REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
ELRC PETITION NO. E203 OF 2024
(Before Hon. Justice Dr. Jacob Gakeri)
AMOS JUMA SIKUKU ………………………..…………..……… PETITIONER
VERSUS
KENYA NATIONAL TRADING CORPORATION (KNTC) ..RESPONDENT
RULING
Before the court for determination is the applicant’s Notice of Motion dated 8th May, 2026 filed under certificate of urgency seeking orders that;-
1. Spent.
2. This Honourable Court be pleased to issue a Garnishee Order Nisi against the 1st Garnishee for Account Nos. 0701788990 and 2046098318 both against the 2nd Garnishee for Account Nos. 01136028861700 and 01136028861701 both held at Industrial Area Branch, ordering that all monies deposited, lying or being held in deposit by the Garnishees to the credit of the judgment-debtor be attached to answer the decree issued on 7th May, 2026 and certificate of costs issued on 29th January, 2026 for a total of Kshs.8,681,751.
3. The Garnishees to appear before this court on an appointed dated and time to show cause why they should not pay the decree-holder the sum of Kshs.8,681,751.00 being the decretal sum and taxed costs.
4. Upon inter partes hearing of this application, the court be pleased to issue a Garnishee Order Absolute as is enough to satisfy the decretal and taxed amount of Kshs.8,681,751.00
5. The decretal and taxed sum be remitted into the Applicant’s Bank Account through its advocates particulars whereof are given hereunder Bryan Khaemba Kamau & Co Advocates Co-operative Bank, Account No. 01101845188001 Greenhouse Branch forthwith and not later than 24 hours from the date of issuance of the Garnishee Order Absolute.
6. The costs of this application be borne by the Respondent.
The Notice of Motion is expressed under sections 1A, 1B, 3A, 44 and 63 (e) of the Civil Procedure Act and Order 33 and Order 50 Rule 1 of the Civil Procedure Rule and is based on the grounds outlined on its face and the applicant’s Supporting Affidavit sworn on 8th May 2026.
The affiant deponed that the judgment delivered on 30th June, 2025 ordered the judgment debtor to pay the applicant Kshs.3,000,000.00 as damages for violation of his constitutional rights together with all withheld salary and benefits costs and interest.
That a Decree was issued on 7th May, 2026 for a total decretal amount of Kshs.8,406,476.00 and costs were taxed at Kshs.275,275.00 and a Certificate of Costs issued on 29th January, 2026.
That although judgment debtor was aware of the said Judgment Decree and Certificate of Taxation, no payment or proposal for payment of the decretal sum had been made.
When the matter came up on 8th May, 2026 the court issued directions on service, responses and granted a Garnishee Order Nisi and slated the matter for further directions on 12th May, 2026, when after hearing counsels present the court accorded the respondent and the Garnishees 5 days to respond to the application and the applicant was accorded one (1) day to respond, as necessary, and the Garnishee Order nisi was temporary suspended save for the decretal sum of Kshs.8,681,751.00 in Account No. 01136028861700 and the application reserved for a ruling on 27th May, 2026.
2nd Garnishee’s Response
By a Replying Affidavit sworn by Lucy Muthama, on 11th May, 2026, the affiant deponed that the Judgment Debtor held account number 01136028861701 with the 2nd Garnishee and the account had a book balance of Kenya Shillings Seventy-one million seven hundred and seventy-one thousand five hundred and nineteen and twenty cents. (Kshs.71,717,599.20 as at 11th May 2026 and a copy of the bank statement was availed.
Judgment Debtor’s Response
Lucy Angure, the Respondent’s Managing Director deponed that the funds in the Cooperative Bank Account, the 2nd Garnishee did not belong to the Judgment Debtor but was a grant by the National Treasury for rice farmers and was thus unavailable for garnishment or any other form of attachment and the monies on the 1st Garnishee’s account was meant for salaries and statutory deductions of employees.
The affiant deponed that the orders made on 8th and 12th May 2026 had the effect of paralyzing the Judgment Debtor’s statutory mandate and crippling the livelihood of thousands of innocent 3rd parties and was intended to pay rice farmers in Mwea Bura and Nyanza to serve a critical social-economic purpose by cushioning farmers against post-harvest losses and had disrupted the judgment Debtors statutory operations.
