1. This is a first appeal. It arises out of the Ruling and Order of Hon. J. Ong'ondo, Senior Principal Magistrate. The ruling was delivered on 29th April, 2025. It stems from Malindi CMCC No. E425 of 2023. The matter originated as Garnishee proceedings.
Background Facts
2. The Appellant was the Garnishee before the Trial Court. The 1st Respondent was the Plaintiff/Decree-Holder. The 2nd Respondent was the Defendant/Judgment-Debtor.
3. Judgment was entered in favour of the 1st Respondent against the 2nd Respondent and delivered on 12th June, 2024. A Decree was subsequently issued. The decretal sum, including costs and interest, stood at Kshs. 2,326,014/=.
4. The decree remained unsatisfied. The 1st Respondent took out Garnishee proceedings against the Appellant. This was a bid to enforce recovery. The 1st Respondent sought to attach funds held by the Appellant in favour of the 2nd Respondent.
5. The Garnishee application was filed by way of a Notice of Motion. It was dated 11th February, 2025. The Trial Court issued a Garnishee Order Nisi on 12th February, 2025. It fixed the matter for inter partes hearing.
6. The Appellant entered an appearance. It filed a Replying Affidavit sworn on 18th February, 2025 by Christine Muturi, a Manager of Service Quality and Compliance. She deposed that the Judgment-Debtor's accounts were restricted. She claimed the funds were locked by pre-existing Court orders. She concluded the accounts held insufficient funds to honour the decree.
7. The Trial Court considered the rival written submissions. It delivered a Ruling on 29th April, 2025. It dismissed the Appellant's objection. It found that the Appellant held unutilized funds belonging to the Judgment-Debtor. The Trial Court ordered the Garnishee Order Nisi be made absolute.
8. The Appellant was aggrieved. It filed a Memorandum of Appeal dated 6th May, 2025. The appeal raises six distinct grounds as follows:
1. The Learned Trial Magistrate erred in law and in fact, in failing to appreciate that there was a specific uncontroverted Affidavit on oath by the Appellant/Garnishee’s Manager, pointing out that as at the time the Garnishee Order Nisi was served upon it, the 2nd Respondent/Judgement-Debtor’s account nos. 1312884231, 1112522867, 1208962558 and 1305515595 had insufficient funds, hence unable to settle the decretal sum sought of Kshs.2,326,014 plus costs.
2. The Learned Trial Magistrate erred in law and in fact in failing to appreciate evidence on record that there were pre-existing Garnishee Order Nisis (sic), seeking payment from the 2nd Respondent/Judgement-Debtor’s various accounts, and that upon compliance with the Garnishee Order Absolutes (sic) arising from the respective Garnishee applications, the accounts would technically be rendered to be of insufficient funds to settle the entire decretal sum sought of Kshs.2,326,014 plus costs.
3. The Learned Trial Magistrate erred in law and in fact, in failing to appreciate that the question of availability of funds held by the Appellant/Garnishee on behalf of the 2nd Respondent/Judgment-Debtor for purposes of such Garnishee proceedings, is one of determination of a fact of such availability, and not one of speculation or conjecture, in the absence of any evidence to the contrary from either of the parties, to contradict the evidence of the Appellant/Garnishee on oath, or any other contrary Bank statement to demonstrate otherwise.
4. The Learned Trial Magistrate erred in law and in fact, by misapprehending the provisions of Order 23 Rules 4 and 5 of the Civil Procedure Rules relating to Garnishee proceedings, when despite the clear and uncontroverted testimony of the Appellant/Garnishee as contained in the Replying Affidavit filed in response to the Garnishee application, he found that in his view, the Bank statement was not explanatory enough, but clearly, did not have proof of availability of funds to meet the decretal sum, and instead of having the matter tried in the usual manner of trial, as contemplated by law, either by having the Appellant/Garnishee’s witness cross-examined on whatever such issue of need for clarity, the Learned Magistrate opted for the unusual finding of simply reaching an order requiring the Appellant/Garnishee to pay the entire decretal sum of Kshs.2,326,014 plus costs, without any proof of availability of funds in the hands of the Appellant/Garnishee on behalf the 2nd Respondent/Judgment-Debtor.
