Background
1. The Plaintiff/Judgment Creditor obtained a default judgment on 3rd July 2024 against the Defendant/Judgment Debtor for the sum of USD 47,924.88 together with contractual penalties of USD 222,302.96, interest, and costs of USD 3,795.26. The decretal sum remains unsatisfied.
2. On 24th March 2025, the Plaintiff moved this Court under Order 23 of the Civil Procedure Rules seeking garnishee orders nisi against the seven listed banks, attaching all monies held to the credit of the Judgment Debtor.
3. The 4th Garnishee, SBM Bank Limited, filed a replying affidavit sworn by its Legal Manager, Kevin Kimani, on 15th May 2025, together with submissions dated 25th July 2025.
4. The 5th Garnishee, UBA Kenya Bank Limited, in opposing the Decree Holder’s application, similarly filed a Replying affidavit dated 15th April 2025 and submissions dated 24th July 2025.
5. Both garnishees seek to be discharged from the proceedings on the basis that they hold no funds belonging to the Judgment Debtor.
6. The Defendant/Judgment Debtor, through Andrew Thuo Kanyutu, filed a replying affidavit dated 7th April 2025 contesting the decretal sum and asserting that some of the accounts targeted belong to third parties, such as AVLC Global Consultants Limited.
7. Apart from the Replying Affidavit of Andrew Thuo Kanyutu in response to the Decree Holder’s application, the Objector also filed a notice of Motion Application dated 8th April 2025 seeking to have the Garnishee nisi order issued pursuant to the Decree Holder’s Application of 24th March 2025.
8. No submissions were filed on behalf of the Applicant despite the Court having directed the Decree Holder to file submissions by 28th July 2025.
Analysis and Determination
9. Having carefully considered the pleadings and submissions on record, the Court identifies the following issues for determination: -
i. Whether the Garnishees hold any attachable funds belonging to the Judgment Debtor.
ii. Whether the garnishee order nisi should be made absolute.
iii. Whether the garnishees ought to be discharged from these proceedings.
10. The Applicable legal framework is Order 23 of the Civil Procedure Rules, which governs garnishee proceedings. Rule 1 empowers the Court to attach debts owed by a third party to the judgment debtor. Rule 2 clarifies that only credits in a deposit account with a bank or financial institution constitute attachable sums. Rule 4 provides that where a garnishee disputes liability, the Court may order the issue to be tried as in a suit.
11. The jurisprudence is settled. A Garnishee order can only be issued in instances where there is something which the law recognizes as a debt. Issuance of a notice to a Garnishee binds the funds in the hands of the Garnishee.
12. In Mauwa and Company Advocates v Music Publishers Association of Kenya & another; Equity Bank Garnishee & another (Garnishee) [2019] KEHC 2344 (KLR), the Court observed that garnishee orders proceedings are proceedings where a third-party holding funds or property on behalf of a judgment debtor can be called upon to honour the claim of a judgment creditor over those funds or property.
13. The law is clear that a garnishee order cannot create liability where none exists. In Mengich t/a Mengich & Co Advocates & another v Joseph Mabwai & 10 others [2018] KEHC 9737 (KLR), the Court emphasized that the object of garnishee proceedings is to intercept existing debts.
14. Similarly, in Joe Ngigi & Company Advocates LLP v Trident Insurance Company Limited; KCB Bank Kenya Ltd [2024] KEHC 1326 (KLR), the Court discharged a garnishee where no funds were available for attachment.
15. In the present case, the 4th Garnishee has exhibited the statement of account number 0502269687002 in the name of the Judgment Debtor, showing a nil balance for the period 1st March 2025 to 6th May 2025. No evidence has been tendered by the Plaintiff to controvert this disclosure. The Court is therefore satisfied that the 4th Garnishee holds no attachable funds.
