REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL CASE NO. HCMISC.E045 OF 2021
REPUBLIC………………………………………….…………1ST APPLICANT
AND
KASIMWAKA ENTERPRISES LIMITED…………..……2ND APPLICANT
VERSUS
COUNTY SECRETARY
COUNTY GOVERNMENT OF BUNGOMA……..……1ST RESPONDENT
COUNTY EXECUTIVE MEMBER
MINISTRY OF FINANCE BUNGOMA COUNTY..…2ND RESPONDENT
CHIEF OFFICER
MINISTRY OF ENVIROMENT, WATER
& NATURAL RESOURCES BUNGOMA COUNTY….3RD RESPONDENT
COUNTY GOVERNMENT OF BUNGOMA………….4TH RESPONDENT
AND
KENYA COMMERCIAL BANK…………………………..1ST GARNISHEE
EQUITY BANK……………………………………………...2ND GARNISHEE
RULING
1. Pursuant to Section 1A, 1B, 3 & 3A of the Civil Procedure Act and Section 5 of the Judicature Act Cap 8 Laws of Kenya, the 2nd Applicant herein vide a Motion application dated 19th August 2024 seeking the following orders:
a. That the matter be certified as urgent and he heard on priority basis.
b. That this Honourable Court be pleased to issue orders to the Bank Manager, Kenya Commercial Bank Bungoma Branch, the agent of the 1st Garnishee herein to show cause why the decretal balance of Kshs. 1,208,528/= has not been settled and/or released to the 2nd Applicant in satisfaction of the Court order issued on 22nd April 2022.
c. That in the event the Bank Manager, Kenya Commercial Bank Bungoma Branch, the agent of the 1st Garnishee fails to attend Court or do not show sufficient cause why the decretal balance of Kshs. 1, 208,528/= has not been settled and/or released to the 2nd Applicant, this Honourable Court be pleased to issue an order of Garnishee absolute and the Bank Manager, Kenya Commercial Bank Bungoma Branch be committed to civil jail for six months for contempt of the Court order issued on 22nd April 2022.
d. That costs of the application be provided for.
2. The motion application was based on the grounds as preferred on the application and the Supporting Affidavit sworn by Jacob Kasimwaka Machacha, the 2nd Applicant herein on 19th August 2024, wherein he averred that on 22nd April 2022, this Court under the leadership of my esteemed colleague, Justice David Kemei, issued a garnishee order directing the 1st Garnishee herein to attach the decretal sum of Kshs. 15, 667,576/= held in Bungoma County Revenue Collection Account No. 1177737930 at Kenya Commercial Bank Bungoma Branch and other accounts held by the said judgement debtor to satisfy the decretal sum in Bungoma CMCCC No. 534 of 2015 and the order issued on 27th January 2022 by the High Court vide HCMISC. APP. No. E45 of 2021.
3. He averred that in satisfaction of the Court order issued on 22nd April 2022, the 1st Garnishee herein attached a sum of Kshs. 14, 459, 528.40/= an amount which he received thereby leaving a balance of Kshs. 1, 208, 528/=.
4. He averred that the 1st Garnishee has since refused to settle and/or release the decretal balance of Kshs. 1, 208, 528/= and has not advanced any reasons for it’s disobedience of the issued Court order dated 24th January 2023. He averred that a demand letter dated 5th August 2024, was issued to the 1st Garnishee but the 1st Garnishee has blatantly ignored the said demand letter making the 2nd Applicant herein suffer irreparable loss by it’s said actions.
5. He further averred that to date the Bank Manger of the 1st Garnishee has refused to settle the decretal balance of Kshs. 1, 208, 528/= and has issued to reasons behind his actions, and that his advocates have advised him that the actions of the Bank Manager of the 1st Garnishee herein amount to contempt of Court, and is punishable by imprisonment of up to six (6) months.
6. He urged this Court to issue an order against the 1st Garnishee’s Manager to show cause why he won’t pay the decretal balance and/or alternatively have him committed to civil jail for disobedience of Court orders.
