Blow to Government as High Court quashes ‘archaic laws’ that require one to notify AG before suing the State
The High Court deemed elements of the Government Proceedings Act invalid, including the requirement for litigants to notify the Attorney General before launching proceedings against the government or its agents.
Justice Nixon Sifuna declared Sections 13a and 21 to be colonial relics with no place in modern society, ruling that no notice or authorization is required before commencing a case or executing a verdict or decree against the government or its institutions.
The judge observed that the laws hinder rather than promote the processing and timely disposition 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 as well as the wind of change that it brought,” the judge said.
The said section states that, “No proceedings shall lie or instituted until after expiry of a period of 30 days after a notice in writing in the prescribed form have been served on the government in relation to those proceedings.”
Absa Bank filed a case against Kenya Deposit Insurance Corporation (KDIC), and the judge rendered the verdict.
The lender claimed a reimbursement of Sh215.3 million from the state corporation for monies deposited annually with KDIC as mandated by Section 75 of the Banking Act.
Absa admitted to having overpaid annual payments in the past.
It later received a judgement against KDIC, but the corporation appealed the ruling, claiming that the litigation was filed without notifying the Attorney General.
The judge emphasised that order 10 Rule 8 of the Civil Procedure Rules, which requires one to obtain court approval before acquiring an interlocutory judgement, does not apply to KDIC.
Justice Sifuna emphasised that the restrictions only apply to departments and agencies controlled by the central government.
On section 13 of the Government Proceedings Act, the judge stated that the requirements were unconstitutional if they made parties unequal in litigation, unbalanced the playing ground, or pulled the rug out from under others.
“I find section 13a ( and even section 21) of the Act discriminatory in the sense of discriminating against ordinary litigant and giving preferential, differentiated treatment to the government,” said the judge.
According to Justice Sifuna, all litigants, whether government or non-governmental, are expected to be equal before the law and have equal arms.
He stated that, in addition to impeding access to justice, the parts add to the case backlog and weaken the administration of justice.
“It (the sections) is a colonial relic that was conceived during the colonial time to control litigation against the repressive, unelected and therefore, illegitimate regime,” said the judge.
The judge went on to say that the portions had outlived their usefulness and should be abandoned or refashioned in such a way that they are in harmony with contemporary circumstances and the existing legal order.
The judge ordered KDIC to pay the amount plus 14% interest from the date the case was filed in 2022.
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Blow to Government as High Court quashes ‘archaic laws’ that require one to notify AG before suing the State
