https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10378

Shiv Construction Company Ltd v Rivatex East Africa Ltd (Miscellaneous Civil Application E197 of 2024) [2026] KEHC 10378 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10378 (KLR) Republic of Kenya In the High Court at Eldoret Miscellaneous Civil Application E197 of 2024 E Ominde, J July 9, 2026 Between Shiv Construction Company Limited Applicant and Rivatex East Africa Limited Respondent Ruling 1.By a Notice of Motion dated 25th September 2026, brought pursuant to provisions of Section, 3A of the Civil Procedure Act, Section 21 of the Government Proceedings Act and Order 51 Rule 1 of the Civil Procedure Rules, the Applicant seeks the following orders:1.Spent.2.Spent. 3.That this Honourable Court be pleased to declare that execution against the Respondent/Applicant through warrants of attachment dated 23rd September, 2025 is irregular, unlawful and contrary to Section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules. 4.This Honourable Court be pleased to declare that the Warrants of Attachment dated 23rd September, 2025, the Proclamation and Notice of Attachment by Lister Auctioneers dated 23rd September, 2025 and the execution commenced by the Applicant/Respondent pursuant to the said warrants and proclamation notice, are irregular, null and void. 5.This Honourable Court be pleased to set aside and/or cancel the Warrants of Attachment dated 23rd September, 2025 and the Proclamation and Notice of Attachment by Lister Auctioneers dated 23rd September, 2025. 6.The costs of this application and the unlawful execution commenced by the Applicant/Respondent, to be borne by the Applicant/Respondent. 2.The application is premised on the grounds therein and is further supported by the Affidavit of the Corporation’s Secretary Tecla Tum, sworn on 25th September 2025. 3.The Applicant deposed that the Arbitral award between the parties herein was adopted a judgment of this Honorable court and subsequently a decree was issued on 26th March, 2025. That the Applicant/Respondent has unlawfully commenced execution proceedings through the warrants of attachments dated 23rd September, 2025 and Lister Auctioneer’s proclamation and Notice of attachment dated 23rd September 2025 served upon the Respondent, without considering the provisions of the Government Proceedings Act and the Civil Procedure Rules which bar execution against the Government by way of warrants of attachment. 4.The Applicant contends that the Government, through the National Treasury and Economic Planning, has leased the assets of the Respondent/Applicant to a third party under a lease dated 3rd September 2025, and therefore such assets are under Government control and insulated from attachment or execution. 5.The Applicant maintained that it is wholly owned by the Government of Kenya and by virtue of its shareholding it is a government entity and the Applicant/Respondent ought to have followed the laid-out procedure as regards to execution against the government. The Applicant urged that unless stay of execution is granted, the Respondent's unlawful execution steps will occasion prejudice, embarrassment, and disruption of Government operations. 6.In addition, the Applicant further deposed that it has formally written to the Office of Honorable Attorney General through the Honorable Solicitor General for directions on the handling of all pending matters, including this cause, and it is in the interests of justice that these proceedings be stayed pending such directions or communications/advisory. 7.The Applicant maintained that under the law, the decree holder's remedy lies strictly in obtaining and serving a Certificate of Order against the Government in accordance with Section 21 of the Government Proceedings Act. The Applicant further deposed that it has filed a pending Notice of Motion dated 15th August 2025, seeking to have the decision of the taxing master reviewed, and therefore the decretal sum and costs are still in dispute. The Applicant urged that this application is made in good faith, is merited, and it is in the interests of justice that it be allowed. Response 8.The Application is opposed by the Respondent vide the Replying Affidavit sworn on 29th September 2025 by the Respondent’s Director, one Dilipkumar Sutar. 9.The Respondent deposed that the application is devoid of merit and is one of the numerous attempts by the Respondent to derail the Applicant from enjoying the fruits of the arbitral award in its favour and that there is no dispute on the amount payable to the Applicant since the amount was properly calculated by the court and a decree issued. The Respondent maintained that it is on the basis of the decree that warrants of attachment and sale were issued to the auctioneers for execution against the Respondent/Applicant. 10.The Respondent contended that there is no evidence on record that the Applicant is wholly owned by the Government of Kenya and that the Government is a shareholder, that the Government of Kenya cannot therefore lease what it does not own, that no lease agreement has been attached to the application to show the terms of the lease agreement and that even in the case of leasing, one must ensure that all liabilities are paid before the lease takes effect. 11.The Respondent contended that the fact that the properties of the Respondent are leased does not take away the Respondent's ownership rights. According to the Respondent the proclaimed properties are owned by the Respondent/Applicant which is not wholly or partly owned by the Government of Kenya as alleged and therefore the execution process is lawful and there is no justification whatsoever to stay the execution process. Submissions 12.The Applicant was canvassed vide written submissions. The Applicant filed submissions dated 16th October 2025 while the Respondent filed submissions dated 15th October 2025. Applicant’s Submissions 13.Counsel for the Applicant submitted that Rivatex East Africa Limited the Applicant, is a company fully owned by Moi University which is a public university owned by the Government of Kenya thus a government entity as indicated in the certificate of official search from the company's registry attached to the supporting affidavit. 