A. Background to the petition
1. The interested parties entered into two oral contracts, the first for construction services, particularly roofing, walling and ceiling and the second for the erection of galvanized steel studs and installation of gypsum boards. The 1st and 2nd interested parties instituted Machakos Civil Case No. 56 of 2015, claiming breach of contract and seeking damages. The 3rd interested party filed a defence and counterclaim.
2. The High Court (Odunga J as he then was) entered judgment in favour of the 1st and 2nd interested parties and against the 3rd interested party. It granted an injunction restraining the 3rd interested party from commencing and continuing the construction in dispute, awarded the 1st and 2nd interested parties special damages of USD 292,041.88, general damages, interest at the then prevailing bank lending rate and costs of the suit.
B. Petitioners’ Case
3. By a petition dated 3rd June 2025 and supporting Affidavit sworn by Kariuki Kingori, the 1st petitioner's Manager Legal Services, on the same date, the petitioners contend that the 1st and 2nd interested parties sought to attach the movable property of the 3rd interested party held in the bank accounts at the 1st petitioner’s Lavington Branch. They contend that on 21st December 2020, the Deputy Registrar, Machakos High Court (Hon. Ondieki, as he then was) issued Garnishee Order Nisi directing the attachment of the funds in said accounts to answer the decree in favour of the 1st and 2nd interested parties for the sum of Kshs. 45,092,059 together with interest and costs. The nisi orders were made absolute by the Deputy Registrar (Hon. Analo) on 1st September 2021.
4. They argue that at the time of these orders, the cumulative amounts in the named accounts of the 3rd interested parties were Kshs. 2,364,199.17. However, the 1st and 2nd interested parties instructed their auctioneers, Joseph Kaharo Mundia T/A Upstate Kenya Auctioneers, to issue a proclamation notice for the realisation of Kshs. 46,270,732.51, being the alleged decretal sum. They urge that their application challenging the proclamation was dismissed by a Ruling delivered on 27th June 2022, wherein the court (Hon E M Analo) held that the 1st petitioner had failed to provide up-to-date bank statements and thus had approached the court with unclean hands.
5. The 1st petitioner argues that its application for a stay of execution and review of the orders of 27th June 2022 was dismissed by the court (M.W.Muigai,) on 19th January 2024, wherein the learned Judge had acknowledged the difference in opinion between the 1st petitioner and the Hon. Deputy Registrar. It is deposed that despite this acknowledgement, the Judge directed that if aggrieved by the ruling of 27th June 2022, the forum for redress was an appeal to the Court of Appeal.
6. After this ruling, the petitioners assert that the 1st and 2nd interested parties obtained warrants against the movable property owned by the 1st petitioner, for the sum of Kshs. 84,593,536.95. It is therefore the petitioners' claim that the move to attach the 1st petitioner’s assets to satisfy a decree exceeding the funds held by the 1st petitioner in the 3rd interested party’s accounts and arising from a suit where the 1st petitioner was not a party is a breach of the bank's right to property under Article 40 of the Constitution.
Particulars of breach
7. In the submissions of the 1st and 2nd petitioners dated 8th September 2025 and 3rd November 2025 respectively, the petitioners contend that Article 40(1) of the Constitution guarantees every person the right to acquire and own property and to enjoy protection from arbitrary deprivation of such property. Consequently, they submit that the actions of the 1st and 2nd interested parties in instructing the auctioneer to proclaim and attach the assets of the 1st petitioner without judicial sanction amount to arbitrary deprivation of property contrary to Article 40.
8. Concerning execution of judgments, it is the petitioners’ case that pursuant to Section 44 of the Civil Procedure Act, Cap 21, only property, movable or immovable, belonging to a judgment debtor, or over which, or the profits of which, the judgment debtor has a disposing power, or may exercise for his own benefit, whether held in their own name or by another person in trust for them is liable for attachment and sale in execution of a decree. They contend that garnishee orders, therefore, cannot be judiciously issued against persons not indebted to the judgment debtor.
9. On Garnishee proceedings under Order 23 of the Civil Procedure Rules, the petitioners urge that a judgment creditor can only attach what is owed to the judgment debtor by a third party (the garnishee), which attachment is limited to the debts and not the general property of the garnishee. For these reasons, the petitioners submit that the 1st petitioner cannot be subjected to the attachment of its own properties outside the funds held in the 3rd interested party’s accounts. They rely on Maurice M. Munya & 148 others vs CFC Stanbic Bank Limited (formerly Stanbic Bank of Kenya Limited) [2019] eKLR; Advocates vs Invesco Assurance Co. Limited & 2 others (Misc Civil App No. 1 of 2023) [2024] KEHC 12723; Barclays Bank of Kenya Limited vs Kepha Nyabera & 191 others & another [2013] eKLR; Awo Shariff Mohammed T/A Mohammed Investment vs. Abdulkadir Shariff Abdirahim & 5 Others [2007] KEHC 2632 (KLR).
10. The petitioners further urge that allowing execution against a garnishee’s own property in the absence of clear legal liability violates not only constitutional and procedural safeguards but also raises grave implications for commercial certainty in Kenya’s banking sector. They also emphasize that pursuant to Rule 12 of the Auctioneers Act, a proclamation issued against the assets of a party not sued by the decree holder in the primary proceedings is unlawful, unless the court has expressly sanctioned such action after legal proceedings joining a third party.
