City lawyer Donald Kipkorir has instructed auctioneers to seize assets belonging to the Nairobi County government over a debt of Sh1.69 billion that has been pending since 2022.
The move comes a few days after High Court Judge Nixon Sifuna quashed section 13A and 21 of the Government Proceedings Act, opening the door for litigants to attach government properties or bank accounts to recover their debts.
While quashing the laws, Justice Sifuna termed the sections colonial relics that have no place in modern society and were only meant to frustrate rather than facilitate the processing and expeditious disposal of cases.
“The legislation is an archaic colonial outfit that inadvertently escaped the post-2010 legal reforms that sought to align the laws with the Kenya Constitution 2010 and the new legal order it had established,” the judge said.
Yesterday, Mr Kipkorir instructed Garam Investment Auctioneers to seize valuables, office equipment, computers, furniture and cars to satisfy the debt.
“We urge that you have the warrants issued immediately and if possible, today (March 27) so that you execute tomorrow as Friday is a Public Holiday,” Mr Kipkorir said in the letter to the auctioneer. He further asked the auctioneer to make sure that there was enough manpower to proclaim as much property as possible.
Mr Kipkorir was awarded one of the highest legal fees in the country’s litigation history for defending the county government against the Ministry of Defence over a parcel of land where Embakasi Barracks sits. The Environment and Land court in 2022 ruled that Mr Kipkorir should be paid Sh1.338 billion for representing the defunct city council in a case that was in court for close to 10 years over the 3,000-acre land valued at Sh61.5 billion. The amount has since increased to Sh1.69 on account of interest.
Mr Kipkorir acted for the defunct city council when its land was forcibly taken by the Kenya Defence Forces, triggering the court case in 2012 but the matter was later withdrawn to allow for the case to be settled through inter-governmental relations.
“Note that executing against County Governments was pursuant to the Government Proceedings Act. However, last week in Nairobi HCCC No.E411 of 2023, the High Court voided Sections 13 and 21 of the Government Proceedings Act as unconstitutional and thus allowing execution against county governments like in all ordinary executions,” Mr Kipkorir said.
Speaking separately, the lawyer said for long, government at both levels had the upper hand against its creditors because it was immune from execution and attachment.
“By removing this legal anomaly, Justice Sifuna has created an even playing field between government and those it enters into contract with. Government apparatchiks can’t blackmail or extort creditors anymore,” he said.
The ownership of the land is yet to be settled as the Supreme Court ruled last year that although the military has been occupying the land since 1986, it remains the property of the county government as the legal successor to the defunct Nairobi City Council.
The county government had unsuccessfully fought Mr Kipkorir’s legal fees, stating his law firm, KTK Advocates, had an agreement with City Hall to be paid Sh400 million plus VAT. The argument was dismissed by the Deputy Registrar who said there was no proof of the agreement. The court noted that the Advocates (Remuneration) Order provides the minimum amount and in calculating the amount, the court has the option of increasing the fees but not go below what has been stated as the minimum.
