1. This is a first appeal. It arises from the Ruling and Order delivered on 28th April, 2025 by Hon. E.K. Usui, Chief Magistrate, in Malindi CMCC No. E131 of 2024. The underlying proceedings before the Trial Court were garnishee proceedings instituted by the 1st Respondent.
2. The Appellant was the Garnishee before the Trial Court. The 1st Respondent was the Plaintiff and Decree-Holder. The 2nd Respondent was the Defendant and Judgment-Debtor.
Background Facts
3. The genesis of the dispute is a judgment entered on 23rd September, 2024 in favour of the 1st Respondent against the 2nd Respondent for the sum of Kshs. 916,022/=. Costs were certified at Kshs. 1,000/=, crystallising the initial decretal sum at Kshs. 917,022/=. The 2nd Respondent defaulted on payment.
4. The decree remained unsatisfied. The 1st Respondent initiated garnishee proceedings by a Notice of Motion dated 10th February, 2025. She sought to attach funds held by the Appellant in account numbers 1112522867, 1208962558, and 1305515595 belonging to the 2nd Respondent. On 13th February, 2025, the Trial Court issued a Garnishee Order Nisi and scheduled the application for inter partes hearing.
5. The Appellant opposed the application. It filed a Replying Affidavit sworn on 20th February, 2025 by Christine Muturi, its Manager for Service Quality and Compliance. She deposed that the 2nd Respondent's accounts were restricted due to pre-existing court orders. She asserted that the accounts lacked sufficient funds to satisfy the decretal sum. She prayed that the Appellant be discharged from the garnishee proceedings.
6. The 1st Respondent filed a Further Affidavit sworn on 28th February, 2025 by Geoffrey Kilonzo, Advocate. He contended that the Appellant's averments were made in bad faith. He demonstrated that in prior suits—namely Kilifi CMCC No. E504 of 2022, Malindi CMCC No. E252 of 2023, Malindi CMCC No. E234 of 2023, and Malindi CMCC No. E212 of 2023—the Appellant had similarly sworn affidavits alleging lack of funds, yet subsequently settled the garnishee orders absolute from those very accounts.
7. The Trial Court heard the application by way of written submissions. In its Ruling delivered on 28th April, 2025, the Trial Court dismissed the Appellant's objection and made the Garnishee Order Nisi absolute. The Trial Court found that the Appellant held unutilized funds belonging to the 2nd Respondent and had failed to supply particulars of the alleged court orders locking those funds.
8. Aggrieved by that decision, the Appellant lodged its Memorandum of Appeal dated 6th May, 2025.
9. In the Memorandum of Appeal, the Appellant sets out six grounds of appeal 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.917,022 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. 917,022 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, she found that in her 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.917,022 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.917,022 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.
10. The Appellant seeks the following reliefs in this Appeal:
i) This appeal be allowed.
ii) The Garnishee Order Absolute issued by Hon. Usui, Chief Magistrate, on 28th April 2025 in the original MALINDI CMCC NO. E131 OF 2024, be set aside.
iii) The Appellant/Garnishee be discharged from the garnishee proceedings.
iv) The costs of this appeal be awarded to the Appellant.
11. By a Supplementary Record of Appeal filed on 19th November, 2025, the 1st Respondent introduced critical events occurring subsequent to the Trial Court’s ruling.
12. First, the 1st Respondent exhibited a Notice of Withdrawal dated 25th May, 2025 (served on 29th May, 2025), formally withdrawing the underlying Garnishee application dated 10th February, 2025 with no orders as to costs.
13. Second, the 1st Respondent produced a demand letter dated 4th September, 2025 received by the Appellant's counsel on 5th September, 2025. That letter confirms that the full decretal sum amounting to Kshs. 1,067,022/=, inclusive of accrued interest and costs in Malindi CMCC No. E131 of 2024, was fully settled by direct bank transfer. The letter requested the Appellant to withdraw this appeal to avert waste of precious judicial time.
14. In its written submissions dated 19th September, 2025, the Appellant argued that the Trial Court erred in compelling it to settle a debt beyond the available credit balance of the judgment debtor. The Appellant maintained that the burden of proving availability of funds rested on the Decree-Holder. In support of its position, the Appellant relied on Equity Bank Limited v Francis O G Matete & another [2022] KEHC 2428 (KLR) and Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co. Ltd; Co-operative Bank of Kenya (Garnishee/Applicant) [2020] eKLR. The Appellant made no substantive rebuttal to the settlement of the decretal debt.