5. The Learned Trial Magistrate erred in law and in fact in finding that the Appellant Bank do pay the 1st Respondent/Decree-Holder the total decretal sum of Kshs.2,326,014 plus costs, when it should not be a duty of the Appellant/Garnishee Bank to settle a judgement debt of the Judgement-Debtor, beyond what it holds to the Judgement-Debtor’s credit, and that the locus of a Garnishee is limited to confirming the status of a Bank account and whether moneys/funds attached belong to the Judgement-debtor or not; and where there are insufficient funds in the account, such orders are to be made, limited to the availability of funds held to the credit of the 2nd Respondent/Judgement-Debtor.
6. The Learned Magistrate erred in law in shifting the burden of proof in civil proceedings from the 1st Respondent/Decree-Holder, who had alleged that the bank statement availed by the Appellant/Garnishee was inaccurate and incorrect, without availing any evidence in court, as proof of the alleged incorrectness and alleged inaccuracy of the bank statements supplied by the Appellant/Garnishee Bank.
9. The Appellant seeks specific reliefs on this Appeal:
1. This appeal be allowed.
2. The Garnishee Order Absolute issued by Hon. J. Ong'ondo, Senior Principal Magistrate on 29th April 2025 in the original MALINDI CMCC NO. E425 OF 2023, be set aside.
3. The Appellant/Garnishee be discharged from the garnishee proceedings.
4. The costs of this appeal be awarded to the Appellant.
10. Through a Supplementary Record of Appeal, the 1st Respondent introduced a preliminary issue twist into the matter. She argued that the appeal is moot. She exhibited a Notice of Withdrawal dated 28th May, 2025, withdrawing the underlying Garnishee application dated 11th February, 2025. The withdrawn Garnishee proceedings are the genesis of this Appeal. She also produced a letter dated 10th September, 2025. This letter confirmed that the Appellant had fully settled the entire decretal sum via direct bank transfer. The 1st Respondent thus confirmed that the entire decree had been settled by the Garnishee.
Issues for Determination
11. The Court has perused the Memorandum of Appeal, reviewed the Record of Appeal and the Supplementary Record of Appeal. And considered the submissions and authorities filed by the parties. From these, the Court frames two issues for determination.
1. Whether the appeal is moot.
2. Whether the Trial Court erred in issuing the Garnishee Order Absolute.
Analysis
12. This Court sits as a first Appellate Court. The duty of a first Appellate Court is well settled. It is a duty to rehear the case. The Court must evaluate the evidence afresh, subject the record to exhaustive scrutiny and it must draw its own independent conclusions. The Court is guided by the case of Selle & Another v. Associated Motor Boat Company Ltd & Others [1968] EA 123. The Court therein held:
"An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect."
(i) Whether the appeal is moot.
13. On the first issue, the 1st Respondent submitted that the appeal has been overtaken by events. She argued there is no live legal dispute. She relied on the Supreme Court decision in Institute for Social Accountability & Another v. National Assembly & 3 Others [2022] KESC 39 (KLR). She further cited Bora Capital Limited v Jane Njeri Munyi [2018] eKLR. Both cases establish that Courts should not act in vain.
14. The Appellant, on the other hand, submitted solely on the merits of the Garnishee order. It argued that a Garnishee cannot be compelled to pay debts beyond the funds held. It relied on Equity Bank Limited v Francis OG Matete & another [2022] eKLR and Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co. Ltd [2020] eKLR. The Appellant largely ignored the issue of mootness.
15. The doctrine of mootness dictates that Courts only determine active, live controversies. A Court does not sit to engage in academic excursions. In addition to the authorities cited by the 1st Respondent, this Court is bound by the decision of the Court of Appeal in Okoiti & 2 others v Attorney General & 7 others [2020] KECA 589 (KLR). The Court of Appeal held:
“In Black’s Law Dictionary, 8th edition, a “moot case” is defined as “a matter in which a controversy no longer exists; a case that presents only an abstract question that does not arise from existing facts or rights”, and as a verb, as meaning “to render a question as of no practical significance”.
