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1) Directline Assurance Co. Ltd is the Judgment Debtor for the sum of Kshs. 1,212,328/67 owed to Ainu Shamshi Hauliers Ltd - the applicant Decree Holder in these garnishee proceedings.
2) The garnishees are KCB Bank Ltd, and Safaricom PLC.
3) The Decree holder sought orders to attach the monies in the A/C 1310047529 at the 1st Garnishee and MPESA pay bill No. 509800 at the 2nd Garnishee.
4) The 1st Garnishee through the replying affidavit of Olipha Ongeri sworn on 13/10/2025, depones that the correct position is that account has negative Kshs. 34,289/97 because the garnishee has locked Kshs. 34,389,203/32 hence the garnishee does not have funds to satisfy the decree.
5) For the 2nd garnishee - through the affidavit of Stella Mutindi Mutua sworn on 23/10/2025, states that the MPESA A/C NO. 509800 as at 23/10/2025 had a balance of Kshs. 2,884,787/00.
6) That the account has been garnisheed due to prior garnishee order nisi and absolutes. The total amount of these was Kshs. 17,592,207/27. That the balance of Kshs. 2,883,787 is not available.
7) That an order absolute cannot issue due to the garnishee orders that ran in priority. Reliance is placed Kinyanjui Nguguna & Co. Advocates vs Invesco Assurance, Diamond Trust Bank Kenya Ltd and Another (Garnishee) [2019] eKLR – where the court stated,
“ A garnishee order nisi is an order preserving funds awaiting the process leading to the issuance of a garnishee order absolute. It is therefore not true that the garnishee order nisi from the other courts should be overlooked by this court because of the present application before this court. The decree holders in the other cases have the same rights as the applicant herein in terms of their claims against the respondent irrespective of where the claim was filed.
8) The 2nd garnishee has attached several garnishee orders from other courts.
9) It is in this back drop that Mr. Ojienda brought up the argument that there was evidence of cross pollinating garnishee orders.
10) He filed further affidavit sworn on 27/10/2025 where he deponed that he had identified one order nisi, total , Kshs. 6,176,077.00 arising from Ogembo MCCC E031/2024 – Wilkister Nyareru & Anor Vs Directline Assurance Co Limited & 3 Garnishees . That the 1st Garnishee has captured it as decree nisi. That the 2nd garnishee has also captured it as Order Nisi 002 Ogembo MCCC E031/2024 – Wilkister Nyareru & Anor Vs Directline Assurance Co Limited & 3 Garnishees for the same amount of money . He deponed that that made the Ksh 34,389, 203.32 unavailable. It was his view that the order garnishee in 002 Ogembo MCCC E031/2024 – Wilkister Nyareru & Anor Vs Directline Assurance Co Limited & 3 Garnishees for Ksh 6,176,077.00 should be considered the as a garnishee for 2nd Garnishee, discharging Ksh 6,176,077.00 from the 1st Garnishee. That this one would make available the sum Ksh 6,176,077.00 to settle the decree of Ksh 1,212,328.67 plus the costs of garnishee at Ksh 100,000.
11) Counsel referred the court to Article 159 and 165 of the Constitution and the supervisory power of this court over the subordinate court.
12) He also referred court to Order 23 rule 7 CPR
Trial of claim of third person [Order 23, rule 7.]
After hearing the allegations of any third person under such order, as in rule 6 mentioned, or of any other person who by the same or any subsequent order the court may order to appear, or in case of such third person not appearing when ordered, the court may order execution for levying the amount due from the garnishee, together with the costs of the garnishee proceedings, or order any issue or question to be tried or determined according to the preceding rules of this Order, and may bar the claim of such third person or make such other order as the court shall think fit.
13) It is preceded by [Order 23, rule 6.]
6. Claim of third person
Whenever in any proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the court may order such third person to appear, and state the nature and particulars of his claim upon such debt.
14) He also cited s. 46 of the CPA
46. Property attached in execution of decrees of several courts
(1) Where property not in the custody of a court is under attachment in execution of decrees of more courts than one, the court which shall receive and realize that property and shall determine any claim thereto and any objection to the attachment thereof shall be the court of the highest grade, or, where there is no difference in grade between the courts, the court under whose decree the property was first attached.