The affiant further deponed that should the Garnishee Order Absolute be issued, public funds held in trust for farmers would permanently be alienated to satisfy a personal decree thereby occasioning irreversible miscarriage of justice.
The affiant pleaded with the court to vary, set aside or modify the orders in the interest of justice and preservation of the subject matter, failing which the applicant and third-party farmers would suffer irreparably.
That the Judgments Debtor was not served with the decree dated 7th May, 2026 in its personal capacity, a fact counsel for the applicant admitted and the execution proceedings were detective and premature.
The affiant deponed that the Judgment Debtor had established prima facie case to warrant a review and setting aside of the Garnishee Order Nisi dated 8th May 2026 and the orders made on 12th May, 2026.
Applicant’s Submissions
According to counsel the applicant had met all the requirements for the Garnishee. Order nisi to be made absolute and the Respondent was a registered company subject to execution proceedings and even if Government owned.
On service counsel submitted that the Judgment Debtor was a tall material times represented by Counsel, citing the decision in Shimmers Plaza Ltd v National Bank of Kenya Ltd (215) eklr on circumstances in which personal service may be dispensed with.
On the funds in the Judgment Debtors account, counsel submitted that the Decree holder is not concerned with where the funds in the account came from and in this case, there were no legal competing interests. The Judgment Debtor did not file submissions.
The singular issue for determination is whether the Applicant’s Notice of Motion dated 8th May 2026 is merited.
It is not in dispute that judgment in this case was delivered on 30th June, 2025.
Subsequently, the Petitioner’s counsel filed a Bill of Costs dated 2nd July, 2025 and a Ruling was delivered on 28th January, 2026. The Bill of costs was taxed at Kshs.275,275.00.
Subsequently, the Petitioner’s counsel wrote to the Deputy Registrar of the court seeking a decree for the sum of Kshs.8,407,476.20 being the Petitioner’s salary for 16 months, leave earned, leave allowance and gratuity and the sum of Kshs.3,000,000.00 awarded by the court as damages.
It is noteworthy that the sum of Kshs.5,407,476.20 was not awarded by the court and was computed by counsel based on Paragraph 81(4) of the Judgment dated 30th June 2025.
Strangely, the Petitioner’s Counsel did not copy the letter to the counsel for the Respondent or the Respondent in person, and only learnt of it later. After hearing both sides and vide a Ruling delivered on 21st April, 2026, the court directed that;
(a) The Petitioner’s Counsel shall prepare a draft Decree and forward the same to the Respondent’s Counsel for approval with or without amendment within 7 days.
(b) The Respondent’s Counsel shall submit a response within 7 days.
(c) In the case of a disagreement the Deputy Registrar shall be notified within 7 days.
Evidence revealed that after the ruling, counsel for the Petitioner sought and obtained the Decree dated 7th May, 2025.
The instant application was filed on 8th May 2026, 16 days after the directions. The court granted prayer No.2 of the Notice of Motion pending inter partes hearing of the application on 12th May 2026 when counsel for the applicant prayed that the application be allowed as pray as it had not been respondent to.
Mr. Kichwen for the 2nd Garnishee informed the court that the 2nd Garnishee had filed a Replying Affidavit indicating that the account had funds. The Judgment Debtor’s Counsel informed the court that she received the notice on Saturday and prayed for 14 days to respond. The court asked the Petitioner’s Counsel whether he had complied with the orders issued on 21st April 2026 and counsel responded in the affirmative.
When the court enquired from the Petitioner’s Counsel whether he had served the decree dated 7th May, 2026 of Kshs.8,406,476.00 upon the Judgment Debtor’ Counsel’s response was in the negative. The Judgment Debtor was thus unaware of the decretal amount it was supposed to pay to the Petitioner as of 7th May 2026. The Petitioner’s counsel did not afford the Respondent’s counsel an opportunity to peruse the Decree before the Garnishment proceedings were commenced, thus no demand for payment was made before execution proceedings were commenced, a fact the Judgment Debtor’s Managing Director deponed on as no affidavit of service of the Decree was filed.
