1. The Exparte Applicants filed an application dated 3 rd February 2026 seeking for the following reliefs:
i) Spent.
ii) An order of a Garnishee Order Nisi against Standard
Chartered Bank (Garnishee) in respect of account No. 01044330337411 held to the credit of the Respondent/Judgment Debtor in satisfaction of the decretal sum of Kshs5,000,000/=.
iii) Upon the hearing of the application inter-partes, the court do issue a Garnishee Order Absolute against Standard Chartered Bank, the Garnishee herein in respect of account number 01044330337411 directing the Garnishee to pay the decree holder all monies held to the credit of the Respondent/Judgement debtor in satisfaction of the decretal sum of Kshs 5,000, 000/=
iv) Costs of the application be borne by the Respondent/Judgment Debtor.
2. The said application is supported by the grounds set out thereunder and by the affidavit of Charles Omondi Osunga sworn on even date. The Applicants’ gravamen is inter alia; that this court has entered judgement in favour of the Applicants on 29/1/2026 as against the Judgment debtor for the sum of Kshs5,000,000/=; that the decretal sum remains wholly unpaid and outstanding to date by the Judgment Debtor, that the judgment debtor maintains and operates an account with the Garnishee which contains sufficient funds to satisfy the decree; that the Applicants are apprehensive that the judgment debtor may withdraw or transfer or dissipate the funds thereby defeating the realization of the decree.
3. The Respondent filed grounds of opposition dated 26/2/2025 wherein it raised grounds inter alia; that the Respondent is a government agent generally mandated to the duty of conservation and management of wildlife on behalf of the public; that the 1 st Respondent receives funds as may be approved and allocated to it by the National Assembly in its budget process; that as per Section 21 of the Government Proceedings Act, when it comes to execution against the Government it is trite law that a certificate of order against the Government must be issued; that the exparte Applicants failed to fulfil the requirement of this section in executing the orders of this court; that Section 32(1) of the said Act provides that where there is any expenditure to be incurred by or on behalf of the Government, such expenditure shall be defrayed out of monies provided by Parliament; that the Respondent’s garnished bank account No. 01044330337411 is not an account dedicated to the monies provided by Parliament and that the action to garnish the account will adversely interfere with the public mandate of the Respondent; that the judgment issued herein was in respect to a judicial review application seeking an order for mandamus to compel Respondent to pay for compensation over loss of life and does not constitute a debt payable for any monetary expenditure made by the Applicant; that under Order 23 Rule 4 of the Civil Procedure Rules, execution against the Garnishee is for a debt due or claimed to be due from the judgment debtor to a decree holder; that the Respondent contends that the judgment issued herein was not for a debt due but an order by way of mandamus to compel the Respondent to compensate for loss of life; that Order 23 Rule 3 of the Civil Procedure Rules provides that the effect of Garnishee Order is in respect of service of an order that debt due to the judgment debtor under a decree shall be attached; that the Respondent maintains that it does not owe any monies in form of debt capable of being executed by way of Garnishee proceedings; that the Garnishee proceedings is not a proper and standard mode of execution for the judgment in this case; that the application dated 3 rd February 2026 ought to be dismissed.
4. The Respondent/Judgment debtor filed an application dated 4 th February 2026 seeking for an order that the default ruling dated 28/1/2026 be set aside and that the Respondent be allowed to file responses out of time in the interest of justice and fairness. The said application is supported by grounds set out thereunder and by the affidavit of Derrick Karinga sworn on even date. The Respondent’s gravamen is inter alia; that the Respondent is a government agency running a single registry which serves the entire Republic with mounting human wildlife cases hence delay in cascading pleadings to the regional offices; that the County Warden in-charge of Siaya County and the custodian of records relating to human wildlife incidences was on leave resulting in delay in obtaining documents; that technical hitches hampered filing of responses as mapping had not been done by the 28/1/2026 when the ruling was made; that responses have since been filed together with submissions for expedience; that it is in the interest of justice and fairness for the Respondent to be heard before determination; that it will be highly prejudicial for the Respondent if the orders sought are not granted as the Respondent is a public entity relying on tax payer sweat which must be accounted for and utilized with due prudence and includes securing assets provided for use in responding to human wild life conflict.
