Kenya Act or statute

Parliament of Kenya

Government Proceedings Act

Jurisdiction: Kenya
Structure: 34 provisions
Citation: Cap. 40
Dates: As at 31 Dec 2022

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Dates: As at 31 Dec 2022

Source attribution: Source: Kenya Law

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“The Act may be cited as the Government Proceedings Act.”

The Act may be cited as the Government Proceedings Act. Section 2 provides definitions for terms used in the Act (including "agent", "armed forces", "civil proceedings", "officer", "order", "prescribed", "proceedings against the Government", and "statutory duty") and states that references to the Act include rules of court; Part IV and V references to civil proceedings by or against the Government include the Attorney-General and Government departments, with a proviso limiting when the Government is deemed a party. A person with a claim against the Government (after this Act begins) is entitled to enforce that claim by proceedings against the Government, subject to this Act. Section 4 establishes when the Government is liable in tort for acts of its servants, agents or officers and limits liability in specified circumstances. Subsection (2) preserves the rights of any Government department under section 46 of the Patents Act, 1949 and under section 12 and the First Schedule to the Registered Designs Act, 1949.

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PRELIMINARY - 1. Short title

The Act may be cited as the Government Proceedings Act.

Section 1

JURISDICTION AND PROCEDURE - 10. Civil proceedings in subordinate courts

Section 10

JURISDICTION AND PROCEDURE - 18. Appeals and stay of execution

Subject to this Act, any written law on appeals and stay of execution applies to civil proceedings by or against the Government in the same way as it applies between private persons.

Section 18

MISCELLANEOUS - 25. Exclusion of proceedingsin remagainst the Government

The court may order that proceedings in rem instituted against government property be treated as in personam against the Government or another proper person where it is satisfied they were instituted in the reasonable belief that the property did not belong to…

Section 25

MISCELLANEOUS - 34. Savings

Section 34 preserves existing liabilities, evidentiary rules, rights to control proceedings, and court discretion: it specifies that the Act does not subject the Government (or the Public Trustee) to greater liabilities in several respects, limits liability…

Section 34

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Showing 34 of 34 provisions

Provision 24Commencement 7Short titleInterpretation

Part I

PRELIMINARY

§ 1PRELIMINARY - 1. Short titleShort title

The Act may be cited as the Government Proceedings Act.

Section 1. Short title Section This Act may be cited as the Government Proceedings Act.

Section 1Verify source

§ 2PRELIMINARY - 2. InterpretationInterpretation

Section 2 provides definitions for terms used in the Act (including "agent", "armed forces", "civil proceedings", "officer", "order", "prescribed", "proceedings against the Government", and "statutory duty") and states that references to the Act include rules of court; Part IV and V references to civil proceedings by or against the Government include the Attorney-General and Government departments, with a proviso limiting when the Government is deemed a party.

Section 2. Interpretation Section 2(1) In this Act, except where the context otherwise requires— "agent", when used in relation to the Government, includes an independent contractor employed by the Government; "armed forces" means the military, naval and air forces of the Republic and includes any person who, although not a member of any of those forces, is serving under the control of any of those forces, and whether as a civilian or otherwise; "civil proceedings" includes proceedings in the High Court or a subordinate court for the recovery of fines or penalties; "officer", in relation to the Government, includes the President, the Deputy President, a Cabinet Secretary and any other servant of the Government; "order" includes a judgment, decree, rule, award or declaration; "prescribed" means prescribed by rules of court; "proceedings against the Government" includes a claim by way of set- off or counterclaim raised in proceedings by the Government; "statutory duty" means any duty imposed by or under any written law. Section 2(2) Any reference in this Act to the provisions of this Act shall, unless the context otherwise requires, include a reference to rules of court made for the purposes of this Act. Section 2(3) Any reference in Part IV or Part V of this Act to civil proceedings by or against the Government, or to civil proceedings to which the Government is a party, shall be construed to include a reference to civil proceedings to which the Attorney-General, or any Government department, or any officer of the Government as such, is a party: Provided that the Government shall not, for the purposes of Part IV or Part V of this Act, be deemed to be a party to any proceedings by reason only that they are brought by the Attorney-General upon the relation of some other person. [Act No. 21 of 1966 , 1st Sch.]

Section 2Verify source

Part II

SUBSTANTIVE LAW

§ 3SUBSTANTIVE LAW - 3. Right to sue the GovernmentCommencement

A person with a claim against the Government (after this Act begins) is entitled to enforce that claim by proceedings against the Government, subject to this Act.