7. In response to the Motion application, the 1st Garnishee vide Oscar Kikech, 1st Garnishee’s Manager Service Quality and Compliance, Bungoma Branch, swore a Replying Affidavit on 16th September 2024, wherein he averred that the 4th Respondent herein holds an account number 1177737930 with the 1st Garnishee and the said account had a ledger balance of Kshs. 14,459,528.40/= as at 7th May 2022 and that the account did not hold sufficient sums to satisfy the order issued by this Honourable Court on 22nd April 2022 for it to satisfy the decretal balance.
8. Vide Court directions issued on 28th November 2024, the Court noted that the parties were at liberty to canvass the application by way of written submissions.
9. On my perusal of the Court record only the 1st Garnishee herein filed its written submissions dated 17th February 2025, wherein counsel submitted that on two issues: merit of the 2nd Applicant’s application and that whether the 2nd Applicant was guilty of forum shopping.
10. On the 1st issue, counsel submitted that the 2nd Applicant’s application is devoid of merit and bad in law as he only seeks to engage the Court in an irregularity. According to counsel for the 1st Garnishee, on 19th May 2022, the 2nd Applicant filed a similar application and in response thereto the 1st Garnishee filed a Replying Affidavit sworn on 23rd May 2022, wherein it was confirmed that the 4th Respondent, Judgment Debtor, ledger balance in account number 1177737930 was Kshs. 14,459,528.40/= and this Court on 23rd May 2022, proceeded to issue orders that the sums of Kshs. 14,459,528.40/= held by the 1st Garnishee vide account number 1177737930 as at 7th May 2022 be released to the 2nd Applicant herein and any outstanding balance be pursued by the 2nd Applicant as against the Respondent.
11. Counsel submits that this application as fronted by the 2nd Applicant is an attempt by the 2nd Applicant to have this Court sit on an appeal against its own decision issued on 23rd May 2022 and that this Court became functus officio by virtue of the order issued on 23rd May 2022. He relied on the case of AVH Legal LLP vs Raballa & Others (Civil Appeal) Application 117 of 2018 (2023) KECA 232 (KLR).
12. Counsel submits that any attempts by the 2nd Applicant to execute and attach the funds in the Judgement Debtor’s account number 1177737930 held by the 1st Garnishee is unlawful, irregular and in complete disregard of the provisions of Section 21(4) of the Government Proceedings Act as read together with Order 29 Rule 4 of the Civil Procedure Rules.
13. Counsel submits that the enforcement of any monetary decree against the government is enforced by way of an order of mandamus and he relied on the case of HCJR No. 4 of 2020 (Kakamega) Isaac Fula Siaka vs The County Government of Kenya. Kenya Commercial Bank Limited (Kakamega Branch) and 3 Others.
14. On the 2nd issue, counsel submits that despite the existence of a final order issued by this Court on 23rd May 2022, the 2nd Applicant proceeded to institute further execution proceedings in CMCC No. 534 of 2015 Bungoma wherein he unlawfully attempted to conduct execution proceedings against the 1st Garnishee despite the existence of the 23rd May 2022 orders.
15. Counsel urged this Court to dismiss this application with costs as the same lacks merit and urges the 2nd Applicant to proceed to pursue the Judicial Review proceedings that are pending before this Court.
16. The issues for determination arising from the pleadings and the 1st Garnishee written submissions on record is whether the Court can issue the prayers as sought in the Motion application dated 19th August 2024.
17. The 1st Garnishee has urged that the application before the Court is functus officio. The 2nd Applicant filed a similar application dated 13th May 2022 before Hon. D.K. Kemei Judge and on 23rd May 2022, the erudite Judge issued orders that:
“a. The sums of Kshs. 14, 459,528.40/= held by the 1st Garnishee vide account no. 1177737930 as at 7th May 2022, be and is hereby released to the applicant.
b. Any outstanding balances shall be pursued by the applicant as against the Respondent.”
18. The Court (D.K. Kemei J.) was categorical that the ex-parte application had been concluded by allowing the ex-parte application in terms of prayers (b) (c) and (d).