15. In her written submissions dated 19th November, 2025, the 1st Respondent submitted that the appeal has been overtaken by events and is moot. She pointed out that the underlying application had been withdrawn and the judgment debt paid in full. She cited Institute for Social Accountability & another v National Assembly & 3 others [2022] KESC 39 (KLR) and Bora Capital Limited v Jane Njeri Munyi [2018] eKLR. On the substantive merits, she submitted that the Trial Court exercised its discretion properly. She relied on Diamond Trust Bank Kenya Limited v Invesco Assurance Company Limited & another [2020] KEHC 2149 (KLR), International Air Transport Association (IATA) & another v Akarim Agencies Company Limited & 2 others; Equity Bank Limited (Garnishee) [2021] KEHC 13252 (KLR), and Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co. Ltd [2020] eKLR.
Issues for Determination
16. Having reviewed the record of appeal, the supplementary record of appeal, the rival submissions, and the applicable law, this Court frames two issues for determination as follows:
(i) Whether this appeal is moot.
(ii) Whether the Trial Court erred in issuing the Garnishee Order Absolute.
Analysis
17. As this is a first appeal, this Court is bound by well-established principles. It must re-evaluate, re-appraise, and re-analyse the entire evidence on record to arrive at its own independent conclusions of fact and law. In Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123, the Court of Appeal for East Africa restated the duty of a first Appellate Court as follows:
"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 this appeal is moot.
18. On the first issue, the doctrine of mootness dictates that Courts of law exist to resolve live, active disputes affecting legal rights. Courts must decline to expend scarce judicial time determining academic, theoretical, or abstract questions. When subsequent factual developments eliminate the substratum of a suit, the controversy ceases to exist.
19. The jurisprudence of the Superior Courts on mootness is clear and consistent. In Okoiti & 2 others v Attorney General & 7 others [2020] KECA 589 (KLR), the Court of Appeal stated:
"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.'"
The Supreme Court affirmed this principle in Institute for Social Accountability & another v National Assembly & 3 others [2022] KESC 39 (KLR), holding:
"...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 a decision of a court will have no such practical effect on the rights of the parties, a court will decline to decide on the case. Accordingly, there has to be a live controversy between the parties at all stages of the case when a court is rendering its decision. 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."
20. Applying this settled jurisprudence to the present appeal, the finding is inevitable. The record confirms that the underlying Garnishee application dated 10th February, 2025 was formally withdrawn in the subordinate Court on 25th May, 2025. More critically, the letter dated 4th September, 2025 demonstrates that the entire decretal sum of Kshs. 1,067,022/= was paid and received. Under Order 23 Rule 8 of the Civil Procedure Rules, payment made by a garnishee under an order absolute constitutes a valid discharge of liability. The judgment debt has been satisfied in full. The substratum of the appeal has collapsed. There is no live controversy left between the parties. The appeal is entirely moot.
(ii) Whether the Trial Court erred in issuing the Garnishee Order Absolute.
21. Having found that the appeal is moot, the second issue regarding the merits of the Garnishee Order Absolute is technically spent. However, for completeness of record, the Court will address the Trial Court's exercise of discretion.
22. Garnishee proceedings are governed by Order 23 of the Civil Procedure Rules. While an order absolute should not issue where a garnishee genuinely holds no funds, the burden shifts to the garnishee once a decree-holder establishes the existence of bank accounts. In International Air Transport Association (IATA) & another v Akarim Agencies Company Limited & 2 others; Equity Bank Limited (Garnishee) [2021] KEHC 13252 (KLR), Majanja J. underscored this obligation:
"...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."
23. The legal burden of proof lies upon the party asserting a fact, as reiterated by the Court of Appeal in National Bank of Kenya Limited v Ndungu Njau [1997] KECA 389 (KLR). This is also clearly borne out by Section 107 of the Evidence Act. Here, the Appellant claimed that the 2nd Respondent's funds were encumbered and locked by Court orders. Yet, the Appellant failed to attach the said Court orders. It merely appended internal system printouts. An internal bank statement cannot substitute a lawful Court order. Furthermore, the uncontroverted evidence in the 1st Respondent's Further Affidavit exposed an established pattern where the Appellant claimed lack of funds, only to satisfy decrees from the very same accounts. The Trial Court correctly found the Appellant's objection evasive and unproven. There is no basis to disturb the Trial Court's discretion.
24. On the question of costs, Section 27 of the Civil Procedure Act provides that costs follow the event. The Appellant was expressly notified by the 1st Respondent's letter of 4th September, 2025 that the debt was fully settled. It was requested to withdraw the appeal. The Appellant stubbornly persisted with this litigation, forcing the 1st Respondent to incur unnecessary legal costs in defending a moot proceeding. The Appellant ought to bear the costs.
Determination
25. In conclusion, the Court finds this appeal devoid of merit, and makes the following orders:
(a) The Appeal is overtaken by events and is rendered moot. The decretal sum having been paid in full; it is HEREBY dismissed in its entirety.
