Video summary

Class G Civil Litigation 10 April 2026

Main summary

Key takeaways

Educational

Main ideas / lessons conveyed

1) Garnishing proceedings (Order 23 / execution against third parties)

Purpose: Garnishing proceedings are an execution tool used after judgment/decree when part (or all) of a monetary decree remains unsatisfied.

Who is involved:

  • Judgment creditor / decree holder: the winning party entitled to money.
  • Judgment debtor: the losing party obligated to pay.
  • Garnishee (third party holding property/money for the debtor): e.g., a bank holding the debtor’s funds.

Core concept: Seek an order to attach/freeze the debt owed by the garnishee to the judgment debtor, so the garnishee ultimately pays the judgment creditor.

Clarification emphasized repeatedly (rules of identification):

  • “Whoever wins is the judgment creditor/decree holder.”
  • “Whoever loses is the judgment debtor.”

2) Procedure for garnishing (mechanism explained step-by-step)

Step-by-step method (as described):

  1. Ensure you have:
    • A judgment and decree; and
    • A monetary amount that remains unsatisfied.
  2. Identify the garnishee who holds money/property on behalf of the judgment debtor (e.g., a bank).
  3. Apply for a garnishee order nisi (Order 23) — an order requiring the garnishee to show cause.
  4. Understand the nisi order:
    • It requires the garnishee to show cause why they should not pay the judgment sum to the judgment creditor.
    • It attaches the debt amount and freezes the garnishee’s ability to pay it to the judgment debtor during the pending process.
  5. Serve the order nisi on both:
    • the garnishee (e.g., bank), and
    • the judgment debtor.
  6. Hearing and outcome:
    • If the debt is admitted/not contested, the court makes the order absolute.
    • If contested, the matter proceeds to determination.
  7. Final payment:
    • If the order becomes absolute, the garnishee pays the sum to the judgment creditor.
    • This discharges garnishee liability to the extent paid.

Substantive limitation emphasized:

  • The attached debt must be present and ascertainable “to the last shilling.”
  • Future/contingent debts cannot be garnished.

3) Garnishing government accounts / state entities (limits and exceptions)

Direct proposition: In general, garnishing “government” accounts is not possible/improper without a special legal basis.

Grounds cited:

  • Civil Procedure Rules: Order 29 rule 2(2)(c) — no order against government under Order 23 attachment of debts.
  • Government Proceedings Act: requirement for a certificate/process (described as going to the Attorney General) and that government property is not attachable in the ordinary way.
  • Case law references mentioned, including:
    • Permanent Secretary, Office of the President v Nasri Mwatiti
    • A “recent” ruling (including Ketraco)

Nuance/exception discussed:

  • State corporations/body corporates (separate legal entity, perpetual succession, ability to contract/sue/be sued) may be subject to garnishing orders depending on their legal status and court holdings.
  • Discussion also noted uncertainty about what counts as “government” for these purposes (e.g., whether state corporations are captured by statutory wording).

4) Attorney General (AG) and representation of government entities

AG role (summary):

  • The Attorney General represents the national government in civil proceedings.

When AG must be joined/enjoined (categories referenced):

  1. Suits against the national government (ministries/departments/agencies).
  2. Constitutional petitions (often requiring AG service).
  3. Public interest matters (practice of giving AG notice so the government can be heard).

Land registrar representation:

  • Land registrars are discussed as represented through the AG under the government proceedings framework.

County governments representation:

  • Typically represented through the office of the County Attorney and/or external counsel when necessary.
  • A “new/recent development” was mentioned: a Nakuru decision (by Judge Muchemi) said to restrict/affect outsourcing representation for counties.
  • Practical realities were discussed: counties may use pre-qualified panels/law firms, while class debate focused on how strictly procurement/outsourcing rules apply.

5) Presidential immunity (Article 143) and how to challenge presidential actions

Core rule cited (Article 143):

  • Criminal proceedings are generally barred during tenure against the President and persons performing that office.
  • Civil proceedings are barred during tenure in respect of anything done or not done in the exercise of constitutional powers.

