[2022] KEHC 11721 (KLR)
The court held that the respondent, the Ethics and Anti-Corruption Commission, is a state agency to which the Government Proceedings Act applies. Section 21(4) of the Act, Order 29 Rules 2 and 4 of the Civil Procedure Rules, and section 61A of the Anti-Corruption and Economic Crimes Act prohibit execution by way of...
Source-derived case information.
- Citation
- [2022] KEHC 11721 (KLR)
- Parties
- Petitioner: Simon Ongonga Mulama; Respondent: Ethics and Anti-Corruption Commission
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 14 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Application for Stay of Execution and Related Reliefs
- Outcome
- Application allowed in its entirety.
- Judges
- WM Musyoka
- Legal Topics
- Government Proceedings, Execution of Decrees, State Agency Immunity, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Ongonga Mulama
Petitioner
Ethics and Anti-Corruption Commission
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Stay of Execution and Related Reliefs
Legal Issues
- 1 Whether warrants of attachment and sale can be executed against a state agency or constitutional commission.
- 2 Whether the Government Proceedings Act and relevant Civil Procedure Rules prohibit execution by attachment and sale against the respondent.
- 3 Whether section 61A of the Anti-Corruption and Economic Crimes Act applies to the respondent.
Ratio Decidendi
The court held that the respondent, the Ethics and Anti-Corruption Commission, is a state agency to which the Government Proceedings Act applies. Section 21(4) of the Act, Order 29 Rules 2 and 4 of the Civil Procedure Rules, and section 61A of the Anti-Corruption and Economic Crimes Act prohibit execution by way of attachment and sale against such entities. The court found that the warrants of attachment and sale, and the proclamation notice issued against the respondent, were unlawful. The application was therefore allowed in its entirety, setting aside the warrants and proclamation, and granting the requested injunctive relief.
Court Disposition
Application allowed in its entirety.
Orders
- Warrants of attachment and sale dated September 13, 2021 set aside.
- Proclamation notice dated September 15, 2021 lifted.
Full Case Text
Judgment text and source record
19 paragraphs
Mulama v Ethics and Anti-Corruption Commission (Constitutional Petition 14 of 2019) [2022] KEHC 11721 (KLR) (10 June 2022) (Ruling)
Neutral citation: [2022] KEHC 11721 (KLR)
Republic of Kenya
In the High Court at Kakamega
Constitutional Petition 14 of 2019
WM Musyoka, J
June 10, 2022
Between
Simon Ongonga Mulama
Petitioner
and
Ethics and Anti-Corruption Commission
Defendant
Ruling
1. The application for determination is dated September 22, 2021. It seeks six principal prayers: stay of execution of the warrants of attachment and sale issued on September 13, 2021pending hearing and determination of the application; the warrants of attachment and sale dated September 13, 2021be set aside and the proclamation notice dated September 15, 2021issued against the respondent be lifted; that a permeant injunction issues to restrain the petitioner from proclaiming or attaching or selling any of the assets of the respondent on the basis of the warrants dated September 13, 2021and the proclamation dated September 15, 2021; the warrants of attachment and sale dated September 13, 2021against the respondent are in contravention of section 61A of the Anti-Corruption and Economic Crimes Act, No. 3 of 2003, Laws of Kenya, and Order 29 Rules 2 and 4(1) of the Civil Procedure Rules; the petitioner meets the auctioneers costs or any consequential costs for the unlawful proclamation or attachment of the respondent’s assets and goods and costs of the application be provided for.
2. The application was placed before me on 22nd September 2021, and I directed that it be served, and there be temporary stay orders to last till the date given for inter partes hearing. When the matter came up for inter partes hearing, on 6th October 2021, the parties consented on grant of the prayers relating to stay of execution and lifting of the attachment. It was agreed that the rest of the prayers be canvassed by way of written submissions. The parties have complied, by filing written submissions, which I have read through, and whose contents I have noted.
3. The matter before me is fairly straightforward. The respondent is a government or State agency or entity, to which the Government Proceedings Act, cap 40, Laws of Kenya, applies. It is trite that a decree or order against such an agency or entity cannot be executed by way of attachment and sale, for that is prohibited by section 21(4) of the Government Proceedings Act and Order 29 Rules 2 and 4 of the Civil Procedure Rules. These provisions are mirrored in section 61A of the Anti-Corruption and Economic Crimes Act, 2003, principally as the respondent is not strictly an agency under the Executive, but an independent Constitutional Commission. Even then, it is still a State agency, and a government organ to which the Government Proceedings Act applies. See Kisya Investments Ltd v Attorney General & another[2005] 1 KLR (visram. Ibrahim JJ) and Pravin Bowry v EACC [2015] eKLR (Lenaola J).
4. In the circumstances, I do hereby allow the application, dated September 22, 2021, in its entirety.
DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAKMEGATHIS 10THDAY OF JUNE 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Munyendo, instructed by Oscar Wachilonga & Associates, Advocates for the petitioner.Ms. EW Githinji, Advocate for the respondent.