REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM MISC. NO. E267 OF 2024
PATRICK SAGWA KISIA T/A
STEG CONSULTANTS …………………...….APPLICANT/DECREE-HOLDER
-VERSUS-
KAY CONSTRUCTION COMPANY
LIMITED.…………………………....1ST RESPONDENT/JUDGMENT-DEBTOR
PRIME BANK LIMITED……….……………..2ND RESPONDENT/GARNISHEE
RULING
1. The applicant/decree holder filed a Notice of Motion application dated 12th March, 2024 pursuant to the provisions of Order 23 Rule 1 of the Civil Procedure Rules, 2010, and Sections 1A, 1B & 3A of the Civil Procedure Act. The applicant seeks orders that this Court issues a Garnishee Order Nisi to the Garnishee, to show cause why the 1st respondent’s account with them should not be attached in satisfaction of the applicant’s decree, an order for the attachment of the 1st respondent’s bank account with the Garnishee to answer and/or satisfy the decree issued on 25th March, 2022, and an order directing the Garnishee to pay the applicant Kshs.142,234,965.60 plus interest at 12% per annum accruing from the date of judgment until payment in full in satisfaction of the applicant’s decree.
2. The application was supported by an affidavit sworn on the same day by Patrick Sagwa Kisia, the applicant herein. He averred that he obtained judgment against the 1st respondent for Kshs.142,234,965.60, then extracted a decree on 25th March, 2022 and served it on the 1st respondent. He claimed that the 1st respondent holds an account with the 2nd respondent being Acc. No. 3000190689 Riverside Branch, which account has money or is set to receive money sufficient to wholly satisfy the decretal sum.
3. In opposition thereto, the 2nd respondent filed a replying affidavit sworn on 6th May, 2024 by George W. Mathui, a Senior Manager-Legal, at the 2nd respondent bank. He confirmed that the 1st respondent holds Acc. No. 3000190689 at the 2nd respondent’s Riverside Branch. He produced the 2nd respondent’s statement of account for the said account, and averred that as at 8th April, 2024, the aforesaid account had a credit balance of Kshs.8,032,030.08, which amount is not sufficient to satisfy the decree in issue. Mr. Muthui averred that the 2nd respondent has no claim over the said balance and confirmed that the 2nd respondent will abide by this Court’s directions with respect to the application herein. He prayed that it be allowed to retain/deduct Kshs.100,000/= plus VAT from the said sum or such other reasonable sum as this Court may assess to cover its costs of participating in these proceedings on full indemnity basis.
4. On 24th July, 2024, Mr. Tito, learned Counsel for the applicant informed this Court that in a ruling delivered on 4th July, 2024 by Judge P. Mulwa in HCCOMM NO. 60 of 2016, being the primary suit that gave rise to this suit, the learned Judge held that the 1st respondent should pay the applicant Kshs.52,500,000/= being 15% of Kshs.350,000,000/= already received by the 1st respondent from the Government of Kenya. Consequently, this Court gave directions for amendment of the Notice of Motion application dated 12th March, 2024. Subsequently, the applicant amended the said application on 24th July, 2024 amending the amount sought to be paid over by the Garnishee from Kshs.142,234,965.60 to Kshs. 52,500,000/=.
5. In support of the amended application, the applicant herein filed a further affidavit sworn on 24th July, 2024 by Patrick Sagwa Kisia, who deposed that he obtained a judgment dated 25th March, 2022 against the 1st respondent for sums equivalent to 15% of all monies received by the said respondent from the Government of Kenya. He further deposed that to date, the decree extracted thereafter remains unsatisfied. He averred that in the ruling delivered on 4th July 2024, the Court held that the pending review application dated 24th August, 2023 is only limited to the question of interest, but it does not arrest execution, thus its pendency is not a bar to the execution process. The applicant urged this Court to confirm the Garnishee Order Nisi to Garnishee Order Absolute, in respect to the funds held by the 2nd respondent, and order for the attachment and release of the said funds to partly satisfy the decree.
6. In opposition to the amended Notice of Motion, the 1st respondent filed a replying affidavit sworn on 29th July, 2024 by Hasmita Patel, the 1st respondent’s Director who confirmed that the 1st respondent was ordered by Judge P. Mulwa to pay the applicant Kshs.52,500,000/= towards satisfaction of the decree in issue. He averred that in making the said Order, the Court did not acknowledge the payments made so far by the 1st respondent. In addition, the 1st respondent contended that contrary to the provisions of Order 22 Rule 7 of the Civil Procedure Rules, 2010, the applicant failed to mention and/or acknowledge in the application herein that he had been paid some monies by the 1st respondent. The 1st respondent claimed to have made numerous payments to the applicant both before and after delivery of the judgment in HCCOMM NO. 60 of 2016.
7. The amended application was canvassed by way of oral submissions. Mr. Tito, learned Counsel for the applicant submitted that other than making wild allegations for payment, the 1st respondent’s Director has not adduced any evidence of payments having been made to the applicant. He further submitted that only Kshs.3,000,000/= was paid to the applicant before judgment was entered and that the said payment was reflected in the judgment.