Practical takeaway about “suing the President”:

  • You generally cannot sue the President personally during tenure.
  • However, courts may still:
    • challenge the legality/constitutionality of actions taken under presidential authority, and
    • craft orders that effectively restrain or address illegality by targeting the proper governmental respondents (e.g., government/AG or officials in official capacity), rather than the President directly.

Additional constitutional nuance mentioned:

  • Immunity is temporal; after leaving office, liability may arise depending on context and limitation rules.
  • Discussion referenced:
    • Article 143(3) (tolling of time limits while President holds/performs office).
    • Article 145 (impeachment/removal framework discussed in connection with serious wrongdoing/criminal contexts).
  • References also included an example tied to Article 143(4) (treaty crime context).

6) Amicus curiae (friend of the court) — definition and limits

Definition:

  • Amicus curiae = friend of the court, admitted to assist the court with expertise.

Key criteria emphasized:

  • Must have genuine interest in legal/constitutional questions (not personal interest).
  • Submissions must be directly relevant to issues.
  • Must not advance one party’s cause; must remain neutral.
  • Court must be satisfied the submissions will genuinely assist determination.

Procedure/role:

  • Amicus is admitted by the court, grounded in inherent jurisdiction practice.

Evidentiary limits emphasized:

  • Generally cannot adduce evidence.
  • Generally cannot cross-examine witnesses (to preserve neutrality and adversarial structure).
  • Nuance: cross-examination is fundamentally a party right, and amicus reports/submissions should respect fairness.

Example mentioned:

  • A technical amicus example in election-related litigation (electronic results/transmission expertise).

7) Representative suits (Order 1)

Authority/goal:

  • Order 1 allows representative/class-type suits where there are numerous persons with the same interest, and one or more may sue/be sued on behalf of all with court permission.

Requirements (as listed):

  • Numerosity: “numerous persons” is contextual (no fixed number); the test is whether joining everyone individually is impractical.
  • Same interest in substance: identical legal basis and facts/relief across class members (not merely similar wrongs).
  • Court permission/leave: you must apply, and the court must be satisfied before proceeding.

Court approval for compromises:

  • Representative suits: no compromise/withdrawal/consent binds the class without court approval, due to risks to absent persons.

Practical difference vs joinder (as taught):

  • Joinder: multiple plaintiffs are named; each sues on their own behalf (different remedies may be sought).
  • Representative suit: one representative plaintiff is typically named; others are bound without being named, and procedure is more demanding.

8) Minors and persons of unsound mind (Order 32)

Definitions:

  • Minor: under 18.
  • Unsound mind: adjudged incapable of managing own affairs.

How they participate:

  • Minors sue through a next friend (adult, over 18, without adverse interest to the minor, undertaking for costs).
  • Minors defend via a guardian ad litem appointed by the court.
  • Settlement/compromise involving minors requires court approval (protective jurisdiction).

Adverse interest / conflict requirement (scenario taught):

  • A parent may be disqualified as next friend if there is a clear conflict (e.g., parent may be potentially liable arising out of the same accident).

Additional complex scenario mentioned:

  • A lengthy hypothetical involving:
    • a minor injured in a vehicle accident,
    • claims against an insurer due to alleged non-disclosure,
    • a separate claimant obtaining a garnishee order nisi on the same vehicle’s bank account,
    • requiring identification of applicable rules across multiple legal facets.

9) Strategic framing: “Parties are strategy”

Concluding methodology:

  • Choosing parties is strategic, not merely procedural.
  • Counsel should decide early (during instructions and facts absorption):
    • whether to use joinder,
    • whether third-party notice can be leveraged,
    • whether representative selection affects outcomes,
    • how to plan documents and service based on party categories and timelines.