5. The Applicants filed a replying affidavit dated 10/2/2026 wherein they averred inter alia; the Respondent was duly and properly served in the substantive application together with the mention and hearing notice as evidenced by the affidavit of service on record; that the period of service was quite sufficient to enable the Respondent enter an appearance and/or file a response within a timeline provided by law; that despite proper service, the Respondent failed, neglected and or refused to enter appearance or file any form of response; that upon lapse of statutory timelines the Applicants moved the court in accordance with the law and that the default ruling was regularly and properly entered; that the default ruling was therefore not irregular, unlawful, or prematurely obtained but it was the natural legal consequences of the Respondent’s inaction; that the explanation for delay given by the Respondent is untenable both factually and legally; that the entry of an appearance merely signifies an intention to participate in proceedings and reserves a party’s right to be heard; that no explanation has been offered as to why the Respondent failed to take this basic procedural step immediately upon service; that the Respondent is a large public institution with multiple offices, technical staff, legal officers and administrative personnel; that it is inconceivable that the absence of a single officer on leave would render the entire institution incapable of entering appearance within the prescribed period; that administrative inefficiencies, internal bureaucracy or staffing arrangements cannot override statutory timelines or excuse non-compliance with court process; that public institutions are expected to have systems in place to ensure continuity of operations particularly in legal matters where statutory timelines are strict; that the annexure relied upon by the Respondent over its claim of delay in mapping by the CTS was only made on 29/1/2026 at 02:01:07, and that by that time the court had long issued judgment in default and updated the same on the system; that the evidence presented does not demonstrate diligence but rather evidence of prolonged inaction; that the delay was self-induced and arose from the Respondent’s own lack of urgency and internal inefficiency; that there is no evidence of any system failure, technical impossibility or external impediment preventing compliance with court timelines; that the Respondent should not benefit from its own indolence; that the matter concerns breach of statutory duty giving rise to strict statutory liability and that the governing statute and applicable regulations expressly provide compensation payable and mandate settlement of approved claims within 60 days; that the statutory obligations to compensate is not discretionary but it is mandatory; that the Respondent has failed to settle the approved claims within the prescribed 60 days and still remains and continues to be in breach of its statutory duty; that the Applicant’s entitlement arises directly from statute and not from any discretionary or speculative claim; that the Respondent has not annexed any draft response demonstrating the existence of a plausible or triable defence; that no material has been presented to controvert the Applicant’s statutory entitlement; that the application to set aside is not grounded on the existence of a meritorious defence but merely on administrative delay; that it is the court’s discretion to set aside default judgment but the same is meant to prevent injustice arising from excusable mistake but not to aid a party who has deliberately or negligently obstructed the cause of justice; that in the absence of a demonstrated triable issue, the exercise of discretion in favour of the Respondent will serve no useful purpose other than prolong the delay; that the default ruling was regularly and properly entered and that no sufficient cause has been demonstrated to warrant setting it aside and that no arguable defence has been disclosed; that the application dated 4/2/2026 lacks merit and ought to be dismissed with costs.
6. Parties agreed to canvass the two applications simultaneously by way of written submissions.
7. The Respondents submissions are dated 26/2/2026. It raised three issues for determination inter alia; whether the 1st Respondent is a government agent, subject to the provision of the government proceedings Act; whether the account sought to be garnished by the Exparte Applicant is an account holding funds defrayed for the purpose of payment of compensation and whether such an account can be garnished and whether the Applicant can execute mandamus orders through Garnishee.
8. As regards the first issue, it was submitted that the Respondent was established by an Act of Parliament, the Wildlife Conservation and Management Act (Cap 376) No. 16 of 1989, with the overall mandate to conserve and manage wildlife in Kenya, now repealed to the Wildlife Conservation and Management Act, 2013 hereinafter referred to as WCMA.
9. Section 6 (1) of the WCMA provides that:
“(1) there is established a uniformed and disciplined Service to be known as the Kenya Wildlife Service.
Section 7 of the WMCA provides for the functions of the 1st Respondent which generally revolve around Wildlife Conservation, a public function, and that the said functions are overseen by the Ministry of Tourism and Wildlife. In order for the Service to perform, great reliance is placed on the ministry and the government especially in matters to do with compensation for claims resulting from Human – Wildlife Conflicts. The service is dependent on the government for funding in order to undertake their public function of wildlife conservation.
10. Reliance was placed in the case of Five Star Agencies Limited v National Land Commission; Kenya National Highways Authority (Intended Respondent); National Bank of Kenya (Garnishee) (Civil Case 445 of 2014) [2023] KEELC 16631 (KLR) (28 March 2023) (Ruling), where O. A. Angote J, while determining whether the National Land Commission was a government for purposes of Section 21(4) of the Government Proceedings Act cited the following:
“97. The High Court in the case of Association of Retirement Benefits Scheme v Attorney General & 3 others [2017]eKLR cited with approval the Indian Supreme Court case of Shetty v Airport Authority of India & others (1979) 1 S.C.R 1042 in which the test for determining whether an entity was a Government body or not, was stated as follows:-
‘’(a) Consider whether any share capital of the corporation is held by the Government and if so that would indicate that the corporation is an instrumentality or agency of Government.
(b) Where the financial assistance of the State is so much as to meet almost the entire expenditure of the Corporation, that fact would afford some indication of the corporation being impregnated with Governmental character;
(c) It may also be relevant to consider whether the corporation enjoys monopoly status conferred by the State.
(d) Whether the body has deep and pervasive State control,
(e) Whether the functions of the corporation are of public importance and closely related to Governmental functions then that would be a relevant factor in classifying the corporation as an instrumentality or agency of Government and,
(f) If a Department of a Government is transferred to a corporation then it becomes an instrumentality or agency of the Government.”
11. It was submitted that it is evident from the WCMA governing the 1st Respondent that the involvement of the government through the Ministry of Tourism and Wildlife is quite extensive especially as elucidated in Section 14 - (Sources of funds of the Service); Section 7(e) - (Collecting of revenue levies and charges due to the government from wildlife…); Section 24 - (The Wildlife Compensation Scheme) and Section 25(1), (2), (3) (Compensation). Therefore, and considering the test in the “Five Star” Case, it is certain that the 1st Respondent is subject to Section 21 of the Government Proceedings Act in relation to execution herein.
