1. This ruling determines two applications. The first is the Notice of Motion dated 12th November 2025 filed by the Applicant/Decree Holder, Gopitex Knitwear Mills Limited. The second is the Notice of Motion dated 13th November 2025 filed by the Garnishee, Diamond Trust Bank Limited.
Application dated 12th November 2025
2. The application is brought under the provisions of Section 5 of the Judicature Act, Order 40 Rule 3 of the Civil Procedure Rules. The applicant seeks orders principally that:
i. Summons requiring the Branch Manager of Diamond Trust Bank, Capital Centre Branch, Mr. Baraka Mad and/or the Bank’s personal representative, to attend Court and show cause why they should not be cited for contempt of the Court order issued on 3rd November 2025.
ii. Upon a finding of contempt, committal of the responsible officer for a period not exceeding six months and/or payment of a fine.
iii. Enforcement of any resultant orders through the Officer Commanding Industrial Area Police Station.
iv. Costs of the application.
3. The application is premised on the grounds on its face and the Supporting Affidavit sworn by Manwa Hosea, counsel for the Applicant, who avers that the Applicant holds an unsatisfied decree against the Respondents, which together with accrued interest stood at Kshs. 24,699,595.97 as at 31st July 2023, in addition to taxed costs of Kshs. 2,876,322.
4. In execution of the decree, the Applicant commenced garnishee proceedings against Diamond Trust Bank, which disclosed holding Kshs. 2,435,787.80 to the credit of the Judgment Debtor and expressed willingness to comply with the Court’s orders.
5. The Applicant contends that despite the subsequent Garnishee Order Absolute directing payment of the said sum, less Kshs. 25,000 in costs, and service thereof upon the Garnishee, the amount remains unpaid. It therefore alleges willful disobedience of the Court order and seeks enforcement through contempt proceedings.
Application dated 13th November 2025
6. The Garnishee Trust Bank Limited seeks the following orders:
i. A stay of execution and review and/or setting aside of the Garnishee Order Absolute issued on 29th October 2025.
ii. In the alternative, it seeks an order directing that the credit balance in the Judgment Debtor’s account, being Kshs. 2,435,787.80 as at 7th October 2025, less Kshs. 25,000 awarded as costs, be paid to the Decree Holder and the Kenya Revenue Authority in accordance with their respective legal entitlements.
iii. Costs of the application.
7. The application is supported by the affidavit of Natalie Hawala, the Applicant’s Legal Officer. She avers that upon seeking to comply with the Garnishee Order Absolute, the Bank discovered a subsisting KRA Agency Notice over the Judgment Debtor’s account for tax arrears of Kshs. 35,121,397, which she contends takes priority and exposes the Bank to personal liability for non-compliance.
8. The Applicant therefore contends that its failure to remit the garnished funds was not deliberate but arose from competing obligations under the Garnishee Order Absolute and the KRA Agency Notice. It accordingly seeks review or setting aside of the Garnishee Order Absolute to resolve the competing claims and avert exposure to contempt proceedings.
9. The application is opposed by the Decree Holder through the replying affidavit sworn by Bhangubhal Bhailal Ranchord on 7th January 2026. He avers that the Garnishee had previously confirmed holding Kshs. 2,435,787.80 to the credit of the Judgment Debtor and expressly indicated its willingness to comply with the Court’s orders, without disclosing any competing claim over the funds.
10. He contends that the alleged KRA Agency Notice, said to have been served in January 2024, was neither disclosed during the garnishee proceedings nor acted upon for over a year. He therefore challenges the Garnishee’s reliance on it only after issuance of the Garnishee Order Absolute, terming the application an attempt to avoid compliance with the Court order. He further challenges the joinder of KRA without leave and urges that the application be dismissed with costs.
11. The Interested Party, Kenya Revenue Authority (KRA), supports the application through the replying affidavit sworn on 26th January 2026 by Ngina Kanyora, an officer in its Debt Enforcement Division. She avers that it appointed the Garnishee as its agent under section 42 of the Tax Procedures Act pursuant to an Agency Notice dated 24th January 2024, following the Judgment Debtor’s tax default.