19. Although the fact that the Court already pronounced itself on the issue of ex-parte application against the 1st Garnishee, this Court observes that the instant application dated 19th August 2024, is similarly one touching on the 1st Garnishee. When a Court has already pronounced itself on a matter, it is deemed to have performed all its duties in the case and it becomes functus officio. This Court would, therefore, not condone any attempts to re-open the matter of Garnishee proceedings against the 1st Garnishee herein. The essence of the doctrine of functus officio is to give finality to the adjudication of matters.
20. In the case of Jersey Evening Post Limtied v Al Thani (2002) JLR, which case was cited by the Supreme Court in the case of Raila Odinga & 2 Others Vs Independent Electoral and Boundaries Commission & 3 Others 2013 eKLR the Court held as follows: -
“…A court is functus officio when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available…”
21. In the Court of Appeal decision of Telkom Kenya Limited Vs John Ochanda (suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited) 2014 eKLR ,cited by L A Achode J in the other case of Re Estate of Kinuthia Mahuti (Deceased) Miscellaneous Application P&A No. 158 of 2017, 2018 eKLR, the Court of Appeal (Githinji, Karanja and Kiage JJA observed as follows: -
“…Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long as the latter part of the 19th Century…”
22. Based on the above authorities, this Court finds that it cannot re-open the matter for an application for Garnishee proceedings against the 1st Garnishee herein, as the issue in question has already been finally determined by my brother Justice Kemei. The same is thus res judicata, and for which, this Court is, therefore, functus officio.
23. I find no merit in the Applicant’s Motion application dated 19th August 2024, and it is hereby dismissed with costs.
24. This file is marked as closed.
It is hereby so ordered.
Dated and delivered at Bungoma this 27th day of June 2025.
M.S.Shariff
Judge
In the presence of:
N/A FOR APPLICANT
N/A FOR 1STRESPONDENT
N/A FOR 2ND RESPONDENT
N/A FOR 3RD RESPONDENT
N/A FOR 4TH RESPONDENT
MR OKAKA H/B MACHARIA FOR 1ST GARNISHEE
N/A FOR 2ND GARNISHEE
PETER MACHONI - COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL CASE NO. HCMISC.E045 OF 2021
REPUBLIC………………………………………….…………1ST APPLICANT
AND
KASIMWAKA ENTERPRISES LIMITED…………..……2ND APPLICANT
VERSUS
COUNTY SECRETARY
COUNTY GOVERNMENT OF BUNGOMA……..……1ST RESPONDENT
COUNTY EXECUTIVE MEMBER
MINISTRY OF FINANCE BUNGOMA COUNTY..…2ND RESPONDENT
CHIEF OFFICER
MINISTRY OF ENVIROMENT, WATER
& NATURAL RESOURCES BUNGOMA COUNTY….3RD RESPONDENT
COUNTY GOVERNMENT OF BUNGOMA………….4TH RESPONDENT
AND
KENYA COMMERCIAL BANK…………………………..1ST GARNISHEE
EQUITY BANK……………………………………………...2ND GARNISHEE
RULING
1. Pursuant to Section 1A, 1B, 3 & 3A of the Civil Procedure Act and Section 5 of the Judicature Act Cap 8 Laws of Kenya, the 2nd Applicant herein vide a Motion application dated 19th August 2024 seeking the following orders:
a. That the matter be certified as urgent and he heard on priority basis.
b. That this Honourable Court be pleased to issue orders to the Bank Manager, Kenya Commercial Bank Bungoma Branch, the agent of the 1st Garnishee herein to show cause why the decretal balance of Kshs. 1,208,528/= has not been settled and/or released to the 2nd Applicant in satisfaction of the Court order issued on 22nd April 2022.
c. That in the event the Bank Manager, Kenya Commercial Bank Bungoma Branch, the agent of the 1st Garnishee fails to attend Court or do not show sufficient cause why the decretal balance of Kshs. 1, 208,528/= has not been settled and/or released to the 2nd Applicant, this Honourable Court be pleased to issue an order of Garnishee absolute and the Bank Manager, Kenya Commercial Bank Bungoma Branch be committed to civil jail for six months for contempt of the Court order issued on 22nd April 2022.
d. That costs of the application be provided for.