12. It was submitted that while delivering its judgement on 4th June 2025, leading to the now subject execution proceedings, this Honourable Court, while citing various authorities, duly acknowledged that it is the Ministry of Tourism and Wildlife which pays compensation claims on behalf of the 1st Respondent. The court at paragraph 21 of its judgement stated that:
“….for me, the Court of Appeal found that when it comes to the issue of compensation, KWS and the Cabinet Secretary play the same role. They are conjoined and will not be separated, so that a claim against the KWS.”
13. It was contended that flowing from the foregoing, to bifurcate or to separate the 1st Respondent and the Ministry at this point would be self-defeating and would cause much more confusion in relation to execution of judgments resulting from claims of Human – Wildlife Conflict. Counsel urged this court to make a finding that for purposes of execution, with specificity in matters revolving around compensation due to Human – Wildlife Conflicts, then the 1st Respondent is a government agency shielded under the ambit of section 21 of the Government Proceedings Act.
14. As regards the second issue, it was submitted that having established that the 1st Respondent is subject to the Government Proceedings Act, section 32(1) of the Government Proceedings Act provides that:
“(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.”
15. That Section 7 of the WMCA provides for the functions of the 1st Respondent which generally revolve around Wildlife Conservation. Further section 14 of the WCMA provides for the sources of funds of the Service which includes:
“(a) such moneys as may be approved and allocated to the service by the National Assembly as part of the budget process;
(b) money or proceeds from investments as may vest in the Service from the performance of its duties…”
16. Again, it was pointed out that Section 16 of the WCMA provides for the annual estimates which include the revenue and expenditure of the Service. These annual estimates shall be prepared at least three months before the commencement of the financial year. It was contended that the Annual Estimates referred to herein do not make any provision for moneys for compensation resulting from Human – Wildlife conflicts as this is a preserve of the Ministry of Tourism and Wildlife.
17. It was also contended that Section 24 of the WCMA on the other hand clearly provides that there shall be a scheme established by the government for the purposes of compensation for claims resulting from Human – Wildlife conflict. It provides that:
“(1) The Government shall establish a Wildlife Compensation Scheme that shall consist of—
(a) monies specifically allocated for this purpose through the budget process;
(b) an insurance scheme to be established by the Cabinet Secretary responsible for matters relating to finance; and
(c) monies from any other source approved by the Cabinet Secretary for the time being responsible for matters relating to finance; and
(2) The Wildlife Compensation Scheme shall be used for financing compensation claims for human death or injury or crop and property damage caused by wildlife.”
18. It was therefore submitted that Section 32(1) of the Government Proceedings Act as read together with Section 24 of the WCMA provide that any such money sought by the Applicant can only be recovered from the Wildlife Compensation Fund and such funds must be as a result of an allocation for the specific purpose by the National Assembly. It was contended that the account sought to be garnished by the Applicant is a general operations account of the 1st Respondent and if the garnishee is allowed, the 1st Respondent’s public function will be crippled.
19. It was also submitted that the 1st Respondent has demonstrated before this Honourable court that the law provides that the issues of payment of compensation claims is the preserve of the government through the Ministry of Tourism and Wildlife. It therefore follows that the Applicant cannot and should not be allowed to garnish the 1st Respondent’s Bank Account. This will not only interfere with the 1st Respondent’s functions in general but will also affect the functioning of the 1st Respondent which will sequentially affect the vision and mission of the 1st Respondent and eventually the public good sought to be achieved.
20. As regards the third issue, it was submitted that the Applicants had invoked Section 106 (2)(c) of the WCMA, among other provisions of the law, while approaching this Honourable Court for an order of mandamus. The section provides that:
“(2) Any person who has reason to believe that the provisions of this Act have been, are being, or are about to be violated, may petition the High Court for-
(c) the writ of mandamus against an officer or a person who has failed to perform a duty imposed by or under this Act; or any remedy at law or equity for preventing or enforcing the provisions of this Act.”
21. It was therefore contended that it is trite law that an order of mandamus cannot be executed through garnishee as it is an order as against an officer or a person who despite being responsible for performing a certain duty, has failed or refused to perform such duty. On the other hand, Garnishee can only apply in civil suits as provided for in Order 23 of the Civil Procedure Rules, 2010.
Reliance was placed in the case of Republic V Town Clerk, Kisumu Municipality Ex-Parte East African Engineering Consultants [2007] eKLR, where the learned Judge held that:
“(1) No such relief as garnishee proceedings is stipulated in the Act donating the jurisdiction i.e. the Law Reform Act.
(2) The orders are issuing in the name of the Republic and in the case of mandamus order its officers are compelled to act in accordance with the law. The State so to speak by the very act of issuing the orders frowns upon its own officers for not complying with the law. The orders are supposed to be obeyed by the officers as a matter of honour/and as ordered by the State. Execution as known in the Civil Procedure process was not contemplated and this includes garnishee proceedings.
22. It was finally submitted that Section 106(2)(c) of WCMA provides the manner as to how orders of mandamus should be executed which is; compelling an officer or a person who has failed to perform a duty imposed by or under the WCMA to perform such act and that where such an officer fails to perform such duties, the Applicant can only enforce such an action through contempt of court proceedings and not garnishee. Learned counsel therefore urged the Court to dismiss the Applicants’ application dated 3/2/2026 with costs.