11. As regards the bank-customer relationship, the petitioners argue that there is no legal mechanism, either under common law, the Banking Act, or civil procedure, that allows a bank customer to offload their liability onto the bank as the 1st and 2nd interested parties purport to enforce. It is the petitioners’ case that allowing the decree-holders’ access to the 1st Petitioner’s property would, in effect, extend the law beyond its settled boundaries and would effectively compel a third party, who stands outside the original judgment, to satisfy a debt not of its own, a result which is both legally untenable and manifestly unjust.
12. They plead that the question regarding the issuance of warrants of attachment and proclamation notice against a bank in respect of the liabilities of its customers to third parties is a substantial question of law that affects the 2nd petitioner and its entire membership of commercial banks. Therefore, the 2nd petitioner desires the High Court to determine it, to clarify the legal environment that commercial banks operate in.
13. In response to the challenge to this Court’s jurisdiction, it is the petitioners’ case that the petition raises distinct constitutional grievances on violations of human rights. Further, that the High Court has jurisdiction to grant the reliefs provided under Articles 22, 23 and 165 of the Constitution. They restate their case and argue that the petition has set out with precision the provisions said to be infringed and the manner in which they are infringed in accordance with the principles settled in Anarita Karimi Njeru vs Republic [1979] KLR; Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR; and Kamumo vs Mugo & 6 others [2025] KEELC 7456 (KLR). They also urge the court to evaluate the petition in the context of the requirement of Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
14. On the objection that the court is functus officio, the petitioners rely on the Supreme Court decision in Odinga vs IEBC & 3 others [2013] KESC 8 (KLR) to urge that the principle cannot be invoked to shield unconstitutional actions or to oust the court’s jurisdiction to enforce constitutional rights. The petitioners further submit that the court has jurisdiction to issue the declaratory reliefs sought, as they have satisfied the guiding principles set out in Attorney General vs Bala (Civil Appeal 223 of 2017) [3023] KECA 117 (KLR). They also urge that they have the locus standi under Article 22 to bring a constitutional petition for the enforcement of their constitutional rights.
Reliefs Sought
15. Based on the foregoing, the petitioners seek the following reliefs;
a) A declaration that, within the meaning of Section 44 of the Civil Procedure Act, Cap 21 and Article 40 of the Constitution and considering the scope of the bank-customer relationship, garnishee proceedings against a commercial bank do not entitle the decree holder to attach and proclaim the movable assets owned by the bank
b) A declaration that, within the meaning of Section 44 of the Civil Procedure Act, and Article 40(1) of the Constitution and considering the scope of the bank-customer relationship in garnishee proceedings, a decree holder is entitled to be paid by the commercial bank the funds held by the bank in the customer’s bank account and not from the movable assets of the bank.
c) A declaration that the 1st and 2nd interested parties cannot obtain warrants against the 1st petitioner pursuant to execution proceedings under Section 44 of the Civil Procedure Act, in respect of obligations due to them by a third party, the 3rd interested party.
d) A declaration that, within the meaning of Section 44 of the Civil Procedure Act, and Article 40(1) of the Constitution, it is illegal and unconstitutional for the 1st and 2nd interested parties to seek to attach against the 1st petitioner in respect of liabilities due to them by a third party, the 3rd interested party.
e) A permanent injunction be issued to prohibit the 1st and 2nd interested parties from attaching the assets of the 1st petitioner in any manner whatsoever, in respect of obligations due to them from a third party, the 3rd interested party.
f) Costs of the Petition.
C. The Respondent’s Case
16. The respondent objected to the petition by way of grounds of opposition dated 22nd July 2025 to the effect that the petition is incompetent, misconceived, misleading, and fatally defective. They also contend that the petition fails to precisely set out the alleged violations or substantiate the allegations. They argue that the petitioners make mere allegations lacking precision, contrary to the threshold settled in Anarita Karimi Njeru Vs Republic [1976-1980] KLR 1272; and Mumo Matemu Vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. It is also the respondent’s case that this court is functus officio and lacks jurisdiction to determine the petition, as the issues raised were determined by courts of competent jurisdiction.
D. 1st and 2nd Interested Parties case
17. The 1st and 2nd Interested parties oppose the petition by a replying affidavit sworn by Christakis Fitidis, the Chief Executive Officer of the 1st and 2nd interested parties, on 10th June 2025, and submissions dated 11th September 2025. The interested parties contend that the 1st petitioner was served with the garnishee nisi orders and required to appear and attend court before the orders were confirmed absolute, but failed to satisfy the court why the orders could not be made absolute.
18. It is also the 1st and 2nd interested parties’ assertion that the 1st Petitioner has misled the Court in its petition and has left out further proceedings on the matter. They argue that the 1st petitioner filed various applications seeking to frustrate the realisation of their judgment. They aver that the 1st petitioner filed applications seeking to set aside the absolute garnishee orders, which were dismissed on the grounds that the 1st petitioner had come to court with unclean hands.
19. It is their case that the 1st petitioner filed a notice of appeal simultaneously with Civil Appeal (Application) No. E419 of 2024, for stay of execution, which application was denied for lack of merit. Thereafter, the interested parties contend that the 1st petitioner filed another application in the Commercial Court at Machakos seeking a stay of execution of the warrants of attachment, which application was also dismissed by Maina E.J.
