REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
HIGH COURT CIVIL APPEAL NO. E038 OF 2025
(Coram: Andayi W. F., J.)
KCB BANK KENYA LIMITED…………………………...GARNISHEE/APPELLANT
AND
SALIM MKALA MWANDOE………...........1 ST RESPONDENT/DECREE HOLDER
AFRICA MERCHANT ASSURANCE
CO. LTD......................................................2 ND RESPONDENT/JUDGMENT DEBTOR
(Being an appeal from the Ruling and Order of Hon. E. K. Usui, Chief Magistrate, delivered on 28 th April 2025 in Malindi CMCC No. E391 of 2023)
JUDGMENT
1. This judgment equally applies to Malindi High Court Civil Appeal Nos. E040 of 2025, E041 of 2025, E076 of 2025, E077 of 2025, E078 of 2025 and E081 the Africa Merchant Insiurabce Company Ltd filed and of 2025 and E079 of 2025, E080 of 2025 and E082 of 2025 the Monarch Insurance Co. Ltd filed where the Garnishee /appellant is KCB Bank Kenya Limited and the 2 nd respondent is Africa Merchant Assurance Co. Ltd.
2. Each of the cases arose under the same circumstances as the present one., where a declaratory judgment was entered against the 2 nd respondent/judgment debtor, Africa Merchant Assurance Company Ltd compelling it to satisfy a decretal sum arising from a primary suit filed by the Decree Holder against the Judgment debtor’s insured.
3. In each of the cases, upon obtaining the declaratory judgment, the decree holder filed garnishee proceedings before the trial court seeking a garnishee order nisi against the Garnishee/appellant and the respondent which was subsequently made absolute attaching money held in the account of the Judgment Debtor with the Garnishee/appellant.
4. In the present case the decretal sum was KShs 459,987/= plus interest at the rate of 12% per annum being held to the credit of Africa Merchant Assurance Co. Ltd, the judgment debtor/2 nd respondent herein in the account name of Africa Merchant Assurance Co. Ltd account No. 111....2867, 120....558 and 130....595 and/or any other account held by the Garnishee at the Nextgen Mall Branch, Nairobi.
5. The Garnishee/appellant herein opposed the application. It conceded that the Judgment debtor operated account Nos. 131....231, 111....2867, 120....558 and 130....595 with it and stated that the funds in the accounts as at 18 th February 2025 were locked as a result of attachment and therefore restricted due to pre-existing court orders arising from various court cases as were shown in the various statements of account that were exhibited in the replying affidavit. That once the Garnishee complied with the Garnishee Order nisi in the various court cases the accounts would be rendered to be of insufficient funds to settle the decree the subject of the present appeal. Further that the Garnishee had paid a sum of KShs 669,721.40 of its own funds in satisfaction of a decree against the Garnishee in Malindi CMCC No. E252 of 2023 Oliver Sulubu Kahindi v. Amaco and KCB which amount was then claimed from the Judgment Debtor’s Account Nos 111....867 and 131....231.
6. The Garnishee therefore deposed that it was unable to make payment of the decretal sum of KShs 459,987/= as sought by the Decree Holder and prayed to be discharged from the Garnishee proceedings and to be paid costs of KShs 30,000/= to be borne by the Judgment Debtor.
7. The learned trial magistrate reserved her ruling for 28 th April 2025. In the ruling, she allowed the application to make the garnishee nisi , absolute finding that although the Garnishee had deposed that the money in the accounts was locked by way of other court orders, the particulars had not been supplied. The trial court was therefore satisfied that the Garnishee was holding the Judgment Debtor’s money in the stated accounts and the same had not yet been utilized. The trial court made the decree nisi absolute.
8. In fact, that finding was not correct because the case numbers against which the various Garnishee orders nisi had been issued were indicated in the statements of account provided by the Garnishee in its reply to the application.
9. The appellant was dissatisfied with those orders and has appealed to this court through the memorandum dated 8 th November 2023 on five grounds. The main grounds of appeal are basically three, that the trial court was in error in ordering the Garnishee to satisfy the decretal sum for the JD when the Garnishee had placed on record evidence by way of affidavit, which had not been challenged, to show that the JD’s account had insufficient funds to satisfy the decree by reason of the fact that there were prior Garnishee orders nisi attaching the funds in the accounts which upon the same being made absolute and the Garnishee satisfying them, it would not be possible to satisfy the decretal sum in this case KShs 459,987/= plus costs.
10. Secondly, that the learned trial magistrate had misapprehended the provisions of Order 23 Rules 4 and 5 of the Civil Procedure Rules relating the garnishee proceedings by failing to proceed by way of cross-examination of the deponent of the Garnishee’s replying affidavit and yet finding that the bank statement supplied by the Garnishee did not provide sufficient explanation.
