'30/10/2025
Before Hon. P.M. Mulwa, J
Court Assistant – Carlos
(Virtually)
Mr. Khaemba for the Applicant/D-Holder
Mr. Makori for the 1st Garnishee (Commercial Int. Bank Kenya Limited)
RULING
1. This is a ruling for the applications dated 4th and 8th September 2025 wherein the applicant seeks for orders of attachment of deposits and funds held by the judgement debtor in the garnishees’ bank accounts in satisfaction of the decree amounting to Kshs. 1,332,650/= as well as costs of the applications.
2. On 23rd September 2025, the 2nd garnishee was discharged.
3. It is the applicant’s case that it has since established that the judgement debtor has deposits held in credit in 1st garnishee’s bank account numbers 0201350227 and 0202350036 and unless the said deposits are attached by a garnishee order, they may be withdrawn or transferred rendering these proceedings nugatory.
4. In rejoinder, the 1st garnishee through Dalmas Mwongela admitted to the judgement debtor operating the aforementioned bank accounts having balances of Kshs. 37,484/= and USD 26,053.16 respectively. However, it was his case that the 1st garnishee could not satisfy the decretal sum as the judgment debtor had an accruing debt of Kshs. 102,006,955/= as at 16th September 2025 in loan account number 0201750111.
5. Both learned counsel orally argued on the question of (i) whether the outstanding loan amount constituted a lien to entitle the bank to withhold the funds and set off the same to reduce the loan amount, and (ii) whether the decree nisi should be made absolute in respect of the available amounts.
6. It is the applicant’s case that under Order 23 of the Civil Procedure Rules, the role of a garnishee is only to provide details of the holder of the account and whether the amount therein is sufficient to satisfy the decree. And the garnishee contends that it would be unjust for the applicant to insist on attaching the subject accounts. That the garnishee orders are equitable remedy, that the bank will be exposed to loss, as it has a lien and a right to set-off in view of the loan account.
7. Order 23 Rule 1(1) of the Civil Procedure Rules:
“A court may, upon the ex parte application of a decree-holder, and either before or after an oral examination of the judgment-debtor, and upon affidavit by the decree-holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree- holder the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid”.
8. The object of Garnishee Proceedings is to enable a Decree Holder to reach a debt due to the Judgment Debtor from the Garnishee as may be sufficient to satisfy a decree. Crucial thereof is that the Garnishee is indebted to the Judgement Debtor.
9. In the instant case, there is no dispute that there is a decree in favour of the applicant that has not been settled. The applicant avers that the subject account numbers hold some credit balances though not sufficient to settle the decretal sum. The burden now shifts to the garnishee to prove otherwise. The garnishee has to produce sufficient and convincing evidence that the funds in its hands or the debt is not due or payable.
10. In this case, the garnishee exhibited copies of loan statement, demand notice and notice of intention to institute insolvency proceedings against the judgment debtor. The loan statement shows an accrued amount of Kshs. 102,006.955.44 due from the judgment debtor as at 25th August 2025.
11. The question that arises herein is whether the said funds are held as security or lien? A lien is a legal right or interest that a creditor has in another’s property which lasts until a debt or duty that it secures is satisfied. A property under a lien cannot be seized by a creditor. In this regard, for a lien to arise, the party claiming the same must establish circumstances under which the same arises – i.e. must establish the existence of a debt or duty in respect of which it secures.
12. I am satisfied that the garnishee has proffered evidence to show that the bank is owed by the judgment debtor a sum which is higher than that of the decree holder, and therefore has a lien over the subject accounts herein. It follows that the funds available in those accounts are not payable to the decree holder.
13. In the premises, the applications dated 4th September 2025 and 8th September 2025 must fail as concerns the 1st garnishee. I decline to make the garnishee order nisi absolute. The 1st garnishee is discharged, with costs to be borne by the judgment debtor.
