High Court quashes 'archaic laws' that require one to notify AG before suing govt
High Court judge terms the laws as colonial relics that have no place in a modern society,
What you need to know:
- Justice Nixon Sifuna said the laws frustrate the processing and expeditious disposal of cases
- Decision made in a case brought against Kenya Deposit Insurance Corporation by Absa Bank.
The High Court has declared sections of the Government Proceedings Act, which requires litigants to notify the Attorney General before filing suits against the government or its agencies, unconstitutional.
Terming Section 13a and Section 21 as a colonial relic that has no place in modern society, Justice Nixon Sifuna ruled that no notice shall be required before instituting a case or permission before executing a judgement or decree against the government or its agencies.
The judge said the laws 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 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."
The judge made the decision in a case brought against Kenya Deposit Insurance Corporation (KDIC) by Absa Bank.
The lender sought a refund of Sh215.3 million from the state corporation arising from monies deposited annually to KDIC as required by section 75 of the Banking Act.
Absa said it mistakenly overpaid the annual contributions over the years.
It later obtained a judgement against KDIC but the corporation challenged the decision arguing that the suit was instituted without notifying the Attorney General.
The judge added that order 10 Rule 8 of the Civil Procedure Rules, which requires one to get court's permission before getting an interlocutory judgement, does not apply to KDIC
Justice Sifuna added that the rules only apply to departments and agencies that fall under the control of the central government.
On section 13 of Government Proceedings Act, the judge said to the extent that the provisions make parties unequal in litigation, uneven the playing field or pulls the rug under the feet of others, it was unconditional.
"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.
Justice Sifuna said all litigants whether government or non-governmental are supposed to be equal before the law with equality of arms.
He noted that other than impede access to justice, the sections contribute to case backlog and undermine 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 added that the sections had outlived it's usefulness and needs to be abandoned or refashioned in a way that it was in sync to the current circumstances and prevailing legal order.
The judge ordered KDIC to pay the amount plus interest of 14 percent from the date when the case was filed in 2022.
