Legal Opinion on proposed intervention by Haki Jamii through a constitutional petition for striking out section 21(4) of the Government Proceedings Act (Chapter 40, Laws of Kenya)  

Summary:-

This opinion is intended as legal justification for filing a constitutional petition before the High Court of Kenya to challenge the constitutionality of section 21(4) of the Government Proceedings Act, (Cap 40) (hereafter “the GPA”). The section insulates the Government from attachment in execution of monetary decrees of courts of law.

We contend that the said section 21(4) of the GPA is in violation of the provisions of the Constitution as to the national values of equality and the rule of law (Art 10(2)(a),(b), equal benefit and protection of law (Art 27(1) and the supremacy of judicial authority and the principles of the administration of justice (Arts 50(1) and 159(1),(2)(a),(b),(e)), the obligation to obey the Constitution by all and, ultimately, the supremacy of the Constitution (Art 2(1),(4)).

It is also our position that to the extent that the said provisions of the GPA exclude the courts from execution by attachment of monetary decrees against Government, the provisions are also in violation of Kenya’s international obligation to afford effective remedies to victims of human rights violations under Article 2(3) of the International Covenant on Civil and Political Rights (ICPPR).

It is intended that JAMES MWANGI WANYOIKE & 9 OTHERS who are former Kenya Air Force officers and survivors of torture and unlawful detention following the crackdown of suspects of the 1982 coup will be the petitioners. The proposed petitioners are holders of a Certificate of Order Against Government for the current sum of Kshs. 31,852,909/- in High Court (Nairobi) Petition No. 1656 of 2005.

The facts of the case of the proposed petitioners:

  • JAMES MWANGI WANYOIKE, ANTONY NDIANGUI WAIGANJO, JOHN KIPSANG LETING, SAMMY KAHURA NGOMBO, ROBERT CHELUGO MININGWO, SIMON NJIRU KINYUA, TITUS TUMBO NGIO, STEPHEN MWANGI MARION, DEAVANS M. CHILELO and MOHAMED OMAR MWAMANENO (hereafter “the proposed petitioners”) are all former Kenya Air Force officers who were victims of torture and unlawful detention following the brutal crackdown of the 1982 coup suspects. All the proposed petitioners are persons of advanced age.
  • In 2005, the proposed petitioners filed Constitutional Application No. 1656 of 2005 before the High Court at Nairobi seeking declarations of violations of their fundamental rights against unlawful detention, torture, cruel and inhuman treatment, and for compensation in damages for the said violations that were inflicted on them following their arrest after the abortive coup.
  • After full hearing, on 15th February 2012, judgment was delivered in favour of the proposed petitioners including compensatory damages in the total sum of Kshs. 23,500,000/- together with costs and interest.
  • A formal decree exhibiting the orders of the said judgment was issued on 18th June 2012.
  • Party and Party costs were subsequently taxed at Kshs. 1,479,185/- and a Certificate of Taxation thereof issued on 20th November 2012.
  • In accordance with section 21 of the GPA, on 29th November 2009 the Court issued a Certificate of Order Against the Government in the sum of Kshs. 26,357,851/- in decretal sums, interest and costs.
  • On 3rd December 2012 we duly served the Attorney General with the Decree, Certificate of Taxation and the Certificate of Order Against the Government and gave 10 days notice to settle the judgment debt.
  • On 23rd August 2013 the Court issued an Amended Certificate of Order Against the Government in the sum of Kshs. 29,228,500/- being inclusive of the accumulated interest.
  • On 29th August 2013 we duly served the Attorney General with the Amended Order Against the Government and urged him to settle the debt. However, the Attorney General did not settle the judgment debt.
  • We have since sent to the Attorney General several demand letters for settlement of the judgment debt resting with our letter of 3rd April 2014 notifying the Attorney General of the proposed petitioners intention to file the proposed petition for striking out Section 21 of the GPA for unconstitutionality.
  • The Attorney General has neither responded to the notice of the proposed petition nor settled the judgment debt which now stands at Kshs. 31,852,909/-.
  • To date, the Attorney General has not appealed against the judgment of the Court or obtained a stay of execution of the judgment. Needless to say, section 21(4) of the GPA appears to given the Attorney General an implied automatic stay against execution of all monetary judgments!