(b) The Appellant shall pay the costs of this appeal which are awarded to the 1st Respondent.
26. 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.
2. The Appellant was the Garnishee before the Trial Court. The 1st Respondent was the Plaintiff and Decree-Holder. The 2nd Respondent was the Defendant and Judgment-Debtor.
Background Facts
3. The genesis of the dispute is a judgment entered on 23rd September, 2024 in favour of the 1st Respondent against the 2nd Respondent for the sum of Kshs. 916,022/=. Costs were certified at Kshs. 1,000/=, crystallising the initial decretal sum at Kshs. 917,022/=. The 2nd Respondent defaulted on payment.
4. The decree remained unsatisfied. The 1st Respondent initiated garnishee proceedings by a Notice of Motion dated 10th February, 2025. She sought to attach funds held by the Appellant in account numbers 1112522867, 1208962558, and 1305515595 belonging to the 2nd Respondent. On 13th February, 2025, the Trial Court issued a Garnishee Order Nisi and scheduled the application for inter partes hearing.
5. The Appellant opposed the application. It filed a Replying Affidavit sworn on 20th February, 2025 by Christine Muturi, its Manager for Service Quality and Compliance. She deposed that the 2nd Respondent's accounts were restricted due to pre-existing court orders. She asserted that the accounts lacked sufficient funds to satisfy the decretal sum. She prayed that the Appellant be discharged from the garnishee proceedings.
6. The 1st Respondent filed a Further Affidavit sworn on 28th February, 2025 by Geoffrey Kilonzo, Advocate. He contended that the Appellant's averments were made in bad faith. He demonstrated that in prior suits—namely Kilifi CMCC No. E504 of 2022, Malindi CMCC No. E252 of 2023, Malindi CMCC No. E234 of 2023, and Malindi CMCC No. E212 of 2023—the Appellant had similarly sworn affidavits alleging lack of funds, yet subsequently settled the garnishee orders absolute from those very accounts.
7. The Trial Court heard the application by way of written submissions. In its Ruling delivered on 28th April, 2025, the Trial Court dismissed the Appellant's objection and made the Garnishee Order Nisi absolute. The Trial Court found that the Appellant held unutilized funds belonging to the 2nd Respondent and had failed to supply particulars of the alleged court orders locking those funds.
8. Aggrieved by that decision, the Appellant lodged its Memorandum of Appeal dated 6th May, 2025.
9. In the Memorandum of Appeal, the Appellant sets out six grounds of appeal 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.917,022 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. 917,022 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, she found that in her 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.917,022 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.917,022 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.
10. The Appellant seeks the following reliefs in this Appeal:
i) This appeal be allowed.
ii) The Garnishee Order Absolute issued by Hon. Usui, Chief Magistrate, on 28th April 2025 in the original MALINDI CMCC NO. E131 OF 2024, be set aside.
iii) The Appellant/Garnishee be discharged from the garnishee proceedings.
iv) The costs of this appeal be awarded to the Appellant.
11. By a Supplementary Record of Appeal filed on 19th November, 2025, the 1st Respondent introduced critical events occurring subsequent to the Trial Court’s ruling.
12. First, the 1st Respondent exhibited a Notice of Withdrawal dated 25th May, 2025 (served on 29th May, 2025), formally withdrawing the underlying Garnishee application dated 10th February, 2025 with no orders as to costs.
13. Second, the 1st Respondent produced a demand letter dated 4th September, 2025 received by the Appellant's counsel on 5th September, 2025. That letter confirms that the full decretal sum amounting to Kshs. 1,067,022/=, inclusive of accrued interest and costs in Malindi CMCC No. E131 of 2024, was fully settled by direct bank transfer. The letter requested the Appellant to withdraw this appeal to avert waste of precious judicial time.
14. In its written submissions dated 19th September, 2025, the Appellant argued that the Trial Court erred in compelling it to settle a debt beyond the available credit balance of the judgment debtor. The Appellant maintained that the burden of proving availability of funds rested on the Decree-Holder. In support of its position, the Appellant relied on Equity Bank Limited v Francis O G Matete & another [2022] KEHC 2428 (KLR) and Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co. Ltd; Co-operative Bank of Kenya (Garnishee/Applicant) [2020] eKLR. The Appellant made no substantive rebuttal to the settlement of the decretal debt.