(2) Nothing in this section shall invalidate any proceeding taken by a court executing one of the decrees
15) These submissions were opposed by the counsel for the garnishees on the grounds that the garnishee orders are court orders locking those sums and this court cannot just make orders lifting those orders, as those are entirely different proceedings ;that these orders rank in priority, and the first in time prevails.
16) Counsel for the decree holder argues that counsel for the garnishees do not appreciate the supervisory roles of superior courts over subordinate courts , that decree nisi is a temporary order and a superior court can set it aside.
17) I have carefully considered the submissions by counsel, the affidavits filed, and the law cited herein above.
18) What Mr. Ojienda is calling upon this court to do is to set aside the garnishee nisi by the learned Magistrate in the Ogembo case so as to make way for his decree.
19) Regarding Order 23 rule 6 and 7 is about the garnishee making the suggestion that the debt belongs to a 3rd person. It is applicable to the decree holder and does not apply to the scenario set out herein above by counsel for the decree holder.
20) He argues that this court’s supervisory powers are applicable to this scenario: He cites Article 165 of the Constitution thus;
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
21) It is noteworthy that there is no application for revision of the garnishee nisi in the subordinate court before me. The parties in those matters are not parties to this application. It would be untenable for this court to undo orders of another court affecting the rights of parties who are not present and participating without hearing those parties. That would violate their right to be heard and to their already secured fruits of their judgment.
22) In addition, this court is not the supervising court of Ogembo Magistrate’s Court. Ogembo court is under the supervisory jurisdiction of another court. It would be untenable for this court to usurp the supervisory powers of that court. This relief is not be available to the decree holder.
23) Section 46 of the CPA start by saying Where property not in the custody of a court. In this case the garnishee nisi are all orders of court and that means that each sum of ‘money’ locked in a garnishee is the ‘property’ of a court. Again, this is not available to the decree holder.
24) Having considered all these options I am of the considered view that these proposals by the decree holder are not tenable.
25) The clear position this court cannot set aside the Ogembo court garnishee nisi. There are no funds available from the two garnishees to settle this decree.
26) The available order is that the application by the decree holder is dismissed, and each of the garnishees is discharged.
27) I make no orders as to costs.
Dated, signed and delivered via CTS with the agreement of counsel this 17th November 2025
Mumbua T Matheka
Judge
CA Chrispol
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1) Directline Assurance Co. Ltd is the Judgment Debtor for the sum of Kshs. 1,212,328/67 owed to Ainu Shamshi Hauliers Ltd - the applicant Decree Holder in these garnishee proceedings.
2) The garnishees are KCB Bank Ltd, and Safaricom PLC.
3) The Decree holder sought orders to attach the monies in the A/C 1310047529 at the 1st Garnishee and MPESA pay bill No. 509800 at the 2nd Garnishee.
4) The 1st Garnishee through the replying affidavit of Olipha Ongeri sworn on 13/10/2025, depones that the correct position is that account has negative Kshs. 34,289/97 because the garnishee has locked Kshs. 34,389,203/32 hence the garnishee does not have funds to satisfy the decree.
5) For the 2nd garnishee - through the affidavit of Stella Mutindi Mutua sworn on 23/10/2025, states that the MPESA A/C NO. 509800 as at 23/10/2025 had a balance of Kshs. 2,884,787/00.
6) That the account has been garnisheed due to prior garnishee order nisi and absolutes. The total amount of these was Kshs. 17,592,207/27. That the balance of Kshs. 2,883,787 is not available.
7) That an order absolute cannot issue due to the garnishee orders that ran in priority. Reliance is placed Kinyanjui Nguguna & Co. Advocates vs Invesco Assurance, Diamond Trust Bank Kenya Ltd and Another (Garnishee) [2019] eKLR – where the court stated,
“ A garnishee order nisi is an order preserving funds awaiting the process leading to the issuance of a garnishee order absolute. It is therefore not true that the garnishee order nisi from the other courts should be overlooked by this court because of the present application before this court. The decree holders in the other cases have the same rights as the applicant herein in terms of their claims against the respondent irrespective of where the claim was filed.
8) The 2nd garnishee has attached several garnishee orders from other courts.
9) It is in this back drop that Mr. Ojienda brought up the argument that there was evidence of cross pollinating garnishee orders.