Section 3. Right to sue the Government Section Where any person has a claim against the Government after the commencement of this Act and, if this Act had not been enacted, the claim might have been enforced in accordance with the provisions of the Petitions of Right Ordinance (Repealed), or might have been enforced by a proceeding provided by any statutory provisions repealed by this Act then, subject to the provisions of this Act, the claim may be enforced as of right by proceedings taken against the Government for that purpose in accordance with the provisions of this Act. [Act No. 21 of 1966 , 1st Sch.]

Section 3Verify source

§ 4SUBSTANTIVE LAW - 4. Liability of the Government in tortProvision

Section 4 establishes when the Government is liable in tort for acts of its servants, agents or officers and limits liability in specified circumstances.

Section 4. Liability of the Government in tort Section 4(1)(a) in respect of torts committed by its servants or agents; Section 4(1)(b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and Section 4(1)(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property: Section 4(2) Where the Government is bound by a statutory duty which is binding also upon persons other than the Government and its officers, then, subject to the provisions of this Act, the Government shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity. Section 4(3) Where any functions are conferred or imposed upon an officer of the Government as such either by any rule of the common law or by any written law, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Government in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government. Section 4(4) Any written law which negatives or limits the amount of the liability of any Government department or officer of the Government in respect of any tort committed by that department or officer shall, in the case of proceedings against the Government under this section in respect of a tort committed by that department or officer, apply in relation to the Government as it would have applied in relation to that department or officer if the proceedings against the Government had been proceedings against that department or officer. Section 4(5) No proceedings shall lie against the Government by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process. Section 4(6) No proceedings shall lie against the Government by virtue of this section in respect of any act, neglect or default of any officer of the Government, unless that officer has been directly or indirectly appointed by the Government and was at the material time paid in respect of his duties as an officer of the Government wholly out of the consolidated fund or was at the material time holding an office in respect of which the Cabinet Secretary for the time being responsible for Finance certifies that the holder thereof would normally be so paid. [Act No. 21 of 1966 , 1st Sch.]

Section 4Verify source

§ 5SUBSTANTIVE LAW - 5. Provisions as to industrial propertyCommencement

Subsection (2) preserves the rights of any Government department under section 46 of the Patents Act, 1949 and under section 12 and the First Schedule to the Registered Designs Act, 1949.

Section 5. Provisions as to industrial property Section 5(1) Where, after the commencement of this Act, any servant or agent of the Government infringes a patent, or infringes a registered trade mark, or infringes any copyright (including any copyright in a design subsisting under the Registered Designs Act, 1949, (12,13, & 14 Geo. 6 c. 88.) of the United Kingdom) and the infringement is committed with the authority of the Government, then, subject to the provisions of this Act, civil proceedings in respect of the infringement shall lie against the Government. Section 5(2) Nothing in subsection (1) of this section or any other provision of this Act shall affect the rights of any Government department under section 46 of the Patents Act, 1949, (12, 13, 14 Geo. 6 c. 87.) or under section 12 of, and the First Schedule to, the Registered Designs Act, 1949, of the United Kingdom. Section 5(3) Save as expressly provided by this section, no proceedings shall lie against the Government by virtue of this Act in respect of the infringement of a patent, in respect of the infringement of a registered trade mark, or the infringement of any copyright as is mentioned in subsection (1). [Act No. 21 of 1966 , First Sch.]

Section 5Verify source

§ 6SUBSTANTIVE LAW - 6. Application of law as to indemnity and contributionProvision

When the Government is liable under this Part, rules about indemnity and contribution can be enforced by or against the Government as if it were a private person of full age and capacity.

Section 6. Application of law as to indemnity and contribution Section Where the Government is subject to any liability by virtue of this Part of this Act, the law relating to indemnity and contribution shall be enforceable by or against the Government in respect of the liability to which it is so subject as if the Government were a private person of full age and capacity. [Act No. 21 of 1966 , First Sch.]

Section 6Verify source

§ 7SUBSTANTIVE LAW - 7. Provisions relating to the Kenya Defence Forces.Provision

Limits tort liability for government officers where injury or death to a Kenya Defence Forces member arises from service-related causes and allows the Cabinet Secretary responsible for finance to certify such service-relatedness for pension/gratuity entitlement; certificates about duty or use of property are conclusive.