20. For these reasons, it is their case that the matters raised in the petition have been heard and determined by three Judges of the High Court and the Court of Appeal and are therefore res judicata. They cite Samuel Kamau Macharia Vs Kenya Commercial Bank & 2 others [2012] eKLR to urge that the court’s jurisdiction flows from the Constitution or legislation and cannot be arrogated by parties. They also cite the Court of Appeal in Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others [2017] eKLR to submit that res judicata applies not only to substantive issues but to constitutional litigation, prohibiting parties from reopening determined issues. Further, they cite the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR to emphasize the need for finality and certainty in litigation.
21. Moreover, they submit that the petition does not raise any violations of the Constitution but raises issues of a contractual and commercial nature. They rely on the Court of Appeal in Trusted Society of Human Rights Alliance vs Mumo Matemu [2014] eKLR and Harrikissoon vs Attorney General of Trinidad and Tobago [1980] AC 265 to persuade the court that not every legal infraction amounts to a breach of fundamental rights.
E. 3rd Interested Party’s Case
22. The 3rd interested party, through the submissions dated 15th September 2024, supports the petition. It essentially restated the petitioners’ case, adding that the issuance of the proclamation notices against the 1st petitioner’s property violates the right to property under Article 40 of the Constitution. The 3rd interested party further argues that the 1st and 2nd interested parties, by purporting to attach the 1st petitioner’s property, have subjected the 1st petitioner to arbitrary deprivation of property contrary to Article 40(2).
F. Analysis for Determination
23. Arising from the petition, the responses thereto, as well as the parties’ written submissions, the following issues arise for determination:
a) Whether this Court has the jurisdiction to determine the petition;
b) Whether the 1st petitioner's right to property under Article 40 of the Constitution had been infringed; and
c) What are the appropriate orders to issue, including on costs?
G. Analysis
i. Whether this Court has the jurisdiction to determine the petition
24. The challenge to this Court’s jurisdiction is threefold. First, the respondent and the 1st and 2nd interested parties argue that the matters raised by the petitioners are res judicata. Second, that the Court is thus functus officio, having conclusively pronounced itself. Lastly, they contend that the petition fails to meet the tenets of a constitutional petition set out in the Anarita Karimi Njeru and Mumo Matemu Cases Supra. To support their case, it is contended that the petition offends Section 7 of the Civil Procedure Act and settled jurisprudence on the finality of litigation, for the reason that, having filed several matters before the High Court and the Court of Appeal, the 1st petitioners now seek to reopen concluded issues. In the same breath, it is urged that this Court is functus.
25. The petitioners, on the other hand, oppose these assertions and contend that the Court is clothed with the requisite jurisdiction under Articles 22, 23 and 165 of the Constitution. The petitioners assert that the petition raises cogent constitutional questions and grievances and has satisfied the principles settled by the Anarita Karimi Njeru case [Supra] and Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
26. As regards the argument on res judicata and functus, the petitioners argue that these principles cannot be invoked to shield unconstitutional actions or to oust the court’s jurisdiction to enforce constitutional rights. They emphasize that they have the locus to approach the court by way of a constitutional petition and that the court has the jurisdiction to grant the relief sought under Article 23 of the Constitution.
27. To establish jurisdiction, it is important to appreciate that the High Court has jurisdiction to hear and determine petitions for the breach of constitutional rights. Article 23(1) of the Constitution explicitly states that:
The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights
28. Similarly, Article 165(3)(b) of the Constitution clothes the High Court with jurisdiction to determine questions of constitutional breaches and infringement. Article 165(3)(b) states:
Subject to clause (5), the High Court shall have—
jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
29. In this petition, questions as to the exercise of this court’s jurisdiction as above stated have been raised, and it is incumbent on this court to also satisfy itself that it can rightfully invoke its jurisdiction as invited by the petitioners. In particular, whether the issues raised in this petition are res judicata and, consequently, whether this court is functus officio.
30. As pertains to res judicata, Section 7 of the Civil Procedure Act provides as follows:
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
31. The Civil Procedure has also provided explanations with respect to the application of the res judicata rule, in the following terms:
Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question, whether or not it was instituted before it.
Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation (4) — Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree, shall, for this section, be deemed to have been refused.
Explanation (6) — Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for this section, be deemed to claim under the persons so litigating.
32. Res judicata has been subject to judicial determinations in Kenya. The Supreme Court in the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) comprehensively addressed the different facets making up the doctrine of res judicata. On when to invoke it, the Apex Court had this to say:
For res judicata to be invoked in a civil matter, the following elements must be demonstrated:
a) There is a former judgment or order which was final;
b) The judgment or order was on merit;
c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action.
33. In Kenya Commercial Bank Ltd & another vs Muiri Coffee Estate Ltd & 3 others [2016] KESC 6 (KLR), the Supreme Court determined that:
… whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction.
34. The Court of Appeal in Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd [2017] KECA 98 (KLR) restated the elements as follows:
The elements of res judicata have been held to be conjunctive rather than disjunctive. As such, the elements reproduced below must all be present before a suit or an issue is deemed res judicata on account of a former suit;
a) The suit or issue was directly and substantially in issue in the former suit.
b) That former suit was between the same parties or parties under whom they or any of them claim.
c) Those parties were litigating under the same title.
d) The issue was heard and finally determined in the former suit.
e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.
35. The High Court in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] KEHC 3922 (KLR) brought to force the acid test that courts should consider when determining whether a civil suit is res judicata, thus:
i. the matter in issue is identical in both suits;
ii. the parties in the suit are the same;
iii. the sameness of the title/claim;
iv. the concurrence of jurisdiction; and
v. the finality of the previous decision.