11. Third that the learned trial magistrate shifted the burden of proof from the Decree Holder to the Garnishee.
12. The garnishee therefore prays that the appeal be allowed, the Garnishee Order absolute issued on 28 th April 2025 in Malindi CMCC No. E391 of 2023 be set aside and the appellant/Garnishee be discharged from the garnishee proceedings and costs of the proceedings be awarded to the appellant.
13. The appeal was disposed of by way of written submissions filed by the appellant and the 1 st respondent/DH. The 2 nd respondent/JD, Africa Merchant Assurance Co. Ltd did not participate in the proceedings.
14. The appellant raised one issue for determination, that is, whether a Garnishee should be compelled to pay debts of the Judgment-Debtor. beyond funds that it holds to the Judgment/Debtor's credit.
15. The appellant answered the question in the negative, referring to Order 23 of the Civil Procedure Rules, stating that the Garnishee having showed that it had insufficient funds, it ought to have been discharged as it was unable to settle the decretal sum.
16. The appellant relied on two cases. In Equity Bank Limited v Francis O G Matete & another [2022] KEHC 2428 (KLR) where the High Court stated as follows:
“lf the garnishee was not holding money to the order of the Judgment Debtor, the court ought not to issue a garnishee order absolute. As a garnishee is only under an obligation to pay the Decree Holder out of funds it is holding for the Judgment Debtor, I hold the considered view that if the Respondent were determined d to proceed with execution. against the assets of the garnishee, the garnishee is Iikely to suffer substantial loss.”
17. In Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co; Co-operative Bank of Kenya (Garnishee) [2020] KEHC 8931 (KLR) the court observed that:
“Garnishee proceedings are in their very nature proceedings whereby the garnishee is required to prove whether or not the garnishee is indebted to the judgment-debtor. Ordinarily, the, judgment creditor only makes allegations of the garnishee’s indebtedness based on sound evidence whereby the burden of proof shifts to the garnishee to prove otherwise. ln this regard, to discharge that burden, the garnishee has to produce evidence, sufficient, and convincing evidence that the funds in its hands or the debt is not due or payable.”
18. Learned counsel for the appellant submits that it is not the duty of the garnishee to pay the JD’s debts but only to confirm the status of the bank account and whether moneys or funds attached belong to the JD or not. That where there are insufficient funds in the count, such orders are to be made limited to the available funds held to the credit of the JD in this case the 2 nd respondent.
19. I agree with that submission to the extent that a garnishee’s own property cannot be subjected to adverse action to realize a debt due by the judgment debtor. Garnishee proceedings aim solely to enable the decree holder to reach a debt due to the judgment debtor.
20. proceedings aim solely to enable the decree holder to reach a debt due to the judgment debtor.
21. The 1 st respondent submits in response on two issues. First that the appeal is moot because the Garnishee application dated 11 th February 2025 which gave rise to the order that has been appealed from was withdrawn by the DH through a notice of withdrawal dated 28 th May 2025 filed before the trial court. He has cited the case of Bora Capital Limited v Jane Njeri Munyi [2018] KEHC 6303 (KLR) where the court held that:
“There is one issue which the parties have argued in their submissions. That is whether or not this appeal has been overtaken by events? It is the submission of the respondent that the decretal sum of Ksh. 575, 597/= plus interest, the subject matter of the appeal has been settled in full therefore this appeal serves no useful purpose since it has been overtaken by events. The appellant is of the submission that the merits of the appeal still remains despite the fact that the decree has been fully settled. The application which was dismissed and which gave rise to this appeal is the motion dated 29th April 2013 whereof the appellant sought for an order for stay and for leave to liquidate the decretal sum by monthly instalments.
It has now been pointed out that the decree has been settled in full. If this appeal was to be allowed and the orders sought in the aforesaid motion are granted, then it means that the appellant will be allowed to liquidate the debt by instalments. But the debt has been paid in full therefore there is nothing to liquidate by instalments. With respect, I agree with the submissions of the respondent that in the circumstances of this case that the appeal has been overtaken by events.”
22. I have looked at the said notice of withdrawal filed herein by way of the supplementary record of appeal dated 19 th November 2025. I find that the purported withdrawal was otiose because it was coming after the ruling in the application had been delivered.
23. The second reason in opposing the appeal is that, learned counsel for the 1 st respondent submits that the Garnishee failed to provide strong, sufficient or convincing evidence that the debt was not payable but chose to lie and mislead the court in cahoots with the 2 nd respondent/JD at the expense of the DH. It is the respondent’s position that the deposition by Christine Muturi of the Garnishee/appellant that the attached bank accounts had no funds to settle the various Garnishee orders nisi yet proceeded to settle the Garnishee orders absolute was a clear indication that the accounts had money.
