The Unconstitutionality of the Government Proceedings Act
Section 21 of the Government Proceedings Act bars direct execution against Government, often delaying successful litigants from realising judgments. The article examines the constitutional concerns and the case for repeal or reform.
Author : Bryson Ometo
- [email protected]
- Rachier & Amollo LLP, Mayfair Center 5th Floor
The Unconstitutionality of the Government Proceedings Act:
Bryson Ometo
Article Overview
This insight argues that Section 21 of the Government Proceedings Act (GPA), which shields the Government from ordinary execution processes, is inconsistent with the transformative Constitution of Kenya 2010. Using recent jurisprudence and constitutional principles, the author explains why the provision creates unequal treatment between the Government and ordinary litigants, undermines access to justice, and enables systemic delays in payment of judgment debts.
The article supports the reasoning that Section 21 violates key constitutional rights and Article 10 values, and urges courts and law reform actors to re-examine and ultimately repeal or reform the provision.
Key takeaways
- Core issue: Section 21 bars direct execution against the Government, forcing successful litigants into limited enforcement options that often delay payment of judgment debts.
- Equality concern (Article 27): the article argues the provision creates a discriminatory advantage for the Government in litigation, treating it as a privileged litigant.
- Key cases referenced: it discusses the High Court’s approach in Absa Bank Kenya PLC v Kenya Deposit Insurance Corporation (where the constitutionality of GPA provisions is addressed), and notes the Court of Appeal stay in Kenya Deposit Insurance Corporation v ABSA Bank Kenya PLC [2024] KECA 1753 (KLR).
- Broader Bill of Rights impact: the article links delayed satisfaction of decrees to practical violations of livelihood (Article 26), dignity (Article 28), property (Article 40), and access to justice (Article 48), especially for suppliers and contractors owed by the State.
- Procurement logic: it highlights that public procurement law requires budgeting before contracting, so “no readily available funds” should not justify blocking enforcement of judgments.
- Rule of law and Article 10: the author frames Section 21 as weakening accountability and enabling selective compliance with court orders, including risks of rent-seeking around payments.
- Role of courts: emphasises transformative adjudication and a “culture of justification” in constitutional interpretation, urging courts to prefer interpretations that advance enforcement of rights.
- Reform option mentioned: notes recommendations such as establishing a statutory fund to enable timely settlement of government debts and reduce reliance on mandamus or contempt proceedings.
About the author
Bryson Ometo is an Associate at Rachier & Amollo LLP. In this piece, he critiques Section 21 of the GPA as a post-2010 constitutional outlier and makes the case for judicial and legislative reconsideration to align enforcement of judgments with constitutional rights and values.