In Daniel Kaminja & 3 others (Suing as Westland Environmental Caretaker Group) vs. County Government of Nairobi [2019] eKLR, Mativo, J. stated that:
“A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.”
And that,
“No court of law will knowingly act in vain. The general attitude of courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose. A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.”
In National Assembly of Kenya & another vs. Institute for Social Accountability & 6 others [2017] eKLR, this Court characterized the doctrine of ‘mootness’ as complex; it cautioned that the doctrine should not be applied mechanistically in every factual situation; and that there is no sharp distinction between moot and live controversies. The Court expressed that the doctrine of mootness is not a magic formula that can automatically dissuade the court in resolving a case; and that the court will decide cases, otherwise moot, for example, if there is a grave violation of the Constitution. The Court concluded:
“… it is clear that the mootness doctrine, is not an abstract doctrine. Rather, it is a functional doctrine founded mainly on principles of judicial economy and functional competence of the courts and the integrity of the judicial system. In the application of the doctrine to the wide ranging and varying factual situations, the court will inevitably consider the extent to which the doctrine advances the underlying principles, the certainty and development of the law particularly the Constitution law and the public interest.”
16. The Supreme Court in Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR) echoed this exactly. It ruled:
"...a matter is moot when it has no practical significance or when the decision will not have the effect of resolving the controversy affecting the rights of the parties before it... If after the commencement of the proceedings, events occur changing the facts or the law which deprive the parties of the pursued outcome or relief then, the matter becomes moot."
17. Applying this jurisprudence to the present facts, the conclusion is inescapable. The Appellant has already settled the decretal claim in full. The 1st Respondent's letter dated 10th September, 2025 acknowledges complete satisfaction of the debt. The underlying Garnishee application dated 11th February, 2025 was formally withdrawn. Under Order 23 Rule 8 of the Civil Procedure Rules, payment made by a Garnishee, acts as a valid discharge. The legal dispute has dissipated. The appeal is unequivocally moot.
(ii) Whether the Trial Court erred in issuing the Garnishee Order Absolute.
18. Having found the appeal is moot, the second issue falls away. However, for the sake of completeness, the Court will briefly analyse the Trial Court's exercise of discretion. The Appellant argued the 1st Respondent failed to prove availability of funds. It relied on Equity Bank Limited v Francis O G Matete & another [2022] KEHC 2428 (KLR), arguing a Garnishee cannot pay what it does not hold. The Court is in agreement with this decision.
19. The 1st Respondent relied on Diamond Trust Bank Kenya Limited v Invesco Assurance Company Limited & another [2020] KEHC 2149 (KLR) and International Air Transport Association (IATA) & another v Akarim Agencies Company Limited & 2 others; Equity Bank Limited (Garnishee) [2021] KEHC 13252 (KLR) In IATA, Majanja J. held:
"...in order to discharge that burden, the garnishee has to produce strong, sufficient and convincing evidence that the funds in its hands or the debt is not due or payable."
20. This Court agrees with Majanja J. The burden was on the Appellant to prove the funds were strictly locked. The Court follows the decision of the Court of Appeal decision in National Bank of Kenya Limited Vs Ndungu Njau [1997] KECA 389 (KLR). The Court held that a party alleging a specific fact bears the burden of proving it. The Appellant alleged the accounts were restricted by Court orders. It failed to annex those Court orders. It only provided an internal bank statement. A bank's internal remarks cannot substitute legitimate Court order locking funds.
21. The Trial Court observed that the Appellant had a history of swearing affidavits claiming insufficient funds, only to later settle decrees from the very same accounts. The Trial Court rightly pierced this façade. The Court is not persuaded that the Trial Court erred in its exercise of it discretion.
22. On costs, the law is clear. Costs ordinarily follow the event and lie at the discretion of this Court. The Appellant sustained this appeal despite knowing the debt was fully settled. This forced the 1st Respondent to defend an academic process. The Appellant ought to bear the costs of this appeal.
Determination
23. The Appeal lacks merit and the Court HEREBY makes the following orders:
1. The Appeal is overtaken by events and or rendered moot as the Decretal sum has been fully paid. It is HEREBY dismissed in its entirety.