Section 7. Provisions relating to the Kenya Defence Forces. Section 7(1)(a) at the time when that thing is suffered by that other person, he is either on duty as a member of the Kenya Defence Forces or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the Kenya Defence Forces; and Section 7(1)(b) where that other person is a member of the Kenya Defence Forces, the Cabinet Secretary for the time being responsible for finance certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to a gratuity or pension under any written law relating to the disablement or death of members of the force of which he is a member: Section 7(2)(a) that thing is suffered by him in consequence of the nature or condition of any land, premises, ship, aircraft or vehicle referred to in paragraph (a) of subsection (1), or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces; and Section 7(2)(b) the Cabinet Secretary for the time being responsible for finance certifies as mentioned in paragraph (b) of subsection (1), nor shall any act or omission of an officer of the Government subject him to liability in tort for death or personal injury in so far as the death or personal injury is due to anything suffered by a member of the Kenya Defence Forces being a thing as to which the conditions aforesaid are satisfied. Section 7(3)(a) that a person was or was not on any particular occasion on duty as a member of the Kenya Defence Forces; or Section 7(3)(b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purpose of the Kenya Defence Forces, may issue a certificate certifying that to be the fact; and any such certificate shall, for the purposes of this section, be conclusive as to the fact which it certifies.

Section 7Verify source

§ 8SUBSTANTIVE LAW - 8. Saving in respect of certain acts done under prerogative and statutory powersProvision

Keeps intact powers vested in the Government and allows the President to issue a certificate that is conclusive in relevant proceedings.

Section 8. Saving in respect of certain acts done under prerogative and statutory powers Section 8(1) Nothing in this Part shall extinguish or abridge any powers or authorities which, if this Act had not been passed, would have been exercisable by virtue of any prerogative, privilege, power or authority vested in the Government by any written law, and in particular nothing in this Part shall extinguish or abridge any powers or authorities exercisable by the Government, whether in time of peace or of war, for the purpose of the defence of Kenya or of training, or maintaining the efficiency of, any of the armed forces. Section 8(2) Where in any proceedings under this Act it is material to determine whether anything was properly done or omitted to be done in the exercise of any prerogative or privilege of the Government, the President may, if satisfied that the act or omission was necessary for any such purpose mentioned in subsection (1), issue a certificate to the effect that the act or omission was necessary for that purpose; and the certificate shall, in those proceedings, be conclusive as to the matters so certified. [Act No. 21 of 1966 , First Sch.]

Section 8Verify source

Part III

JURISDICTION AND PROCEDURE

§ 10JURISDICTION AND PROCEDURE - 10. Civil proceedings in subordinate courtsProvision

Section 10(1) allows civil proceedings against the Government to be instituted in a subordinate court subject to this Act and any written law limiting subordinate court jurisdiction; Section 10(2) requires proceedings by or against the Government in a subordinate court to be instituted and proceeded with in accordance with rules of court and not otherwise.

Section 10. Civil proceedings in subordinate courts Section 10(1) Subject to the provisions of this Act, and to any written law limiting the jurisdiction of a subordinate court (whether by reference to the subject matter of the proceedings to be brought or by the amount sought to be recovered in the proceedings or otherwise), any civil proceedings against the Government may be instituted in a subordinate court. Section 10(2) Any proceedings by or against the Government in a subordinate court shall be instituted and proceeded with in accordance with rules of court and not otherwise. [Act No. 21 of 1966 , 1st Sch.]

Section 10Verify source

§ 11JURISDICTION AND PROCEDURE - 11. InterpleaderProvision

The Government may obtain relief by way of interpleader proceedings and may be made a party to those proceedings.

Section 11. Interpleader Section The Government may obtain relief by way of interpleader proceedings, and may be made a party to such proceedings, in the same manner in which a subject may obtain relief by way of those proceedings or be made a party thereto, and may be made a party to those proceedings notwithstanding that the application for relief is made by a court broker or like officer; and all rules of court relating to interpleader proceedings shall, subject to the provisions of this Act, have effect accordingly. [Act No. 21 of 1966 , First Sch.]

Section 11Verify source

§ 12JURISDICTION AND PROCEDURE - 12. Parties to proceedingsProvision

Civil proceedings by or against the Government must be brought by or against the Office of the Attorney-General; such proceedings do not abate or get affected by a change in the person holding that Office.

Section 12. Parties to proceedings Section 12(1) Subject to the provisions of any other written law, civil proceedings by or against the Government shall be instituted by or against the Office of the Attorney-General, as the case may be. Section 12(2) No proceedings instituted in accordance with this Part of this Act by or against the Office of the Attorney-General shall abate or be affected by any change in the person holding the Office of the Attorney-General. [Act No. 21 of 1966 , 1st Sch.]