12. She contends that the Agency Notice remains in force and takes priority over the garnishee proceedings. It therefore supports the Garnishee’s application for stay and maintains that the funds standing to the Judgment Debtor’s credit, stated to be Kshs. 2,615,751.80 as at 11th November 2025, together with any subsequent accruals, ought to be remitted to KRA towards satisfaction of the outstanding tax liability.
13. Both applications were canvassed through written submissions. The decree holder filed submissions dated 12th January 2026, the Garnishee filed submissions dated 11th March 2026, while the Interested Party filed submissions dated 16th March 2026.
Analysis and determination
14. I have carefully considered the applications, the affidavits on record, the rival submissions by the parties, and the applicable law. The two main issues arise for determination:
i. Whether the Garnishee should be cited for contempt of Court.
ii. Whether the Garnishee Order Absolute should be reviewed, varied, or set aside.
Whether the Garnishee should be cited for Contempt of Court
15. The Contempt of Court Act, 2016, having been declared unconstitutional, Section 5 of the Judicature Act remains the operative legal framework for contempt proceedings in Kenya and confers upon the High Court and the Court of Appeal power to punish for contempt and to uphold the authority and dignity of subordinate courts.
16. The importance of obedience to court orders cannot be gainsaid. In Hadkinson v Hadkinson [1952] 2 All ER 567 at 569, it was stated:
“A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it...it would be most dangerous to hold that the suitors or their solicitors could themselves judge whether an order was null and void, whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question...As long as it existed, it must not be disobeyed.”
17. However, contempt is quasi-criminal in nature and the liberty of the alleged contemnor may be at stake. The standard of proof is therefore higher than the ordinary balance of probabilities, though not as high as proof beyond reasonable doubt (See Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227).
18. For contempt to be established, the applicant must demonstrate that the order was clear and unambiguous; that the alleged contemnor had knowledge of it; that there was breach of the order; and that the breach was deliberate and willful.
19. In the present case, there is no dispute that the Garnishee Order Absolute was issued; that Diamond Trust Bank had knowledge of it; and that the Bank did not remit the sum of Kshs. 2,435,787.80 as directed. Indeed, prior to the order being made absolute, the Garnishee had confirmed that it held the said sum to the credit of the Judgment Debtor and had expressly indicated its readiness to abide by the orders of the Court.
20. The KRA Agency Notice upon which the Garnishee subsequently relied was not a new event. It had been issued on 24th January 2024, long before the garnishee proceedings commenced. Yet, when called upon to disclose the state of the Judgment Debtor's account, the Garnishee did not disclose that the account was already subject to the Agency Notice. That was a material fact which ought to have been brought to the attention of the Court before the Garnishee Order Absolute was issued.
21. However, the Garnishee upon being served with the application for contempt filed the instant application seeking to review the decree absolute. KRA has itself appeared and confirmed the existence and continued operation of that notice. The circumstances therefore disclose a genuine conflict as to the legal destination of the funds rather than a clear case of deliberate defiance.
22. Contempt jurisdiction is not invoked merely because an order has not been complied with, the disobedience must be shown to have been willful and deliberate.
23. I am not persuaded that the threshold for contempt has been attained. Accordingly, while I find the Garnishee's failure to disclose the pre-existing Agency Notice at the earliest opportunity blameworthy, I decline to cite it or its officers for contempt. The application dated 12th November 2025 therefore fails.
Whether the Garnishee Order Absolute should be reviewed, varied or set aside
24. The Garnishee seeks review and/or setting aside of the Garnishee Order Absolute issued on 29th October 2025 on the ground that there is a subsisting KRA Agency Notice that takes priority over the garnishee proceedings.