24. Further that the Garnishee had similarly opposed settlement of other decrees nisi through affidavits sworn by the same Christine Muturi, alleging that the attached JD’s accounts had no funds to settle the various garnishee orders nisi in the cases listed below but turned around and settled the arising decrees absolute which could not be possible if there were no funds in the said accounts:
i. Kilifi CMCC E504 OF 2022(PAUL MUCHIRI V AMACO & KCB BANK) – Christine Muturi swore an affidavit alleging that the attached accounts had no funds to pay the garnishee order nisi. The Garnishee proceeded to pay the garnishee order absolute of Kshs. 1,525,214/= from the attached accounts.
ii. Malindi CMCC E252 of 2023(OLIVER SULUBU V AMACO &KCB)- Christine Muturi swore an affidavit alleging that the attached accounts had no funds to pay the garnishee order nisi. The Garnishee proceeded to pay the garnishee order absolute of Kshs. 1,473,068/=.
iii. Malindi CMCC E234 of 2023(MWAZANI KUDZA V AMACO &KCB)- Christine Muturi swore an Affidavit alleging that the attached accounts have no funds pay the garnishee order nisi. The Garnishee proceeded to pay the garnishee order absolute of Kshs. 606,473/= .
iv. Malindi CMCC E212 of 2023(HUSSEIN IBRAHIM V AMACO &KCB)- Christine Muturi swore an Affidavit alleging that the attached accounts have no funds pay the garnishee order nisi. The Garnishee proceeded to pay the garnishee order absolute of Kshs. 259,519/=.
25. Learned counsel submits that the amounts held in the accounts and the bank statements are modified, kept fluctuating and are concealed at the convenience of the garnishee and the JD, a clear indication that the JD and the garnishee were working in cahoots to deny the DH the fruits of his judgement. He cited the case of Diamond Trust Bank Kenya Limited v Invesco Assurance Company Limited & another [2020] KEHC 2149 (KLR) where the High Court held that:
“I find that the trial Magistrate indeed exercised his discretion properly and he was satisfied that the reference number 0150804900 evidenced on the Remittance advice issued by the Appellant was the Judgment debtor’s account number as confirmed via the Affidavit of the Judgment Debtor’s Legal Manager, and that the Appellant was withholding the said information and therefore the concealment will be presumed to mean that the said account held sufficient fund to cover the sums claimed.
From the above passages it is evident and clear that the Learned Trial Magistrate gave clear reasons as to why he came to the conclusion that the Appellant held an account with funds in favour of the judgment debtor. Once that affidavit and its evidence was availed, it behooved the Appellant to seek to respond to the issue of the Remittance Advice and the Affidavit of Paul Gichuhi sworn on 26/9/2019. That was never done.”
26. According to the respondent it was not enough for the Garnishee to provide accounts and claim that they were locked. That therefore, the Garnishee failed to explain to the trial court how the funds in the various accounts are locked.
27. I have considered the grounds of appeal, the record of appeal, the submissions by learned counsels and the authorities provided.
28. This being a first appeal, the duty of this court is to consider the evidence tendered before the trial court, re-evaluate and re-analyze the same and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
29. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial court’s findings of fact as was stated in the case of Peters v Sunday Post Ltd. (1958) EA 424 , that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
30. This court will however interfere where the trial court’s finding of fact is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did as was held in the case of Mwangi & another v Wambugu [1984] KECA 13 (KLR) by the Court of Appeal, Hancox, JA that:
“A Court of Appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown, demonstrably, to have acted on wrong principles in reaching the findings he did.”
31. The appellant’s case herein is that the trial court wrongfully issued a decree absolute against it in satisfaction of a decree for a sum of money whose value it did not have to the credit of the JD. As submitted by the appellant, there is no doubt that the garnishee can only be made to satisfy the decree against the JD that is not beyond the funds available and held to the credit of the JD. The law however places the burden of proof upon the garnishee to discharge and the garnishee has to produce strong, sufficient, and convincing evidence that the funds in its hands or the debt is not due or payable.
32. It is an undisputed fact that the appellants herein satisfied the decree absolute by paying the decretal sum. However, that is no bar to this appeal because under Order 23, Rule 8, it is indicated, by implication, that an order absolute may be set aside or reversed. The said order provides that:
“Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the judgment-debtor to the amount paid or levied, although such proceeding or order may be set aside or the decree reversed.”
33. Therefore, the submission by learned counsel that the decretal sum having been satisfied, this appeal is rendered moot, is not correct.
34. The issue herein is whether the learned magistrate made an error when she made the order nisi absolute thereby requiring the Garnishee to satisfy the decretal sum. It is the appellant’s position that in doing so the learned magistrate failed to consider the evidence tendered to show that there were insufficient funds to satisfy the decretal sum.
35. Learned counsel for the respondent submits that in fact, in the replying affidavit, the Garnishee’s deponent Christine Muturi lied that there were no funds when there were funds in the accountthat were later applied to settle the decretal sum.
36. In the case cited by learned counsels for both parties of Lesinko Njoroge & Gathogo Advocates (supra) the Court held that the garnishee is required to prove whether or not the garnishee is indebted to the judgment debtor and that 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 .