16. The 5th Garnishee has deponed that the Judgment Debtor holds no account with it. Again, no contrary evidence has been presented by the Plaintiff. In the absence of proof of indebtedness, the Court cannot impose liability upon the 5th Garnishee.
17. The Plaintiff argued that the garnishees are holding substantial sums to the credit of the Judgment Debtor, but the specific accounts disclosed in the supporting affidavit include some belonging to third parties, such as AVLC Global Consultants Limited. Garnishee proceedings cannot extend to accounts not legally owned by the Judgment Debtor.
18. Further, the Court noted that on 28th July 2025, directions were given to the Decree Holder to file its submissions before the end of that day. However, to date, no submissions have been filed on behalf of the Decree Holder in support of its application, an indication that the Decree Holder may no longer be interested in the application.
19. In view of the failure by the Decree Holder to file its submissions, and taking into account the pleadings and submissions filed herein by the other parties, including the Objector, I find that the Decree Holder’s Application filed herein is unmeritorious, and can only suffer one fate, dismissal.
20. Having dismissed the Decree Holder’s application, the Court finds it duplicative to deal with the Objector’s application dated 8th April 2025, which in principle sought to have the garnishee order nisi issued herein set aside. Accordingly, the Objector’s application automatically succeeds.
21. In light of the foregoing, the Court makes the following orders:
i. The Decree Holder’s application dated 21st March 2025 is hereby dismissed and the garnishee order nisi issued by this Court thereunder, accordingly discharged.
ii. The Objector’s application dated 8th April 2025 succeeds, and is hereby allowed.
iii. Costs of these garnishee proceedings are awarded to the Objector and the 4th and 5th Garnishees, to be borne by the Plaintiff/Decree Holder.
iv. The Objector will also have the costs of its application dated 8th April 2025, to be borne by the Decree Holder.
22. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
5TH FEBRUARY 2026
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A………………..for the Decree Holder/Plaintiff
N/A…….…………. for the 4th Garnishee
Somba h/b for Okech……………………for the 5th Garnishee
Muchangi……………………..for the Objector
1. The Plaintiff/Judgment Creditor obtained a default judgment on 3rd July 2024 against the Defendant/Judgment Debtor for the sum of USD 47,924.88 together with contractual penalties of USD 222,302.96, interest, and costs of USD 3,795.26. The decretal sum remains unsatisfied.
2. On 24th March 2025, the Plaintiff moved this Court under Order 23 of the Civil Procedure Rules seeking garnishee orders nisi against the seven listed banks, attaching all monies held to the credit of the Judgment Debtor.
3. The 4th Garnishee, SBM Bank Limited, filed a replying affidavit sworn by its Legal Manager, Kevin Kimani, on 15th May 2025, together with submissions dated 25th July 2025.
4. The 5th Garnishee, UBA Kenya Bank Limited, in opposing the Decree Holder’s application, similarly filed a Replying affidavit dated 15th April 2025 and submissions dated 24th July 2025.
5. Both garnishees seek to be discharged from the proceedings on the basis that they hold no funds belonging to the Judgment Debtor.
6. The Defendant/Judgment Debtor, through Andrew Thuo Kanyutu, filed a replying affidavit dated 7th April 2025 contesting the decretal sum and asserting that some of the accounts targeted belong to third parties, such as AVLC Global Consultants Limited.
7. Apart from the Replying Affidavit of Andrew Thuo Kanyutu in response to the Decree Holder’s application, the Objector also filed a notice of Motion Application dated 8th April 2025 seeking to have the Garnishee nisi order issued pursuant to the Decree Holder’s Application of 24th March 2025.
8. No submissions were filed on behalf of the Applicant despite the Court having directed the Decree Holder to file submissions by 28th July 2025.
Analysis and Determination
9. Having carefully considered the pleadings and submissions on record, the Court identifies the following issues for determination: -
i. Whether the Garnishees hold any attachable funds belonging to the Judgment Debtor.
ii. Whether the garnishee order nisi should be made absolute.
iii. Whether the garnishees ought to be discharged from these proceedings.