2. The motion application was based on the grounds as preferred on the application and the Supporting Affidavit sworn by Jacob Kasimwaka Machacha, the 2nd Applicant herein on 19th August 2024, wherein he averred that on 22nd April 2022, this Court under the leadership of my esteemed colleague, Justice David Kemei, issued a garnishee order directing the 1st Garnishee herein to attach the decretal sum of Kshs. 15, 667,576/= held in Bungoma County Revenue Collection Account No. 1177737930 at Kenya Commercial Bank Bungoma Branch and other accounts held by the said judgement debtor to satisfy the decretal sum in Bungoma CMCCC No. 534 of 2015 and the order issued on 27th January 2022 by the High Court vide HCMISC. APP. No. E45 of 2021.
3. He averred that in satisfaction of the Court order issued on 22nd April 2022, the 1st Garnishee herein attached a sum of Kshs. 14, 459, 528.40/= an amount which he received thereby leaving a balance of Kshs. 1, 208, 528/=.
4. He averred that the 1st Garnishee has since refused to settle and/or release the decretal balance of Kshs. 1, 208, 528/= and has not advanced any reasons for it’s disobedience of the issued Court order dated 24th January 2023. He averred that a demand letter dated 5th August 2024, was issued to the 1st Garnishee but the 1st Garnishee has blatantly ignored the said demand letter making the 2nd Applicant herein suffer irreparable loss by it’s said actions.
5. He further averred that to date the Bank Manger of the 1st Garnishee has refused to settle the decretal balance of Kshs. 1, 208, 528/= and has issued to reasons behind his actions, and that his advocates have advised him that the actions of the Bank Manager of the 1st Garnishee herein amount to contempt of Court, and is punishable by imprisonment of up to six (6) months.
6. He urged this Court to issue an order against the 1st Garnishee’s Manager to show cause why he won’t pay the decretal balance and/or alternatively have him committed to civil jail for disobedience of Court orders.
7. In response to the Motion application, the 1st Garnishee vide Oscar Kikech, 1st Garnishee’s Manager Service Quality and Compliance, Bungoma Branch, swore a Replying Affidavit on 16th September 2024, wherein he averred that the 4th Respondent herein holds an account number 1177737930 with the 1st Garnishee and the said account had a ledger balance of Kshs. 14,459,528.40/= as at 7th May 2022 and that the account did not hold sufficient sums to satisfy the order issued by this Honourable Court on 22nd April 2022 for it to satisfy the decretal balance.
8. Vide Court directions issued on 28th November 2024, the Court noted that the parties were at liberty to canvass the application by way of written submissions.
9. On my perusal of the Court record only the 1st Garnishee herein filed its written submissions dated 17th February 2025, wherein counsel submitted that on two issues: merit of the 2nd Applicant’s application and that whether the 2nd Applicant was guilty of forum shopping.
10. On the 1st issue, counsel submitted that the 2nd Applicant’s application is devoid of merit and bad in law as he only seeks to engage the Court in an irregularity. According to counsel for the 1st Garnishee, on 19th May 2022, the 2nd Applicant filed a similar application and in response thereto the 1st Garnishee filed a Replying Affidavit sworn on 23rd May 2022, wherein it was confirmed that the 4th Respondent, Judgment Debtor, ledger balance in account number 1177737930 was Kshs. 14,459,528.40/= and this Court on 23rd May 2022, proceeded to issue orders that the sums of Kshs. 14,459,528.40/= held by the 1st Garnishee vide account number 1177737930 as at 7th May 2022 be released to the 2nd Applicant herein and any outstanding balance be pursued by the 2nd Applicant as against the Respondent.
11. Counsel submits that this application as fronted by the 2nd Applicant is an attempt by the 2nd Applicant to have this Court sit on an appeal against its own decision issued on 23rd May 2022 and that this Court became functus officio by virtue of the order issued on 23rd May 2022. He relied on the case of AVH Legal LLP vs Raballa & Others (Civil Appeal) Application 117 of 2018 (2023) KECA 232 (KLR).