37. The Garnishee/appellant submits that that the garnishee’s liability is limited to the funds in its custody at the time of the order nisi, and no more. Further that the question of availability of funds held by the Garnishee is one of fact and not through speculation or conjectures. For that reason, the trial court ought to have proceeded by way of cross-examination of the deponent of the Garnishee’s affidavit and not relied on the unsubstantiated allegations by the DH. Indeed in the cases of Gitutho Architects and Planners Limited v Kenya Utali College; Co-operative Bank of Kenya Limited & another (Garnishee) [2024] KEHC 11558 (KLR) and Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Company Limited; Co-operative Bank of Kenya(Garnishee) [2020] KEHC 5274 (KLR) the courts held that once the Garnishee discloses the funds in its hands, attachment can only be made to that extent.
38. In this case, the Garnishee’s position was that the JD’s debts in its hands were attached by other decrees nisi . The Garnishee provided the bank statements for the JD to show that indeed the funds were attached. The trial court, in exercising its discretion in the matter, was not satisfied that this was sufficient evidence that the appellant did not have sufficient funds on account of the JD and ordered execution to proceed by way of issuing a decree absolute.
39. What I find intriguing and which question the Garnishee has not convincingly answered is, where did it get the funds to satisfy the decrees absolute. Learned counsel sought to state on behalf of the appellant that it had to get funds from its own property to avoid execution against it. Further, in the replying affidavit to the Garnishee application by the appellant, Christine Muturi deposed that the Garnishee had paid a sum of KShs 669,721.40 of its own funds in satisfaction of a decree against the Garnishee in Malindi CMCC No. E252 of 2023 Oliver Sulubu Kahindi v. Amaco and KCB which amount was then claimed from the Judgment Debtor’s Account Nos 111....867 and 131....231.
40. However, the appellant never sought leave in this appeal to file new evidence that would have come to it only after the decree absolute was issued and payment made, to produce evidence of such an account of its own and not that of the JD, from which it obtained the funds that it used to satisfy the decree absolute. Such an application would have been filed at the time that the appellant filed the application for stay of execution pending appeal.
41. I have looked at that application herein dated 6 th May 2025 and I have found no such prayer. On what basis can the court be convinced other than as submitted by counsel for the respondent that in fact there were funds in the JD’s account to satisfy the decree against the JD and so the affidavit by Christie Muturi did not satisfy the threshold required under Order 23 that the Garnishee has to provide reasons that are strong, sufficient and convincing or is it because after all, it knew that it would have the funds in those accounts to satisfy the other decrees nisi pending?
42. Indeed, as submitted by learned counsel, other than providing the case numbers which were only in the account statements, the orders nisi supposedly issued by the various courts, were never provided to the trial court to enable the court confirm that indeed such order existed. In that case, I am satisfied and the trial court was correct to find that the statements of account alone did not satisfy the high threshold placed upon the Garnishee to provide reasons that are strong, sufficient and convincing.
43. On the ground that the trial court failed to abide by Order 23 Rules 4 and 5 to call for the cross-examination of the appellant’s witness who had sworn the replying affidavit, I have seen in the proceedings that when the matter came up for hearing before the trial court, the appellant did not request for a hearing by way of cross-examination of its witness. It conceded to the proceeding by way of written submissions and that was the basis upon which the court made its decision.
44. The relevant Rules under Order 23 are Rules 5 and 6 which provide that:
Rule 5. If the garnishee disputes his liability, the court, instead of making an order that execution be levied, may order that any issue or question necessary for determining his indebtedness be tried and determined in the manner in which an issue or question in a suit is tried or determined.
Rule 6. Whenever in any proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the court may order such third person to appear, and state the nature and particulars of his claim upon such debt.
45. It is apparent from the wording of the Rules that the trial court has the discretion to have the matter tried as a suit or to call the third party to appear and state its case. Therefore, where none of the parties has applied that the proceedings be conducted that way, the court cannot be faulted for not proceeding by way of trial.
46. Consequently, I find that the trial court correctly considered the facts before it and came to the correct conclusion that the appellant had failed to offer strong, sufficient and convincing reasons to discharge the evidential burden placed upon it.
47. In the result I find that the appeal has no merit and the same is dismissed.
48. The appellant will pay the 1 st respondent’s costs of the appeal.
49. Orders accordingly.
Judgment delivered , dated and signed on the Virtual Platform Microsoft Teams this 22 nd day of May 2026
ANDAYI W.F.
JUDGE
In the presence of: -
Oile (Ms) for the Appellant/Garnishee
Nyabuto (Ms) for the 1 st Respondent.
N/A for the 2 nd Respondent/JD
Ummu - Court Assistant.
ANDAYI W.F.
JUDGE
HCCA E038 of 202514/GARNISHEE
IN THE HIGH COURT OF KENYA AT MALINDI
HIGH COURT CIVIL APPEAL NO. E038 OF 2025
(Coram: Andayi W. F., J.)