Methodologies / instructions captured (detailed bullet points)

Garnishing proceedings: operational checklist (Order 23 approach)

  • Obtain:
    • Judgment and decree
    • Remaining unsatisfied portion of a monetary decree
  • Identify roles:
    • Judgment creditor/decree holder = winning party entitled to money
    • Judgment debtor = losing party obligated to pay
    • Garnishee = third party holding debtor’s money/property (e.g., bank)
  • Apply for:
    • Garnishee order nisi (Order 23)
  • Effect of nisi:
    • Garnishee must show cause
    • Debt is attached/frozen pending determination
  • Service:
    • Serve order nisi on both garnishee and judgment debtor
  • Hearing outcomes:
    • If no contest / admitted → order absolute
    • If contested → court determines, then makes order absolute if warranted
  • Final action:
    • Garnishee pays judgment creditor
    • Garnishee liability discharged to the extent of payment
  • Substantive requirements:
    • Attached debt must be present and ascertainable
    • No future/contingent debts

Representative suits: filing/approval criteria (Order 1)

  • Confirm three requirements:
    • Numerosity: impractical to join all individually (contextual)
    • Same interest in substance: identical legal basis + facts + relief (not merely similar)
    • Leave/permission of the court: must apply; court must approve before proceeding
  • After permission:
    • Ensure binding effect is properly understood: judgment binds the whole class
  • Compromises:
    • Any compromise/settlement/withdrawal must have court approval to bind the representative class

Minor/unsound mind participation (Order 32)

  • Use appropriate representatives:
    • Plaintiff minor → next friend
    • Defendant minor → guardian ad litem
  • Qualification tests:
    • Next friend must be an adult, over 18
    • No adverse interest to the minor
    • Undertaking for costs
  • Settlement:
    • Court approval required for compromises/settlements involving minors

Amicus curiae admission and conduct

  • Request/seek admission (court-centered/inherent jurisdiction practice):
    • Genuine interest in legal/constitutional questions
    • Neutral; not advancing a party
    • Relevant expertise that assists the court
  • Limitations:
    • Generally cannot adduce evidence
    • Generally cannot cross-examine witnesses

Speakers / sources featured (identified)

Primary speaker / instructor

  • “Mwalimu” / class instructor (unnamed in subtitles; repeatedly addressed as “Mwalimu”)

Speakers who contributed on microphones / by name in subtitles

  • Daniel Kashem (Daniel Kasham / Daniel Kashambi)
  • Nelius Kashambi (Nelius Keshambi / Nelius Kashambi)
  • Emogel Titus (Titus / Emogel)
  • Muwanga Lilian
  • Steven Waruru (Stephen Waruru / Waweru Steven)
  • Owen Kevin
  • Odur Duncan
  • Basha Naznin
  • Kubo Kizito
  • Felix Ouma
  • Anyango Alex
  • Vera Cherotich
  • Machoka Kiriago (Machoka / Kiriago)
  • Dominic (Dominic Kiriago referenced)
  • Dennis Aberi (Denis Abere / Denis Abere)
  • Alvin Machoka
  • Peter Elijah (Peter)
  • Peter Ngoma (Elijah Peter Ngoma referenced)
  • Jackton
  • Asante (participant; appears in amicus discussion but not fully identifiable)
  • Kevin Bowen (Bwana Bowen)
  • Walter/Nyambura scenario instructor questions (no additional named speaker beyond “Mwalimu”)

Sources / authorities explicitly referenced

  • Civil Procedure Rules (Kenya):
    • Order 23 (garnishee/attachment of debts)
    • Order 29 rule 2(2)(c) (no order against government under Order 23 attachment of debts)
    • Order 1 rule 8 (representative suits; discussed)
    • Order 32 (minors and persons of unsound mind)
  • Government Proceedings Act (sections discussed, including “section 21 part four” and related certificate/process)
  • Constitution of Kenya:
    • Article 22 (public interest/rights enforcement referenced)
    • Article 258 (constitutional enforcement/contravention referenced)
    • Article 143 (presidential immunity—sub-articles 1–5 discussed)
    • Article 145 (impeachment/removal referenced)
  • Case law mentioned:
    • Permanent Secretary, Office of the President v Nasri Mwatiti
    • Election-related example involving Kenya Raila Odinga (amicus/technical expertise context)
    • “Mom Matemu” (amicus criteria takeaway; context partially unclear)
    • “Ketraco” (government attachment limitation context; mentioned as recent case)
    • Nakuru case by Judge Muchemi (county outsourcing representation restriction)
    • BBI initiative / High Court Jairus Ngaah (immunity/action challenge discussion)
    • Reference to Kenyatta and deputy tried at ICC (illustrating Article 143(4) exception in treaty crime context)

Original video