2. The 1st Respondent is awarded the costs of this appeal.
24. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Oile for the Appellant.
Miss Nyambane for the Respondent.
Mr. Mohamed - Court Assistant.
Background Facts
2. The Appellant was the Garnishee before the Trial Court. The 1st Respondent was the Plaintiff/Decree-Holder. The 2nd Respondent was the Defendant/Judgment-Debtor.
3. Judgment was entered in favour of the 1st Respondent against the 2nd Respondent and delivered on 12th June, 2024. A Decree was subsequently issued. The decretal sum, including costs and interest, stood at Kshs. 2,326,014/=.
4. The decree remained unsatisfied. The 1st Respondent took out Garnishee proceedings against the Appellant. This was a bid to enforce recovery. The 1st Respondent sought to attach funds held by the Appellant in favour of the 2nd Respondent.
5. The Garnishee application was filed by way of a Notice of Motion. It was dated 11th February, 2025. The Trial Court issued a Garnishee Order Nisi on 12th February, 2025. It fixed the matter for inter partes hearing.
6. The Appellant entered an appearance. It filed a Replying Affidavit sworn on 18th February, 2025 by Christine Muturi, a Manager of Service Quality and Compliance. She deposed that the Judgment-Debtor's accounts were restricted. She claimed the funds were locked by pre-existing Court orders. She concluded the accounts held insufficient funds to honour the decree.
7. The Trial Court considered the rival written submissions. It delivered a Ruling on 29th April, 2025. It dismissed the Appellant's objection. It found that the Appellant held unutilized funds belonging to the Judgment-Debtor. The Trial Court ordered the Garnishee Order Nisi be made absolute.
8. The Appellant was aggrieved. It filed a Memorandum of Appeal dated 6th May, 2025. The appeal raises six distinct grounds as follows:
1. The Learned Trial Magistrate erred in law and in fact, in failing to appreciate that there was a specific uncontroverted Affidavit on oath by the Appellant/Garnishee’s Manager, pointing out that as at the time the Garnishee Order Nisi was served upon it, the 2nd Respondent/Judgement-Debtor’s account nos. 1312884231, 1112522867, 1208962558 and 1305515595 had insufficient funds, hence unable to settle the decretal sum sought of Kshs.2,326,014 plus costs.
2. The Learned Trial Magistrate erred in law and in fact in failing to appreciate evidence on record that there were pre-existing Garnishee Order Nisis (sic), seeking payment from the 2nd Respondent/Judgement-Debtor’s various accounts, and that upon compliance with the Garnishee Order Absolutes (sic) arising from the respective Garnishee applications, the accounts would technically be rendered to be of insufficient funds to settle the entire decretal sum sought of Kshs.2,326,014 plus costs.
3. The Learned Trial Magistrate erred in law and in fact, in failing to appreciate that the question of availability of funds held by the Appellant/Garnishee on behalf of the 2nd Respondent/Judgment-Debtor for purposes of such Garnishee proceedings, is one of determination of a fact of such availability, and not one of speculation or conjecture, in the absence of any evidence to the contrary from either of the parties, to contradict the evidence of the Appellant/Garnishee on oath, or any other contrary Bank statement to demonstrate otherwise.
4. The Learned Trial Magistrate erred in law and in fact, by misapprehending the provisions of Order 23 Rules 4 and 5 of the Civil Procedure Rules relating to Garnishee proceedings, when despite the clear and uncontroverted testimony of the Appellant/Garnishee as contained in the Replying Affidavit filed in response to the Garnishee application, he found that in his view, the Bank statement was not explanatory enough, but clearly, did not have proof of availability of funds to meet the decretal sum, and instead of having the matter tried in the usual manner of trial, as contemplated by law, either by having the Appellant/Garnishee’s witness cross-examined on whatever such issue of need for clarity, the Learned Magistrate opted for the unusual finding of simply reaching an order requiring the Appellant/Garnishee to pay the entire decretal sum of Kshs.2,326,014 plus costs, without any proof of availability of funds in the hands of the Appellant/Garnishee on behalf the 2nd Respondent/Judgment-Debtor.