KCB BANK KENYA LIMITED…………………………...GARNISHEE/APPELLANT
AND
SALIM MKALA MWANDOE………...........1 ST RESPONDENT/DECREE HOLDER
AFRICA MERCHANT ASSURANCE
CO. LTD......................................................2 ND RESPONDENT/JUDGMENT DEBTOR
(Being an appeal from the Ruling and Order of Hon. E. K. Usui, Chief Magistrate, delivered on 28 th April 2025 in Malindi CMCC No. E391 of 2023)
JUDGMENT
1. This judgment equally applies to Malindi High Court Civil Appeal Nos. E040 of 2025, E041 of 2025, E076 of 2025, E077 of 2025, E078 of 2025 and E081 the Africa Merchant Insiurabce Company Ltd filed and of 2025 and E079 of 2025, E080 of 2025 and E082 of 2025 the Monarch Insurance Co. Ltd filed where the Garnishee /appellant is KCB Bank Kenya Limited and the 2 nd respondent is Africa Merchant Assurance Co. Ltd.
2. Each of the cases arose under the same circumstances as the present one., where a declaratory judgment was entered against the 2 nd respondent/judgment debtor, Africa Merchant Assurance Company Ltd compelling it to satisfy a decretal sum arising from a primary suit filed by the Decree Holder against the Judgment debtor’s insured.
3. In each of the cases, upon obtaining the declaratory judgment, the decree holder filed garnishee proceedings before the trial court seeking a garnishee order nisi against the Garnishee/appellant and the respondent which was subsequently made absolute attaching money held in the account of the Judgment Debtor with the Garnishee/appellant.
4. In the present case the decretal sum was KShs 459,987/= plus interest at the rate of 12% per annum being held to the credit of Africa Merchant Assurance Co. Ltd, the judgment debtor/2 nd respondent herein in the account name of Africa Merchant Assurance Co. Ltd account No. 111....2867, 120....558 and 130....595 and/or any other account held by the Garnishee at the Nextgen Mall Branch, Nairobi.
5. The Garnishee/appellant herein opposed the application. It conceded that the Judgment debtor operated account Nos. 131....231, 111....2867, 120....558 and 130....595 with it and stated that the funds in the accounts as at 18 th February 2025 were locked as a result of attachment and therefore restricted due to pre-existing court orders arising from various court cases as were shown in the various statements of account that were exhibited in the replying affidavit. That once the Garnishee complied with the Garnishee Order nisi in the various court cases the accounts would be rendered to be of insufficient funds to settle the decree the subject of the present appeal. Further that the Garnishee had paid a sum of KShs 669,721.40 of its own funds in satisfaction of a decree against the Garnishee in Malindi CMCC No. E252 of 2023 Oliver Sulubu Kahindi v. Amaco and KCB which amount was then claimed from the Judgment Debtor’s Account Nos 111....867 and 131....231.
6. The Garnishee therefore deposed that it was unable to make payment of the decretal sum of KShs 459,987/= as sought by the Decree Holder and prayed to be discharged from the Garnishee proceedings and to be paid costs of KShs 30,000/= to be borne by the Judgment Debtor.
7. The learned trial magistrate reserved her ruling for 28 th April 2025. In the ruling, she allowed the application to make the garnishee nisi , absolute finding that although the Garnishee had deposed that the money in the accounts was locked by way of other court orders, the particulars had not been supplied. The trial court was therefore satisfied that the Garnishee was holding the Judgment Debtor’s money in the stated accounts and the same had not yet been utilized. The trial court made the decree nisi absolute.
8. In fact, that finding was not correct because the case numbers against which the various Garnishee orders nisi had been issued were indicated in the statements of account provided by the Garnishee in its reply to the application.
9. The appellant was dissatisfied with those orders and has appealed to this court through the memorandum dated 8 th November 2023 on five grounds. The main grounds of appeal are basically three, that the trial court was in error in ordering the Garnishee to satisfy the decretal sum for the JD when the Garnishee had placed on record evidence by way of affidavit, which had not been challenged, to show that the JD’s account had insufficient funds to satisfy the decree by reason of the fact that there were prior Garnishee orders nisi attaching the funds in the accounts which upon the same being made absolute and the Garnishee satisfying them, it would not be possible to satisfy the decretal sum in this case KShs 459,987/= plus costs.
10. Secondly, that the learned trial magistrate had misapprehended the provisions of Order 23 Rules 4 and 5 of the Civil Procedure Rules relating the garnishee proceedings by failing to proceed by way of cross-examination of the deponent of the Garnishee’s replying affidavit and yet finding that the bank statement supplied by the Garnishee did not provide sufficient explanation.
11. Third that the learned trial magistrate shifted the burden of proof from the Decree Holder to the Garnishee.
12. The garnishee therefore prays that the appeal be allowed, the Garnishee Order absolute issued on 28 th April 2025 in Malindi CMCC No. E391 of 2023 be set aside and the appellant/Garnishee be discharged from the garnishee proceedings and costs of the proceedings be awarded to the appellant.
