1. Before me are garnishee proceedings. Now, in the decree holder’s notice of motion dated 22.6.2026, primarily under Order 23 Rules 1, 2, 3 and 4 of the Civil Procedure Rules seeks a garnishee order absolute commanding the garnishee to pay to it the decretal sum of Kshs. 25,520,000/- together with interest at court rates of 14% per annum from 18.5.2026 until payment in full, remitting it into its account held at SBM Bank Kenya Limited.
2. The application is supported by the affidavit sworn by the firm’s principal, Frederick Ngatia, S. C. on 22.6.2026 and 23.7.2026 as well as written submissions dated 31.7.2026.
3. The decree arises from a taxation of an advocate-client bill of costs dated 5.6.2025 for legal services rendered to the judgment debtor for an attendance before the Public Investments Committee of the National Assembly in 2015.
4. It was deposed that the bill of costs was duly served upon the judgment debtor which actively participated in the taxation proceedings that culminated in a taxation award of Kshs. 25,520,000/-. That the certificate of taxation dated 5.1.2026 was issued and thereafter adopted as a judgment and decree of the court. However, the judgment debtor failed to pay.
5. The decree holder stated that it established that there are substantial funds held to the credit of the judgment debtor at its ABSA Bank Kenya PLC account, sufficient to satisfy the decretal sum, interest and costs.
Responses
6. The garnishee filed a replying affidavit sworn by its legal counsel, Simon Mwangi on 1.7.2026. The deponent confirmed that the garnishee was served with the garnishee application and that the garnishee was holding funds sufficient to satisfy the decree, in the judgment debtor’s account funds. The deponent indicated that the garnishee also seeks orders for reimbursement of its reasonable legal costs of Kshs. 50,000/- in the proceedings.
7. On its part, the judgment debtor filed a replying affidavit sworn by its Managing Director and Chief Executive Officer, Moses Wekesa on 6.7.2026.
8. The crux of its case was that by virtue of its status as a Government Owned Enterprise, it is legally insulated from standard civil execution mechanisms, including garnishee proceedings and attachment of its bank accounts.
9. The judgment debtor relied on section 2 of the Government Owned Enterprises Act and sections 21 and 23 of the Government Proceedings Act.
10. The judgment debtor indicated that the provisions protect public funds, assets and operational accounts of State-controlled entities from being paralyzed via ordinary execution tools.
Rejoinder
11. The decree holder contended that state corporations do not enjoy blanket immunity from garnishee proceedings merely because of their public nature. It relied on Export Trading Company Limited v National Cereals and Produce Board & 2 Others; Kenya Commercial Bank Limited & 2 others (Garnishee) [2024] KEHC 12053 (KLR).
12. The decree holder argued that the judgment debtor cannot invoke the protections under sections 21 and 22 of the Government Proceedings Act to defeat its garnishee application. It contended that the provisions only insulate attachment of immovable property belonging to the Government from attachment and execution. It highlighted that its garnishee application does not seek attachment of immovable property but garnishee orders against funds due to or held for the benefit of the judgment debtor in satisfaction of a decree of this court.
13. The decree holder submitted that the judgment debtor is not a Government department but a statutory corporation that was established under the Kenya Airports Authority Act and the State Corporations Act as a body corporate with perpetual succession and a common seal, capable of suing and being sued in its own name and is liable to satisfy lawful decrees against it.
14. The decree holder submitted that the legal effect of the enactment of the Government Owned Enterprises Act (the Act), is not to extinguish the judgment debtors separate corporate personality or to render it immune from lawful execution. It relied on para. 1 of Schedule 4 of the Act which provides that every Government Owned Enterprise specified in the Second Schedule shall incorporate in their name a public limited liability company under the Companies Act. That upon incorporation, the company shall become the successor of the former state corporation and all rights, duties, obligations, assets and liabilities shall be transferred to the entity.
15. That every reference to the Government Owned Enterprise in any contract or document shall for all purposes be deemed to be a reference to the respective company.
16. That Para. 5 of Schedule 4 preserves all existing legal proceedings involving Government Owned Enterprises listed in the Second Schedule by providing that such proceedings shall continue against their respective successor companies.