23. The Applicants’ submissions are dated 3 rd March 2026. It was submitted that the Applicants’ compensation claim was approved as confirmed in the replying affidavit of the Respondent sworn on 28 th January 2026 (filed after Judgment) wherein the Respondent expressly confirms that the County Wildlife Conservation Committee sat on 17 th July 2025 and made a recommendation for compensation in accordance with the applicable statute and hence there is therefore no dispute between the parties that the claim was considered, that compensation was recommended, and that no further statutory process remained pending and further the only outstanding step was payment of the recommended sum.
24. It was also submitted that despite the recommendation having been made as early as 17 th July 2025, the Respondent failed, neglected and/or refused to effect payment, without offering any lawful or reasonable explanation for the delay. Faced with inordinate delay and in the absence of any pending statutory process, the Applicants moved this Honourable Court by way of Chamber Summons dated 26 November 2025 seeking leave to commence Judicial Review proceedings which leave was duly granted. The Applicants thereafter filed the substantive Notice of Motion and served the same upon the Respondent as per the affidavit of service dated 27 th November 2025.
25. Learned counsel submitted that the issues for determination are whether the Respondent has made out a proper basis for setting aside the Judgment and Orders of Mandamus and whether the Applicants are entitled to enforce the Judgment through garnishee proceedings against the Respondent.
26. As regards the first issue, the Court of Appeal faced with the issue on whether a trial Court had the discretion to set aside a default judgment or not had the following to say in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR)
“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other.”
27. The same Court went ahead to state the following about irregular judgments-
“In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”
Flowing from the foregoing principles, the nature of the impugned judgment determines the threshold an applicant must meet in seeking to have it set aside.
28. It was submitted that where the judgment is alleged to be irregular, the applicant need only demonstrate that there was no service or that service was improper. Once the Court is satisfied that summons were not duly served in accordance with the law, the judgment is liable to be set aside ex debito justitiae, without the necessity of demonstrating triable issues or explaining delay, since the fundamental right to be heard would have been violated. However, where the judgment is regular, the applicant must first demonstrate that he was duly served with summons but failed to enter appearance or file a defence for a plausible, excusable, and satisfactory reason. The Court will interrogate whether the explanation tendered is credible and not merely a tactic to obstruct or delay the course of justice. Secondly, the applicant must show that the application to set aside was brought without unreasonable or inordinate delay since promptitude is a material consideration, as equity aids the vigilant and not the indolent.
29. Further, the applicant must place before the Court a draft defence or otherwise to demonstrate that the intended defence raises bona fide triable issues worthy of consideration at trial. The Court does not examine the merits in detail, but it must be satisfied that the defence is not a sham and discloses arguable questions fit for adjudication. Further, the Court will consider the respective prejudice likely to be suffered by each party and whether such prejudice can adequately be compensated by an award of costs. Ultimately, the Court must be persuaded that, in the totality of the circumstances, it is in the interests of justice to exercise its unfettered discretion in favour of the applicant.
30. Learned counsel submitted that applying the foregoing principles to the present matter, it is evident that the impugned Judgment was regularly entered. That the Respondent was duly and properly served at every procedural stage, service of the Chamber Summons for leave, the substantive Notice of Motion, the mention notices, and the hearing notice are all evidenced by duly sworn affidavits of service on record. The Respondent does not deny service. Its complaint is not want of notice, but rather internal administrative inefficiencies and alleged technical challenges in “mapping” the file. It was contended that the same cannot convert a regular judgment into an irregular one. That the foundational requirement of service having been satisfied, the Judgment cannot be impugned on the basis of irregularity.
31. It was further submitted that the Respondent has equally failed to meet the threshold applicable to setting aside a regular judgment. No plausible or excusable reason has been advanced for the failure to enter appearance or file a response despite ample time and multiple instances of service. The explanation of centralized registries, an officer being on leave, and belated technical mapping, particularly where the mapping request was initiated after Judgment had already been delivered, does not constitute a satisfactory or bona fide explanation. Further, there was no prompt attempt to seek enlargement of time or to attend Court to explain any difficulty. The delay was neither candidly explained nor excusable.
32. It was further contended that the Respondent has not demonstrated the existence of any arguable or triable defence. It does not dispute that the statutory committee sat, considered the claim, and recommended payment. It does not dispute that no further statutory process remained pending. Its defence is anchored purely on administrative delay, which is precisely the mischief that the remedy of Mandamus addresses. That in the absence of a substantive defence and given the prejudice to the Applicants, who have waited since July 2025 for payment of a lawfully recommended compensation, there is no basis upon which this Honourable Court can exercise its discretion in favour of the Respondent. That the application to set aside is therefore devoid of merit.
33. It was also submitted that under Article 47 of the Constitution of Kenya, the right to fair administrative action is guaranteed. This provision requires that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and that a delay in the payment of the compensation when the same was already recommended and approved does not meet the constitutional threshold of expediency and efficiency contemplated under the constitutional framework. That once the statutory committee discharged its mandate and made a recommendation for compensation, the Respondent was under a corresponding public duty to act promptly and effect payment. Unexplained administrative inertia, internal bureaucratic processes, or logistical challenges cannot override a clear constitutional command.
34. It was further contended that the Respondent’s conduct, viewed against the backdrop of Article 47, amounts to unreasonable and procedurally unfair administrative action. The Applicants had complied with all statutory requirements, and there remained no discretionary or investigative step pending. The delay therefore ceased to be procedural and became unlawfully withholding a benefit already determined under statute.