5. The Learned Trial Magistrate erred in law and in fact in finding that the Appellant Bank do pay the 1st Respondent/Decree-Holder the total decretal sum of Kshs.2,326,014 plus costs, when it should not be a duty of the Appellant/Garnishee Bank to settle a judgement debt of the Judgement-Debtor, beyond what it holds to the Judgement-Debtor’s credit, and that the locus of a Garnishee is limited to confirming the status of a Bank account and whether moneys/funds attached belong to the Judgement-debtor or not; and where there are insufficient funds in the account, such orders are to be made, limited to the availability of funds held to the credit of the 2nd Respondent/Judgement-Debtor.
6. The Learned Magistrate erred in law in shifting the burden of proof in civil proceedings from the 1st Respondent/Decree-Holder, who had alleged that the bank statement availed by the Appellant/Garnishee was inaccurate and incorrect, without availing any evidence in court, as proof of the alleged incorrectness and alleged inaccuracy of the bank statements supplied by the Appellant/Garnishee Bank.
9. The Appellant seeks specific reliefs on this Appeal:
1. This appeal be allowed.
2. The Garnishee Order Absolute issued by Hon. J. Ong'ondo, Senior Principal Magistrate on 29th April 2025 in the original MALINDI CMCC NO. E425 OF 2023, be set aside.
3. The Appellant/Garnishee be discharged from the garnishee proceedings.
4. The costs of this appeal be awarded to the Appellant.
10. Through a Supplementary Record of Appeal, the 1st Respondent introduced a preliminary issue twist into the matter. She argued that the appeal is moot. She exhibited a Notice of Withdrawal dated 28th May, 2025, withdrawing the underlying Garnishee application dated 11th February, 2025. The withdrawn Garnishee proceedings are the genesis of this Appeal. She also produced a letter dated 10th September, 2025. This letter confirmed that the Appellant had fully settled the entire decretal sum via direct bank transfer. The 1st Respondent thus confirmed that the entire decree had been settled by the Garnishee.
Issues for Determination
11. The Court has perused the Memorandum of Appeal, reviewed the Record of Appeal and the Supplementary Record of Appeal. And considered the submissions and authorities filed by the parties. From these, the Court frames two issues for determination.
1. Whether the appeal is moot.
2. Whether the Trial Court erred in issuing the Garnishee Order Absolute.
Analysis
12. This Court sits as a first Appellate Court. The duty of a first Appellate Court is well settled. It is a duty to rehear the case. The Court must evaluate the evidence afresh, subject the record to exhaustive scrutiny and it must draw its own independent conclusions. The Court is guided by the case of Selle & Another v. Associated Motor Boat Company Ltd & Others [1968] EA 123. The Court therein held:
"An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect."
(i) Whether the appeal is moot.
13. On the first issue, the 1st Respondent submitted that the appeal has been overtaken by events. She argued there is no live legal dispute. She relied on the Supreme Court decision in Institute for Social Accountability & Another v. National Assembly & 3 Others [2022] KESC 39 (KLR). She further cited Bora Capital Limited v Jane Njeri Munyi [2018] eKLR. Both cases establish that Courts should not act in vain.
14. The Appellant, on the other hand, submitted solely on the merits of the Garnishee order. It argued that a Garnishee cannot be compelled to pay debts beyond the funds held. It relied on Equity Bank Limited v Francis OG Matete & another [2022] eKLR and Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co. Ltd [2020] eKLR. The Appellant largely ignored the issue of mootness.
15. The doctrine of mootness dictates that Courts only determine active, live controversies. A Court does not sit to engage in academic excursions. In addition to the authorities cited by the 1st Respondent, this Court is bound by the decision of the Court of Appeal in Okoiti & 2 others v Attorney General & 7 others [2020] KECA 589 (KLR). The Court of Appeal held:
“In Black’s Law Dictionary, 8th edition, a “moot case” is defined as “a matter in which a controversy no longer exists; a case that presents only an abstract question that does not arise from existing facts or rights”, and as a verb, as meaning “to render a question as of no practical significance”.
In Daniel Kaminja & 3 others (Suing as Westland Environmental Caretaker Group) vs. County Government of Nairobi [2019] eKLR, Mativo, J. stated that:
“A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.”