17. That an official search (CR12) confirms that the judgment debtor is not incorporated at Kenya Airports Authority PLC.
Analysis and Determination
18. The preliminary issue is whether the judgment debtor is insulated from execution through garnishee proceedings.
19. Section 21 (4) of the Government Proceedings Act provides in part that: -
“Save as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any money or costs, 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.”
20. No order against the Government may be made under— (b) Order 22 (Execution of decrees and orders); and (c) Order 23 (Attachment of debts); Order 29 Rule 2 (2) of the Civil Procedure Rules
21. The Court of Appeal in Five Star Agencies Limited & another v National Land Commission & 2 others (Civil Appeal E290 & 328 of 2023 (Consolidated)) [2024] KECA 439 (KLR) (12 April 2024) (Judgment) held that garnishee proceedings instituted by Five Star were incompetent, bad in law and unsustainable as provisions of Order 23 Rule 1, 2, and 3 of the Civil Procedure Rules were inapplicable in execution against the Government and/or State organs.
22. However, each case must depend on its peculiar circumstances. Butt v Khan [1978] KECA 24 (KLR)
23. The decree holder referred to the Government Owned Enterprises Act which commenced on 5 December 2025. The court must consider the legal status of the judgment debtor under the current statutory framework to determine whether garnishee proceedings can be instituted against it.
24. The Act was enacted to provide for the establishment, control, governance, performance and ownership of Government Owned Enterprises; public service obligations in respect of Government Owned Enterprises; facilitate the reconstitution of existing Government Owned Enterprises into public limited liability companies for the transfer of the assets, liabilities and the business of the Government Owned Enterprises to companies and for connected purposes. Preamble to the Act
25. The judgment debtor is listed as a government owned enterprise under the First Schedule of the Act. It is also listed as a state corporation under the Second Schedule of the Act.
26. Section 9 of the Act provides that a Government Owned Enterprise shall operate as a commercial entity and shall: -
(a) operate for profit;
(b)be self-financing;
(c)be self-sustaining; and
(d)be accountable to the public through the National Treasury.
(2) Notwithstanding subsection (1), a Government Owned Enterprise may, in addition to its commercial functions, perform public service obligations.
(3)A Government Owned Enterprise which also performs public service obligations shall operate on a commercial basis and shall, for the purpose of financing the achievement of public service obligations, be funded through the Government budgetary resources.
(4) The operations of a Government Owned Enterprise shall be undertaken in accordance with this Act and the instrument of incorporation.
27. Para 1 of the Fourth Schedule of the Act provides that: -
“Companies to be successor of Government Owned Enterprises
(1) For the purpose of bringing the provisions of this Act into operation, the respective Government Owned Enterprises provided in the Second Schedule shall, in exercise of the powers conferred by section 30 of the Interpretation and General Provisions Act (Cap. 2), incorporate in their names a public limited liability company under the provisions of the Companies Act (Cap. 486).
28. A public company is defined under section 10 of the Companies Act. Its features include: -
(a) its articles allow its members the right to transfer their shares in the company;
(b) its articles do not prohibit invitations to the public to subscribe for shares or debentures of the company; and
(c) its certificate of incorporation states that it is a public company.
29. The decree holder exhibited a copy of the judgment creditor’s Official Search (Form CR12) showing that the judgment debtor is not incorporated as Kenya Airports Authority, PLC was incorporated as a public limited company on 3.6.2026.
30. Following the incorporation of the judgment debtor as a public limited company, it was converted to a separate and distinct legal personality from the Government/ Government Owned Enterprise. Salomon v. Salomon & Co Ltd [1897] AC 22
31. The public company is the successor to the Government Owned Enterprise which has assumed the liabilities of the former.
32. To this effect, Para 1 of the Fourth Schedule (2) of the Act states that: -
The respective Companies shall be the successor of the Government Owned Enterprises provided in the Second Schedule and, subject to this Act, all rights, duties, obligations, assets and liabilities of the Government Owned Enterprises provided in the Second Schedule existing on the commencement date shall be automatically and fully transferred to the respective Companies and any reference to the Government Owned Enterprises provided in the Second Schedule in any contract or document shall for all purposes be deemed to be a reference to the respective Company.”