25. The jurisdiction of this Court to review its orders is donated by section 80 of the Civil Procedure Act and circumscribed by Order 45 rule 1 of the Civil Procedure Rules. Under the latter provision, review may be granted upon discovery of new and important matter or evidence which, despite due diligence, was not within the applicant's knowledge or could not be produced when the order was made; on account of an error apparent on the face of the record; or for any other sufficient reason. The application must also be brought without unreasonable delay.
26. It is trite law that a review is not an appeal in disguise and cannot be invoked merely because another view of the matter is possible. Where review is founded upon discovery of new and important evidence, due diligence is indispensable.
27. I am unable to accept the Garnishee's contention that the Agency Notice constitutes newly discovered evidence in the strict sense contemplated by Order 45 rule 1. The notice was issued to the Bank on 24th January 2024 and was therefore within its institutional possession long before the Garnishee Order Absolute was made. The fact that the Legal Officer handling the garnishee proceedings was personally unaware of it cannot be equated with the Bank itself being unaware of the notice. With reasonable internal inquiry and due diligence, the notice ought to have been discovered and disclosed.
28. However, this does not dispose of the application. Order 45 rule 1 permits review not only upon discovery of new evidence but also for “any other sufficient reason.” I find that the issue of the Agency Notice falls within any other sufficient reason.
29. The other issue for consideration is who takes priority between KRA and the court order. In I & M Bank Limited v Xplico Insurance Company Limited & 5 others; Munge (Interested Party) [2022] KEHC 12956 (KLR). The Court held that an agency notice issued under section 42 constitutes a valid statutory demand and, in settlement of the taxpayer's debts, the tax claim takes priority. Significantly, the Court dealt with competing KRA and garnishee claims and concluded that the Agency Notice took priority in settling the debtor's obligations.
30. In the present case, the KRA Agency Notice was issued on 24th January 2024 whereas the Garnishee Order Nisi was not issued until 6th October 2025. The Agency Notice therefore preceded the garnishee attachment by more than a year and, on the material before me, has neither been withdrawn, revoked nor set aside. KRA has appeared before the Court and confirmed that it continues to assert its statutory claim over the funds. Thus, this court finds that the Agency Notice takes priority over the garnishee proceedings.
31. To compel the Garnishee to pay the Decree Holder while leaving the Agency Notice intact would potentially expose it to inconsistent legal obligations over the same funds.
32. Had that material fact been disclosed at the hearing of the garnishee proceedings, the Court would necessarily have been required to determine the effect and priority of the Agency Notice before making the Garnishee Order Absolute. The Court should not now compel the Garnishee to remit the same funds to the Decree Holder while simultaneously leaving intact an earlier statutory notice requiring their remittance to KRA. Such a result would place the Garnishee under two inconsistent legal obligations in respect of the same funds.
33. I am therefore satisfied that the interests of justice favour review of the Garnishee Order Absolute.
34. The Court must, however, express its disapproval of the Garnishee's failure to disclose the Agency Notice during the initial garnishee proceedings. A garnishee placed before the Court is under an obligation to make candid and complete disclosure of matters materially affecting the debt sought to be attached. The present applications could largely have been avoided had the Bank undertaken the necessary internal inquiries and disclosed the Agency Notice at the outset. That conduct is appropriately reflected in the order as to costs.
35. In the result, the Court makes the following orders:
i. The Notice of Motion dated 12th November 2025 seeking to cite the Garnishee and/or its officers for contempt is dismissed.
ii. The Notice of Motion dated 13th November 2025 is allowed, and the Garnishee Order Absolute is reviewed and set aside in respect of the funds subject to the KRA Agency Notice dated 24th January 2024.
iii. The Decree Holder remains at liberty to pursue such other lawful modes of execution as may be available for satisfaction of the outstanding decree.
iv. Given that the present dispute was substantially occasioned by the Garnishee's failure to disclose the pre-existing Agency Notice, the Garnishee shall bear the costs of the two applications.
RULING delivered virtually, dated and signed at NAIROBI
This 1st day of September 2026.