Section 12Verify source

§ 13JURISDICTION AND PROCEDURE - 13. Service of documentsProvision

Documents that must be served on the Government in civil proceedings are to be served on the Office of the Attorney‑General.

Section 13. Service of documents Section All documents required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government in accordance with the provisions of this Act shall be served on the Office of the Attorney-General. [Act No. 21 of 1966 , 1st Sch.]

Section 13Verify source

§ 13AJURISDICTION AND PROCEDURE - 13A. Notice of intention to institute proceedingsProvision

Proceedings against the Government cannot be instituted until thirty days after a written notice in the prescribed form has been served on the Government.

Section 13A. Notice of intention to institute proceedings Section 13A(1) No proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing in the prescribed form have been served on the Government in relation to those proceedings. Section 13A(2)(a) the full names, description and place of residence of the proposed plaintiff; Section 13A(2)(b) the date upon which the cause of action is alleged to have accrued; Section 13A(2)(c) the name of the Government department alleged to be responsible and the full names of any servant or agent whom it is intended to join as a defendant; Section 13A(2)(d) a concise statement of the facts on which it is alleged that the liability of the Government and of any such servant or agent has arisen; Section 13A(2)(e) the relief that will be claimed and, so far as may be practicable, the value of the subject matter of the intended proceedings or the amount which it is intended to claim. Section 13A(3) The provisions of this section shall not apply to such part of any proceedings as relates to a claim for relief in respect of which the court may, by virtue of proviso (i) to section 16 (1), make an order declaratory of the right of the parties in lieu of an injunction. [Act No. 5 of 1974 , s. 8, Act No. 7 of 1975 , Sch.]

Section 13AVerify source

§ 14JURISDICTION AND PROCEDURE - 14. Venue and related mattersProvision

The Government may enter an appearance in the District Registry or in the Central Office of the High Court in Nairobi; if entered in the Central Office, all steps up to trial are to be taken in Nairobi.

Section 14. Venue and related matters Section 14(1) In any case in which civil proceedings against the Government in the High Court are instituted by the issue of a plaint out of a District Registry, the Government may enter an appearance either in the District Registry or in the Central Office of the High Court in Nairobi, and, if an appearance is entered in the Central Office, all steps in relation to the proceedings up to the trial shall be taken in Nairobi. Section 14(2) The trial of any civil proceedings by or against the Government in the High Court shall be held at the High Court in Nairobi unless the court, with the consent of the Government, otherwise directs. Section 14(3) Where the Government refuses its consent to a direction under subsection (2) of this section, the court may take account of the refusal in exercising its powers in regard to the award of costs. [Act No. 21 of 1966 , 1st Sch.]

Section 14Verify source

§ 15JURISDICTION AND PROCEDURE - 15. Removal and transfer of proceedingsProvision

If the Government applies and the Attorney‑General certifies that a case against the Government involves an important question of law or is more suitable for the High Court, the proceedings shall be removed to the High Court; if that removal causes extra expense, the court may take that expense into account when awarding costs.

Section 15. Removal and transfer of proceedings Section 15(1) If, in a case where proceedings are instituted against the Government in a subordinate court, an application in that behalf is made by the Government to the High Court, and there is produced to the court a certificate of the Attorney-General to the effect that the proceedings may involve an important question of law, or may be decisive of other cases arising out of the same matter, or are for other reasons more fit to be tried in the High Court, the proceedings shall be removed into the High Court. Section 15(2) Where any proceedings have been removed into the High Court on the production of a certificate as is mentioned in subsection (1) of this section, and it appears to the court by whom the proceedings are tried that the removal has occasioned additional expense to the person by whom the proceedings are brought, the court may take account of the additional expense so occasioned in exercising its power in regard to the award of costs. Section 15(3) Without prejudice to the rights of the Government under the preceding provisions of this section, the provisions of any written law relating to the removal or transfer of proceedings from a subordinate court to the High Court or the transfer of proceedings from the High Court to a subordinate court shall apply in relation to proceedings against the Government: Provided that an order for the transfer to a subordinate court of any proceedings against the Government in the High Court shall not be made without the consent of the Government. [Act No. 21 of 1966 , 1st Sch.]

Section 15Verify source

§ 16JURISDICTION AND PROCEDURE - 16. Nature of reliefProvision

Courts may not grant injunctions or order specific performance or recovery of property against the Government; instead they may make declaratory orders of rights, and they must not order relief against government officers that would effectively give relief against the Government which could not be obtained in proceedings against the Government.