13. The appeal was disposed of by way of written submissions filed by the appellant and the 1 st respondent/DH. The 2 nd respondent/JD, Africa Merchant Assurance Co. Ltd did not participate in the proceedings.
14. The appellant raised one issue for determination, that is, whether a Garnishee should be compelled to pay debts of the Judgment-Debtor. beyond funds that it holds to the Judgment/Debtor's credit.
15. The appellant answered the question in the negative, referring to Order 23 of the Civil Procedure Rules, stating that the Garnishee having showed that it had insufficient funds, it ought to have been discharged as it was unable to settle the decretal sum.
16. The appellant relied on two cases. In Equity Bank Limited v Francis O G Matete & another [2022] KEHC 2428 (KLR) where the High Court stated as follows:
“lf the garnishee was not holding money to the order of the Judgment Debtor, the court ought not to issue a garnishee order absolute. As a garnishee is only under an obligation to pay the Decree Holder out of funds it is holding for the Judgment Debtor, I hold the considered view that if the Respondent were determined d to proceed with execution. against the assets of the garnishee, the garnishee is Iikely to suffer substantial loss.”
17. In Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co; Co-operative Bank of Kenya (Garnishee) [2020] KEHC 8931 (KLR) the court observed that:
“Garnishee proceedings are in their very nature proceedings whereby the garnishee is required to prove whether or not the garnishee is indebted to the judgment-debtor. Ordinarily, the, judgment creditor only makes allegations of the garnishee’s indebtedness based on sound evidence whereby the burden of proof shifts to the garnishee to prove otherwise. ln this regard, to discharge that burden, the garnishee has to produce evidence, sufficient, and convincing evidence that the funds in its hands or the debt is not due or payable.”
18. Learned counsel for the appellant submits that it is not the duty of the garnishee to pay the JD’s debts but only to confirm the status of the bank account and whether moneys or funds attached belong to the JD or not. That where there are insufficient funds in the count, such orders are to be made limited to the available funds held to the credit of the JD in this case the 2 nd respondent.
19. I agree with that submission to the extent that a garnishee’s own property cannot be subjected to adverse action to realize a debt due by the judgment debtor. Garnishee proceedings aim solely to enable the decree holder to reach a debt due to the judgment debtor.
20. proceedings aim solely to enable the decree holder to reach a debt due to the judgment debtor.
21. The 1 st respondent submits in response on two issues. First that the appeal is moot because the Garnishee application dated 11 th February 2025 which gave rise to the order that has been appealed from was withdrawn by the DH through a notice of withdrawal dated 28 th May 2025 filed before the trial court. He has cited the case of Bora Capital Limited v Jane Njeri Munyi [2018] KEHC 6303 (KLR) where the court held that:
“There is one issue which the parties have argued in their submissions. That is whether or not this appeal has been overtaken by events? It is the submission of the respondent that the decretal sum of Ksh. 575, 597/= plus interest, the subject matter of the appeal has been settled in full therefore this appeal serves no useful purpose since it has been overtaken by events. The appellant is of the submission that the merits of the appeal still remains despite the fact that the decree has been fully settled. The application which was dismissed and which gave rise to this appeal is the motion dated 29th April 2013 whereof the appellant sought for an order for stay and for leave to liquidate the decretal sum by monthly instalments.
It has now been pointed out that the decree has been settled in full. If this appeal was to be allowed and the orders sought in the aforesaid motion are granted, then it means that the appellant will be allowed to liquidate the debt by instalments. But the debt has been paid in full therefore there is nothing to liquidate by instalments. With respect, I agree with the submissions of the respondent that in the circumstances of this case that the appeal has been overtaken by events.”
22. I have looked at the said notice of withdrawal filed herein by way of the supplementary record of appeal dated 19 th November 2025. I find that the purported withdrawal was otiose because it was coming after the ruling in the application had been delivered.
23. The second reason in opposing the appeal is that, learned counsel for the 1 st respondent submits that the Garnishee failed to provide strong, sufficient or convincing evidence that the debt was not payable but chose to lie and mislead the court in cahoots with the 2 nd respondent/JD at the expense of the DH. It is the respondent’s position that the deposition by Christine Muturi of the Garnishee/appellant that the attached bank accounts had no funds to settle the various Garnishee orders nisi yet proceeded to settle the Garnishee orders absolute was a clear indication that the accounts had money.