PETER M. MULWA
JUDGE
In the presence of:
Ms. Ochieng & Mr. Manwa for Decree-holder
Mr. Muhizi for Garnishee
Ms. Kamau h/b for Mr. Isutsa for the Interested Party
Court Assistant: Sharon
Application dated 12th November 2025
2. The application is brought under the provisions of Section 5 of the Judicature Act, Order 40 Rule 3 of the Civil Procedure Rules. The applicant seeks orders principally that:
i. Summons requiring the Branch Manager of Diamond Trust Bank, Capital Centre Branch, Mr. Baraka Mad and/or the Bank’s personal representative, to attend Court and show cause why they should not be cited for contempt of the Court order issued on 3rd November 2025.
ii. Upon a finding of contempt, committal of the responsible officer for a period not exceeding six months and/or payment of a fine.
iii. Enforcement of any resultant orders through the Officer Commanding Industrial Area Police Station.
iv. Costs of the application.
3. The application is premised on the grounds on its face and the Supporting Affidavit sworn by Manwa Hosea, counsel for the Applicant, who avers that the Applicant holds an unsatisfied decree against the Respondents, which together with accrued interest stood at Kshs. 24,699,595.97 as at 31st July 2023, in addition to taxed costs of Kshs. 2,876,322.
4. In execution of the decree, the Applicant commenced garnishee proceedings against Diamond Trust Bank, which disclosed holding Kshs. 2,435,787.80 to the credit of the Judgment Debtor and expressed willingness to comply with the Court’s orders.
5. The Applicant contends that despite the subsequent Garnishee Order Absolute directing payment of the said sum, less Kshs. 25,000 in costs, and service thereof upon the Garnishee, the amount remains unpaid. It therefore alleges willful disobedience of the Court order and seeks enforcement through contempt proceedings.
Application dated 13th November 2025
6. The Garnishee Trust Bank Limited seeks the following orders:
i. A stay of execution and review and/or setting aside of the Garnishee Order Absolute issued on 29th October 2025.
ii. In the alternative, it seeks an order directing that the credit balance in the Judgment Debtor’s account, being Kshs. 2,435,787.80 as at 7th October 2025, less Kshs. 25,000 awarded as costs, be paid to the Decree Holder and the Kenya Revenue Authority in accordance with their respective legal entitlements.
iii. Costs of the application.
7. The application is supported by the affidavit of Natalie Hawala, the Applicant’s Legal Officer. She avers that upon seeking to comply with the Garnishee Order Absolute, the Bank discovered a subsisting KRA Agency Notice over the Judgment Debtor’s account for tax arrears of Kshs. 35,121,397, which she contends takes priority and exposes the Bank to personal liability for non-compliance.
8. The Applicant therefore contends that its failure to remit the garnished funds was not deliberate but arose from competing obligations under the Garnishee Order Absolute and the KRA Agency Notice. It accordingly seeks review or setting aside of the Garnishee Order Absolute to resolve the competing claims and avert exposure to contempt proceedings.
9. The application is opposed by the Decree Holder through the replying affidavit sworn by Bhangubhal Bhailal Ranchord on 7th January 2026. He avers that the Garnishee had previously confirmed holding Kshs. 2,435,787.80 to the credit of the Judgment Debtor and expressly indicated its willingness to comply with the Court’s orders, without disclosing any competing claim over the funds.
10. He contends that the alleged KRA Agency Notice, said to have been served in January 2024, was neither disclosed during the garnishee proceedings nor acted upon for over a year. He therefore challenges the Garnishee’s reliance on it only after issuance of the Garnishee Order Absolute, terming the application an attempt to avoid compliance with the Court order. He further challenges the joinder of KRA without leave and urges that the application be dismissed with costs.
11. The Interested Party, Kenya Revenue Authority (KRA), supports the application through the replying affidavit sworn on 26th January 2026 by Ngina Kanyora, an officer in its Debt Enforcement Division. She avers that it appointed the Garnishee as its agent under section 42 of the Tax Procedures Act pursuant to an Agency Notice dated 24th January 2024, following the Judgment Debtor’s tax default.