Section 16. Nature of relief Section 16(1)(i) where in any proceedings against the Government any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and Section 16(1)(ii) in any proceedings against the Government for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Government to the land or property, or to the possession thereof. Section 16(2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give any relief against the Government which could not have been obtained in proceedings against the Government. [Act No. 21 of 1966 , 1st Sch.]

Section 16Verify source

§ 17JURISDICTION AND PROCEDURE - 17. Costs in civil proceedings to which the Government is a partyProvision

Courts or arbitrators must consider the nature and circumstances when the Government (Attorney-General, a department or officer) is a party, and may order other parties to pay the Government's costs whatever the result.

Section 17. Costs in civil proceedings to which the Government is a party Section in the case of proceedings to which by reason of any written law or otherwise the Attorney-General, a Government department or any officer of the Government as such is authorised to be made a party, the court or arbitrator shall have regard to the nature of the proceedings and the character and the circumstances in which the Attorney- General, the department or officer of the Government appears, and may in the exercise of its or his discretion order any other party to the proceedings to pay the costs of the Attorney-General, department or officer, whatever may be the result of the proceedings; and

Section 17Verify source

§ 18JURISDICTION AND PROCEDURE - 18. Appeals and stay of executionProvision

Subject to this Act, any written law on appeals and stay of execution applies to civil proceedings by or against the Government in the same way as it applies between private persons.

Section 18. Appeals and stay of execution Section Subject to the provisions of this Act, any written law relating to appeals and stay of execution shall, with any necessary modifications, apply to civil proceedings by or against the Government as they apply to proceedings between subjects. [Act No. 21 of 1966 , 1st Sch.]

Section 18Verify source

§ 19JURISDICTION AND PROCEDURE - 19. Scope of PartProvision

Defines what counts as "civil proceedings by or against the Government" by listing types of proceedings the Part covers, including specified proceedings in the First Schedule, actions by or against Government departments or officers, proceedings by or against the Attorney-General, Public Trustee, proceedings relating to charitable trusts, and proceedings under the Land Registration Act.

Section 19. Scope of Part Section 19(1)(a) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been enacted, might have been enforced or vindicated or obtained by any such proceedings mentioned in paragraph 1 of the First Schedule; Section 19(1)(b) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been enacted, might have been enforced or vindicated or obtained by an action at the suit of any Government department or any officer of the Government as such; Section 19(1)(c) all such proceedings as the Government is entitled to bring by virtue of this Act, and the expression "civil proceedings by or against the Government" shall be construed accordingly. Section 19(2)(a) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been enacted, might have been enforced or vindicated or obtained by any such proceedings as are mentioned in paragraph 2 of the First Schedule; Section 19(2)(b) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been enacted, might have been enforced or vindicated or obtained by an action against the Attorney-General, any Government department, or any officer of the Government as such; and Section 19(2)(c) all such proceedings as any person is entitled to bring against the Government by virtue of this Act, and the expression "civil proceedings by or against the Government" shall be construed accordingly. Section 19(3)(a) proceedings brought by the Attorney-General on the relation of some other person; Section 19(3)(b) proceedings by or against the Public Trustee; Section 19(3)(c) proceedings relating to charitable trusts by or against the Attorney-General; Section 19(3)(d) proceedings by or against a registrar under the Land Registration Act (Cap. 300).

Section 19Verify source

§ 9JURISDICTION AND PROCEDURE - 9. Civil proceedings in the High CourtProvision

Proceedings by or against the Government mentioned in the First Schedule are abolished; civil proceedings by or against the Government in the High Court must be instituted and proceeded with in accordance with rules of court.

Section 9. Civil proceedings in the High Court Section 9(1) Subject to the provisions of this Act, all civil proceedings by or against the Government mentioned in the First Schedule to this Act are hereby abolished, and all civil proceedings by or against the Government in the High Court shall be instituted and proceeded with in accordance with rules of court and not otherwise. Section 9(2) In this section, the expression "rules of court" means, in relation to any claim against the Government in the High Court which falls within the jurisdiction of that court as a prize court, rules of court made under section 3 of the Prize Courts Act, 1894 (57 & 58 Vict. c. 39.) [Act No. 21 of 1966 , First Sch.]