14.Counsel further submitted that the government through the National Treasury and economic planning has leased out the assets, property plant and equipment owned by the Applicant to a third party in a lease dated 3rd September 2025, therefore the assets proclaimed by the Respondent herein are under government control and insulated from any attachment and thus the same cannot be proclaimed. 15.Counsel argued that the Respondent's actions are marked with illegality, irrationality and procedural impropriety. Counsel cited Order 29 rules 2 (1) (a), (2) and (4) (1) of the Civil Procedure Rules and maintained that the execution of decrees against the Government/Parastatals is not undertaken as in the ordinary Civil Case but must be in accordance with the provision of the Government Proceedings Act as provided for in Section 21(4). 16.Counsel urged that the proclamation by the Respondent is illegal as it offends the said provisions of Section 21(4) of the Government Proceedings Act and Order 29 of the Civil Procedure Rules which clearly exempts Government and or Governmental bodies like Applicant from execution. 17.Counsel submitted that any form of payments in respect to a decree against government institution is based on a Certificate of costs obtained by the successful litigant from the court issuing the decree which should be served upon the Attorney General and further argued that the law prohibits execution against and attachment of government assets and property and thus the Respondent's actions are illegal. 18.Counsel relied on the case of Kisya Investments Ltd v Attorney General & another [2005] KEHC 3226 (KLR) and Kamanja & 2 others (Suing on their behalf and on behalf of the 26 workers of the Respondent) v Board of Management, Highway Secondary School (2023] KEELRC 1461 (KLR) and thus urged that the Respondent failed to follow the laid down procedure in executing the decree against government entity and unless the rules are followed, the impending execution is rendered unlawful. Respondent’s Submissions 19.Counsel for the Respondent on his part submitted that they are aware that government entities are represented by the office of the Attorney General, a fact which was not done in the current suit. Counsel submitted that it is the Company's Secretary that was and is representing the Applicant company. He further urged that there is no documentation that expressly lists the Applicant as a government owned entity. He argued that only proof that the Applicant has furnished the court with is a letter addressed to the Solicitor General asking for its advisory opinion. According to Counsel that is not proof that the Applicant is a government entity. 20.Counsel submitted that the burden of proof lies on the person alleging. Consequently, Counsel urged that the execution process should go on for proof to the contrary has not been shown. He relied on the case of Sankale v Maasai Mara University & another (Petition E097 of 2021) [2025] KEELRC 1380 (KLR). Counsel further submitted that the Applicant herein has not filed any appeal and as such has no chances of success. 21.Counsel added that whereas they are aware that proceedings against government entities is prohibited by Order 29 Rule 2 (b) of the Civil Procedure Rules, he contended that in the instance case, nothing substantial has been put forward to prove that indeed, the Applicant is a government entity. Counsel therefore submitted that the process of execution was lawfully followed as the respondent taxed its Bill of Costs and consequently was issued with a decree, necessitating the current proclamation by Lister Auctioneers. 22.Counsel maintained that leasing of an asset does not transfer the ownership of that particular asset in anyway and submitted that it is only the possession of the asset in question that changes and not its ownership. Counsel argued that the allegations by the Applicant that the proclaimed assets have been leased to a third party by the government are baseless and not anchored anywhere in law. 23.Counsel further submitted that the Applicant would not suffer substantial loss if execution is carried out because the Applicant has not filed any appeal and is in court just to hinder the respondent from getting the fruits of its Judgment. According to Counsel, there are only allegations that the vehicles that were covered in the proclamation notice do not belong to the Applicant but no proof has been furnished so far. 24.Counsel added that the arbitral award was given on the 5th December 2023 and consequently adopted by this Honorable Court on the 26h March 2025 and contended that the Applicant herein only filed the current application on the 25th September 2025 which is indeed a long period after the arbitral award was adopted and that the passage of this long period of time only goes to demonstrate the fact that the Applicant herein is only intent on intentionally delaying the Respondent from enjoying or actualizing the fruits of its judgment. 25.He therefore submitted that the application is an afterthought and aimed at frustrating the respondent and urged that the same be dismissed. On the issue of costs, Counsel submitted that Section 27(1) of the Civil Procedure Act, 2010, provides that the costs of a suit follow the event and reiterated that the Applicant has not satisfied the conditions for grant of orders for stay of execution pending appeal. Determination 26.Having addressed my mind to the depositions made as well as the submissions, it is my considered opinion that the main issue for determination is;Whether the Respondent in seeking to execute the decree herein, the Respondent ought to have complied with the provisions of Section 21 of the Government Proceedings Act 4 and Order 29 Rule (2) & (4) of the Civil Procedure Rules, 2010. 