35. It was therefore submitted that the grant of Judicial Review Orders of Mandamus was not only proper but constitutiona
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i) Spent.
ii) An order of a Garnishee Order Nisi against Standard
Chartered Bank (Garnishee) in respect of account No. 01044330337411 held to the credit of the Respondent/Judgment Debtor in satisfaction of the decretal sum of Kshs5,000,000/=.
iii) Upon the hearing of the application inter-partes, the court do issue a Garnishee Order Absolute against Standard Chartered Bank, the Garnishee herein in respect of account number 01044330337411 directing the Garnishee to pay the decree holder all monies held to the credit of the Respondent/Judgement debtor in satisfaction of the decretal sum of Kshs 5,000, 000/=
iv) Costs of the application be borne by the Respondent/Judgment Debtor.
2. The said application is supported by the grounds set out thereunder and by the affidavit of Charles Omondi Osunga sworn on even date. The Applicants’ gravamen is inter alia; that this court has entered judgement in favour of the Applicants on 29/1/2026 as against the Judgment debtor for the sum of Kshs5,000,000/=; that the decretal sum remains wholly unpaid and outstanding to date by the Judgment Debtor, that the judgment debtor maintains and operates an account with the Garnishee which contains sufficient funds to satisfy the decree; that the Applicants are apprehensive that the judgment debtor may withdraw or transfer or dissipate the funds thereby defeating the realization of the decree.
3. The Respondent filed grounds of opposition dated 26/2/2025 wherein it raised grounds inter alia; that the Respondent is a government agent generally mandated to the duty of conservation and management of wildlife on behalf of the public; that the 1 st Respondent receives funds as may be approved and allocated to it by the National Assembly in its budget process; that as per Section 21 of the Government Proceedings Act, when it comes to execution against the Government it is trite law that a certificate of order against the Government must be issued; that the exparte Applicants failed to fulfil the requirement of this section in executing the orders of this court; that Section 32(1) of the said Act provides that where there is any expenditure to be incurred by or on behalf of the Government, such expenditure shall be defrayed out of monies provided by Parliament; that the Respondent’s garnished bank account No. 01044330337411 is not an account dedicated to the monies provided by Parliament and that the action to garnish the account will adversely interfere with the public mandate of the Respondent; that the judgment issued herein was in respect to a judicial review application seeking an order for mandamus to compel Respondent to pay for compensation over loss of life and does not constitute a debt payable for any monetary expenditure made by the Applicant; that under Order 23 Rule 4 of the Civil Procedure Rules, execution against the Garnishee is for a debt due or claimed to be due from the judgment debtor to a decree holder; that the Respondent contends that the judgment issued herein was not for a debt due but an order by way of mandamus to compel the Respondent to compensate for loss of life; that Order 23 Rule 3 of the Civil Procedure Rules provides that the effect of Garnishee Order is in respect of service of an order that debt due to the judgment debtor under a decree shall be attached; that the Respondent maintains that it does not owe any monies in form of debt capable of being executed by way of Garnishee proceedings; that the Garnishee proceedings is not a proper and standard mode of execution for the judgment in this case; that the application dated 3 rd February 2026 ought to be dismissed.
4. The Respondent/Judgment debtor filed an application dated 4 th February 2026 seeking for an order that the default ruling dated 28/1/2026 be set aside and that the Respondent be allowed to file responses out of time in the interest of justice and fairness. The said application is supported by grounds set out thereunder and by the affidavit of Derrick Karinga sworn on even date. The Respondent’s gravamen is inter alia; that the Respondent is a government agency running a single registry which serves the entire Republic with mounting human wildlife cases hence delay in cascading pleadings to the regional offices; that the County Warden in-charge of Siaya County and the custodian of records relating to human wildlife incidences was on leave resulting in delay in obtaining documents; that technical hitches hampered filing of responses as mapping had not been done by the 28/1/2026 when the ruling was made; that responses have since been filed together with submissions for expedience; that it is in the interest of justice and fairness for the Respondent to be heard before determination; that it will be highly prejudicial for the Respondent if the orders sought are not granted as the Respondent is a public entity relying on tax payer sweat which must be accounted for and utilized with due prudence and includes securing assets provided for use in responding to human wild life conflict.
