Lee Construction Ltd v Grob Aircraft Company Ltd & 2 others; Defence (Garnishee) (Civil Suit E034 of 2024) [2026] KEHC 9571 (KLR) (Civ) (18 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **CIVIL DIVISION** **CIVIL SUIT NO. E034 OF 2024** **LEE CONSTRUCTION LIMITED...................................DECREE HOLDER** **-VERSUS-** **GROB AIRCRAFT COMPANY LIMITED.............1ST JUDGMENT DEBTOR** **GROB AIRCRAFT SE.............................................2ND JUDGMENT DEBTOR** **AND** **PRINCIPAL SECRETARY MINISTRY OF DEFENCE.............GARNISHEE** **RULING** **Background** 1. **Lee Construction Limited** (the Decree Holder) filed the suit giving rise to these proceedings against **Grob Aircraft Company Limited** and **Grob Aircraft Se** (the 1st and 2nd Judgment Debtors) through a plaint dated 22/02/2024 seeking a sum of € 328,508 (Kshs. 57,756,890.26) being monies owing as at 31/04/2022 in respect of works done by the Decree Holder at the request of the Judgment Debtors, pursuant to an agreement entered into between the parties dated 23/09/2020. The Decree Holder also sought interest on the above sum at a rate of 15% p.a. from the abovementioned date until payment in full. 2. The court record shows that the matter was referred to court annexed mediation but the parties did not reach a settlement. Subsequently, the Decree Holder filed an application dated 18/02/2025 seeking summary judgment against the Judgment Debtors in the manner prayed for in the plaint. According to the record, the said application was served upon the Judgment Debtors who did not file any response. The application proceeded unopposed. Through a ruling delivered on 12/02/2026, the court (Mulwa, J) allowed the application as prayed and awarded the Decree Holder costs assessed at a sum of Kshs. 10,000/-. A decree was issued on 24/02/2026 in that respect. 3. Subsequently, the Decree Holder filed the Notice of Motion dated 23/03/2026 (hereafter the Motion) seeking Garnishee Order Nisi for the attachment of all monies being held by **Principal Secretary, Ministry of Defence** (the Garnishee) to the credit of the 2nd Judgment Debtor pursuant to a Deed of Termination dated 17/03/2025, in settlement of the decree issued herein and a further order directing the Garnishee to appear before the court at an appointed date and time to show cause why they should not be ordered to pay the decretal amount. **The Preliminary Objection** 1. The Garnishee filed a Notice of Preliminary Objection (PO) dated 1/04/2026 in opposition to the Motion in the manner shown hereunder: ***TAKE NOTICE that the Garnishee herein shall at the earliest opportunity, and in any case, before the hearing of the Notice of Motion dated 23rd March 2026 (the “Application”), raise a Preliminary Objection and pray that the Application be dismissed in its entirety, with costs, on the ground that the Application is in complete violation of Section 21 of the Government Proceedings Act, Cap. 40, Laws of Kenya which protects funds held in public accounts from execution and or attachment.*** **Parties’ Submissions** 1. This court directed that the PO be determined first through written submissions. The Decree Holder and the Garnshee have filed submissions while the 1st and 2nd Judgment Debtors indicated that they would not be participating in the proceedings relating to the PO. 2. To support the PO, the Garnishee cited Section 21 of the Government Proceedings Act which bars execution and attachment orders against government bodies, including the Garnishee. The Garnishee also cited Order 29, Rule 2(2) of the Civil Procedure Rules (CPR) which in sum provides that no order may be made against the Government under the various provisions of the CPR relating to execution of decrees and orders; attachment of debts; injunctions; appointment of receivers; and impounding of documents. 3. In addition, the Garnishee relied on **Five Star Agencies Ltd & another v National Land Commission & 2 others [2024] KECA 439 (KLR)** where the Court of Appeal held that according to its interpretation of Order 23, Rule 1 as read with Order 29 Rule 2(c) of the CPR as well as Section 21 of the Government Proceedings Act, execution proceedings against the government are prohibited. 4. Further, the Garnishee relied on **Republic v Permanent Secretary, Office of The President, Ministry Of Internal Security & another Ex-Parte Nassir Mwandihi [2014] KEHC 6027 (KLR)** and **Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Exparte Fredrick Manoah Egunza [2012] KEHC 1643 (KLR)** where respective courts echoed the finding in the case of **Five Star Agencies Ltd & another v National Land Commission & 2 others** that the only available means for a decree holder to execute a decree would be through judicial review proceedings, specifically, an application seeking an order for mandamus to compel the relevant government body or agency to satisfy the decree in question. 5. The Garnishee argued that in the circumstances, the Motion cannot be sustained and ought to be dismissed with costs. 