PETER M. MULWA
JUDGE
30/10/2025
'
Before Hon. P.M. Mulwa, J
Court Assistant – Carlos
(Virtually)
Mr. Khaemba for the Applicant/D-Holder
Mr. Makori for the 1st Garnishee (Commercial Int. Bank Kenya Limited)
RULING
1. This is a ruling for the applications dated 4th and 8th September 2025 wherein the applicant seeks for orders of attachment of deposits and funds held by the judgement debtor in the garnishees’ bank accounts in satisfaction of the decree amounting to Kshs. 1,332,650/= as well as costs of the applications.
2. On 23rd September 2025, the 2nd garnishee was discharged.
3. It is the applicant’s case that it has since established that the judgement debtor has deposits held in credit in 1st garnishee’s bank account numbers 0201350227 and 0202350036 and unless the said deposits are attached by a garnishee order, they may be withdrawn or transferred rendering these proceedings nugatory.
4. In rejoinder, the 1st garnishee through Dalmas Mwongela admitted to the judgement debtor operating the aforementioned bank accounts having balances of Kshs. 37,484/= and USD 26,053.16 respectively. However, it was his case that the 1st garnishee could not satisfy the decretal sum as the judgment debtor had an accruing debt of Kshs. 102,006,955/= as at 16th September 2025 in loan account number 0201750111.
5. Both learned counsel orally argued on the question of (i) whether the outstanding loan amount constituted a lien to entitle the bank to withhold the funds and set off the same to reduce the loan amount, and (ii) whether the decree nisi should be made absolute in respect of the available amounts.
6. It is the applicant’s case that under Order 23 of the Civil Procedure Rules, the role of a garnishee is only to provide details of the holder of the account and whether the amount therein is sufficient to satisfy the decree. And the garnishee contends that it would be unjust for the applicant to insist on attaching the subject accounts. That the garnishee orders are equitable remedy, that the bank will be exposed to loss, as it has a lien and a right to set-off in view of the loan account.
7. Order 23 Rule 1(1) of the Civil Procedure Rules:
“A court may, upon the ex parte application of a decree-holder, and either before or after an oral examination of the judgment-debtor, and upon affidavit by the decree-holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree- holder the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid”.
8. The object of Garnishee Proceedings is to enable a Decree Holder to reach a debt due to the Judgment Debtor from the Garnishee as may be sufficient to satisfy a decree. Crucial thereof is that the Garnishee is indebted to the Judgement Debtor.
9. In the instant case, there is no dispute that there is a decree in favour of the applicant that has not been settled. The applicant avers that the subject account numbers hold some credit balances though not sufficient to settle the decretal sum. The burden now shifts to the garnishee to prove otherwise. The garnishee has to produce sufficient and convincing evidence that the funds in its hands or the debt is not due or payable.
10. In this case, the garnishee exhibited copies of loan statement, demand notice and notice of intention to institute insolvency proceedings against the judgment debtor. The loan statement shows an accrued amount of Kshs. 102,006.955.44 due from the judgment debtor as at 25th August 2025.
11. The question that arises herein is whether the said funds are held as security or lien? A lien is a legal right or interest that a creditor has in another’s property which lasts until a debt or duty that it secures is satisfied. A property under a lien cannot be seized by a creditor. In this regard, for a lien to arise, the party claiming the same must establish circumstances under which the same arises – i.e. must establish the existence of a debt or duty in respect of which it secures.
12. I am satisfied that the garnishee has proffered evidence to show that the bank is owed by the judgment debtor a sum which is higher than that of the decree holder, and therefore has a lien over the subject accounts herein. It follows that the funds available in those accounts are not payable to the decree holder.
13. In the premises, the applications dated 4th September 2025 and 8th September 2025 must fail as concerns the 1st garnishee. I decline to make the garnishee order nisi absolute. The 1st garnishee is discharged, with costs to be borne by the judgment debtor.
PETER M. MULWA
JUDGE
30/10/2025
'