5. The Applicants filed a replying affidavit dated 10/2/2026 wherein they averred inter alia; the Respondent was duly and properly served in the substantive application together with the mention and hearing notice as evidenced by the affidavit of service on record; that the period of service was quite sufficient to enable the Respondent enter an appearance and/or file a response within a timeline provided by law; that despite proper service, the Respondent failed, neglected and or refused to enter appearance or file any form of response; that upon lapse of statutory timelines the Applicants moved the court in accordance with the law and that the default ruling was regularly and properly entered; that the default ruling was therefore not irregular, unlawful, or prematurely obtained but it was the natural legal consequences of the Respondent’s inaction; that the explanation for delay given by the Respondent is untenable both factually and legally; that the entry of an appearance merely signifies an intention to participate in proceedings and reserves a party’s right to be heard; that no explanation has been offered as to why the Respondent failed to take this basic procedural step immediately upon service; that the Respondent is a large public institution with multiple offices, technical staff, legal officers and administrative personnel; that it is inconceivable that the absence of a single officer on leave would render the entire institution incapable of entering appearance within the prescribed period; that administrative inefficiencies, internal bureaucracy or staffing arrangements cannot override statutory timelines or excuse non-compliance with court process; that public institutions are expected to have systems in place to ensure continuity of operations particularly in legal matters where statutory timelines are strict; that the annexure relied upon by the Respondent over its claim of delay in mapping by the CTS was only made on 29/1/2026 at 02:01:07, and that by that time the court had long issued judgment in default and updated the same on the system; that the evidence presented does not demonstrate diligence but rather evidence of prolonged inaction; that the delay was self-induced and arose from the Respondent’s own lack of urgency and internal inefficiency; that there is no evidence of any system failure, technical impossibility or external impediment preventing compliance with court timelines; that the Respondent should not benefit from its own indolence; that the matter concerns breach of statutory duty giving rise to strict statutory liability and that the governing statute and applicable regulations expressly provide compensation payable and mandate settlement of approved claims within 60 days; that the statutory obligations to compensate is not discretionary but it is mandatory; that the Respondent has failed to settle the approved claims within the prescribed 60 days and still remains and continues to be in breach of its statutory duty; that the Applicant’s entitlement arises directly from statute and not from any discretionary or speculative claim; that the Respondent has not annexed any draft response demonstrating the existence of a plausible or triable defence; that no material has been presented to controvert the Applicant’s statutory entitlement; that the application to set aside is not grounded on the existence of a meritorious defence but merely on administrative delay; that it is the court’s discretion to set aside default judgment but the same is meant to prevent injustice arising from excusable mistake but not to aid a party who has deliberately or negligently obstructed the cause of justice; that in the absence of a demonstrated triable issue, the exercise of discretion in favour of the Respondent will serve no useful purpose other than prolong the delay; that the default ruling was regularly and properly entered and that no sufficient cause has been demonstrated to warrant setting it aside and that no arguable defence has been disclosed; that the application dated 4/2/2026 lacks merit and ought to be dismissed with costs.
6. Parties agreed to canvass the two applications simultaneously by way of written submissions.
7. The Respondents submissions are dated 26/2/2026. It raised three issues for determination inter alia; whether the 1st Respondent is a government agent, subject to the provision of the government proceedings Act; whether the account sought to be garnished by the Exparte Applicant is an account holding funds defrayed for the purpose of payment of compensation and whether such an account can be garnished and whether the Applicant can execute mandamus orders through Garnishee.
8. As regards the first issue, it was submitted that the Respondent was established by an Act of Parliament, the Wildlife Conservation and Management Act (Cap 376) No. 16 of 1989, with the overall mandate to conserve and manage wildlife in Kenya, now repealed to the Wildlife Conservation and Management Act, 2013 hereinafter referred to as WCMA.
9. Section 6 (1) of the WCMA provides that:
“(1) there is established a uniformed and disciplined Service to be known as the Kenya Wildlife Service.
Section 7 of the WMCA provides for the functions of the 1st Respondent which generally revolve around Wildlife Conservation, a public function, and that the said functions are overseen by the Ministry of Tourism and Wildlife. In order for the Service to perform, great reliance is placed on the ministry and the government especially in matters to do with compensation for claims resulting from Human – Wildlife Conflicts. The service is dependent on the government for funding in order to undertake their public function of wildlife conservation.
10. Reliance was placed in the case of Five Star Agencies Limited v National Land Commission; Kenya National Highways Authority (Intended Respondent); National Bank of Kenya (Garnishee) (Civil Case 445 of 2014) [2023] KEELC 16631 (KLR) (28 March 2023) (Ruling), where O. A. Angote J, while determining whether the National Land Commission was a government for purposes of Section 21(4) of the Government Proceedings Act cited the following:
“97. The High Court in the case of Association of Retirement Benefits Scheme v Attorney General & 3 others [2017]eKLR cited with approval the Indian Supreme Court case of Shetty v Airport Authority of India & others (1979) 1 S.C.R 1042 in which the test for determining whether an entity was a Government body or not, was stated as follows:-
‘’(a) Consider whether any share capital of the corporation is held by the Government and if so that would indicate that the corporation is an instrumentality or agency of Government.
(b) Where the financial assistance of the State is so much as to meet almost the entire expenditure of the Corporation, that fact would afford some indication of the corporation being impregnated with Governmental character;
(c) It may also be relevant to consider whether the corporation enjoys monopoly status conferred by the State.
(d) Whether the body has deep and pervasive State control,
(e) Whether the functions of the corporation are of public importance and closely related to Governmental functions then that would be a relevant factor in classifying the corporation as an instrumentality or agency of Government and,
(f) If a Department of a Government is transferred to a corporation then it becomes an instrumentality or agency of the Government.”
11. It was submitted that it is evident from the WCMA governing the 1st Respondent that the involvement of the government through the Ministry of Tourism and Wildlife is quite extensive especially as elucidated in Section 14 - (Sources of funds of the Service); Section 7(e) - (Collecting of revenue levies and charges due to the government from wildlife…); Section 24 - (The Wildlife Compensation Scheme) and Section 25(1), (2), (3) (Compensation). Therefore, and considering the test in the “Five Star” Case, it is certain that the 1st Respondent is subject to Section 21 of the Government Proceedings Act in relation to execution herein.