The principles that govern preparation of Decree are contained in Order 21 of the Civil Procedure Rules and in particular Rule 7 of Order 21 provides for the contents of a Decree. Being the enforceable and executable portion of the judgment, the Decree is the epicenter of enforcement and its service on the Judgment Debtor is essential as it accords the Judgment Debtor an opportunity to settle the amount due.
In Republic v Nairobi City County & 3 others; Musyoki Mugaka & Co. Advocates Ex parte Application E004 of 2022 (2022) KEHC 18080 (KLR) Ngaa J declined to grant the application for mandamus on account that neither the Certificate of order Against the Government nor the Decree had been served.
The court held:
“This turns out to be the sole ground upon which the application is to be determined. I say so because if the Respondents were served with the decree and certificate of order against the government the applicant would be entitled to the order of mandamus but if they were not the application would fail…
In this application, have not seen any evidence of service of the decree or the order against government upon any of these officers..,”
Similarly, in Onsongo & Co. Advocates v Associated Construction Co. Ltd (2024) KEHC 1059 (KLR) Aburili J directed as follows;
“Decree to issue forthwith and execution shall only be levied after service of the decree upon the Respondent client requiring the client to settle the decree and only after lapse of at least ten (10) days from the date of service of the said decree”
See also in this regard Republic v Principal Secretary Ministry of Interior & 2 others Ex parte Applicant Samwel Gisiri Magesi (2020) KEHC 5070 (KLR) where A.C Mrima J struck out the Notice of Motion for inter alia want of service of the decree and Certificate of Order Against the Government.
These decisions show consistent jurisprudence that service of the Decree upon the Judgment Debtor is mandatory before execution can ensue unless the Judgment Debtor was demonstrably aware of the existence of the Decree.
Having failed to provide evidence of service of the Decree upon the Respondent coupled with the applicants’ counsel’s admission that the Decree was not served upon the Respondent the instant application is unsustainable and fails. The court so finds.
Concerning the Respondent’s contention that the amount held by the 2nd Garnishee was a grant by the National Treasury for rice farmers, the persuasive averment notwithstanding the Respondent availed no evidence to prove that the amount did not belong to it or ow much of the Kshs.71,000,000.00 belonged to the National Treasury, for the simple reason that funds in a bank account are indistinguishable.
The foregoing notwithstanding, it is not in contest that the court granted a Garnishee order Nisi against the Judgment Debtor bank accounts on 8th May 2026 and lifted the order Nisi in respect of all the monies save the decretal sum of Kshs.8,651,751.00.
The effect of a Garnishee Order Nisi was aptly captured by Olel J in Safaricom Ltd v King’oo 7 another (2024) KEHC 4698 (KLR) as follows:
“It is trite law that as soon as the Garnishee order Nisi is served on the bank it operates as an injunction. It prevents the bank/Garnishee from paying money to its customer until the Garnishee order is made absolute or it is discharged as the case may be. It binds the debt in the hands of the Garnishee and creates a charge in favour of the judgment creditor. What the Garnishee order does is to freeze the sum in the hands of the bank until the Garnishee order is made absolute or discharged. If the said order is made absolute, then the Garnishee Bank becomes liable to pay the decree-holder.
See Joachimson v Swiss Bank Corp (1921) 3KB 110 at 131 (1921) ALLER 92 at 102 per Atkim L J.”
Following the partial lifting of the Garnishee Order Nisi on 12th May, 2026, the only sum frozen is the decretal sum, and having found and held as above, the court is not persuaded the Garnishee order Nisi should be made absolute in the circumstances.
It requires no emphasis that the orders contemplated by Order 23 of the Civil Procedure Rules are discretionary, as exquisitely captured by Mativo J (as he then was) in Mengich t/a Mangich & Co. Advocates & another v Joseph Mwambai & 10 others as follows;
“Seventh, the order contemplated by Order 23 is discretionary and the court may refuse to pass such order if it is inequitable. The discretion however, must be exercised judicially …”
In the upshot, the applicant’s Notice of Motion dated 8th May, 2026 is disallowed and the Garnishee Order Nisi granted on 8th May 2026 is discharged.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF MAY, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF MAY, 2026.
DR. JACOB GAKERI
JUDGE
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