10) He filed further affidavit sworn on 27/10/2025 where he deponed that he had identified one order nisi, total , Kshs. 6,176,077.00 arising from Ogembo MCCC E031/2024 – Wilkister Nyareru & Anor Vs Directline Assurance Co Limited & 3 Garnishees . That the 1st Garnishee has captured it as decree nisi. That the 2nd garnishee has also captured it as Order Nisi 002 Ogembo MCCC E031/2024 – Wilkister Nyareru & Anor Vs Directline Assurance Co Limited & 3 Garnishees for the same amount of money . He deponed that that made the Ksh 34,389, 203.32 unavailable. It was his view that the order garnishee in 002 Ogembo MCCC E031/2024 – Wilkister Nyareru & Anor Vs Directline Assurance Co Limited & 3 Garnishees for Ksh 6,176,077.00 should be considered the as a garnishee for 2nd Garnishee, discharging Ksh 6,176,077.00 from the 1st Garnishee. That this one would make available the sum Ksh 6,176,077.00 to settle the decree of Ksh 1,212,328.67 plus the costs of garnishee at Ksh 100,000.
11) Counsel referred the court to Article 159 and 165 of the Constitution and the supervisory power of this court over the subordinate court.
12) He also referred court to Order 23 rule 7 CPR
Trial of claim of third person [Order 23, rule 7.]
After hearing the allegations of any third person under such order, as in rule 6 mentioned, or of any other person who by the same or any subsequent order the court may order to appear, or in case of such third person not appearing when ordered, the court may order execution for levying the amount due from the garnishee, together with the costs of the garnishee proceedings, or order any issue or question to be tried or determined according to the preceding rules of this Order, and may bar the claim of such third person or make such other order as the court shall think fit.
13) It is preceded by [Order 23, rule 6.]
6. Claim of third person
Whenever in any proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the court may order such third person to appear, and state the nature and particulars of his claim upon such debt.
14) He also cited s. 46 of the CPA
46. Property attached in execution of decrees of several courts
(1) Where property not in the custody of a court is under attachment in execution of decrees of more courts than one, the court which shall receive and realize that property and shall determine any claim thereto and any objection to the attachment thereof shall be the court of the highest grade, or, where there is no difference in grade between the courts, the court under whose decree the property was first attached.
(2) Nothing in this section shall invalidate any proceeding taken by a court executing one of the decrees
15) These submissions were opposed by the counsel for the garnishees on the grounds that the garnishee orders are court orders locking those sums and this court cannot just make orders lifting those orders, as those are entirely different proceedings ;that these orders rank in priority, and the first in time prevails.
16) Counsel for the decree holder argues that counsel for the garnishees do not appreciate the supervisory roles of superior courts over subordinate courts , that decree nisi is a temporary order and a superior court can set it aside.
17) I have carefully considered the submissions by counsel, the affidavits filed, and the law cited herein above.
18) What Mr. Ojienda is calling upon this court to do is to set aside the garnishee nisi by the learned Magistrate in the Ogembo case so as to make way for his decree.
19) Regarding Order 23 rule 6 and 7 is about the garnishee making the suggestion that the debt belongs to a 3rd person. It is applicable to the decree holder and does not apply to the scenario set out herein above by counsel for the decree holder.
20) He argues that this court’s supervisory powers are applicable to this scenario: He cites Article 165 of the Constitution thus;
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
21) It is noteworthy that there is no application for revision of the garnishee nisi in the subordinate court before me. The parties in those matters are not parties to this application. It would be untenable for this court to undo orders of another court affecting the rights of parties who are not present and participating without hearing those parties. That would violate their right to be heard and to their already secured fruits of their judgment.
22) In addition, this court is not the supervising court of Ogembo Magistrate’s Court. Ogembo court is under the supervisory jurisdiction of another court. It would be untenable for this court to usurp the supervisory powers of that court. This relief is not be available to the decree holder.
23) Section 46 of the CPA start by saying Where property not in the custody of a court. In this case the garnishee nisi are all orders of court and that means that each sum of ‘money’ locked in a garnishee is the ‘property’ of a court. Again, this is not available to the decree holder.
24) Having considered all these options I am of the considered view that these proposals by the decree holder are not tenable.
25) The clear position this court cannot set aside the Ogembo court garnishee nisi. There are no funds available from the two garnishees to settle this decree.
26) The available order is that the application by the decree holder is dismissed, and each of the garnishees is discharged.
27) I make no orders as to costs.
Dated, signed and delivered via CTS with the agreement of counsel this 17th November 2025
Mumbua T Matheka
Judge
CA Chrispol
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