Contractors with unpaid invoices, landowners awaiting compensation, employees unlawfully dismissed, accident victims, and businesses harmed by unlawful administrative action all eventually ask the same two questions: can I sue the government? And, more importantly, how do I get paid if I win?
The answer to the first is yes. The Constitution guarantees access to justice (Article 48) and equality before the law (Article 27), and the Government Proceedings Act (Cap. 40) makes the Government liable in contract and tort much like a private person. But suing a public body comes with special rules on notice, limitation periods, who to sue, available remedies, and, above all, execution. Unlike private entities, government arms, constitutional commissions, and statutory corporations enjoy distinct statutory protections designed to safeguard public assets and ensure the uninterrupted delivery of public services, preventing a country from descending into chaos and the breakdown of the rule of law. Read our article on Key Considerations Before Instituting a Civil Suit in Kenya.
Can you sue the government in Kenya, and what kinds of claims can you bring?
Yes. A public body may face a claim for breach of contract, negligence, unlawful administrative action, infringement of constitutional rights, or failure to carry out a statutory duty. Each claim has its own legal basis, forum and remedies.
Sections 3 and 4 of the Government Proceedings Act, Cap. 40 address contractual and tort claims involving the Government, subject to statutory qualifications. Article 47 of the Constitution of Kenya and the Fair Administrative Action Act govern challenges to administrative action. Articles 22 and 23 provide a route to enforce the Bill of Rights, while Article 258 permits proceedings over a contravention or threatened contravention of the Constitution.
Who counts as “the Government” for these purposes?
This question determines which rules apply, especially on execution. In Five Star Agencies Ltd & another v National Land Commission & 2 others [2024] KECA 439 (KLR) (12 April 2024), the Court of Appeal (Musinga P, Mumbi Ngugi and Ngenye-Macharia JJA) held that the protection the Government Proceedings Act gives the Government extends to constitutional commissions and independent offices, such as the National Land Commission, and to county governments. When the National Land Commission later asked the Supreme Court for an advisory opinion on the same point, the Supreme Court declined to give one because, in its view, Five Star Agencies had already settled the questions: In re National Land Commission [2025] KESC 12 (KLR) (21 March 2025).
State corporations are treated differently. Where a parastatal is a separate body corporate that can hold property, contract and open bank accounts in its own name, the High Court has repeatedly held that it is not “the Government” and cannot shelter behind section 21. In Greenstar Systems Ltd v Kenyatta International Convention Centre & 2 others [2018] KEHC 2360 (KLR), KICC could not rely on the Act after presenting itself as a body corporate, and in a 2024 ruling, the High Court allowed a garnishee of about KShs 1.7 billion held by banks for the National Cereals and Produce Board. Whether a particular parastatal is “Government” therefore depends on its founding statute and the facts and should be checked before you file.
Do I need to give notice before suing the government?
Yes. Section 13A of the Government Proceedings Act provides that no proceedings may be instituted against the Government until at least 30 days after a notice in writing, in the prescribed form, has been served on the Government. The notice should identify the claimant, the facts, the department or officer involved, the relief sought, and the amount claimed, and is served on the Attorney General (and, in practice, the relevant Principal Secretary or accounting officer).
In Absa Bank Kenya PLC v Kenya Deposit Insurance Corporation (HCCOMM E411 of 2022, 15 March 2024), Sifuna J declared sections 13A and 21 unconstitutional. But that declaration was made by the court on its own motion, was described by the Environment and Land Court in Prof. Tom Ojienda & Associates v Nairobi City County [2024] KEELC 1662 (KLR) as lacking the explicit declaration required by Article 23, and has since been stayed by the Court of Appeal pending KDIC’s appeal: Kenya Deposit Insurance Corporation v ABSA Bank Kenya PLC [2024] KECA 1753 (KLR) (6 December 2024). Until the appeal is decided, prudent claimants should serve the 30-day notice.
Do state corporations and county governments require notice too?
Check the body’s own statute. Several parastatal statutes contain their own pre-suit notice. Section 87 of the Kenya Railways Corporation Act, for example, requires at least one month’s written notice to the Managing Director, with particulars of the claim, before any action is commenced. Section 67 of the Kenya Roads Act and section 66 of the Kenya Ports Authority Act prescribe at least one month’s written notice for claims within their scope, directed to the Director-General or Managing Director, respectively. For county governments and commissions, which the Court of Appeal treats as “Government”, serving a section 13A notice is the safer course. A demand letter is good practice in every case: it clarifies the dispute or opens settlement discussions. However, it cannot replace the prescribed statutory notice.
How long do I have to sue a public body?