36. Guided by its jurisprudence, it is clear that the doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; it ensures that litigation comes to an end, and the verdict duly translates into fruits for one party, and liability for another party, conclusively.
37. This principle is not a technicality limiting the scope for substantial justice. The relevance of res judicata is not affected by the substantial-justice principle of Article 159 of the Constitution, intended to override technicalities of procedure. Res judicata, therefore, entails more than procedural technicality and lies on the plane of a substantive legal concept. (See Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd [Supra])
38. As to whether the principle of res judicata applies to constitutional petitions, the Supreme Court in John Florence Maritime Services Ltd [Supra] found that:
If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further article 50 on right to fair hearing and article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.
39. In Silas Make Otuke v Attorney General & 3 others [2014] KEHC 5552 (KLR), the High Court held that:
Accordingly, we unhesitatingly find that the principle of res judicata is applicable to Constitutional litigation and its relevance is not affected by the substantial justice principle of Article 159 of the Constitution, which overrides technicalities of procedure.
40. This finding was echoed by the High Court in Charo Kazungu Matsere & 273 Ors. v Kencent Holdings Limited & Anor. [2012] KEHC 4161 (KLR) and Booth Irrigation v. Mombasa Water Products Ltd. (Booth Irrigation No. 1) Nairobi HC Misc. Appl. NO. 1052 of 2004, that:
“Although Constitutional Applications should be heard on merit, I find that there is nothing that would prevent a challenger of the alleged contravention moving this court to demonstrate that the application does violate fundamental principles of law, including public policy, for example, the matter raised was res judicata. Res Judicata is in turn based on the principle grounded on public policy that litigation at some point must come to an end. Res judicata is a fundamental principle of our law.”
41. Therefore, res judicata applies to constitutional petitions subject to the settled principles as enunciated above . In this matter, as is evident from the record, the 1st and 2nd interested parties filed Machakos Civil Case No. 56 of 2015, claiming a breach of contract. The 3rd interested party filed a defence and counterclaim. The High Court (Odunga J as he then was) entered judgment in favour of the 1st and 2nd interested parties and dismissed the counterclaim. The trial Judge issued an injunction restraining the 3rd interested party from commencing and continuing the construction in dispute, awarded special damages of USD 292,041.88, general damages, interest at the then prevailing bank lending rate and costs of the suit.
42. The 1st and 2nd interested parties moved the trial court by way of garnishee proceedings under Order 23 Rules (1) and (2), Order 51 Rule 1 of the Civil Procedure Rules, 2010. They sought a garnishee order against the monies held in the 3rd interested party’s accounts held with the 1st petitioner’s bank. In response, the 1st petitioner argued that two accounts were held in lien, and the other accounts, which were the subject of the nisi orders, were not sufficient to satisfy the judgment debt.
43. The Deputy Registrar granted an absolute garnishee on 1st September 2021. It was determined that the 1st petitioner had failed to prove the basis of the alleged lien and failed to make full disclosure of the funds in the accounts, as its annexed bank statements were not up to date. For these reasons, the registrar concluded that the 1st petitioner had not approached the court with clean hands.
44. Aggrieved, the 1st petitioner filed an application seeking to be discharged upon remitting the funds held in the 3rd interested party’s account dated 13th September 2021. According to the 1st petitioner, the 1st and 2nd interested parties had instructed Joseph Kahoro Mundia T/A Upstate Kenya Auctioneers to proclaim and attach its wholly owned equipment in the realization of Kshs. 46,270,732.51/- being the amount of the Decree. As a result, the Auctioneer had issued a proclamation notice. Citing Order 23 of the Civil Procedure Rules, it contended that the 1st and 2nd interested parties had grossly misinterpreted the Ruling dated 1st September 2021 in seeking to have the 1st petitioner settle the entire decretal sum, even if the Order issued by the Court directed the 1st petitioner to release all monies it collectively holds on behalf of the 3rd interested party.
45. In its ruling delivered on 27th June 2022, (Odunga J, as he then was) evaluated the provisions of Order 23 on Garnishee proceedings, the facts of this matter, the settled law on garnishee proceedings and dismissed the application for lack of merit. The learned Judge determined that the 1st petitioner was given an opportunity to show cause why the garnishee absolute could not be issued, but did not satisfy the Court that, at the time the decree nisi was served upon it, it did not hold the whole amount. It was the court's further finding that the order nisi was issued on 22nd December, 2020, the garnishee attached bank statements illustrating transactions from 24th February, 2020, to 27th August, 2020 and that the various attached bank statements were not up to date. The Court therefore found that the garnishee had not approached the court with clean hands as to benefit from an equitable relief.
46. Consequently, the court directed that unless the said order was reviewed or set aside, the garnishee had no option but to pay the sum in question. Further, that the law does not permit the garnishee, after a decree absolute has been issued, to claim that it only has part of the same decree. The court found that such was an issue that ought to be dealt with at the hearing of the proceedings to seek to make the decree nisi absolute.
47. The 1st petitioner then filed another application dated 5th July 2022 seeking to review and set aside the Ruling delivered on 27th June 2022. It argued that the account statement referred to by the Deputy Registrars and affirmed by Odunga J, had no sufficient balance to settle the judgment debt. The 1st petitioner further took issue with the execution levied against it in its capacity as a banking institution, as it was not the judgment debtor. Consequently, the 1st petitioner asked the court to reconsider the law and evidence and make a different decision.
