1. The Plaintiff filed a Notice of Motion dated 15th December 2025 seeking, firstly, a stay of execution of warrants of attachment issued in execution of a money decree dated 14th November 2024 pending the hearing and determination of the application. Secondly, the Plaintiff seeks the lifting and/or cancellation of the warrants of attachment dated 2nd December 2025.
The application is supported by the grounds therein and an undated affidavit sworn by Margaret Muinde, who avers that the warrants of attachment are unlawful and incapable of execution by virtue of Sections 21(4) and 21(5) of the Government Proceedings Act, Cap 40.
2. The 1st Defendant opposed the application through a Notice of Preliminary Objection contending that the application is res judicata and has been filed out of time.
A. Nature of the Relief Sought
3. Although the application is framed as one for stay of execution and setting aside of warrants, its substance is injunctive, as it seeks to restrain the execution of a decree. The applicable principles are those governing interlocutory injunctions.
4. The Applicant must therefore establish a prima facie case, demonstrate irreparable harm, and where in doubt, the Court will determine the matter on a balance of convenience. A prima facie case must disclose an arguable right capable of protection.
B. The Government Proceedings Act (Cap 40)
5. The cornerstone of the Plaintiff’s application is Sections 21(4) and 21(5) of the Government Proceedings Act, which provide that no execution or attachment shall issue against the Government, and that satisfaction of decrees against the Government is to be effected through a certificate of order against the Government.
6. The statutory framework governing execution against the Government is clear. Once a judgment is entered, the successful party is required to extract a Certificate of Order against the Government under Section 21(1) and serve it upon the relevant accounting officer. Payment is thereafter processed administratively through the appropriate government channels.
7. The effect of Sections 21(4) and (5) is to bar the ordinary modes of execution such as attachment, committal, or garnishee proceedings against the Government. Instead, the law substitutes a structured and controlled mechanism for satisfaction of decrees.
8. The rationale for this statutory protection lies in public policy considerations, including the need to safeguard public funds and ensure continuity in government operations without disruption through execution processes.
9. However, this protection is neither absolute nor a shield for procedural impropriety or avoidance of lawful obligations.
10. The Court of Appeal in Kenya Bus Service Ltd & Another v Minister for Transport & 2 Others cautioned against the misuse of statutory protection, emphasizing that Government cannot rely on procedural shields to defeat legitimate claims or to evade satisfaction of decrees lawfully obtained against it.
11. The appellate court underscored that the purpose of the Government Proceedings Act is to regulate the mode of satisfaction of decrees—not to extinguish or indefinitely delay the rights of successful litigants.
12. In that context, a party invoking the Act must demonstrate good faith compliance with the statutory framework and cannot merely rely on Sections 21(4) and (5) as a blanket bar to execution without satisfying the attendant procedural obligations.
13. In the present case, while the Plaintiff invokes the statutory protection, it has failed to place before the Court any material demonstrating compliance with the mechanism set out under Section 21. There is no evidence of a certificate of order, no proof of service upon an accounting officer, and no indication of any steps taken toward settlement.
14. The invocation of the Act in these circumstances appears not as a shield grounded in law, but as an attempt to obstruct lawful execution without adherence to the statutory scheme.
15. More fundamentally, the Plaintiff has approached the Court through a procedurally defective process, thereby undermining the very basis upon which such statutory protection could be considered.
C. Competency of the Application
16. Before addressing the merits of the application, the Court must determine whether it is properly before it. The application was filed as a standalone Notice of Motion without any substantive suit or as a miscellaneous application.
17. It is trite law that proceedings must be commenced by way of a pleading. A Notice of Motion cannot substitute a substantive suit.
18. Order 3 Rule 1 of the Civil Procedure Rules provides that every suit shall be instituted by way of a plaint or in such other prescribed manner. The present application does not meet this threshold.
19. The consequence of such a defect is fatal. Proceedings founded on no proper suit are void and incapable of sustaining any relief.
D. Determination
20. Even assuming that the Plaintiff were entitled to protection under the Government Proceedings Act, such protection cannot be invoked:
• in the absence of compliance with the statutory framework; and
• through a procedurally incompetent application.
21. Further, the Applicant has failed to satisfy the threshold for the grant of injunctive relief.
22. The Court therefore finds that:
• the application is procedurally defective;
• it is not anchored on any competent proceedings;
• the invocation of the Government Proceedings Act is misplaced and unsupported; and
• The application fails both on procedural and substantive grounds.
23. Accordingly, the Notice of Motion dated 15th December 2025 is hereby dismissed for being fatally defective. There shall be no order as to costs.
