The Applicant in respect of the application dated 19.05.2022 is the Judgment Creditor. It has filed the application for garnishee order under Order 23 of the Civil Procedure Rules. It seeks to attach monies owed to the 1st Defendant, Judgment Debtor, by the firm of Chege Wainaina and Company Advocates towards enforcement of a judgment dated 18th May 2020. Chege Wainaina, an advocate, admits in his replying affidavit sworn on 8th December 2022 that he holds Kshs. 12,528,812 to the credit of the 1st Defendant/Judgment Debtor.
The Judgment Debtors oppose the application on the ground that the firm of Chege Wanaina Advocates is not a third party against who garnishee orders can be made on the ground that it was a party to these proceedings. I reject that objection as under Order 23 rule 1, the third party contemplated and who is a garnishee is the person who owes the Judgment Debtor a debt which can be attached. It does not matter that the person was in fact a party to the suit. I also reject the Judgment Debtor argument that it had a dispute with the firm of Chege Wainaina Advocates as the claim against the firm was in fact dismissed by the court and she has not lodged any proceedings against the firm under the Advocates Act.
What is clear to me is that the Judgment Debtor is attempting to re-litigate issues that the were determined or ought to have been determined in the suit and more particularly its counterclaim where the said Chege Wainaina was a defendant and the suit against him dismissed. I therefore dismiss the Judgment Debtors Preliminary Objection on the issue that Chege Wainaina Advocates cannot be a garnishee as he is a third party within the meaning of Order 23 rule 1 of the Civil Procedure Rules.
Turning to the main application, I hold the decree in favour of the Plaintiff is not contested and neither is the fact that the Garnishee is holding money to the credit of the 1st Judgment Debtor. There is no third party claim to be determined against the Garnishee.
I therefore make the following dispositive orders:
1. The Defendants’ preliminary objection is dismissed.
2. The application dated 19th September 2022 is allowed on terms that the Garnishee Order Nisi is now made absolute in terms of prayer No. 3 of the application.
3. The Garnishee shall bear the costs of the application which are assessed at Kshs. 30,000,00 for the Garnishee and Kshs. 30,000.00 for the Judgment Creditor.
DATED and DELIVERED at NAIROBI this 19th day of APRIL 2023
D. S. MAJANJA
JUDGE