48. By a ruling delivered on 19th January 2024, M.W Muigai J dismis
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1. The interested parties entered into two oral contracts, the first for construction services, particularly roofing, walling and ceiling and the second for the erection of galvanized steel studs and installation of gypsum boards. The 1st and 2nd interested parties instituted Machakos Civil Case No. 56 of 2015, claiming breach of contract and seeking damages. The 3rd interested party filed a defence and counterclaim.
2. The High Court (Odunga J as he then was) entered judgment in favour of the 1st and 2nd interested parties and against the 3rd interested party. It granted an injunction restraining the 3rd interested party from commencing and continuing the construction in dispute, awarded the 1st and 2nd interested parties special damages of USD 292,041.88, general damages, interest at the then prevailing bank lending rate and costs of the suit.
B. Petitioners’ Case
3. By a petition dated 3rd June 2025 and supporting Affidavit sworn by Kariuki Kingori, the 1st petitioner's Manager Legal Services, on the same date, the petitioners contend that the 1st and 2nd interested parties sought to attach the movable property of the 3rd interested party held in the bank accounts at the 1st petitioner’s Lavington Branch. They contend that on 21st December 2020, the Deputy Registrar, Machakos High Court (Hon. Ondieki, as he then was) issued Garnishee Order Nisi directing the attachment of the funds in said accounts to answer the decree in favour of the 1st and 2nd interested parties for the sum of Kshs. 45,092,059 together with interest and costs. The nisi orders were made absolute by the Deputy Registrar (Hon. Analo) on 1st September 2021.
4. They argue that at the time of these orders, the cumulative amounts in the named accounts of the 3rd interested parties were Kshs. 2,364,199.17. However, the 1st and 2nd interested parties instructed their auctioneers, Joseph Kaharo Mundia T/A Upstate Kenya Auctioneers, to issue a proclamation notice for the realisation of Kshs. 46,270,732.51, being the alleged decretal sum. They urge that their application challenging the proclamation was dismissed by a Ruling delivered on 27th June 2022, wherein the court (Hon E M Analo) held that the 1st petitioner had failed to provide up-to-date bank statements and thus had approached the court with unclean hands.
5. The 1st petitioner argues that its application for a stay of execution and review of the orders of 27th June 2022 was dismissed by the court (M.W.Muigai,) on 19th January 2024, wherein the learned Judge had acknowledged the difference in opinion between the 1st petitioner and the Hon. Deputy Registrar. It is deposed that despite this acknowledgement, the Judge directed that if aggrieved by the ruling of 27th June 2022, the forum for redress was an appeal to the Court of Appeal.
6. After this ruling, the petitioners assert that the 1st and 2nd interested parties obtained warrants against the movable property owned by the 1st petitioner, for the sum of Kshs. 84,593,536.95. It is therefore the petitioners' claim that the move to attach the 1st petitioner’s assets to satisfy a decree exceeding the funds held by the 1st petitioner in the 3rd interested party’s accounts and arising from a suit where the 1st petitioner was not a party is a breach of the bank's right to property under Article 40 of the Constitution.
Particulars of breach
7. In the submissions of the 1st and 2nd petitioners dated 8th September 2025 and 3rd November 2025 respectively, the petitioners contend that Article 40(1) of the Constitution guarantees every person the right to acquire and own property and to enjoy protection from arbitrary deprivation of such property. Consequently, they submit that the actions of the 1st and 2nd interested parties in instructing the auctioneer to proclaim and attach the assets of the 1st petitioner without judicial sanction amount to arbitrary deprivation of property contrary to Article 40.
8. Concerning execution of judgments, it is the petitioners’ case that pursuant to Section 44 of the Civil Procedure Act, Cap 21, only property, movable or immovable, belonging to a judgment debtor, or over which, or the profits of which, the judgment debtor has a disposing power, or may exercise for his own benefit, whether held in their own name or by another person in trust for them is liable for attachment and sale in execution of a decree. They contend that garnishee orders, therefore, cannot be judiciously issued against persons not indebted to the judgment debtor.
9. On Garnishee proceedings under Order 23 of the Civil Procedure Rules, the petitioners urge that a judgment creditor can only attach what is owed to the judgment debtor by a third party (the garnishee), which attachment is limited to the debts and not the general property of the garnishee. For these reasons, the petitioners submit that the 1st petitioner cannot be subjected to the attachment of its own properties outside the funds held in the 3rd interested party’s accounts. They rely on Maurice M. Munya & 148 others vs CFC Stanbic Bank Limited (formerly Stanbic Bank of Kenya Limited) [2019] eKLR; Advocates vs Invesco Assurance Co. Limited & 2 others (Misc Civil App No. 1 of 2023) [2024] KEHC 12723; Barclays Bank of Kenya Limited vs Kepha Nyabera & 191 others & another [2013] eKLR; Awo Shariff Mohammed T/A Mohammed Investment vs. Abdulkadir Shariff Abdirahim & 5 Others [2007] KEHC 2632 (KLR).
10. The petitioners further urge that allowing execution against a garnishee’s own property in the absence of clear legal liability violates not only constitutional and procedural safeguards but also raises grave implications for commercial certainty in Kenya’s banking sector. They also emphasize that pursuant to Rule 12 of the Auctioneers Act, a proclamation issued against the assets of a party not sued by the decree holder in the primary proceedings is unlawful, unless the court has expressly sanctioned such action after legal proceedings joining a third party.