12. It was submitted that while delivering its judgement on 4th June 2025, leading to the now subject execution proceedings, this Honourable Court, while citing various authorities, duly acknowledged that it is the Ministry of Tourism and Wildlife which pays compensation claims on behalf of the 1st Respondent. The court at paragraph 21 of its judgement stated that:
“….for me, the Court of Appeal found that when it comes to the issue of compensation, KWS and the Cabinet Secretary play the same role. They are conjoined and will not be separated, so that a claim against the KWS.”
13. It was contended that flowing from the foregoing, to bifurcate or to separate the 1st Respondent and the Ministry at this point would be self-defeating and would cause much more confusion in relation to execution of judgments resulting from claims of Human – Wildlife Conflict. Counsel urged this court to make a finding that for purposes of execution, with specificity in matters revolving around compensation due to Human – Wildlife Conflicts, then the 1st Respondent is a government agency shielded under the ambit of section 21 of the Government Proceedings Act.
14. As regards the second issue, it was submitted that having established that the 1st Respondent is subject to the Government Proceedings Act, section 32(1) of the Government Proceedings Act provides that:
“(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.”
15. That Section 7 of the WMCA provides for the functions of the 1st Respondent which generally revolve around Wildlife Conservation. Further section 14 of the WCMA provides for the sources of funds of the Service which includes:
“(a) such moneys as may be approved and allocated to the service by the National Assembly as part of the budget process;
(b) money or proceeds from investments as may vest in the Service from the performance of its duties…”
16. Again, it was pointed out that Section 16 of the WCMA provides for the annual estimates which include the revenue and expenditure of the Service. These annual estimates shall be prepared at least three months before the commencement of the financial year. It was contended that the Annual Estimates referred to herein do not make any provision for moneys for compensation resulting from Human – Wildlife conflicts as this is a preserve of the Ministry of Tourism and Wildlife.
17. It was also contended that Section 24 of the WCMA on the other hand clearly provides that there shall be a scheme established by the government for the purposes of compensation for claims resulting from Human – Wildlife conflict. It provides that:
“(1) The Government shall establish a Wildlife Compensation Scheme that shall consist of—
(a) monies specifically allocated for this purpose through the budget process;
(b) an insurance scheme to be established by the Cabinet Secretary responsible for matters relating to finance; and
(c) monies from any other source approved by the Cabinet Secretary for the time being responsible for matters relating to finance; and
(2) The Wildlife Compensation Scheme shall be used for financing compensation claims for human death or injury or crop and property damage caused by wildlife.”
18. It was therefore submitted that Section 32(1) of the Government Proceedings Act as read together with Section 24 of the WCMA provide that any such money sought by the Applicant can only be recovered from the Wildlife Compensation Fund and such funds must be as a result of an allocation for the specific purpose by the National Assembly. It was contended that the account sought to be garnished by the Applicant is a general operations account of the 1st Respondent and if the garnishee is allowed, the 1st Respondent’s public function will be crippled.
19. It was also submitted that the 1st Respondent has demonstrated before this Honourable court that the law provides that the issues of payment of compensation claims is the preserve of the government through the Ministry of Tourism and Wildlife. It therefore follows that the Applicant cannot and should not be allowed to garnish the 1st Respondent’s Bank Account. This will not only interfere with the 1st Respondent’s functions in general but will also affect the functioning of the 1st Respondent which will sequentially affect the vision and mission of the 1st Respondent and eventually the public good sought to be achieved.
20. As regards the third issue, it was submitted that the Applicants had invoked Section 106 (2)(c) of the WCMA, among other provisions of the law, while approaching this Honourable Court for an order of mandamus. The section provides that:
“(2) Any person who has reason to believe that the provisions of this Act have been, are being, or are about to be violated, may petition the High Court for-
(c) the writ of mandamus against an officer or a person who has failed to perform a duty imposed by or under this Act; or any remedy at law or equity for preventing or enforcing the provisions of this Act.”
21. It was therefore contended that it is trite law that an order of mandamus cannot be executed through garnishee as it is an order as against an officer or a person who despite being responsible for performing a certain duty, has failed or refused to perform such duty. On the other hand, Garnishee can only apply in civil suits as provided for in Order 23 of the Civil Procedure Rules, 2010.
Reliance was placed in the case of Republic V Town Clerk, Kisumu Municipality Ex-Parte East African Engineering Consultants [2007] eKLR, where the learned Judge held that:
“(1) No such relief as garnishee proceedings is stipulated in the Act donating the jurisdiction i.e. the Law Reform Act.
(2) The orders are issuing in the name of the Republic and in the case of mandamus order its officers are compelled to act in accordance with the law. The State so to speak by the very act of issuing the orders frowns upon its own officers for not complying with the law. The orders are supposed to be obeyed by the officers as a matter of honour/and as ordered by the State. Execution as known in the Civil Procedure process was not contemplated and this includes garnishee proceedings.
22. It was finally submitted that Section 106(2)(c) of WCMA provides the manner as to how orders of mandamus should be executed which is; compelling an officer or a person who has failed to perform a duty imposed by or under the WCMA to perform such act and that where such an officer fails to perform such duties, the Applicant can only enforce such an action through contempt of court proceedings and not garnishee. Learned counsel therefore urged the Court to dismiss the Applicants’ application dated 3/2/2026 with costs.