Calculate time from the date the cause of action accrued and check the statute governing the particular defendant and claim. Section 3 of the Public Authorities Limitation Act, Cap. 39 generally gives 12 months for tort and three years for contract proceedings against the Government or a local authority as defined by that Act, subject to applicable exceptions. Where the ordinary rules in section 4 of the Limitation of Actions Act govern, the usual periods are three years for tort and six years for contract. Employment disputes, procurement challenges and other specialist proceedings have their own deadlines. Where the applicable period is uncertain, assess the claim against the shortest plausible deadline. Negotiations or a demand letter do not stop the Section 13A time running.
Who should you sue: the Attorney General, the county or the agency itself?
| Public body involved | Who should ordinarily be named |
| National government ministry, state department, national government organs | For an ordinary civil claim against the national Government, name the Attorney General, together with the relevant Cabinet Secretary or Principal Secretary, in their appropriate representative capacities. |
| County government | Sue the county government in its corporate name, with the County Executive or relevant officer joined where appropriate. For claims involving the county executive, the County Attorney ordinarily represents it. |
| Statutory authority or parastatal | Check the establishing statute or instrument. If the body has separate legal personality and power to sue and be sued, it is generally sued in its own name. |
| Constitutional commission or independent office | Check its constitutional or statutory status. Article 253 gives constitutional commissions and independent offices corporate capacity, including the power to sue and be sued. |
Before deciding who to sue, identify the party bound by the contract or legally able to give effect to the order sought. In a public law case, name the organ or office responsible for the decision or duty where necessary. Naming the office in that capacity does not make its holder personally liable for a government debt.
Should you file a plaint, seek judicial review, or bring a constitutional petition, and to which court?
File an ordinary civil suit if the claim is principally for a debt, breach of contract, negligence, or damages. Check the court’s subject-matter, pecuniary, and territorial jurisdiction. Land and environment disputes and employment and labour disputes may fall within the specialized courts or, where authorized, designated magistrates’ courts. For a civil suit against the national Government, serve process through the Office of the Attorney General under section 13 of the Government Proceedings Act. Under Order 10 Rule 8 of the Civil Procedure Rules, default judgment against the Government requires leave and at least 7 days’ prior service of the application on the Attorney General.
Consider judicial review where you need to quash an unlawful decision, prevent an unlawful act or compel performance of a public duty. Sections 7 to 11 of the Fair Administrative Action Act and the Fair Administrative Action Rules, 2024 provide a route under Article 47. Rule 5 requires Form JR 1 to be served at least seven days before filing where the applicant seeks to compel a particular administrative action or decision. If the law gives the administrator a fixed period to act, that period must first expire. Rule 6 generally allows six weeks from the administrative action to file an application to quash it, with extension available on specified grounds. The separate route under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules has its own leave and timing requirements. Confirm the route and deadline before filing.
Bring a constitutional petition where the facts disclose a constitutional violation or threat and the relief sought addresses that issue. Plead the relevant constitutional provisions, the conduct complained of, and the connection between them. A dispute over an unpaid invoice does not become a constitutional case simply because the debtor is a public entity.
What remedies can a court award against a public body?
Depending on the claim, the court may award a debt or damages, costs and interest, declare the parties’ rights, quash an unlawful decision, stop unlawful conduct or compel performance of a legal duty. In ordinary civil proceedings, section 16 of the Government Proceedings Act prevents a court from granting injunctions, specific performance, or orders for the recovery or delivery of government land or property. Instead, the court may make an order declaratory of the rights of the parties. The restriction cannot be avoided by naming an officer where the order would effectively give the same relief against the Government.
For a properly pleaded constitutional or administrative law challenge, examine the specific remedial powers in Article 23(3) of the Constitution and section 11 of the Fair Administrative Action Act. If you need urgent protection, identify the legal basis for the interim order and explain what may happen before the main dispute is heard.
Can I attach government assets or garnish a county bank account?
Generally, no, where section 21 of the Government Proceedings Act applies. Sections 21(4) and (5) protect national and county Government from ordinary execution to recover money or costs. That means a creditor ordinarily cannot instruct an auctioneer to seize government assets or use garnishee proceedings to compel a bank to pay out the county’s funds. Section 25 bars garnishee proceedings against money owed by the Government. In Five Star Agencies Ltd & another v National Land Commission & 2 others [2024] KECA 439 (KLR), the Court of Appeal held that garnishee proceedings against the National Land Commission were “incompetent, bad in law and unsustainable”, and confirmed that the same protection covers constitutional commissions and county governments. Order 29 of the Civil Procedure Rules also restricts the ordinary execution procedures against the Government. On foreign judgments, read our article on Enforcement of Foreign Judgments in Kenya
What is the process for enforcing a judgment against the national government, a county or a commission?
