[2024] KEELC 6503 (KLR)

Simonash Investment Ltd v Kenya National Highways Authority & 2 others (Constitutional Petition 15 of 2019) [2024] KEELC 6503 (KLR) (2 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6503 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Constitutional Petition 15 of 2019

SO Okong'o, J

October 2, 2024

Between

Simonash Investment Ltd

Petitioner

and

Kenya National Highways Authority

1st Respondent

National Land Commission

2nd Respondent

Honourable Attorney General

3rd Respondent

Ruling

1. On 21st December 2022, judgment was entered for the Petitioner herein against the Respondents for a total sum of Kshs. 2,000,000/- together with the costs of the petition. On 9th November 2023, the Petitioner’s costs were assessed by the taxing officer at Kshs. 181,820/-. On 26th March 2024, warrants of attachment and sale of the Respondents’ movable properties were issued by the Deputy Registrar of the court to High Class Auctioneers for execution for the recovery of the total decretal sum of Kshs. 2,184,320/-. On 2nd April 2024, High Class Auctioneers went to the 1st Respondent’s premises in Nairobi and attached several motor vehicles owned by the 1st Respondent and notified the 1st Respondent that they would remove the said vehicles to their premises for sale by public auction after the expiry of 7 days.

2. What is before the court for determination is the 1st Respondent’s Notice of Motion application dated 16th April 2024 brought under among others, Section 68 of the Kenya Roads Act, 2007 as read with Section 21 (4) of the Government Proceedings Act and Order 29 Rule 2 (1) and (2) of the Civil Procedure Rules. In the application, the 1st Respondent has sought; stay of any further or other execution and/or enforcement of the decree issued herein and the warrants of attachment and sale issued on 26th March 2024 and the resultant proclamation notice dated 2nd April 2024 pending the hearing of the application, release/return of the 1st Respondent’s/ judgment debtor's motor vehicles if any which may have been attached during the intervening period by High Class Auctioneers between the time of filing the instant application and the orders sought being granted, the lifting of the warrants of attachment and sale dated 26th March 2024 and the resultant proclamation notice dated 2nd April 2024 and a declaration that the same were irregularly obtained. The 1st Respondent has sought a further order that the costs of the application and the unlawful execution process be borne by the decree-holder/Respondent.

3. In summary, the application which was supported by the affidavit of Lawrence Maruti sworn on 16th April 2024 was based on the ground that the execution levied against the 1st Respondent was in contravention of the provisions of Section 68 of the Kenya Roads Act, 2007 as read with the Section 21 (4) of the Government Proceedings Act, Chapter 40 Laws of Kenya which prohibits execution against the properties of the Government and its agencies/departments like the judgment debtor without following the mandatory procedure set out therein. The 1st Respondent contended that the purported execution process commenced by the Petitioner was a nullity in law and should not be allowed to proceed. The 1st Respondent averred that it is an agency/department of the Government of Kenya undertaking road construction, regulation and supervision of proper use of roads and national highways for and on behalf of the Government of Kenya using public funds. The 1st Respondent averred that its properties were purchased and regulated by the Government of Kenya. The 1st Respondent averred that it was established under the Roads Act, 2007 as a corporate body with the exclusive mandate and responsibility to manage, develop, rehabilitate, and maintain national roads in Kenya.

4. The 1st Respondent averred that it had already appealed against the said judgment of this court delivered in favour of the Petitioner on 21st December 2022 which appeal was pending determination before the Court of Appeal at Kisumu in Kisumu Civil Appeal No. E093 of 2024, Kenya National Highways Authority v. Simonash Investment Ltd.& 2 others. The 1st Respondent averred that despite it enjoying the status of a corporate entity capable of suing and being sued in its name, and holding properties in its name under Section 3 of the Kenya Roads Act, 2007, a reading of the entire statute in context demonstrates that the corporate status granted to the 1st Respondent is to enable it to independently carry on its operations from the ordinary bureaucracy of the Government.

5. The 1st Respondent averred that all its properties remain the property of the Government of Kenya within the meaning of section 21 (4) of the Government Proceedings Act, Chapter 40, Laws of Kenya, and is exempt from execution of any judgment save through an order of mandamus which would not issue where there is a pending appeal against that judgment like in this case.