12. She contends that the Agency Notice remains in force and takes priority over the garnishee proceedings. It therefore supports the Garnishee’s application for stay and maintains that the funds standing to the Judgment Debtor’s credit, stated to be Kshs. 2,615,751.80 as at 11th November 2025, together with any subsequent accruals, ought to be remitted to KRA towards satisfaction of the outstanding tax liability.
13. Both applications were canvassed through written submissions. The decree holder filed submissions dated 12th January 2026, the Garnishee filed submissions dated 11th March 2026, while the Interested Party filed submissions dated 16th March 2026.
Analysis and determination
14. I have carefully considered the applications, the affidavits on record, the rival submissions by the parties, and the applicable law. The two main issues arise for determination:
i. Whether the Garnishee should be cited for contempt of Court.
ii. Whether the Garnishee Order Absolute should be reviewed, varied, or set aside.
Whether the Garnishee should be cited for Contempt of Court
15. The Contempt of Court Act, 2016, having been declared unconstitutional, Section 5 of the Judicature Act remains the operative legal framework for contempt proceedings in Kenya and confers upon the High Court and the Court of Appeal power to punish for contempt and to uphold the authority and dignity of subordinate courts.
16. The importance of obedience to court orders cannot be gainsaid. In Hadkinson v Hadkinson [1952] 2 All ER 567 at 569, it was stated:
“A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it...it would be most dangerous to hold that the suitors or their solicitors could themselves judge whether an order was null and void, whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question...As long as it existed, it must not be disobeyed.”
17. However, contempt is quasi-criminal in nature and the liberty of the alleged contemnor may be at stake. The standard of proof is therefore higher than the ordinary balance of probabilities, though not as high as proof beyond reasonable doubt (See Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227).
18. For contempt to be established, the applicant must demonstrate that the order was clear and unambiguous; that the alleged contemnor had knowledge of it; that there was breach of the order; and that the breach was deliberate and willful.
19. In the present case, there is no dispute that the Garnishee Order Absolute was issued; that Diamond Trust Bank had knowledge of it; and that the Bank did not remit the sum of Kshs. 2,435,787.80 as directed. Indeed, prior to the order being made absolute, the Garnishee had confirmed that it held the said sum to the credit of the Judgment Debtor and had expressly indicated its readiness to abide by the orders of the Court.
20. The KRA Agency Notice upon which the Garnishee subsequently relied was not a new event. It had been issued on 24th January 2024, long before the garnishee proceedings commenced. Yet, when called upon to disclose the state of the Judgment Debtor's account, the Garnishee did not disclose that the account was already subject to the Agency Notice. That was a material fact which ought to have been brought to the attention of the Court before the Garnishee Order Absolute was issued.
21. However, the Garnishee upon being served with the application for contempt filed the instant application seeking to review the decree absolute. KRA has itself appeared and confirmed the existence and continued operation of that notice. The circumstances therefore disclose a genuine conflict as to the legal destination of the funds rather than a clear case of deliberate defiance.
22. Contempt jurisdiction is not invoked merely because an order has not been complied with, the disobedience must be shown to have been willful and deliberate.
23. I am not persuaded that the threshold for contempt has been attained. Accordingly, while I find the Garnishee's failure to disclose the pre-existing Agency Notice at the earliest opportunity blameworthy, I decline to cite it or its officers for contempt. The application dated 12th November 2025 therefore fails.
Whether the Garnishee Order Absolute should be reviewed, varied or set aside
24. The Garnishee seeks review and/or setting aside of the Garnishee Order Absolute issued on 29th October 2025 on the ground that there is a subsisting KRA Agency Notice that takes priority over the garnishee proceedings.
25. The jurisdiction of this Court to review its orders is donated by section 80 of the Civil Procedure Act and circumscribed by Order 45 rule 1 of the Civil Procedure Rules. Under the latter provision, review may be granted upon discovery of new and important matter or evidence which, despite due diligence, was not within the applicant's knowledge or could not be produced when the order was made; on account of an error apparent on the face of the record; or for any other sufficient reason. The application must also be brought without unreasonable delay.