- Obtain the decree and have your costs taxed. Extract the decree and have your bill of costs taxed so that both the principal sum and costs are fixed.
- Apply for a certificate of order against the Government. Under section 21(1), after 21 days from the date of the judgment (or the taxation of costs), apply to the court for a certificate of order and a certificate of costs. The Court of Appeal in Five-Star Agencies (supra) held that the certificate is a mandatory precondition: serving a copy of the decree is not enough.
- Serve the certificate and demand payment. Serve the certificates on the Attorney General, the Relevant Cabinet Secretary, Permanent Secretary (or the County Attorney), and the relevant accounting officer, with a demand for payment. Under section 21(3), the accounting officer is required to pay the amount due. Allow a reasonable period (the Court of Appeal referred to a 21-day notice) before going further.
- Apply for judicial review (mandamus). If payment is not made, apply to the High Court under Order 53 for leave and then an order of mandamus compelling the accounting officer (for example, the Principal Secretary, County Chief Officer for Finance or Chief Executive of the commission) to pay. In In Republic v Principal Secretary, Ministry of Environment and Natural Resources, [2026] KEHC 1263 (KLR), the High Court held that mandamus is not “execution” barred by section 21, because it compels a public officer to perform a statutory duty, and ordered payment within 30 days.
- Enforce the mandamus through contempt. If the accounting officer still does not pay, the court can issue a notice to show cause why the officer should not be punished for contempt. In (Ex parte Applicant) (Judicial Review E007 of 2025) [2026] KEHC 16630 (KLR) (26 October 2026), the court expressly provided for contempt proceedings against the Cabinet Secretary, Ministry of Tourism and Wildlife, who was found to be in contempt of the order of mandamus issued on 12th June 2026, requiring payment of Kshs. 5,000,000/=, holding that such proceedings are not execution but enforcement of the court’s authority.
Practice Note: “There Is No Budget”
Accounting officers commonly argue that a decree cannot be paid because there is no budgetary allocation. The Court does not accept this as a reason to refuse to comply with an order of mandamus. A decree-holder is entitled to the fruits of the judgment; the public body’s remedy is to budget for it or negotiate a payment plan, not to ignore it.
What modes of execution are available against a state corporation?
Where the state corporation is independent, and a separate body corporate and not “Government”, the ordinary modes of execution under Section 38 of the Civil Procedure Act and Order 22 of the Civil Procedure Rules are generally available:
| Mode | How it works |
| Attachment and sale of movable property | Warrants issued to a licensed auctioneer to proclaim and sell the corporation’s vehicles, equipment and other movable assets. |
| Garnishee proceedings (Order 23) | An order nisi and then absolute directing a bank or debtor holding the corporation’s money to pay the decree-holder directly. This was allowed in Greenstar v KICC and in the 2024 NCPB ruling. |
| Attachment of immovable property and charging orders | Possible in principle, but many parastatal assets are public land or vested by statute, and their sale may be restricted. |
| Appointment of a receiver | The court may appoint a receiver over income streams, such as rent or fees. |
| Notice to show cause/examination of officers | Officers may be summoned to explain the corporation’s assets and why the decree should not be executed. |
Note: Even where the Government Proceedings Act does not apply, a practitioner must examine the specific statute creating the parastatal. Parliament has inserted explicit execution-shield clauses into certain enabling statutes. Kenya Railways Corporation Act (Cap. 397), Section 88: Expressly bars attachment of KRC property or garnishment of its bank deposits in execution of a decree. Kenya Ports Authority Act (Cap. 391), Section 67 & Kenya Roads Act, 2007, Section 68: Contain similar statutory restrictions requiring payment out of the authority’s revenue by the Director-General rather than direct auctioneer attachment.
Equally, the decree-holder should expect resistance, including appeals; read our article on How to Challenge Court and Tribunal Orders, Judgments, and Decrees in Kenya. State corporations often argue that they are “Government”, that their funds are public funds, or that the assets are needed for public services, and they almost always apply for a stay pending appeal. Before levying execution, confirm the body’s legal status under its founding statute, and if in doubt, follow the certificate-of-order route in parallel. For companies wholly owned by the State but incorporated under the Companies Act, ordinary execution applies as for any company.
Disclaimer: This article provides general information and does not substitute legal advice on the specific circumstances of any individual or organization. The law on execution against public bodies is developing, and appeals are pending. While the information is accurate as of the date of publication, we cannot guarantee that it remains accurate at the time you read it. Before acting on any of this information, please seek professional legal advice tailored to your situation.