6. The application was opposed by the Petitioner through a replying affidavit sworn by Richard Otieno Sikuku on 26th April 2024. The Petitioner averred that the 1st Respondent is not subject to the Government Proceedings Act, Chapter 40 Laws of Kenya. The Petitioner contended that the 1st Respondent does not meet the test for being a Government entity/body. The Petitioner averred that Section 68 of the Kenya Roads Act specifically provides for execution against the 1st Respondent. The Petitioner averred that the said Section 68 of the Kenya Roads Act excludes the 1st Respondent from the protection accorded to the government under Section 21 (4) of the Government Proceedings Act and Order 29 Rule 2 of the Civil Procedure Rules.

7. The Petitioner averred that the 1st Respondent is an independent judicial person capable of suing and being sued. The Petitioner averred that judgments against the 1st Respondent are not judgments against the government but against an independent juridical body, and the mode of execution is provided for under Section 68 of the Kenya Roads Act. The Petitioner averred that the 1st Respondent’s application was an abuse of court process as the 1st Respondent had made a similar application before the Court of Appeal at Kisumu in Civil Appeal No. E093 of 2024 which was filed earlier/prior to the present application. The Petitioner averred that the execution process instituted by it against the 1st Respondent was lawful and regular since the 1st Respondent had failed to settle the decretal amount since December 2022 when judgement was entered in the Petitioner’s favour. The Petitioner urged the court to dismiss the application with costs.

8. The 1st Respondent filed a supplementary affidavit sworn by its advocate Jude Ragot in which the 1st Respondent admitted that it had applied for a stay of execution of the judgment of this court in the Court of Appeal pending the hearing and determination of its appeal to that court. The 1st Respondent contended that the nature of the said application for a stay of execution was different from the one before this court. The 1st Respondent contended that in the application before the Court of Appeal, the 1st Respondent sought to stay any contemplated lawful execution of the judgment of this court pending the hearing of the said appeal while in the application before this court, the 1st Respondent has sought to challenge unlawful execution proceedings which have been commenced in contravention of express and mandatory provisions of Section 68 (a) and (b) of the Kenya Roads Act, as read with the Section 21 (4) of †he Government Proceedings Act.

9. The application was heard by way of written submissions. In its submissions, the 1st Respondent reiterated the grounds upon which the application was brought set out in the body of its application and the two supporting affidavits. The 1st Respondent reiterated that it was an agency or a department of the Government of Kenya despite its expressed corporate legal entity and that all forms of execution by way of attachment and sale of its properties were expressly prohibited by the mandatory provisions of Section 68 of the Kenya Roads Act as read with Section 21 (4) of the Government Proceedings Act. The 1st Respondent submitted that the correct procedure for execution against it is through an order of mandamus to compel the Director General, who is its accounting officer to satisfy the decree, as is the case with any judgment against the Government of Kenya. In support of this submission, the 1st Respondent cited several authorities.

10. In its submissions in reply, the Petitioner also reiterated the contents of its affidavit in opposition to the application. The Petitioner submitted that the 1st Respondent is not a government and that it is expressly excluded from the protection accorded to the government under Section 21 (4) of the Government Proceedings Act and Order 29 Rule 2 of the Civil Procedure Rules. The Petitioner submitted that Section 68 of the Kenya Roads Act provides for execution against the 1st Respondent. The Petitioner submitted that the 1st Respondent is an independent juridical person capable of suing and being sued. The Petitioner reiterated that a judgment against the 1st Respondent is not a judgment against the government but against an independent juridical body, and the mode of execution against the 1st Respondent is provided for under Section 68 of the Kenya Roads Act.

Analysis and determination 11. I have considered the 1st Respondent’s application and the affidavits filed in support thereof. I have also considered the Petitioner’s affidavit filed in opposition to the application. Finally, I have considered the submissions by the advocates for the parties and the various authorities cited in support thereof.