23. The Applicants’ submissions are dated 3 rd March 2026. It was submitted that the Applicants’ compensation claim was approved as confirmed in the replying affidavit of the Respondent sworn on 28 th January 2026 (filed after Judgment) wherein the Respondent expressly confirms that the County Wildlife Conservation Committee sat on 17 th July 2025 and made a recommendation for compensation in accordance with the applicable statute and hence there is therefore no dispute between the parties that the claim was considered, that compensation was recommended, and that no further statutory process remained pending and further the only outstanding step was payment of the recommended sum.
24. It was also submitted that despite the recommendation having been made as early as 17 th July 2025, the Respondent failed, neglected and/or refused to effect payment, without offering any lawful or reasonable explanation for the delay. Faced with inordinate delay and in the absence of any pending statutory process, the Applicants moved this Honourable Court by way of Chamber Summons dated 26 November 2025 seeking leave to commence Judicial Review proceedings which leave was duly granted. The Applicants thereafter filed the substantive Notice of Motion and served the same upon the Respondent as per the affidavit of service dated 27 th November 2025.
25. Learned counsel submitted that the issues for determination are whether the Respondent has made out a proper basis for setting aside the Judgment and Orders of Mandamus and whether the Applicants are entitled to enforce the Judgment through garnishee proceedings against the Respondent.
26. As regards the first issue, the Court of Appeal faced with the issue on whether a trial Court had the discretion to set aside a default judgment or not had the following to say in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR)
“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other.”
27. The same Court went ahead to state the following about irregular judgments-
“In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”
Flowing from the foregoing principles, the nature of the impugned judgment determines the threshold an applicant must meet in seeking to have it set aside.
28. It was submitted that where the judgment is alleged to be irregular, the applicant need only demonstrate that there was no service or that service was improper. Once the Court is satisfied that summons were not duly served in accordance with the law, the judgment is liable to be set aside ex debito justitiae, without the necessity of demonstrating triable issues or explaining delay, since the fundamental right to be heard would have been violated. However, where the judgment is regular, the applicant must first demonstrate that he was duly served with summons but failed to enter appearance or file a defence for a plausible, excusable, and satisfactory reason. The Court will interrogate whether the explanation tendered is credible and not merely a tactic to obstruct or delay the course of justice. Secondly, the applicant must show that the application to set aside was brought without unreasonable or inordinate delay since promptitude is a material consideration, as equity aids the vigilant and not the indolent.
29. Further, the applicant must place before the Court a draft defence or otherwise to demonstrate that the intended defence raises bona fide triable issues worthy of consideration at trial. The Court does not examine the merits in detail, but it must be satisfied that the defence is not a sham and discloses arguable questions fit for adjudication. Further, the Court will consider the respective prejudice likely to be suffered by each party and whether such prejudice can adequately be compensated by an award of costs. Ultimately, the Court must be persuaded that, in the totality of the circumstances, it is in the interests of justice to exercise its unfettered discretion in favour of the applicant.
30. Learned counsel submitted that applying the foregoing principles to the present matter, it is evident that the impugned Judgment was regularly entered. That the Respondent was duly and properly served at every procedural stage, service of the Chamber Summons for leave, the substantive Notice of Motion, the mention notices, and the hearing notice are all evidenced by duly sworn affidavits of service on record. The Respondent does not deny service. Its complaint is not want of notice, but rather internal administrative inefficiencies and alleged technical challenges in “mapping” the file. It was contended that the same cannot convert a regular judgment into an irregular one. That the foundational requirement of service having been satisfied, the Judgment cannot be impugned on the basis of irregularity.
31. It was further submitted that the Respondent has equally failed to meet the threshold applicable to setting aside a regular judgment. No plausible or excusable reason has been advanced for the failure to enter appearance or file a response despite ample time and multiple instances of service. The explanation of centralized registries, an officer being on leave, and belated technical mapping, particularly where the mapping request was initiated after Judgment had already been delivered, does not constitute a satisfactory or bona fide explanation. Further, there was no prompt attempt to seek enlargement of time or to attend Court to explain any difficulty. The delay was neither candidly explained nor excusable.
32. It was further contended that the Respondent has not demonstrated the existence of any arguable or triable defence. It does not dispute that the statutory committee sat, considered the claim, and recommended payment. It does not dispute that no further statutory process remained pending. Its defence is anchored purely on administrative delay, which is precisely the mischief that the remedy of Mandamus addresses. That in the absence of a substantive defence and given the prejudice to the Applicants, who have waited since July 2025 for payment of a lawfully recommended compensation, there is no basis upon which this Honourable Court can exercise its discretion in favour of the Respondent. That the application to set aside is therefore devoid of merit.
33. It was also submitted that under Article 47 of the Constitution of Kenya, the right to fair administrative action is guaranteed. This provision requires that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and that a delay in the payment of the compensation when the same was already recommended and approved does not meet the constitutional threshold of expediency and efficiency contemplated under the constitutional framework. That once the statutory committee discharged its mandate and made a recommendation for compensation, the Respondent was under a corresponding public duty to act promptly and effect payment. Unexplained administrative inertia, internal bureaucratic processes, or logistical challenges cannot override a clear constitutional command.
34. It was further contended that the Respondent’s conduct, viewed against the backdrop of Article 47, amounts to unreasonable and procedurally unfair administrative action. The Applicants had complied with all statutory requirements, and there remained no discretionary or investigative step pending. The delay therefore ceased to be procedural and became unlawfully withholding a benefit already determined under statute.
35. It was therefore submitted that the grant of Judicial Review Orders of Mandamus was not only proper but constitutiona
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