Section 9Verify source

Part IV

JUDGMENTS AND EXECUTION

§ 20JUDGMENTS AND EXECUTION - 20. Interest on debts, damages and costsCommencement

Section 20 makes interest provisions apply to proceedings involving the Government, including judgment debts, costs, debts and damages, and both pending and future proceedings.

Section 20. Interest on debts, damages and costs Section 20(1) Section 26 of the Civil Procedure Act ( Cap. 21 ), (which provides that a judgment debt shall carry interest) shall apply to judgment debts due from or to the Government. Section 20(2) The provisions of any written law empowering a court to award interest on costs shall apply to orders made in any proceedings by or against the Government. Section 20(3) The provisions of any written law empowering a court to award interest on debts and damages shall apply to orders made in any proceedings by or against the Government. Section 20(4) This section shall apply both in relation to proceedings pending at the commencement of this Act and in relation to proceedings instituted thereafter. [Act No. 21 of 1966 , 1st Sch.]

Section 20Verify source

§ 21JUDGMENTS AND EXECUTION - 21. Satisfaction of orders against the GovernmentProvision

The court's proper officer must issue a prescribed-form certificate after specified waiting periods; the Accounting Officer must pay amounts shown on the certificate (subject to court directions on suspension); certificates may be served on the Attorney-General; no execution may be issued against the Government and individuals are not personally liable.

Section 21. Satisfaction of orders against the Government Section 21(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. Section 21(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. Section 21(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. Section 21(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. Section 21(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 arbirtation in which a county government is a party. [Act No. 21 of 1966 , 1st Sch., Act No. 35 of 2015 , s. 2.]

Section 21Verify source

§ 22JUDGMENTS AND EXECUTION - 22. Execution by the GovernmentCommencement

An order made in favour of the Government in civil proceedings may be enforced in the same manner as an order between private subjects, subject to this Act; this applies to proceedings pending at commencement and to those instituted later, and does not affect earlier distinct enforcement procedures for recovery of fines, penalties or forfeitures.

Section 22. Execution by the Government Section 22(1) Subject to the provisions of this Act, any order made in favour of the Government against any person in any civil proceedings to which the Government is a party may be enforced in the same manner as an order made in an action between subjects, and not otherwise. Section 22(2) Subsection (1) of this section shall apply both in relation to proceedings pending at the commencement of this Act and in relation to proceedings instituted thereafter. Section 22(3) Nothing in this section shall affect any procedure which immediately before the commencement of this Act was available for enforcing an order made in favour of the Government in proceedings brought by the Government for the recovery of any fine or penalty, or the forfeiture or condemnation of any goods, or the forfeiture of any ship or any share in a ship. [Act No. 21 of 1966 , 1st Sch.]

Section 22Verify source

§ 23JUDGMENTS AND EXECUTION - 23. Attachment of moneys payable by the GovernmentProvision

Section 23 limits attachment of certain Government-payable moneys: subsection (1)(b) excludes money subject to laws prohibiting or restricting assignment/charging/taking in execution; subsection (1)(c) excludes money payable by the Government for deposits in the Kenya Post Office Savings Bank; subsection (2) makes subsection (1) apply to subordinate courts as it applies to the High Court.

Section 23. Attachment of moneys payable by the Government Section 23(1)(a) deleted by ActNo. 6 of 1979, Sch.; Section 23(1)(b) money which is subject to the provisions of any written law prohibiting or restricting assignment or charging or taking in execution; or Section 23(1)(c) money payable by the Government to any person on account of a deposit in the Kenya Post Office Savings Bank. Section 23(2) The provisions of subsection (1) of this section shall, so far as they relate to forms of relief falling within the jurisdiction of a subordinate court, have effect in relation to subordinate courts as they have effect in relation to the High Court. [Act No. 21 of 1966 , 1st Sch., Act No. 6 of 1979 , Sch.]

Section 23Verify source

Part V

MISCELLANEOUS

§ 24MISCELLANEOUS - 24. DiscoveryProvision

In civil proceedings involving the Government, the Government may be required by the court to disclose documents, produce them for inspection or answer interrogatories, subject to rules of court and to rules permitting withholding to protect the public interest.

Section 24. Discovery Section 24(1) Subject to and in accordance with rules of court, in any civil proceedings in the High Court or a subordinate court to which the Government is a party, the Government may be required by the court to make discovery of documents and produce documents for inspection or answer interrogatories: Provided that this section shall be without prejudice to any rule of law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest. Section 24(2) Any order of the court made under the powers conferred by paragraph (b) of subsection (1) of this section shall direct by what officer of the Government the interrogatories are to be answered. Section 24(3) Without prejudice to the proviso to subsection (1) of this section, any rules of court made for the purposes of this section shall be such as to secure that the existence of a document will not be disclosed if, in the opinion of a Cabinet Secretary, it would be injurious to the public interest to disclose the existence thereof. [Act No. 21 of 1966 , 1st Sch.]