33. It is therefore my considered view that the judgment debtor is subject to the ordinary execution processes and the provisions restricting the execution and attachment against Government and State Organs are not applicable.
34. There is no legal prohibition or bar on the decree holder’s right to file garnishee proceedings against the judgment debtor in execution of the decree under Order 23 of the Civil Procedure Rules.
35. Thus, I find that the garnishee proceedings are competent and shall be considered on merits.
Whether the garnishee order nisi should be made absolute
36. Order 23 Rule 1 of the Civil Procedure Rules states that: -
“(1) A court may, upon the ex parte application of a decree-holder, and either before or after an oral examination of the judgment-debtor, and upon affidavit by the decree-holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree- holder the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid.”
37. In Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co; Co-operative Bank of Kenya (Garnishee) [2020] KEHC 8931 (KLR), the court observed that: -
24. Garnishee proceedings are in their very nature proceedings whereby the garnishee is required to prove whether or not the garnishee is indebted to the judgment-debtor. Ordinarily, the judgment-creditor only makes allegations of the garnishee’s indebtedness based on sound evidence whereby the burden of proof shifts to the garnishee to prove otherwise. In this regard, to discharge that burden, the garnishee has to produce strong, sufficient and convincing evidence that the funds in its hands or the debt is not due or payable.
38. It is undisputed that the decree holder has a decree against the judgment debtor, for Kshs. 25,520,000/-. The judgment debtor has not paid the decree.
39. The garnishee confirmed that it was holding funds in the judgment debtor’s account sufficient to satisfy the decree.
40. The upshot is that the decree holder’s application dated 22.6.2026 is merited. It is allowed in the following terms: -
(1) A garnishee order absolute is issued directing the garnishee to immediately pay to the decree holder’s account held at SBM Bank Kenya Limited the decretal sum of Kshs. 25,520,000/- together with interest at court rates of 14% per annum from 18.5.2026 until payment in full.
(2) The decree holder and the garnishee are awarded costs assessed at Kshs. 50,000/- and Kshs. 30,000 respectively to be borne by the judgment debtor and be immediately paid from the garnisheed account.
2. The application is supported by the affidavit sworn by the firm’s principal, Frederick Ngatia, S. C. on 22.6.2026 and 23.7.2026 as well as written submissions dated 31.7.2026.
3. The decree arises from a taxation of an advocate-client bill of costs dated 5.6.2025 for legal services rendered to the judgment debtor for an attendance before the Public Investments Committee of the National Assembly in 2015.
4. It was deposed that the bill of costs was duly served upon the judgment debtor which actively participated in the taxation proceedings that culminated in a taxation award of Kshs. 25,520,000/-. That the certificate of taxation dated 5.1.2026 was issued and thereafter adopted as a judgment and decree of the court. However, the judgment debtor failed to pay.
5. The decree holder stated that it established that there are substantial funds held to the credit of the judgment debtor at its ABSA Bank Kenya PLC account, sufficient to satisfy the decretal sum, interest and costs.
Responses
6. The garnishee filed a replying affidavit sworn by its legal counsel, Simon Mwangi on 1.7.2026. The deponent confirmed that the garnishee was served with the garnishee application and that the garnishee was holding funds sufficient to satisfy the decree, in the judgment debtor’s account funds. The deponent indicated that the garnishee also seeks orders for reimbursement of its reasonable legal costs of Kshs. 50,000/- in the proceedings.
7. On its part, the judgment debtor filed a replying affidavit sworn by its Managing Director and Chief Executive Officer, Moses Wekesa on 6.7.2026.
8. The crux of its case was that by virtue of its status as a Government Owned Enterprise, it is legally insulated from standard civil execution mechanisms, including garnishee proceedings and attachment of its bank accounts.
9. The judgment debtor relied on section 2 of the Government Owned Enterprises Act and sections 21 and 23 of the Government Proceedings Act.
