedings are a continuation of the suit and are necessary to realize the fruits of a valid judgment. In the absence of any evidence of impropriety in how the Notice to Show Cause was issued, the trial court acted well within its discretion in allowing the execution to proceed.

34. The Appellants’ act of raising a preliminary objection at this stage appears to have been a tactic aimed at avoiding/delaying the payment of the remaining interest. This court finds such conduct to be inconsistent with the principles of equity, fairness, and justice. In Kimani v Attorney General [1969] EA 125, the court emphasized that equity will not aid the indolent or permit parties to misuse court procedures for delay or obstruction of justice.

35. In view of the foregoing, the court finds that the appeal lacks merit. The trial magistrate did not err in fact or law in dismissing the Preliminary Objection. He correctly appreciated the law, applied it to the facts before him, and rendered a sound and reasoned decision.

Final Orders. 36. The appeal is hereby dismissed, the Respondent at liberty to proceed with execution process.

37. Costs of the Appeal awarded to the respondent.

38. Right of appeal 30 days.

39. File is closed.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 4TH DAY OF JUNE, 2025S.N MBUNGIJUDGEIn the presence of :Accused- presentCourt Assistant – Elizabeth Angong’aCourt prosecutor- Ms Osoro.Parties are absent.Counsels absent.