11. As regards the bank-customer relationship, the petitioners argue that there is no legal mechanism, either under common law, the Banking Act, or civil procedure, that allows a bank customer to offload their liability onto the bank as the 1st and 2nd interested parties purport to enforce. It is the petitioners’ case that allowing the decree-holders’ access to the 1st Petitioner’s property would, in effect, extend the law beyond its settled boundaries and would effectively compel a third party, who stands outside the original judgment, to satisfy a debt not of its own, a result which is both legally untenable and manifestly unjust.
12. They plead that the question regarding the issuance of warrants of attachment and proclamation notice against a bank in respect of the liabilities of its customers to third parties is a substantial question of law that affects the 2nd petitioner and its entire membership of commercial banks. Therefore, the 2nd petitioner desires the High Court to determine it, to clarify the legal environment that commercial banks operate in.
13. In response to the challenge to this Court’s jurisdiction, it is the petitioners’ case that the petition raises distinct constitutional grievances on violations of human rights. Further, that the High Court has jurisdiction to grant the reliefs provided under Articles 22, 23 and 165 of the Constitution. They restate their case and argue that the petition has set out with precision the provisions said to be infringed and the manner in which they are infringed in accordance with the principles settled in Anarita Karimi Njeru vs Republic [1979] KLR; Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR; and Kamumo vs Mugo & 6 others [2025] KEELC 7456 (KLR). They also urge the court to evaluate the petition in the context of the requirement of Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
14. On the objection that the court is functus officio, the petitioners rely on the Supreme Court decision in Odinga vs IEBC & 3 others [2013] KESC 8 (KLR) to urge that the principle cannot be invoked to shield unconstitutional actions or to oust the court’s jurisdiction to enforce constitutional rights. The petitioners further submit that the court has jurisdiction to issue the declaratory reliefs sought, as they have satisfied the guiding principles set out in Attorney General vs Bala (Civil Appeal 223 of 2017) [3023] KECA 117 (KLR). They also urge that they have the locus standi under Article 22 to bring a constitutional petition for the enforcement of their constitutional rights.
Reliefs Sought
15. Based on the foregoing, the petitioners seek the following reliefs;
a) A declaration that, within the meaning of Section 44 of the Civil Procedure Act, Cap 21 and Article 40 of the Constitution and considering the scope of the bank-customer relationship, garnishee proceedings against a commercial bank do not entitle the decree holder to attach and proclaim the movable assets owned by the bank
b) A declaration that, within the meaning of Section 44 of the Civil Procedure Act, and Article 40(1) of the Constitution and considering the scope of the bank-customer relationship in garnishee proceedings, a decree holder is entitled to be paid by the commercial bank the funds held by the bank in the customer’s bank account and not from the movable assets of the bank.
c) A declaration that the 1st and 2nd interested parties cannot obtain warrants against the 1st petitioner pursuant to execution proceedings under Section 44 of the Civil Procedure Act, in respect of obligations due to them by a third party, the 3rd interested party.
d) A declaration that, within the meaning of Section 44 of the Civil Procedure Act, and Article 40(1) of the Constitution, it is illegal and unconstitutional for the 1st and 2nd interested parties to seek to attach against the 1st petitioner in respect of liabilities due to them by a third party, the 3rd interested party.
e) A permanent injunction be issued to prohibit the 1st and 2nd interested parties from attaching the assets of the 1st petitioner in any manner whatsoever, in respect of obligations due to them from a third party, the 3rd interested party.
f) Costs of the Petition.
C. The Respondent’s Case
16. The respondent objected to the petition by way of grounds of opposition dated 22nd July 2025 to the effect that the petition is incompetent, misconceived, misleading, and fatally defective. They also contend that the petition fails to precisely set out the alleged violations or substantiate the allegations. They argue that the petitioners make mere allegations lacking precision, contrary to the threshold settled in Anarita Karimi Njeru Vs Republic [1976-1980] KLR 1272; and Mumo Matemu Vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. It is also the respondent’s case that this court is functus officio and lacks jurisdiction to determine the petition, as the issues raised were determined by courts of competent jurisdiction.
D. 1st and 2nd Interested Parties case
17. The 1st and 2nd Interested parties oppose the petition by a replying affidavit sworn by Christakis Fitidis, the Chief Executive Officer of the 1st and 2nd interested parties, on 10th June 2025, and submissions dated 11th September 2025. The interested parties contend that the 1st petitioner was served with the garnishee nisi orders and required to appear and attend court before the orders were confirmed absolute, but failed to satisfy the court why the orders could not be made absolute.
18. It is also the 1st and 2nd interested parties’ assertion that the 1st Petitioner has misled the Court in its petition and has left out further proceedings on the matter. They argue that the 1st petitioner filed various applications seeking to frustrate the realisation of their judgment. They aver that the 1st petitioner filed applications seeking to set aside the absolute garnishee orders, which were dismissed on the grounds that the 1st petitioner had come to court with unclean hands.
19. It is their case that the 1st petitioner filed a notice of appeal simultaneously with Civil Appeal (Application) No. E419 of 2024, for stay of execution, which application was denied for lack of merit. Thereafter, the interested parties contend that the 1st petitioner filed another application in the Commercial Court at Machakos seeking a stay of execution of the warrants of attachment, which application was also dismissed by Maina E.J.