10. The judgment debtor indicated that the provisions protect public funds, assets and operational accounts of State-controlled entities from being paralyzed via ordinary execution tools.
Rejoinder
11. The decree holder contended that state corporations do not enjoy blanket immunity from garnishee proceedings merely because of their public nature. It relied on Export Trading Company Limited v National Cereals and Produce Board & 2 Others; Kenya Commercial Bank Limited & 2 others (Garnishee) [2024] KEHC 12053 (KLR).
12. The decree holder argued that the judgment debtor cannot invoke the protections under sections 21 and 22 of the Government Proceedings Act to defeat its garnishee application. It contended that the provisions only insulate attachment of immovable property belonging to the Government from attachment and execution. It highlighted that its garnishee application does not seek attachment of immovable property but garnishee orders against funds due to or held for the benefit of the judgment debtor in satisfaction of a decree of this court.
13. The decree holder submitted that the judgment debtor is not a Government department but a statutory corporation that was established under the Kenya Airports Authority Act and the State Corporations Act as a body corporate with perpetual succession and a common seal, capable of suing and being sued in its own name and is liable to satisfy lawful decrees against it.
14. The decree holder submitted that the legal effect of the enactment of the Government Owned Enterprises Act (the Act), is not to extinguish the judgment debtors separate corporate personality or to render it immune from lawful execution. It relied on para. 1 of Schedule 4 of the Act which provides that every Government Owned Enterprise specified in the Second Schedule shall incorporate in their name a public limited liability company under the Companies Act. That upon incorporation, the company shall become the successor of the former state corporation and all rights, duties, obligations, assets and liabilities shall be transferred to the entity.
15. That every reference to the Government Owned Enterprise in any contract or document shall for all purposes be deemed to be a reference to the respective company.
16. That Para. 5 of Schedule 4 preserves all existing legal proceedings involving Government Owned Enterprises listed in the Second Schedule by providing that such proceedings shall continue against their respective successor companies.
17. That an official search (CR12) confirms that the judgment debtor is not incorporated at Kenya Airports Authority PLC.
Analysis and Determination
18. The preliminary issue is whether the judgment debtor is insulated from execution through garnishee proceedings.
19. Section 21 (4) of the Government Proceedings Act provides in part that: -
“Save as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any money or costs, 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.”
20. No order against the Government may be made under— (b) Order 22 (Execution of decrees and orders); and (c) Order 23 (Attachment of debts); Order 29 Rule 2 (2) of the Civil Procedure Rules
21. The Court of Appeal in Five Star Agencies Limited & another v National Land Commission & 2 others (Civil Appeal E290 & 328 of 2023 (Consolidated)) [2024] KECA 439 (KLR) (12 April 2024) (Judgment) held that garnishee proceedings instituted by Five Star were incompetent, bad in law and unsustainable as provisions of Order 23 Rule 1, 2, and 3 of the Civil Procedure Rules were inapplicable in execution against the Government and/or State organs.
22. However, each case must depend on its peculiar circumstances. Butt v Khan [1978] KECA 24 (KLR)
23. The decree holder referred to the Government Owned Enterprises Act which commenced on 5 December 2025. The court must consider the legal status of the judgment debtor under the current statutory framework to determine whether garnishee proceedings can be instituted against it.
24. The Act was enacted to provide for the establishment, control, governance, performance and ownership of Government Owned Enterprises; public service obligations in respect of Government Owned Enterprises; facilitate the reconstitution of existing Government Owned Enterprises into public limited liability companies for the transfer of the assets, liabilities and the business of the Government Owned Enterprises to companies and for connected purposes. Preamble to the Act
25. The judgment debtor is listed as a government owned enterprise under the First Schedule of the Act. It is also listed as a state corporation under the Second Schedule of the Act.
26. Section 9 of the Act provides that a Government Owned Enterprise shall operate as a commercial entity and shall: -
(a) operate for profit;
(b)be self-financing;
(c)be self-sustaining; and
(d)be accountable to the public through the National Treasury.
(2) Notwithstanding subsection (1), a Government Owned Enterprise may, in addition to its commercial functions, perform public service obligations.