6. To oppose the PO, the Decree Holder submitted that Section 21(1) of the Government Proceedings Act strictly applies to proceedings lodged by or against the government; that Section 21(4) of the said Act therefore applies within the context of judgments, decrees or declarations arising from such proceedings; that the present circumstances are distinct in nature as they do not relate to a suit against the Garnishee but are rather limited to Garnishee proceedings resulting from a judgment and decree issued against the Judgment Debtor herein and that the Motion primarily seeks payment of sums belonging to the Judgment Debtor and not the Garnishee. 7. The Decree Holder submitted, further, that pursuant to the Deed of Termination annexed to the affidavit supporting the Motion, it is not controverted that the Garnishee owes the Judgment Debtor a sum of 19,782,821.05 Euros payable in instalments; that the Garnishee order thus sought is clear and simple and that the Motion is therefore competently before the court. The Decree Holder has urged that the PO be dismissed with costs. **Analysis and Determination** 1. I have considered the PO and the rival submissions. 2. In the renowned case of **Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696** the definition of a preliminary objection was analyzed in the following manner: **“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised in any fact that has to be ascertained or if what is sought is the exercise of judicial discretion.”** 1. The above definition was echoed by the Supreme Court in **Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR** when it pronounced itself thus: **“It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law.”** 1. The PO in this instance is challenging the competency of the Motion on the basis of **Section 21** of the **Government Proceedings Act** which stipulates that: ***“(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:*** ***Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.*** ***(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.*** ***(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:*** ***Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.*** ***(4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, 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.*** ***(5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.”*** 1. To my mind, the above provision applies in civil proceedings instituted either by or against the government, or within the context of arbitration proceedings to which the government is a party. 2. I have taken into consideration the respective authorities relied upon by the Garnishee to support the PO, including those cited earlier in this ruling. 3. The Court of Appeal in **Five Star Agencies Ltd & another v National Land Commission & 2 others [2024] KECA 439 (KLR)** cited above, deemed that execution proceedings against the government are prohibited pursuant to Order 23, Rule 1 (on attachment of debts) as read with Order 29 Rule 2(c) of the CPR (also on attachment of debts as well as Section 21 of the Government Proceedings Act in relation to proceedings brought by or against the government). 4. The above suit had been instituted against a government body namely the National Land Commission (NLC) and the decree holder therein was attempting to execute the resulting decree, by way of garnishee proceedings directed at National Bank of Kenya, seeking an order for payment of monies belonging to NLC, by the garnishee therein. 5. The present proceedings are different in that the Garnishee herein was not a party to the present suit and was only brought in by way of the Garnishee proceedings, which are regarded as being special proceedings in nature as stated by the Court of Appeal in **Kenya Electricity Transmission Company Limited v Spedag Interfreight Kenya Limited & 4 others [2024] KECA 542 (KLR)** whenitstated that: ***“In our view, garnishee proceedings are special proceedings ... Strictly speaking, they are not even execution proceedings since the property of the garnishee is not in jeopardy in such proceedings. In garnishee proceedings, the decree holder steps into the shoes of the judgement debtor and demands that the payment due from the garnishee to the judgement debtor be paid to the decree holder or judgement creditor instead. That is the only relationship between the garnishee and the judgement creditor or decree holder. Accordingly, the issue of privity of contract, strictly speaking, has no place in garnishee proceedings since the liability of the garnishee to pay the decree holder is not contractual, but kicks in by operation of law.”*** 1. It is my considered view that the funds sought to be attached by way of garnishee proceedings are not funds belonging to the Garnishee. Rather, these are funds purportedly belonging to the Judgment Debtor herein. Consequently, any orders which would subsequently be made would in no way touch on the Garnishee’s assets or property but would concern assets being held by the Garnishee on behalf of the Judgment Debtor. 2. Upon my consideration of the foregoing circumstances coupled with my comprehension of the various legal provisions and authorities cited, I have not come across anything that necessarily limits or bars the institution of garnishee proceedings as was done here. I am thus not satisfied that the provisions of the Government Proceedings Act or CPR would necessarily impede the present proceedings. For the above reasons, the PO filed herein fails and is hereby dismissed. 3. I make no order as to costs. **Dated, signed and delivered this 18th day of June 2026.** **S. N. MUTUKU** **JUDGE**