20. For these reasons, it is their case that the matters raised in the petition have been heard and determined by three Judges of the High Court and the Court of Appeal and are therefore res judicata. They cite Samuel Kamau Macharia Vs Kenya Commercial Bank & 2 others [2012] eKLR to urge that the court’s jurisdiction flows from the Constitution or legislation and cannot be arrogated by parties. They also cite the Court of Appeal in Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others [2017] eKLR to submit that res judicata applies not only to substantive issues but to constitutional litigation, prohibiting parties from reopening determined issues. Further, they cite the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR to emphasize the need for finality and certainty in litigation.
21. Moreover, they submit that the petition does not raise any violations of the Constitution but raises issues of a contractual and commercial nature. They rely on the Court of Appeal in Trusted Society of Human Rights Alliance vs Mumo Matemu [2014] eKLR and Harrikissoon vs Attorney General of Trinidad and Tobago [1980] AC 265 to persuade the court that not every legal infraction amounts to a breach of fundamental rights.
E. 3rd Interested Party’s Case
22. The 3rd interested party, through the submissions dated 15th September 2024, supports the petition. It essentially restated the petitioners’ case, adding that the issuance of the proclamation notices against the 1st petitioner’s property violates the right to property under Article 40 of the Constitution. The 3rd interested party further argues that the 1st and 2nd interested parties, by purporting to attach the 1st petitioner’s property, have subjected the 1st petitioner to arbitrary deprivation of property contrary to Article 40(2).
F. Analysis for Determination
23. Arising from the petition, the responses thereto, as well as the parties’ written submissions, the following issues arise for determination:
a) Whether this Court has the jurisdiction to determine the petition;
b) Whether the 1st petitioner's right to property under Article 40 of the Constitution had been infringed; and
c) What are the appropriate orders to issue, including on costs?
G. Analysis
i. Whether this Court has the jurisdiction to determine the petition
24. The challenge to this Court’s jurisdiction is threefold. First, the respondent and the 1st and 2nd interested parties argue that the matters raised by the petitioners are res judicata. Second, that the Court is thus functus officio, having conclusively pronounced itself. Lastly, they contend that the petition fails to meet the tenets of a constitutional petition set out in the Anarita Karimi Njeru and Mumo Matemu Cases Supra. To support their case, it is contended that the petition offends Section 7 of the Civil Procedure Act and settled jurisprudence on the finality of litigation, for the reason that, having filed several matters before the High Court and the Court of Appeal, the 1st petitioners now seek to reopen concluded issues. In the same breath, it is urged that this Court is functus.
25. The petitioners, on the other hand, oppose these assertions and contend that the Court is clothed with the requisite jurisdiction under Articles 22, 23 and 165 of the Constitution. The petitioners assert that the petition raises cogent constitutional questions and grievances and has satisfied the principles settled by the Anarita Karimi Njeru case [Supra] and Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
26. As regards the argument on res judicata and functus, the petitioners argue that these principles cannot be invoked to shield unconstitutional actions or to oust the court’s jurisdiction to enforce constitutional rights. They emphasize that they have the locus to approach the court by way of a constitutional petition and that the court has the jurisdiction to grant the relief sought under Article 23 of the Constitution.
27. To establish jurisdiction, it is important to appreciate that the High Court has jurisdiction to hear and determine petitions for the breach of constitutional rights. Article 23(1) of the Constitution explicitly states that:
The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights
28. Similarly, Article 165(3)(b) of the Constitution clothes the High Court with jurisdiction to determine questions of constitutional breaches and infringement. Article 165(3)(b) states:
Subject to clause (5), the High Court shall have—
jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
29. In this petition, questions as to the exercise of this court’s jurisdiction as above stated have been raised, and it is incumbent on this court to also satisfy itself that it can rightfully invoke its jurisdiction as invited by the petitioners. In particular, whether the issues raised in this petition are res judicata and, consequently, whether this court is functus officio.
30. As pertains to res judicata, Section 7 of the Civil Procedure Act provides as follows:
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
31. The Civil Procedure has also provided explanations with respect to the application of the res judicata rule, in the following terms:
Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question, whether or not it was instituted before it.
Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation (4) — Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree, shall, for this section, be deemed to have been refused.
Explanation (6) — Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for this section, be deemed to claim under the persons so litigating.
32. Res judicata has been subject to judicial determinations in Kenya. The Supreme Court in the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) comprehensively addressed the different facets making up the doctrine of res judicata. On when to invoke it, the Apex Court had this to say:
For res judicata to be invoked in a civil matter, the following elements must be demonstrated:
a) There is a former judgment or order which was final;
b) The judgment or order was on merit;
c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action.
33. In Kenya Commercial Bank Ltd & another vs Muiri Coffee Estate Ltd & 3 others [2016] KESC 6 (KLR), the Supreme Court determined that:
… whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction.
34. The Court of Appeal in Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd [2017] KECA 98 (KLR) restated the elements as follows:
The elements of res judicata have been held to be conjunctive rather than disjunctive. As such, the elements reproduced below must all be present before a suit or an issue is deemed res judicata on account of a former suit;
a) The suit or issue was directly and substantially in issue in the former suit.
b) That former suit was between the same parties or parties under whom they or any of them claim.
c) Those parties were litigating under the same title.
d) The issue was heard and finally determined in the former suit.
e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.
35. The High Court in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] KEHC 3922 (KLR) brought to force the acid test that courts should consider when determining whether a civil suit is res judicata, thus:
i. the matter in issue is identical in both suits;
ii. the parties in the suit are the same;
iii. the sameness of the title/claim;
iv. the concurrence of jurisdiction; and
v. the finality of the previous decision.