24. Further that the Garnishee had similarly opposed settlement of other decrees nisi through affidavits sworn by the same Christine Muturi, alleging that the attached JD’s accounts had no funds to settle the various garnishee orders nisi in the cases listed below but turned around and settled the arising decrees absolute which could not be possible if there were no funds in the said accounts:
i. Kilifi CMCC E504 OF 2022(PAUL MUCHIRI V AMACO & KCB BANK) – Christine Muturi swore an affidavit alleging that the attached accounts had no funds to pay the garnishee order nisi. The Garnishee proceeded to pay the garnishee order absolute of Kshs. 1,525,214/= from the attached accounts.
ii. Malindi CMCC E252 of 2023(OLIVER SULUBU V AMACO &KCB)- Christine Muturi swore an affidavit alleging that the attached accounts had no funds to pay the garnishee order nisi. The Garnishee proceeded to pay the garnishee order absolute of Kshs. 1,473,068/=.
iii. Malindi CMCC E234 of 2023(MWAZANI KUDZA V AMACO &KCB)- Christine Muturi swore an Affidavit alleging that the attached accounts have no funds pay the garnishee order nisi. The Garnishee proceeded to pay the garnishee order absolute of Kshs. 606,473/= .
iv. Malindi CMCC E212 of 2023(HUSSEIN IBRAHIM V AMACO &KCB)- Christine Muturi swore an Affidavit alleging that the attached accounts have no funds pay the garnishee order nisi. The Garnishee proceeded to pay the garnishee order absolute of Kshs. 259,519/=.
25. Learned counsel submits that the amounts held in the accounts and the bank statements are modified, kept fluctuating and are concealed at the convenience of the garnishee and the JD, a clear indication that the JD and the garnishee were working in cahoots to deny the DH the fruits of his judgement. He cited the case of Diamond Trust Bank Kenya Limited v Invesco Assurance Company Limited & another [2020] KEHC 2149 (KLR) where the High Court held that:
“I find that the trial Magistrate indeed exercised his discretion properly and he was satisfied that the reference number 0150804900 evidenced on the Remittance advice issued by the Appellant was the Judgment debtor’s account number as confirmed via the Affidavit of the Judgment Debtor’s Legal Manager, and that the Appellant was withholding the said information and therefore the concealment will be presumed to mean that the said account held sufficient fund to cover the sums claimed.
From the above passages it is evident and clear that the Learned Trial Magistrate gave clear reasons as to why he came to the conclusion that the Appellant held an account with funds in favour of the judgment debtor. Once that affidavit and its evidence was availed, it behooved the Appellant to seek to respond to the issue of the Remittance Advice and the Affidavit of Paul Gichuhi sworn on 26/9/2019. That was never done.”
26. According to the respondent it was not enough for the Garnishee to provide accounts and claim that they were locked. That therefore, the Garnishee failed to explain to the trial court how the funds in the various accounts are locked.
27. I have considered the grounds of appeal, the record of appeal, the submissions by learned counsels and the authorities provided.
28. This being a first appeal, the duty of this court is to consider the evidence tendered before the trial court, re-evaluate and re-analyze the same and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
29. This court is aware that as a first appellate court it is not bound by the findings of fact made by the lower court and it is under a duty to re-evaluate such evidence and reach its own conclusions. The court should however be slow to differ with the trial court’s findings of fact as was stated in the case of Peters v Sunday Post Ltd. (1958) EA 424 , that:
“It is a strong thing for an appellate court to differ from the finding on a question of fact, of a Judge who tried the case and who has had the advantage of seeing and hearing the witness.”
30. This court will however interfere where the trial court’s finding of fact is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles in reaching the finding that he did as was held in the case of Mwangi & another v Wambugu [1984] KECA 13 (KLR) by the Court of Appeal, Hancox, JA that:
“A Court of Appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown, demonstrably, to have acted on wrong principles in reaching the findings he did.”
31. The appellant’s case herein is that the trial court wrongfully issued a decree absolute against it in satisfaction of a decree for a sum of money whose value it did not have to the credit of the JD. As submitted by the appellant, there is no doubt that the garnishee can only be made to satisfy the decree against the JD that is not beyond the funds available and held to the credit of the JD. The law however places the burden of proof upon the garnishee to discharge and the garnishee has to produce strong, sufficient, and convincing evidence that the funds in its hands or the debt is not due or payable.
32. It is an undisputed fact that the appellants herein satisfied the decree absolute by paying the decretal sum. However, that is no bar to this appeal because under Order 23, Rule 8, it is indicated, by implication, that an order absolute may be set aside or reversed. The said order provides that:
“Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the judgment-debtor to the amount paid or levied, although such proceeding or order may be set aside or the decree reversed.”
33. Therefore, the submission by learned counsel that the decretal sum having been satisfied, this appeal is rendered moot, is not correct.
34. The issue herein is whether the learned magistrate made an error when she made the order nisi absolute thereby requiring the Garnishee to satisfy the decretal sum. It is the appellant’s position that in doing so the learned magistrate failed to consider the evidence tendered to show that there were insufficient funds to satisfy the decretal sum.
35. Learned counsel for the respondent submits that in fact, in the replying affidavit, the Garnishee’s deponent Christine Muturi lied that there were no funds when there were funds in the accountthat were later applied to settle the decretal sum.