12. Sections 3 and 4 of the Kenya Roads Act, 2007 (hereinafter referred to only as “the Act” provide as follows:“3. Establishment of the Kenya National Highways AuthorityThere is established an Authority to be known as the Kenya National Highways Authority, which shall be a body corporate with perpetual succession and a common seal, and which shall, subject to this Act, be capable in its corporate name of—(a)suing and being sued;(b)taking, purchasing or otherwise acquiring, holding and disposing of movable or immovable property;(c)borrowing money with the approval of the Minister and the Minister responsible for Finance; and(d)doing or performing all such other things or acts for the proper performance of its functions under this Act as may lawfully be done or performed by a body corporate.4. Functions of the Authority(1)The Highways Authority shall be responsible for the management, development, rehabilitation and maintenance of national roads.(2)For the purposes of discharging its responsibility under subsection (1), the Highways Authority shall have the following functions and duties—(a)constructing, upgrading, rehabilitating and maintaining roads under its control;(b)controlling national roads and road reserves and access to roadside developments;(c)implementing road policies in relation to national roads;(d)ensuring adherence to the rules and guidelines on axle load control prescribed under the Traffic Act (Cap. 403) and under any regulations under this Act;(e)ensuring that the quality of road works is in accordance with such standards as may be prescribed by the Minister;(f)in collaboration with the Ministry responsible for Transport and the Police Department, overseeing the management of traffic and road safety on national roads;(g)collecting and collating all such data related to the use of national roads as may be necessary for efficient forward planning under this Act;(h)monitoring and evaluating the use of national roads;(i)planning the development and maintenance of national roads;(j)advising the Minister on all issues relating to national roads;(k)preparing the road works programmes for all national roads;(l)liaising and co-ordinating with other road authorities in planning and on operations in respect of roads; and(m)performing such other functions related to the implementation of this Act as may be directed by the Minister.”

13. Section 68 of the Act which deals with execution against the 1st Respondent provides as follows:Notwithstanding anything to the contrary in any law—(a)where any judgment or order has been obtained against an Authority, no execution or attachment, or process in the nature thereof, shall be issued against such Authority or against its property, but the Director-General shall, without delay, cause to be paid out of the revenue of the Authority such amounts as may, by the judgment or order, be awarded against the Authority;(b)no property of an Authority shall be seized or taken by any person having by law power to attach or distrain property without the previous written permission of the Director-General.”

14. From the statutory objectives and functions of the 1st Respondent, I agree with the contention by the 1st Respondent that the 1st Respondent is an agency or a department of the Government of Kenya. The 1st Respondent is however not protected against execution by Section 21(4) of the Government Proceedings Act, Chapter 40 Laws of Kenya but rather by the provisions of Section 68 of the Act which provides that no attachment or execution can be levied against the property of the 1st Respondent. The Section provides that where there is a monetary judgment against the 1st Respondent, the Director-General of the 1st Respondent shall settle the same out of the revenue of the 1st Respondent. I agree with the 1st Respondent that the mode of execution that the Petitioner adopted against the 1st Respondent was unlawful as it was contrary to the express provisions of the Act.

15. In its submissions, the Petitioner has conceded that execution against the 1st Respondent is subject to Section 68 of the Act. The Petitioner was supposed to call upon the Director-General of the 1st Respondent to satisfy the judgment debt and in default, it could initiate the recovery of the same through an application for judicial review for an order of mandamus to compel the said Director-General to perform his statutory duty under Section 68 of the Act. In Kenya National Examination Council v. Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the court sated as follows:...an order of mandamus will compel the performance of a public duty which is imposed on a person or body of person by a statute and where that person or body of persons has failed to perform the duties to the detriment of a party who has a legal right to expect the duty to be performed.”

16. If the Petitioner had sought an order of mandamus and the same was issued and defied by the Director-General of the 1st Respondent, the Petitioner could take out contempt of court proceedings against him. This is the procedure for execution against the Government or Government organs or bodies against which execution is prohibited by the establishing Act or the Government Proceedings Act, Chapter 40 Laws of Kenya. See, Five Star Agencies Limited v. National Land Commissions & Another, Nairobi Civil Appeal No. E290 of 2023 consolidated with Kenya National Highways Authority v. Five Star Agencies Limited & Another, Nairobi, Civil Appeal No. E328 of 2023.

17. It is my finding therefore that the warrants of attachment and sale issued herein on 26th March 2024 to High Class Auctioneers by the Deputy Registrar of the court at the request of the Petitioner for execution against among others, the 1st Respondent were irregularly issued since the same were issued contrary to the provisions of Section 68 of the Act. A case has therefore been made for the setting aside of the said warrants and lifting of the attachment against the 1st Respondent.

Conclusion 18. In conclusion, I find merit in the 1st Respondent’s application dated 16th April 2024. The application is allowed in terms of prayer 4 thereof. There shall be no order as to costs of the application while the auctioneers’ costs if any shall be borne by the Petitioner.

DELIVERED AND DATED AT KISUMU ON THIS 2ND DAY OF OCTOBER 2024S. OKONG’OJUDGERuling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:Mr. Okoyo for the PetitionerMr. Otieno D. h/b for Mr. Ragot for the 1st RespondentMs. Jumba h/b for Ms. Khasoa for the 2nd RespondentMs. Mwaura h/b for Ms. Orege for the 3rd RespondentMs. J. Omondi-Court Assistant