And that,
“No court of law will knowingly act in vain. The general attitude of courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose. A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.”
In National Assembly of Kenya & another vs. Institute for Social Accountability & 6 others [2017] eKLR, this Court characterized the doctrine of ‘mootness’ as complex; it cautioned that the doctrine should not be applied mechanistically in every factual situation; and that there is no sharp distinction between moot and live controversies. The Court expressed that the doctrine of mootness is not a magic formula that can automatically dissuade the court in resolving a case; and that the court will decide cases, otherwise moot, for example, if there is a grave violation of the Constitution. The Court concluded:
“… it is clear that the mootness doctrine, is not an abstract doctrine. Rather, it is a functional doctrine founded mainly on principles of judicial economy and functional competence of the courts and the integrity of the judicial system. In the application of the doctrine to the wide ranging and varying factual situations, the court will inevitably consider the extent to which the doctrine advances the underlying principles, the certainty and development of the law particularly the Constitution law and the public interest.”
16. The Supreme Court in Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR) echoed this exactly. It ruled:
"...a matter is moot when it has no practical significance or when the decision will not have the effect of resolving the controversy affecting the rights of the parties before it... If after the commencement of the proceedings, events occur changing the facts or the law which deprive the parties of the pursued outcome or relief then, the matter becomes moot."
17. Applying this jurisprudence to the present facts, the conclusion is inescapable. The Appellant has already settled the decretal claim in full. The 1st Respondent's letter dated 10th September, 2025 acknowledges complete satisfaction of the debt. The underlying Garnishee application dated 11th February, 2025 was formally withdrawn. Under Order 23 Rule 8 of the Civil Procedure Rules, payment made by a Garnishee, acts as a valid discharge. The legal dispute has dissipated. The appeal is unequivocally moot.
(ii) Whether the Trial Court erred in issuing the Garnishee Order Absolute.
18. Having found the appeal is moot, the second issue falls away. However, for the sake of completeness, the Court will briefly analyse the Trial Court's exercise of discretion. The Appellant argued the 1st Respondent failed to prove availability of funds. It relied on Equity Bank Limited v Francis O G Matete & another [2022] KEHC 2428 (KLR), arguing a Garnishee cannot pay what it does not hold. The Court is in agreement with this decision.
19. The 1st Respondent relied on Diamond Trust Bank Kenya Limited v Invesco Assurance Company Limited & another [2020] KEHC 2149 (KLR) and International Air Transport Association (IATA) & another v Akarim Agencies Company Limited & 2 others; Equity Bank Limited (Garnishee) [2021] KEHC 13252 (KLR) In IATA, Majanja J. held:
"...in order to discharge that burden, the garnishee has to produce strong, sufficient and convincing evidence that the funds in its hands or the debt is not due or payable."
20. This Court agrees with Majanja J. The burden was on the Appellant to prove the funds were strictly locked. The Court follows the decision of the Court of Appeal decision in National Bank of Kenya Limited Vs Ndungu Njau [1997] KECA 389 (KLR). The Court held that a party alleging a specific fact bears the burden of proving it. The Appellant alleged the accounts were restricted by Court orders. It failed to annex those Court orders. It only provided an internal bank statement. A bank's internal remarks cannot substitute legitimate Court order locking funds.
21. The Trial Court observed that the Appellant had a history of swearing affidavits claiming insufficient funds, only to later settle decrees from the very same accounts. The Trial Court rightly pierced this façade. The Court is not persuaded that the Trial Court erred in its exercise of it discretion.
22. On costs, the law is clear. Costs ordinarily follow the event and lie at the discretion of this Court. The Appellant sustained this appeal despite knowing the debt was fully settled. This forced the 1st Respondent to defend an academic process. The Appellant ought to bear the costs of this appeal.
Determination
23. The Appeal lacks merit and the Court HEREBY makes the following orders:
1. The Appeal is overtaken by events and or rendered moot as the Decretal sum has been fully paid. It is HEREBY dismissed in its entirety.
2. The 1st Respondent is awarded the costs of this appeal.
24. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Oile for the Appellant.
Miss Nyambane for the Respondent.
Mr. Mohamed - Court Assistant.