Ex-AG Muigai weighs in on the debate to auction state property over court awards

More Kenyans are coming out claiming that they have been denied court awards by the government even after winning cases.

This comes after Justice Nixon Sifuna’s judgment on unpaid debts sparked criticism and praise.

Justice Sifuna declared section 13A and 21 of the Governmenta Proceedings Act to be unconstitutional.

This was in a case pitting ABSA Bank and Kenya Deposit Insurance Corporation (KDCI) over Sh251 million.

Following the story exclusively published on Monday by The Standard, former Airforce officer Njoroge Muigai wrote an email stating that he is among the victims of government defiance.

According to him, there are a dozen officers who were awarded by courts in the country over the failed 1982 coup torture and dismissal that have not been paid to date.

“Thank you so for your wonderful story in today's Standard…There are tens of judgements passed against Ministry of Defense and none has been honored for no good reason. We have many cases in this category and the state (Ministry of Defense) has refused to obey court orders,” said Njoroge.

In the meantime, former Attorney General Prof Githu Muigai said that either attaching government properties or forcing officials to account for unpaid debt could be averted if the law on compensation is implemented.

At the same time, he said, the government had in 2016 tried to shield government employees and officials from being condemned personally if the money was not availed to them for payment. 

However, Githu said, High Court Judge Chacha Mwita declared the entire Contempt of Court Act 2016 to be unconstitutional for lack public participation.

The Act was assented into law by former President Uhuru Kenyatta in December 2016.

However, Kenya Human Rights Commission (KHRC) filed a case arguing that it shielded public officials from tough punishment.

KHRC argued that the law was a fertile ground for state officials to act in impunity while on the other hand watering down court’s powers to punish for disobedience.

Prof Githu was of the view that there is justification for an official or a civil servant not to be punished if they are unable to fulfill something that is not within their means.

“As we speak today, the law had clear provision that officers are not in contempt if they cannot be able to fulfill something that is not within their means,” said Githu.

Lawyer Donald Kipkorir on the other hailed Justice Sifuna’s verdict.  He said that it had now created a new ground that would end corruption and underhand dealings if one is to be paid by the government.

According to him, national government and county officials will no longer have a chance to ask for kickbacks in order to process pending bills or fast track the process.

He said that Justice Sifuna, with one stroke of a pen, had ended the last frontier of corruption.

“In repealing Sections 13 & 21 of The Government Proceedings Act, High Court Judge, Justice Prof. Dr. Nixon Sifuna with one stroke may have ended corruption in both Central & County Governments. Service Providers & government contractors will no longer be blackmailed for their Bills to pay. Before you couldn't execute your judgement by way of seizing Government (Central & County) assets or garnisheeing their bank accounts, but Justice Sifuna has said that you can now do it.” 

“Very soon, we will be seeing Government vehicles being seized & accounts attached. This was the last frontier of corruption. Kenyans now can rest easy as they won't bribe again to be paid. Governors will no longer ask 50 percent to pay bills. State Corporations won't be asking 10 percent to pay bills. Auctioneers will be the richest in Kenya,” said Kipkorir.

Justice Sifuna declared section 13 A and Section 21 of Government Proceedings Act to be unconstitutional.

According to the Judge, the two sections as well as the entire Act, which was borrowed from Britain gives government in unfair advantage in court cases.

Section 13 required one to seek for court’s greenlight and could only be done after 30 days of filing a notice.

However, the bombshell against the government and its officials lies in Section 21 (4).

The section bared anyone from attaching a government property in order to recoup an award. It also shielded government officials from personal liability.

“Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, 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,” it reads.