Terry Moraa*

"While decisions of co-ordinate courts are not binding, these decisions are highly persuasive. This is because of the concept of judicial comity, which is the respect one court holds for the decisions of another."^[i] - Justice Mativo

The above quotation from Justice Mativo's holding, finds resonance in the discussion of this article on the jurisprudential disarray at the High Court. It reaffirms that although the decisions of courts with equal jurisdiction are not obligatorily binding on each other, the decisions must be treated with utmost caution to guarantee clarity of jurisprudence and to elude any likely jurisprudential disarray. The crux of this article is to briefly analyse the conflict in these High Court judgements: ABSA Bank v Kenya Deposit Insurance Corporation (ABSA Bank case)[ii] and Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya (Tom Ojienda case).[iii]

ABSA Bank v Kenya Deposit Insurance Corporation

ABSA bank instituted its case on 14 October 2022 against the defendant, the Kenya Deposit Insurance Corporation (subsequently referred to as KDIC). ABSA made its yearly deposits to the KDIC but later realised it had mistakenly and innocuously made an overpayment by a margin of Ksh. 215,346,841 (the sum).^[iv] ABSA sought a refund of the sum (plus interest) through its pleadings. Alternatively, it sought for the sum (plus interest) to be paid prospectively towards its annual contribution from the date the court could deliver its judgement, until full reconciliation.^[v] The difference in the two prayers is that in the latter, ABSA could not receive a direct refund of the sum; the sum could be used towards ABSA's yearly deposits to KDIC.

ABSA filed its plaint and obtained summons to enter appearance on 4 November 2022 in which it duly served KDIC. However, KDIC only entered appearance and failed to file its defence. ABSA, on its heels, made a request for interlocutory judgement (under Order 10 Rule 10 of the Civil Procedure Rules which provides for interlocutory judgement for failure to enter a defence).^[vi] The effect of this provision is that when the defendant has defaulted in filing a defence, the plaintiff is at liberty to request for judgement against such a defendant.^[vii] The request for interlocutory judgement by ABSA seemed to have made KDIC terrified. As the request was pending determination by the Deputy Registrar, KDIC filed an application for an extension to file its defence out of time and to impede the imminent determination.^[viii]

One of the issues that the application raised was the argument by KDIC that it is part of government and hence, legal proceedings against it should be governed by the Government Proceedings Act.[ix] KDIC maintained that because of this logic, no suit could be filed against it without a statutory notice issued, first, to the Attorney General.^[x] Consequently, KDIC contended that ABSA's request for interlocutory judgement was irredeemably flawed.^[xi]

The KDIC is a statutory institution, established by the Kenya Deposit Insurance Act.^[xii] Section 21 of the Government Proceedings Act mandates one to obtain a certificate before executing decrees against the government. In his judgement, Justice Sifuna held that this section does not apply to statutory corporations, like KDIC.^[xiii] Justice Sifuna cited, with approval, Bob Thompson Dickens Ngobi v Kenya Ports Authority and others which held that statutory institutions are not governmental departments as envisaged under the Government Proceedings Act.^[xiv]The effect of this is that statutory institutions are not exempt from interlocutory judgements and execution of decrees.

It is important to note that Section 22 of the Government Proceedings Act allows the government to execute against persons who lose claims against it.^[xv] This is different from Section 21 which mandates one to obtain a certificate before executing decrees against the government. Justice Sifuna termed Section 21 as discriminatory towards the regular litigant by affording the government 'preferential' treatment.^[xvi] In this judgement, Justice Sifuna, notably, underscored the need to equally protect all litigants, noting that in litigation there is neither a 'David' nor 'Goliath'.^[xvii] This reference to the biblical David and Goliath implies that everyone is equal before the law; there is no bigger person than the other.

Holding Section 21, among others, as unconstitutional,^[xviii] Justice Sifuna concluded that the provision obstructs the constitutional right of access to justice and is a derailment to Kenya's constitutional achievements.^[xix]

Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya

This application resulted from unpaid legal fee in the sum of Ksh. 43,582,145.40 owed to the applicant, Tom Ojienda and Associates. The applicant sought for a garnishee order against Cooperative Bank. Contrary to the expectation for the court to grant to issue an order nisi to freeze Nairobi City County's account that was held by the garnishee (Cooperative Bank),^[xx] the Court chose to direct the applicant's counsel to address the Court on the 'import, tenor and implication(s)' of Section 21(4) of the Government Proceedings Act, which basically forbids execution and attachment against governmental properties.^[xxi] The applicant in its submissions relied on ABSA v KDIC, among other authorities, which held Section 21 of the Government Proceedings Act to be unconstitutional.^[xxii] However, Justice Oguttu Mboya in the Tom Ojienda case held,

'I am afraid I have not discerned any paragraph wherein the learned judge has ventured forward and declared the named provisions to be invalid and unconstitutional'.^[xxiii]