36. In the case cited by learned counsels for both parties of Lesinko Njoroge & Gathogo Advocates (supra) the Court held that the garnishee is required to prove whether or not the garnishee is indebted to the judgment debtor and that 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 .
37. The Garnishee/appellant submits that that the garnishee’s liability is limited to the funds in its custody at the time of the order nisi, and no more. Further that the question of availability of funds held by the Garnishee is one of fact and not through speculation or conjectures. For that reason, the trial court ought to have proceeded by way of cross-examination of the deponent of the Garnishee’s affidavit and not relied on the unsubstantiated allegations by the DH. Indeed in the cases of Gitutho Architects and Planners Limited v Kenya Utali College; Co-operative Bank of Kenya Limited & another (Garnishee) [2024] KEHC 11558 (KLR) and Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Company Limited; Co-operative Bank of Kenya(Garnishee) [2020] KEHC 5274 (KLR) the courts held that once the Garnishee discloses the funds in its hands, attachment can only be made to that extent.
38. In this case, the Garnishee’s position was that the JD’s debts in its hands were attached by other decrees nisi . The Garnishee provided the bank statements for the JD to show that indeed the funds were attached. The trial court, in exercising its discretion in the matter, was not satisfied that this was sufficient evidence that the appellant did not have sufficient funds on account of the JD and ordered execution to proceed by way of issuing a decree absolute.
39. What I find intriguing and which question the Garnishee has not convincingly answered is, where did it get the funds to satisfy the decrees absolute. Learned counsel sought to state on behalf of the appellant that it had to get funds from its own property to avoid execution against it. Further, in the replying affidavit to the Garnishee application by the appellant, Christine Muturi deposed that the Garnishee had paid a sum of KShs 669,721.40 of its own funds in satisfaction of a decree against the Garnishee in Malindi CMCC No. E252 of 2023 Oliver Sulubu Kahindi v. Amaco and KCB which amount was then claimed from the Judgment Debtor’s Account Nos 111....867 and 131....231.
40. However, the appellant never sought leave in this appeal to file new evidence that would have come to it only after the decree absolute was issued and payment made, to produce evidence of such an account of its own and not that of the JD, from which it obtained the funds that it used to satisfy the decree absolute. Such an application would have been filed at the time that the appellant filed the application for stay of execution pending appeal.
41. I have looked at that application herein dated 6 th May 2025 and I have found no such prayer. On what basis can the court be convinced other than as submitted by counsel for the respondent that in fact there were funds in the JD’s account to satisfy the decree against the JD and so the affidavit by Christie Muturi did not satisfy the threshold required under Order 23 that the Garnishee has to provide reasons that are strong, sufficient and convincing or is it because after all, it knew that it would have the funds in those accounts to satisfy the other decrees nisi pending?
42. Indeed, as submitted by learned counsel, other than providing the case numbers which were only in the account statements, the orders nisi supposedly issued by the various courts, were never provided to the trial court to enable the court confirm that indeed such order existed. In that case, I am satisfied and the trial court was correct to find that the statements of account alone did not satisfy the high threshold placed upon the Garnishee to provide reasons that are strong, sufficient and convincing.
43. On the ground that the trial court failed to abide by Order 23 Rules 4 and 5 to call for the cross-examination of the appellant’s witness who had sworn the replying affidavit, I have seen in the proceedings that when the matter came up for hearing before the trial court, the appellant did not request for a hearing by way of cross-examination of its witness. It conceded to the proceeding by way of written submissions and that was the basis upon which the court made its decision.
44. The relevant Rules under Order 23 are Rules 5 and 6 which provide that:
Rule 5. If the garnishee disputes his liability, the court, instead of making an order that execution be levied, may order that any issue or question necessary for determining his indebtedness be tried and determined in the manner in which an issue or question in a suit is tried or determined.
Rule 6. Whenever in any proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the court may order such third person to appear, and state the nature and particulars of his claim upon such debt.
45. It is apparent from the wording of the Rules that the trial court has the discretion to have the matter tried as a suit or to call the third party to appear and state its case. Therefore, where none of the parties has applied that the proceedings be conducted that way, the court cannot be faulted for not proceeding by way of trial.
46. Consequently, I find that the trial court correctly considered the facts before it and came to the correct conclusion that the appellant had failed to offer strong, sufficient and convincing reasons to discharge the evidential burden placed upon it.
47. In the result I find that the appeal has no merit and the same is dismissed.
48. The appellant will pay the 1 st respondent’s costs of the appeal.
49. Orders accordingly.
Judgment delivered , dated and signed on the Virtual Platform Microsoft Teams this 22 nd day of May 2026
ANDAYI W.F.
JUDGE
In the presence of: -
Oile (Ms) for the Appellant/Garnishee
Nyabuto (Ms) for the 1 st Respondent.
N/A for the 2 nd Respondent/JD
Ummu - Court Assistant.
ANDAYI W.F.
JUDGE
HCCA E038 of 202514/GARNISHEE