15. In her written submissions dated 19th November, 2025, the 1st Respondent submitted that the appeal has been overtaken by events and is moot. She pointed out that the underlying application had been withdrawn and the judgment debt paid in full. She cited Institute for Social Accountability & another v National Assembly & 3 others [2022] KESC 39 (KLR) and Bora Capital Limited v Jane Njeri Munyi [2018] eKLR. On the substantive merits, she submitted that the Trial Court exercised its discretion properly. She relied on Diamond Trust Bank Kenya Limited v Invesco Assurance Company Limited & another [2020] KEHC 2149 (KLR), International Air Transport Association (IATA) & another v Akarim Agencies Company Limited & 2 others; Equity Bank Limited (Garnishee) [2021] KEHC 13252 (KLR), and Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co. Ltd [2020] eKLR.
Issues for Determination
16. Having reviewed the record of appeal, the supplementary record of appeal, the rival submissions, and the applicable law, this Court frames two issues for determination as follows:
(i) Whether this appeal is moot.
(ii) Whether the Trial Court erred in issuing the Garnishee Order Absolute.
Analysis
17. As this is a first appeal, this Court is bound by well-established principles. It must re-evaluate, re-appraise, and re-analyse the entire evidence on record to arrive at its own independent conclusions of fact and law. In Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123, the Court of Appeal for East Africa restated the duty of a first Appellate Court as follows:
"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 this appeal is moot.
18. On the first issue, the doctrine of mootness dictates that Courts of law exist to resolve live, active disputes affecting legal rights. Courts must decline to expend scarce judicial time determining academic, theoretical, or abstract questions. When subsequent factual developments eliminate the substratum of a suit, the controversy ceases to exist.
19. The jurisprudence of the Superior Courts on mootness is clear and consistent. In Okoiti & 2 others v Attorney General & 7 others [2020] KECA 589 (KLR), the Court of Appeal stated:
"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.'"
The Supreme Court affirmed this principle in Institute for Social Accountability & another v National Assembly & 3 others [2022] KESC 39 (KLR), holding:
"...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 a decision of a court will have no such practical effect on the rights of the parties, a court will decline to decide on the case. Accordingly, there has to be a live controversy between the parties at all stages of the case when a court is rendering its decision. 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."
20. Applying this settled jurisprudence to the present appeal, the finding is inevitable. The record confirms that the underlying Garnishee application dated 10th February, 2025 was formally withdrawn in the subordinate Court on 25th May, 2025. More critically, the letter dated 4th September, 2025 demonstrates that the entire decretal sum of Kshs. 1,067,022/= was paid and received. Under Order 23 Rule 8 of the Civil Procedure Rules, payment made by a garnishee under an order absolute constitutes a valid discharge of liability. The judgment debt has been satisfied in full. The substratum of the appeal has collapsed. There is no live controversy left between the parties. The appeal is entirely moot.
(ii) Whether the Trial Court erred in issuing the Garnishee Order Absolute.
21. Having found that the appeal is moot, the second issue regarding the merits of the Garnishee Order Absolute is technically spent. However, for completeness of record, the Court will address the Trial Court's exercise of discretion.
22. Garnishee proceedings are governed by Order 23 of the Civil Procedure Rules. While an order absolute should not issue where a garnishee genuinely holds no funds, the burden shifts to the garnishee once a decree-holder establishes the existence of bank accounts. In International Air Transport Association (IATA) & another v Akarim Agencies Company Limited & 2 others; Equity Bank Limited (Garnishee) [2021] KEHC 13252 (KLR), Majanja J. underscored this obligation:
"...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."
23. The legal burden of proof lies upon the party asserting a fact, as reiterated by the Court of Appeal in National Bank of Kenya Limited v Ndungu Njau [1997] KECA 389 (KLR). This is also clearly borne out by Section 107 of the Evidence Act. Here, the Appellant claimed that the 2nd Respondent's funds were encumbered and locked by Court orders. Yet, the Appellant failed to attach the said Court orders. It merely appended internal system printouts. An internal bank statement cannot substitute a lawful Court order. Furthermore, the uncontroverted evidence in the 1st Respondent's Further Affidavit exposed an established pattern where the Appellant claimed lack of funds, only to satisfy decrees from the very same accounts. The Trial Court correctly found the Appellant's objection evasive and unproven. There is no basis to disturb the Trial Court's discretion.
24. On the question of costs, Section 27 of the Civil Procedure Act provides that costs follow the event. The Appellant was expressly notified by the 1st Respondent's letter of 4th September, 2025 that the debt was fully settled. It was requested to withdraw the appeal. The Appellant stubbornly persisted with this litigation, forcing the 1st Respondent to incur unnecessary legal costs in defending a moot proceeding. The Appellant ought to bear the costs.
Determination
25. In conclusion, the Court finds this appeal devoid of merit, and makes the following orders:
(a) The Appeal is overtaken by events and is rendered moot. The decretal sum having been paid in full; it is HEREBY dismissed in its entirety.
(b) The Appellant shall pay the costs of this appeal which are awarded to the 1st Respondent.
26. 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.