24. The interim orders are vacated
24. It is so ordered.
DATED, SIGNED, AND DELIVERED in Open Court/Online via MS Teams this ……19TH… day of …MARCH…… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
MS SAUMU FOR THE RESPONDENT
APPLICANT ABSENT
MS MAUREEN COURT ASSISTANT
The application is supported by the grounds therein and an undated affidavit sworn by Margaret Muinde, who avers that the warrants of attachment are unlawful and incapable of execution by virtue of Sections 21(4) and 21(5) of the Government Proceedings Act, Cap 40.
2. The 1st Defendant opposed the application through a Notice of Preliminary Objection contending that the application is res judicata and has been filed out of time.
A. Nature of the Relief Sought
3. Although the application is framed as one for stay of execution and setting aside of warrants, its substance is injunctive, as it seeks to restrain the execution of a decree. The applicable principles are those governing interlocutory injunctions.
4. The Applicant must therefore establish a prima facie case, demonstrate irreparable harm, and where in doubt, the Court will determine the matter on a balance of convenience. A prima facie case must disclose an arguable right capable of protection.
B. The Government Proceedings Act (Cap 40)
5. The cornerstone of the Plaintiff’s application is Sections 21(4) and 21(5) of the Government Proceedings Act, which provide that no execution or attachment shall issue against the Government, and that satisfaction of decrees against the Government is to be effected through a certificate of order against the Government.
6. The statutory framework governing execution against the Government is clear. Once a judgment is entered, the successful party is required to extract a Certificate of Order against the Government under Section 21(1) and serve it upon the relevant accounting officer. Payment is thereafter processed administratively through the appropriate government channels.
7. The effect of Sections 21(4) and (5) is to bar the ordinary modes of execution such as attachment, committal, or garnishee proceedings against the Government. Instead, the law substitutes a structured and controlled mechanism for satisfaction of decrees.
8. The rationale for this statutory protection lies in public policy considerations, including the need to safeguard public funds and ensure continuity in government operations without disruption through execution processes.
9. However, this protection is neither absolute nor a shield for procedural impropriety or avoidance of lawful obligations.
10. The Court of Appeal in Kenya Bus Service Ltd & Another v Minister for Transport & 2 Others cautioned against the misuse of statutory protection, emphasizing that Government cannot rely on procedural shields to defeat legitimate claims or to evade satisfaction of decrees lawfully obtained against it.
11. The appellate court underscored that the purpose of the Government Proceedings Act is to regulate the mode of satisfaction of decrees—not to extinguish or indefinitely delay the rights of successful litigants.
12. In that context, a party invoking the Act must demonstrate good faith compliance with the statutory framework and cannot merely rely on Sections 21(4) and (5) as a blanket bar to execution without satisfying the attendant procedural obligations.
13. In the present case, while the Plaintiff invokes the statutory protection, it has failed to place before the Court any material demonstrating compliance with the mechanism set out under Section 21. There is no evidence of a certificate of order, no proof of service upon an accounting officer, and no indication of any steps taken toward settlement.
14. The invocation of the Act in these circumstances appears not as a shield grounded in law, but as an attempt to obstruct lawful execution without adherence to the statutory scheme.
15. More fundamentally, the Plaintiff has approached the Court through a procedurally defective process, thereby undermining the very basis upon which such statutory protection could be considered.
C. Competency of the Application
16. Before addressing the merits of the application, the Court must determine whether it is properly before it. The application was filed as a standalone Notice of Motion without any substantive suit or as a miscellaneous application.
17. It is trite law that proceedings must be commenced by way of a pleading. A Notice of Motion cannot substitute a substantive suit.
18. Order 3 Rule 1 of the Civil Procedure Rules provides that every suit shall be instituted by way of a plaint or in such other prescribed manner. The present application does not meet this threshold.
19. The consequence of such a defect is fatal. Proceedings founded on no proper suit are void and incapable of sustaining any relief.
D. Determination
20. Even assuming that the Plaintiff were entitled to protection under the Government Proceedings Act, such protection cannot be invoked:
• in the absence of compliance with the statutory framework; and
• through a procedurally incompetent application.
21. Further, the Applicant has failed to satisfy the threshold for the grant of injunctive relief.
22. The Court therefore finds that:
• the application is procedurally defective;
• it is not anchored on any competent proceedings;
• the invocation of the Government Proceedings Act is misplaced and unsupported; and
• The application fails both on procedural and substantive grounds.
23. Accordingly, the Notice of Motion dated 15th December 2025 is hereby dismissed for being fatally defective. There shall be no order as to costs.
24. The interim orders are vacated
24. It is so ordered.
DATED, SIGNED, AND DELIVERED in Open Court/Online via MS Teams this ……19TH… day of …MARCH…… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
MS SAUMU FOR THE RESPONDENT
APPLICANT ABSENT
MS MAUREEN COURT ASSISTANT