26. It is trite law that a review is not an appeal in disguise and cannot be invoked merely because another view of the matter is possible. Where review is founded upon discovery of new and important evidence, due diligence is indispensable.
27. I am unable to accept the Garnishee's contention that the Agency Notice constitutes newly discovered evidence in the strict sense contemplated by Order 45 rule 1. The notice was issued to the Bank on 24th January 2024 and was therefore within its institutional possession long before the Garnishee Order Absolute was made. The fact that the Legal Officer handling the garnishee proceedings was personally unaware of it cannot be equated with the Bank itself being unaware of the notice. With reasonable internal inquiry and due diligence, the notice ought to have been discovered and disclosed.
28. However, this does not dispose of the application. Order 45 rule 1 permits review not only upon discovery of new evidence but also for “any other sufficient reason.” I find that the issue of the Agency Notice falls within any other sufficient reason.
29. The other issue for consideration is who takes priority between KRA and the court order. In I & M Bank Limited v Xplico Insurance Company Limited & 5 others; Munge (Interested Party) [2022] KEHC 12956 (KLR). The Court held that an agency notice issued under section 42 constitutes a valid statutory demand and, in settlement of the taxpayer's debts, the tax claim takes priority. Significantly, the Court dealt with competing KRA and garnishee claims and concluded that the Agency Notice took priority in settling the debtor's obligations.
30. In the present case, the KRA Agency Notice was issued on 24th January 2024 whereas the Garnishee Order Nisi was not issued until 6th October 2025. The Agency Notice therefore preceded the garnishee attachment by more than a year and, on the material before me, has neither been withdrawn, revoked nor set aside. KRA has appeared before the Court and confirmed that it continues to assert its statutory claim over the funds. Thus, this court finds that the Agency Notice takes priority over the garnishee proceedings.
31. To compel the Garnishee to pay the Decree Holder while leaving the Agency Notice intact would potentially expose it to inconsistent legal obligations over the same funds.
32. Had that material fact been disclosed at the hearing of the garnishee proceedings, the Court would necessarily have been required to determine the effect and priority of the Agency Notice before making the Garnishee Order Absolute. The Court should not now compel the Garnishee to remit the same funds to the Decree Holder while simultaneously leaving intact an earlier statutory notice requiring their remittance to KRA. Such a result would place the Garnishee under two inconsistent legal obligations in respect of the same funds.
33. I am therefore satisfied that the interests of justice favour review of the Garnishee Order Absolute.
34. The Court must, however, express its disapproval of the Garnishee's failure to disclose the Agency Notice during the initial garnishee proceedings. A garnishee placed before the Court is under an obligation to make candid and complete disclosure of matters materially affecting the debt sought to be attached. The present applications could largely have been avoided had the Bank undertaken the necessary internal inquiries and disclosed the Agency Notice at the outset. That conduct is appropriately reflected in the order as to costs.
35. In the result, the Court makes the following orders:
i. The Notice of Motion dated 12th November 2025 seeking to cite the Garnishee and/or its officers for contempt is dismissed.
ii. The Notice of Motion dated 13th November 2025 is allowed, and the Garnishee Order Absolute is reviewed and set aside in respect of the funds subject to the KRA Agency Notice dated 24th January 2024.
iii. The Decree Holder remains at liberty to pursue such other lawful modes of execution as may be available for satisfaction of the outstanding decree.
iv. Given that the present dispute was substantially occasioned by the Garnishee's failure to disclose the pre-existing Agency Notice, the Garnishee shall bear the costs of the two applications.
RULING delivered virtually, dated and signed at NAIROBI
This 1st day of September 2026.
PETER M. MULWA
JUDGE
In the presence of:
Ms. Ochieng & Mr. Manwa for Decree-holder
Mr. Muhizi for Garnishee
Ms. Kamau h/b for Mr. Isutsa for the Interested Party
Court Assistant: Sharon