12. Counsel submits that any attempts by the 2nd Applicant to execute and attach the funds in the Judgement Debtor’s account number 1177737930 held by the 1st Garnishee is unlawful, irregular and in complete disregard of the provisions of Section 21(4) of the Government Proceedings Act as read together with Order 29 Rule 4 of the Civil Procedure Rules.
13. Counsel submits that the enforcement of any monetary decree against the government is enforced by way of an order of mandamus and he relied on the case of HCJR No. 4 of 2020 (Kakamega) Isaac Fula Siaka vs The County Government of Kenya. Kenya Commercial Bank Limited (Kakamega Branch) and 3 Others.
14. On the 2nd issue, counsel submits that despite the existence of a final order issued by this Court on 23rd May 2022, the 2nd Applicant proceeded to institute further execution proceedings in CMCC No. 534 of 2015 Bungoma wherein he unlawfully attempted to conduct execution proceedings against the 1st Garnishee despite the existence of the 23rd May 2022 orders.
15. Counsel urged this Court to dismiss this application with costs as the same lacks merit and urges the 2nd Applicant to proceed to pursue the Judicial Review proceedings that are pending before this Court.
16. The issues for determination arising from the pleadings and the 1st Garnishee written submissions on record is whether the Court can issue the prayers as sought in the Motion application dated 19th August 2024.
17. The 1st Garnishee has urged that the application before the Court is functus officio. The 2nd Applicant filed a similar application dated 13th May 2022 before Hon. D.K. Kemei Judge and on 23rd May 2022, the erudite Judge issued orders that:
“a. The sums of Kshs. 14, 459,528.40/= held by the 1st Garnishee vide account no. 1177737930 as at 7th May 2022, be and is hereby released to the applicant.
b. Any outstanding balances shall be pursued by the applicant as against the Respondent.”
18. The Court (D.K. Kemei J.) was categorical that the ex-parte application had been concluded by allowing the ex-parte application in terms of prayers (b) (c) and (d).
19. Although the fact that the Court already pronounced itself on the issue of ex-parte application against the 1st Garnishee, this Court observes that the instant application dated 19th August 2024, is similarly one touching on the 1st Garnishee. When a Court has already pronounced itself on a matter, it is deemed to have performed all its duties in the case and it becomes functus officio. This Court would, therefore, not condone any attempts to re-open the matter of Garnishee proceedings against the 1st Garnishee herein. The essence of the doctrine of functus officio is to give finality to the adjudication of matters.
20. In the case of Jersey Evening Post Limtied v Al Thani (2002) JLR, which case was cited by the Supreme Court in the case of Raila Odinga & 2 Others Vs Independent Electoral and Boundaries Commission & 3 Others 2013 eKLR the Court held as follows: -
“…A court is functus officio when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available…”
21. In the Court of Appeal decision of Telkom Kenya Limited Vs John Ochanda (suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited) 2014 eKLR ,cited by L A Achode J in the other case of Re Estate of Kinuthia Mahuti (Deceased) Miscellaneous Application P&A No. 158 of 2017, 2018 eKLR, the Court of Appeal (Githinji, Karanja and Kiage JJA observed as follows: -
“…Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long as the latter part of the 19th Century…”
22. Based on the above authorities, this Court finds that it cannot re-open the matter for an application for Garnishee proceedings against the 1st Garnishee herein, as the issue in question has already been finally determined by my brother Justice Kemei. The same is thus res judicata, and for which, this Court is, therefore, functus officio.
23. I find no merit in the Applicant’s Motion application dated 19th August 2024, and it is hereby dismissed with costs.
24. This file is marked as closed.
It is hereby so ordered.
Dated and delivered at Bungoma this 27th day of June 2025.
M.S.Shariff
Judge
In the presence of:
N/A FOR APPLICANT
N/A FOR 1STRESPONDENT
N/A FOR 2ND RESPONDENT
N/A FOR 3RD RESPONDENT
N/A FOR 4TH RESPONDENT
MR OKAKA H/B MACHARIA FOR 1ST GARNISHEE
N/A FOR 2ND GARNISHEE
PETER MACHONI - COURT ASSISTANT