36. Guided by its jurisprudence, it is clear that the doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; it ensures that litigation comes to an end, and the verdict duly translates into fruits for one party, and liability for another party, conclusively.
37. This principle is not a technicality limiting the scope for substantial justice. The relevance of res judicata is not affected by the substantial-justice principle of Article 159 of the Constitution, intended to override technicalities of procedure. Res judicata, therefore, entails more than procedural technicality and lies on the plane of a substantive legal concept. (See Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd [Supra])
38. As to whether the principle of res judicata applies to constitutional petitions, the Supreme Court in John Florence Maritime Services Ltd [Supra] found that:
If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further article 50 on right to fair hearing and article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.
39. In Silas Make Otuke v Attorney General & 3 others [2014] KEHC 5552 (KLR), the High Court held that:
Accordingly, we unhesitatingly find that the principle of res judicata is applicable to Constitutional litigation and its relevance is not affected by the substantial justice principle of Article 159 of the Constitution, which overrides technicalities of procedure.
40. This finding was echoed by the High Court in Charo Kazungu Matsere & 273 Ors. v Kencent Holdings Limited & Anor. [2012] KEHC 4161 (KLR) and Booth Irrigation v. Mombasa Water Products Ltd. (Booth Irrigation No. 1) Nairobi HC Misc. Appl. NO. 1052 of 2004, that:
“Although Constitutional Applications should be heard on merit, I find that there is nothing that would prevent a challenger of the alleged contravention moving this court to demonstrate that the application does violate fundamental principles of law, including public policy, for example, the matter raised was res judicata. Res Judicata is in turn based on the principle grounded on public policy that litigation at some point must come to an end. Res judicata is a fundamental principle of our law.”
41. Therefore, res judicata applies to constitutional petitions subject to the settled principles as enunciated above . In this matter, as is evident from the record, the 1st and 2nd interested parties filed Machakos Civil Case No. 56 of 2015, claiming a breach of contract. The 3rd interested party filed a defence and counterclaim. The High Court (Odunga J as he then was) entered judgment in favour of the 1st and 2nd interested parties and dismissed the counterclaim. The trial Judge issued an injunction restraining the 3rd interested party from commencing and continuing the construction in dispute, awarded special damages of USD 292,041.88, general damages, interest at the then prevailing bank lending rate and costs of the suit.
42. The 1st and 2nd interested parties moved the trial court by way of garnishee proceedings under Order 23 Rules (1) and (2), Order 51 Rule 1 of the Civil Procedure Rules, 2010. They sought a garnishee order against the monies held in the 3rd interested party’s accounts held with the 1st petitioner’s bank. In response, the 1st petitioner argued that two accounts were held in lien, and the other accounts, which were the subject of the nisi orders, were not sufficient to satisfy the judgment debt.
43. The Deputy Registrar granted an absolute garnishee on 1st September 2021. It was determined that the 1st petitioner had failed to prove the basis of the alleged lien and failed to make full disclosure of the funds in the accounts, as its annexed bank statements were not up to date. For these reasons, the registrar concluded that the 1st petitioner had not approached the court with clean hands.
44. Aggrieved, the 1st petitioner filed an application seeking to be discharged upon remitting the funds held in the 3rd interested party’s account dated 13th September 2021. According to the 1st petitioner, the 1st and 2nd interested parties had instructed Joseph Kahoro Mundia T/A Upstate Kenya Auctioneers to proclaim and attach its wholly owned equipment in the realization of Kshs. 46,270,732.51/- being the amount of the Decree. As a result, the Auctioneer had issued a proclamation notice. Citing Order 23 of the Civil Procedure Rules, it contended that the 1st and 2nd interested parties had grossly misinterpreted the Ruling dated 1st September 2021 in seeking to have the 1st petitioner settle the entire decretal sum, even if the Order issued by the Court directed the 1st petitioner to release all monies it collectively holds on behalf of the 3rd interested party.
45. In its ruling delivered on 27th June 2022, (Odunga J, as he then was) evaluated the provisions of Order 23 on Garnishee proceedings, the facts of this matter, the settled law on garnishee proceedings and dismissed the application for lack of merit. The learned Judge determined that the 1st petitioner was given an opportunity to show cause why the garnishee absolute could not be issued, but did not satisfy the Court that, at the time the decree nisi was served upon it, it did not hold the whole amount. It was the court's further finding that the order nisi was issued on 22nd December, 2020, the garnishee attached bank statements illustrating transactions from 24th February, 2020, to 27th August, 2020 and that the various attached bank statements were not up to date. The Court therefore found that the garnishee had not approached the court with clean hands as to benefit from an equitable relief.
46. Consequently, the court directed that unless the said order was reviewed or set aside, the garnishee had no option but to pay the sum in question. Further, that the law does not permit the garnishee, after a decree absolute has been issued, to claim that it only has part of the same decree. The court found that such was an issue that ought to be dealt with at the hearing of the proceedings to seek to make the decree nisi absolute.
47. The 1st petitioner then filed another application dated 5th July 2022 seeking to review and set aside the Ruling delivered on 27th June 2022. It argued that the account statement referred to by the Deputy Registrars and affirmed by Odunga J, had no sufficient balance to settle the judgment debt. The 1st petitioner further took issue with the execution levied against it in its capacity as a banking institution, as it was not the judgment debtor. Consequently, the 1st petitioner asked the court to reconsider the law and evidence and make a different decision.
48. By a ruling delivered on 19th January 2024, M.W Muigai J dismis
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