8.Article 1(3) of the Constitution as follows;Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution—(a)Parliament and the legislative assemblies in the county governments;(b)the national executive and the executive structures in the county governments; and(c)the Judiciary and independent tribunals. 8.Article 260 of the Constitution defines the State as hereunder;“State", when used as a noun, means the collectively of offices, organs and other entities comprising the government of the Republic under this Constitution and at (q) thereof designates any office established by national legislation as a State office and further goes ahead to define a "State organ" to mean a commission, office, agency or other body established under this Constitution; 27.State corporations, often referred to as parastatals are State-Owned Enterprises and /or entities where the government holds majority shares. established under the State Corporations Act Cap 466 LOK. The above being the case, it follows therefore that the Respondent herein, being a body established by National Legislation as a State Agency is a State Organ. 28.Section 24 (3) and (4) thereof, the State Corporation Act provides inter alia on the execution of decrees against a State Corporation; 3.In any proceedings for the recovery of any sum which is not paid in accordance with subsection the certificate of the Inspector-General (Corporations) shall be conclusive evidence that the sum is due and payable by the person surcharged. 3.On the production of the certificate of the Inspector-General (Corporations) the Court shall give a decree for the sum sued for and the decree shall have the effect of a decree under the Civil Procedure Act (Cap. 21) and any rules made thereunder. 29.The court being satisfied that the Respondent being a State Corporation is a state organ, then relevant provisions under the Civil Procedure Rules that govern the execution of decrees against it as provided under Section 24(4) herein cited are as set out under Order 29 of the Civil Procedure Rules to the following effect 1.Except as provided by the Government Proceedings Act (Cap. 40) or by these Rules—a.these Rules shall apply to all civil proceedings by or against the Government; andb.civil proceedings by or against the Government shall take the same form as civil proceedings between subjects and shall, if no special form is applicable, take the form of a suit instituted by a plaint. 30.Order 29(2) thereof further provides thus;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). 31.Pursuant to Section 21 of the Government Proceedings Act, a successful litigant holding a judgment against the government must obtain a Certificate of Order against the Government. This certificate is then served upon the relevant accounting officer to facilitate payment. The said section is as hereunder reproduced;Satisfaction of orders against the Government(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. 32.Whereas the issue of the mode of enforcement of decrees against the government as provided under Section 21 of the Government Proceedings Act has been the subject of judicial interpretation by our superior courts in numerous authorities which then means that there is no need for this court to reinvent the wheel being already satisfied that the Respondent is a state agency, I need only to state at this juncture that perhaps the most detailed judicial exposition of the said section is to be found in Republic v Attorney General & 2 others; Patrick Ochwa, Samuel Ouma & Job Weloba t/a Cootow & Associates (Exparte) (Judicial Review 222 of 2017) [2021] KEHC 144 (KLR) in which it was stated follows:“In ordinary circumstances, once judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon….” 33.The above section is to be read together with the provision of Order 29 Rule 3 of the Civil Procedure Rules, 2010 which provides for the application for a certificate under Section 21 of the Government Proceedings Act herein cited as follows:“Any application for a certificate under section 21 of the Government Proceedings Act (which relates to satisfaction of orders against the Government) shall be made to a registrar or, in the case of a subordinate court, to the court; and any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicant shall be made to the court and may be made ex parte without a summons, and such certificate shall be in one of form Nos. 22 and 23 of Appendix A with such variation as circumstances may require.” 34.In this regard, a Certificate of Order against the Government is not only a requirement but it is also a condition precedent to the satisfaction or enforcement of decrees issued against the Government. In the instant case, there is nothing to show that the above provisions of the law were complied with. In fact, there is no mention at all that the Certificate of Order to execute the decree was ever applied for and/or obtained and served as provided under Section 21 aforesaid. With this finding, I find merit in the Application by the Applicant objecting to the manner in which the Respondent herein has proceeded to execute the decree that they hold against the Applicant. Accordingly, the Application is allowed in its entirety as follows;i.That the execution by the Applicant against the Respondent/Applicant through warrants of attachment dated 23rd September, 2025 is now hereby declared to be irregular, unlawful and contrary to Section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Rules.ii.That the Warrants of Attachment dated 23rd September, 2025, the Proclamation and Notice of Attachment by Lister Auctioneers dated 23rd September, 2025 and the execution commenced by the Applicant/Respondent pursuant to the said warrants and proclamation notice, are now hereby declared to be irregular, null and void.iii.That the Warrants of Attachment dated 23rd September, 2025 and the Proclamation and Notice of Attachment by Lister Auctioneers dated 23rd September, 2025 are now hereby cancelled and set asideiv.That the Applicant/Respondent is to bear the costs of the Application. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 9TH JULY 2026E. OMINDEJUDGE