(3)A Government Owned Enterprise which also performs public service obligations shall operate on a commercial basis and shall, for the purpose of financing the achievement of public service obligations, be funded through the Government budgetary resources.
(4) The operations of a Government Owned Enterprise shall be undertaken in accordance with this Act and the instrument of incorporation.
27. Para 1 of the Fourth Schedule of the Act provides that: -
“Companies to be successor of Government Owned Enterprises
(1) For the purpose of bringing the provisions of this Act into operation, the respective Government Owned Enterprises provided in the Second Schedule shall, in exercise of the powers conferred by section 30 of the Interpretation and General Provisions Act (Cap. 2), incorporate in their names a public limited liability company under the provisions of the Companies Act (Cap. 486).
28. A public company is defined under section 10 of the Companies Act. Its features include: -
(a) its articles allow its members the right to transfer their shares in the company;
(b) its articles do not prohibit invitations to the public to subscribe for shares or debentures of the company; and
(c) its certificate of incorporation states that it is a public company.
29. The decree holder exhibited a copy of the judgment creditor’s Official Search (Form CR12) showing that the judgment debtor is not incorporated as Kenya Airports Authority, PLC was incorporated as a public limited company on 3.6.2026.
30. Following the incorporation of the judgment debtor as a public limited company, it was converted to a separate and distinct legal personality from the Government/ Government Owned Enterprise. Salomon v. Salomon & Co Ltd [1897] AC 22
31. The public company is the successor to the Government Owned Enterprise which has assumed the liabilities of the former.
32. To this effect, Para 1 of the Fourth Schedule (2) of the Act states that: -
The respective Companies shall be the successor of the Government Owned Enterprises provided in the Second Schedule and, subject to this Act, all rights, duties, obligations, assets and liabilities of the Government Owned Enterprises provided in the Second Schedule existing on the commencement date shall be automatically and fully transferred to the respective Companies and any reference to the Government Owned Enterprises provided in the Second Schedule in any contract or document shall for all purposes be deemed to be a reference to the respective Company.”
33. It is therefore my considered view that the judgment debtor is subject to the ordinary execution processes and the provisions restricting the execution and attachment against Government and State Organs are not applicable.
34. There is no legal prohibition or bar on the decree holder’s right to file garnishee proceedings against the judgment debtor in execution of the decree under Order 23 of the Civil Procedure Rules.
35. Thus, I find that the garnishee proceedings are competent and shall be considered on merits.
Whether the garnishee order nisi should be made absolute
36. Order 23 Rule 1 of the Civil Procedure Rules states that: -
“(1) A court may, upon the ex parte application of a decree-holder, and either before or after an oral examination of the judgment-debtor, and upon affidavit by the decree-holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree- holder the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid.”
37. In Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co; Co-operative Bank of Kenya (Garnishee) [2020] KEHC 8931 (KLR), the court observed that: -
24. Garnishee proceedings are in their very nature proceedings whereby the garnishee is required to prove whether or not the garnishee is indebted to the judgment-debtor. Ordinarily, the judgment-creditor only makes allegations of the garnishee’s indebtedness based on sound evidence whereby the burden of proof shifts to the garnishee to prove otherwise. In this regard, to discharge that burden, the garnishee has to produce strong, sufficient and convincing evidence that the funds in its hands or the debt is not due or payable.
38. It is undisputed that the decree holder has a decree against the judgment debtor, for Kshs. 25,520,000/-. The judgment debtor has not paid the decree.
39. The garnishee confirmed that it was holding funds in the judgment debtor’s account sufficient to satisfy the decree.
40. The upshot is that the decree holder’s application dated 22.6.2026 is merited. It is allowed in the following terms: -
(1) A garnishee order absolute is issued directing the garnishee to immediately pay to the decree holder’s account held at SBM Bank Kenya Limited the decretal sum of Kshs. 25,520,000/- together with interest at court rates of 14% per annum from 18.5.2026 until payment in full.
(2) The decree holder and the garnishee are awarded costs assessed at Kshs. 50,000/- and Kshs. 30,000 respectively to be borne by the judgment debtor and be immediately paid from the garnisheed account.