This is despite the apparent order by Justice Sifuna in paragraph 46 of ABSA v KDIC declaring Section 21 unconstitutional. The reasoning of Justice Mboya is that contrary to the declaration made in the ABSA case, a declaration of unconstitutionality must be in line with Article 23 of the Constitution and that no 'precipitate' declaration therein was made.^[xxiv] The learned judge termed Justice Sifuna's orders as sheer 'observations'.^[xxv]

Justice Mboya cited an earlier decision by the High Court in Kisya Investments Limited v Attorney General and R L Odupoy which held Section 21 as constitutional.^[xxvi] He reasoned that this was the only decision rightly addressing itself to Section 21's constitutionality.^[xxvii] Justice Mboya held that Justice Sifuna ought to have considered the judgement in Kisya for jurisprudential certainty and lucidity.^[xxviii] It is, however, imperative to note that the judgement in Kisya was delivered in 2005, before the 2010 Constitution was promulgated.

Is Section 21 of the Government Proceedings Act operational?

With the above brief analysis of the conflicting judgements of the High Court in ABSA Bank v Kenya Deposit Insurance Corporation and Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya, it remains unclear whether Section 21 of the Government Proceedings Act is operational. In my own view, despite the divergent judgments, the court in ABSA v KDIC was rightly placed in declaring Section 21 unconstitutional because it impedes access to justice by requiring statutory notice before filing a case and mandating one to obtain a certificate before executing decrees against the government. Kenya has come a long way in terms of having a progressive Constitution, with a comprehensive Bill of Rights. As such, we must allow the constitutional wind of change in every law.

Following the judgement in ABSA v KDIC, some citizens have acted upon the court orders, being authoritative. For instance, Advocate Donald Kipkorir instructed auctioneers to seize properties of the County Government of Nairobi over a Ksh 1.69 billion debt that has been pending since 2022.^[xxix]

It is, therefore, vital to develop consistency at co-ordinate courts to avoid jurisprudential disarray.

*Terry Moraa is a finalist at Kabarak Law School.

[i] Republic v Kenya Bureau of Standards and 4 others ex parte United Millers Limited, Judicial Review 396 of 2018, Judgement of the High Court of Kenya at Nairobi, 13 May 2019, [eKLR], para 19.

[ii] ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation, Commercial Case E011 of 2023, Judgement of the High Court of Kenya at Nairobi, Commercial and tax division, 15 March 2024, [eKLR].

[iii] Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya, Miscellaneous Application E138 of 2021, Ruling of the Environment and Land Court at Nairobi, 05 April 2024, [eKLR].

[iv] ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation, para 4.

[v] ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation, para 3.

[vi] Civil Procedure Rules (No.151 of 2010), Order 10 rule 10.

[vii] Steve Ouma, A commentary on the Civil Procedure Act CAP 21, Law Africa Publishers, 2013, 202.

[viii] ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation, para 10.

[ix] Government Proceedings Act, No.31 of 1966.

[x] Government Proceedings Act, No.31 of 1966, Section 13A.

[xi] ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation, paras 12-13.

[xii] Kenya Deposit Insurance Act (No.10 of 2012), Section 4.

[xiii] ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation, para 20.

[xiv] ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation, para 19, citing with approval Bob Thompson Dickens Ngobi v Kenya Ports Authority and others, Civil Suit 87 of 2013, Judgement of the High of Kenya at Mombasa, 22 December 2017, [eKLR], para 11.

[xv] Government Proceedings Act (No.31 of 1966), Section 22.

[xvi] ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation, para 27.

[xvii] ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation, para 27.

[xviii] ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation, para 46.

[xix] ABSA Bank Kenya PLC v Kenya Deposit Insurance Corporation, para 37.

[xx] Steve Ouma, 'A commentary on the Civil Procedure Act CAP 21', 335-337.

[xxi] Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya, para 5.

[xxii] Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya, para 13.

[xxiii] Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya, paras 31, 52.

[xxiv] Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya, paras 42, 53.

[xxv] Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya, para 34.

[xxvi] Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya, para 45, citing with approval, Kisya Investments Limited v Attorney General and another, Civil Case 2832 of 1990, Judgement of the High Court of Kenya at Nairobi, 24 January 2005, [eKLR], 8-10.

[xxvii] Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya, para 51.

[xxviii] Tom Ojienda and Associates v Nairobi City County and Cooperative Bank of Kenya, para 50.

[xxix] NTV Kenya, 'Donald Kipkorir instructs auctioneers to seize city hall assets over 1.69 billion debt', 27 March 2024, <https://ntvkenya.co.ke/news/donald-kipkorir-instructs-auctioneers-to-seize-city-hall-assets-over-sh1-69bn-debt/> on 01 May 2024.