Section 24Verify source

§ 25MISCELLANEOUS - 25. Exclusion of proceedingsin remagainst the GovernmentProvision

Section 25. Exclusion of proceedingsin remagainst the Government Section 25(1) Nothing in this Act shall authorise proceedings in rem in respect of any claim against the Government, or the arrest, detention or sale of any Government ship or aircraft, or of any cargo or other property belonging to the Government, or give to any person any lien on any such ship, aircraft, cargo or other property. Section 25(2) Where proceedings in rem have been instituted in the High Court or in a subordinate court against any such ship, aircraft, cargo or other property, the court may, if satisfied, either on an application by the plaintiff for an order under this subsection or an application by the Government to set aside the proceedings, that the proceedings were so instituted by the plaintiff in the reasonable belief that the ship, aircraft, cargo or other property did not belong to the Government, order that the proceedings shall be treated as if they were in personam duly instituted against the Government in accordance with the provisions of this Act, or duly instituted against any other person whom the court regards as the proper person to be sued in the circumstances, and that the proceedings shall continue accordingly. Section 25(3) Any order made in accordance with the provisions of subsection (2) may be upon such terms, if any, as the court thinks just; and, where the court makes any such order, it may make such consequential orders as it thinks expedient. [Act No. 21 of 1966 , 1st Sch.]

Section 25Verify source

§ 26MISCELLANEOUS - 26. Limitation of actionsProvision

The Government is entitled to rely on written laws about limitation of time for bringing proceedings against public authorities.

Section 26. Limitation of actions Section Nothing in this Act shall prejudice the right of the Government to rely upon any written law relating to the limitation of time for bringing proceedings against public authorities. [Act No. 21 of 1966 , 1st Sch.]

Section 26Verify source

§ 27MISCELLANEOUS - 27. Application to the Government of certain written lawsProvision

Gives the Government the right to rely on provisions of any written law not explicitly named, and permits the Government to rely on such provisions as a defence in civil proceedings subject to express contrary provision.

Section 27. Application to the Government of certain written laws Section This Act shall not prejudice the rights of the Government to take advantage of the provisions of any written law although not named therein; and in any civil proceedings against the Government the provisions of any written law which could, if the proceedings were between subjects, be relied upon by the defendant as a defence to the proceedings, whether in whole or in part, or otherwise, may, subject to any express provision to the contrary, be so relied upon by the Government. [Act No. 21 of 1966 , 1st Sch.]

Section 27Verify source

§ 28MISCELLANEOUS - 28. No abatement on change of GovernmentProvision

Claims by or against the Government, and proceedings to enforce such claims, do not abate or are not affected by a change of the Government.

Section 28. No abatement on change of Government Section No claim by or against the Government, and no proceedings for the enforcement of any such claim, shall abate or be affected by any change of the Government. [Act No. 21 of 1966 , 1st Sch.]

Section 28Verify source

§ 29MISCELLANEOUS - 29. Abolition of certain writsCommencement

After the commencement of this Act, no writ of extent or diem clausit extremum shall be issued.

Section 29. Abolition of certain writs Section No writ of extent or diem clausit extremum shall issue after the commencement of this Act.

Section 29Verify source

§ 30MISCELLANEOUS - 30. Rules of courtCommencement

Rules of court may include special provisions for proceedings by or against the Government and impose procedural obligations on plaintiffs, including providing information before the Government must act and restrictions on entering judgment without leave; persons are also barred from relying on set‑offs or counterclaims in certain Government revenue proceedings.