10. The Applicable legal framework is Order 23 of the Civil Procedure Rules, which governs garnishee proceedings. Rule 1 empowers the Court to attach debts owed by a third party to the judgment debtor. Rule 2 clarifies that only credits in a deposit account with a bank or financial institution constitute attachable sums. Rule 4 provides that where a garnishee disputes liability, the Court may order the issue to be tried as in a suit.
11. The jurisprudence is settled. A Garnishee order can only be issued in instances where there is something which the law recognizes as a debt. Issuance of a notice to a Garnishee binds the funds in the hands of the Garnishee.
12. In Mauwa and Company Advocates v Music Publishers Association of Kenya & another; Equity Bank Garnishee & another (Garnishee) [2019] KEHC 2344 (KLR), the Court observed that garnishee orders proceedings are proceedings where a third-party holding funds or property on behalf of a judgment debtor can be called upon to honour the claim of a judgment creditor over those funds or property.
13. The law is clear that a garnishee order cannot create liability where none exists. In Mengich t/a Mengich & Co Advocates & another v Joseph Mabwai & 10 others [2018] KEHC 9737 (KLR), the Court emphasized that the object of garnishee proceedings is to intercept existing debts.
14. Similarly, in Joe Ngigi & Company Advocates LLP v Trident Insurance Company Limited; KCB Bank Kenya Ltd [2024] KEHC 1326 (KLR), the Court discharged a garnishee where no funds were available for attachment.
15. In the present case, the 4th Garnishee has exhibited the statement of account number 0502269687002 in the name of the Judgment Debtor, showing a nil balance for the period 1st March 2025 to 6th May 2025. No evidence has been tendered by the Plaintiff to controvert this disclosure. The Court is therefore satisfied that the 4th Garnishee holds no attachable funds.
16. The 5th Garnishee has deponed that the Judgment Debtor holds no account with it. Again, no contrary evidence has been presented by the Plaintiff. In the absence of proof of indebtedness, the Court cannot impose liability upon the 5th Garnishee.
17. The Plaintiff argued that the garnishees are holding substantial sums to the credit of the Judgment Debtor, but the specific accounts disclosed in the supporting affidavit include some belonging to third parties, such as AVLC Global Consultants Limited. Garnishee proceedings cannot extend to accounts not legally owned by the Judgment Debtor.
18. Further, the Court noted that on 28th July 2025, directions were given to the Decree Holder to file its submissions before the end of that day. However, to date, no submissions have been filed on behalf of the Decree Holder in support of its application, an indication that the Decree Holder may no longer be interested in the application.
19. In view of the failure by the Decree Holder to file its submissions, and taking into account the pleadings and submissions filed herein by the other parties, including the Objector, I find that the Decree Holder’s Application filed herein is unmeritorious, and can only suffer one fate, dismissal.
20. Having dismissed the Decree Holder’s application, the Court finds it duplicative to deal with the Objector’s application dated 8th April 2025, which in principle sought to have the garnishee order nisi issued herein set aside. Accordingly, the Objector’s application automatically succeeds.
21. In light of the foregoing, the Court makes the following orders:
i. The Decree Holder’s application dated 21st March 2025 is hereby dismissed and the garnishee order nisi issued by this Court thereunder, accordingly discharged.
ii. The Objector’s application dated 8th April 2025 succeeds, and is hereby allowed.
iii. Costs of these garnishee proceedings are awarded to the Objector and the 4th and 5th Garnishees, to be borne by the Plaintiff/Decree Holder.
iv. The Objector will also have the costs of its application dated 8th April 2025, to be borne by the Decree Holder.
22. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
5TH FEBRUARY 2026
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A………………..for the Decree Holder/Plaintiff
N/A…….…………. for the 4th Garnishee
Somba h/b for Okech……………………for the 5th Garnishee
Muchangi……………………..for the Objector