Section 30. Rules of court Section 30(1) Any power to make rules of court to provide for any matters relating to the procedure of civil courts shall include power to make rules of court for the purpose of giving effect to the provisions of this Act, and any such rules may contain provisions to have effect in relation to any proceedings by or against the Government in substitution for or by way of addition to any of the provisions of the rules applying to proceedings between subjects. Section 30(2)(a) for providing for service of process, or notice thereof, in the case of proceedings by the Government against persons, whether citizens of Kenya or not, who are not resident in Kenya; Section 30(2)(b) for securing that where any civil proceedings are brought against the Government in accordance with the provisions of this Act the plaintiff shall, before the Government is required to take any step in the proceedings, provide the Government with such information as the Government may reasonably require as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the departments and officers of the Government concerned; Section 30(2)(c) for providing that in the case of proceedings against the Government the plaintiff shall not enter judgment against the Government in default of appearance or pleading without the leave of the court to be obtained on an application of which notice has been given to the Government; Section 30(2)(d) for excepting proceedings brought against the Government from the operation of any rule of court providing for summary judgment without trial, and for enabling any such proceedings to be put in proper cases into any special list which may be kept for the trial of short causes in which leave to defend is given under any such rule of court as aforesaid; Section 30(2)(e) for enabling evidence to be taken on commission in proceedings by or against the Government; Section 30(2)(f) for providing that a person shall not be entitled to avail himself of any set-off or counterclaim in any proceedings by the Government for the recovery of taxes, duties or penalties, or to avail himself in proceedings of any other nature by the Government of any set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties. Section 30(3) Provision may be made by rules of court for regulating any appeals to the High Court, whether by way of case stated or otherwise, under any written law relating to the revenue, and any rules made under this sub-section may revoke any written law or rules in force immediately before the commencement of this Act so far as they regulate any such appeals, and may make provision for any matters for which provision was made by any written law or rules so in force. [Act No. 1 of 1964 , s. 8, Act No. 21 of 1966 , First Sch.]

Section 30Verify source

§ 32MISCELLANEOUS - 32. Financial provisionsProvision

Expenditure under this Act is to be paid from moneys provided by Parliament.

Section 32. Financial provisions Section 32(1) Any expenditure incurred by or on behalf of the Government by reason of this Act shall be defrayed out of moneys provided by Parliament. Section 32(2) Except in so far as Parliament may otherwise authorise, any sum payable to the Government by reason of this Act shall be paid into the Consolidated Fund. [Act No. 21 of 1966 , 1st Sch.]

Section 32Verify source

§ 33MISCELLANEOUS - 33. RepealRepeal

The Acts of the United Kingdom listed in the Second Schedule will cease to apply to Kenya to the extent set out in the third column of that Schedule.

Section 33. Repeal Section The Acts of the United Kingdom set out in the Second Schedule shall cease to apply to Kenya to the extent specified in the third column of that Schedule.

Section 33Verify source

§ 34MISCELLANEOUS - 34. SavingsCommencement

Section 34. Savings Section 34(1)(a) affect the law relating to prize salvage, or apply to proceedings in causes or matters within the jurisdiction of the High Court as a prize court or to any criminal proceedings; or Section 34(1)(b) subject the Government to any greater liabilities in respect of the acts or omissions of any independent contractor employed by the Government than those to which the Government would be subject in respect of such acts or omissions if it were a private person; or Section 34(1)(c) subject the Government, in its capacity as a highway authority, to any greater liability than that to which a local authority is subject in that capacity; or Section 34(1)(d) affect any rules of evidence or any presumption relating to the extent to which the Government is bound by any written law; or Section 34(1)(e) affect any rights of the Government to control or otherwise intervene in proceedings affecting its rights, property or profits; or Section 34(1)(f) affect any liability imposed on the Public Trustee by the Public Trustee Act (Cap. 168). Section 34(2) Where any property vests in the Government by virtue of any rule of law which operates independently of the acts or the intentions of the Government, the Government shall not by virtue of this Act be subject to any liabilities in tort by reason only of the property being so vested; but the provisions of this subsection shall be without prejudice to the liabilities of the Government under this Act in respect of any period after the Government or any person acting for the Government has in fact taken possession or control of any such property, or entered into occupation thereof. Section 34(3) This Act shall not operate to limit the discretion of the court to grant relief by way of mandamus in cases in which that relief might have been granted before the commencement of this Act, notwithstanding that by reason of the provisions of this Act some other and further remedy is available. [Act No. 21 of 1966 , 1st Sch.]

Section 34Verify source

Legislative relationships

7 referenced instruments

Names are derived from the stored provision headings and citation-enrichment layer. Treat this as a research index and verify each relationship against the source text.

A–F

1 instrument

Civil Procedure Act
Section 20

G–M

2 instruments

Government by reason of this Act
Section 32
Government under this Act
Section 34

N–S

4 instruments

Part IV or Part V of this Act
Section 2
Patents Act, 1949
Section 5
Petitions of Right Ordinance
Section 3
Prize Courts Act, 1894
Section 9

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31 Dec 2022 · currentEnglish

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