8. Mr. Ometo, learned Counsel for the 1st respondent submitted that the amended Notice of Motion application does not refute payment made after judgment. He contended that the applicant has not complied with the provisions of Order 22 Rule 7 of the Civil Procedure Rules, 2010 by stating the amounts already paid to him by the 1st respondent before and after the judgment in HCCOMM NO. 60 of 2016 was delivered.
9. No submissions were made by Counsel for the 2nd respondent. Mr. Mutua, learned Counsel for the 2nd respondent had however from the outset said that as and when the Court gives them directions, they shall comply subject to them deducting their fees for this matter.
ANALYSIS AND DETERMINATION.
10. I have considered the applicant’s amended Notice of Motion, the grounds on the face of it and the affidavits filed in support thereof, the replying affidavits by the respondents and the oral submissions by the Counsel for the applicant and the 1st respondent. The issue that arises for determination is whether the instant application is merited.
11. Garnishee proceedings are proceedings whereby the judgment debtor’s property, or credit in possession or under control of, or owing by another, are applied to the payment of former debt to the decree holder by proper statutory process against the debtor and Garnishee. Such proceedings are provided for under Order 23 Rule 1(1) of the Civil Procedure Rules, 2010 which states that -
“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.”
12. Garnishee proceedings were defined by the Nigerian Supreme Court in C.B.N. v Auto Import Export [2013] 2 NWLR (Pt. 1337) 80 p. 126 paras. E – F which was referred to by the Court in Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation; Kenya Commercial Bank Group Limited (Garnishee) [2021] eKLR as follows -
“Garnishee proceedings are special specie of process by which a judgment creditor may attach (or garnishee) debts due in satisfaction of the judgment debt. The debt owed by the third party to the judgment debtor, on being attached, shall ultimately be paid by him to the judgment creditor on the order of court. Thus, garnishee proceedings involve the attachment of debt due from a third party to the judgment debtor, and the use of the amount of that debt in liquidating the judgment debt. In garnishee proceedings, the third party indebted to the judgment debtor is called the garnishee. The judgment creditor, on the other hand, is referred to as the garnishor.”
13. Garnishees typically do not object to garnishee orders becoming final as long as there is a clear debt owed by the judgment debtor and the Garnishee possesses sufficient funds belonging to the debtor to cover the debt. Pursuant to the provisions of Order 23 Rule 4 of the Civil Procedure Rules, 2010, Courts have the power to order a Garnishee to pay directly the sums it owes or holds for the judgment-debtor to the decree-holder or so much of it as may be sufficient to satisfy the amount of the judgment, and the cost of the garnishee proceedings, if the Garnishee does not dispute the debt due to the judgment-debtor
14. It is not disputed that the applicant has a valid decree against the 1st respondent which has not been fully settled to date. Further, in a ruling delivered by Judge P. Mulwa on 4th July, 2024 in HCCOMM NO. 60 of 2016, being the suit that gave rise to the proceedings herein, the 1st respondent was ordered to pay the applicant Kshs.52,500,000/= which is equivalent to 15% of all the monies that the 1st respondent has received from the Government of Kenya so far. However, no evidence has been tendered by the 1st respondent before this Court to show compliance with the said directions after the delivery of the judgment. In opposition to the application herein, the 1st respondent filed a replying affidavit where it averred that it paid the applicant some money before and after the judgment in HCCOMM NO. 60 of 2016 was delivered, and that the said information has not been disclosed by the applicant in its application.
15. It is however worth noting that other than alleging that there are payments that have been made to the applicant previously, the 1st respondent has not tendered any evidence to substantiate these claims. Pursuant to the provisions of Sections 107, 108 & 109 of the Evidence Act, it is trite that he who alleges must prove, which means that the 1st respondent bears the burden of proving that other than the Kshs.3,000,000.00 that was paid before entry of judgment, there are additional payments that have been made to the applicant by the 1st respondent in satisfaction of the decree in issue. However, as explained hereinbefore, the 1st respondent did not discharge this burden of proof, hence the averments contained in its replying affidavit have little to no probative value in the present application.
16. The above notwithstanding, garnishee proceedings are commonly between the decree holder and the Garnishee. It is for the Garnishee to either refute or admit the claim made by the decree holder over the judgment debtor’s funds held by the Garnishee. In refuting the claim, the Garnishee has to demonstrate and give sufficient reasons as to why the Court should not confirm the Garnishee Order Nisi issued at the ex parte stage of these proceedings. In the case of Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation; Kenya Commercial Bank Group Limited (Garnishee) (supra), Mativo J., (as he then was) in addressing a similar issue held that-
“A reading of Order 23 of the Civil Procedure rules shows that it comprises of self-contained provisions which are distinct and independent of Order 22. It prescribes two steps in Garnishee proceedings. The first is a Garnishee Order nisi. Nisi is Norman-French. It means ‘unless.’ It is an order to the bank communicating that unless there is some sufficient reason why the bank should not pay the decree, it will be required to pay money held in the Judgement Debtor’s account. Such reason may exist if the bank disputes its indebtedness to the customer for one reason or other. Or if payment to the creditor might be unfair by preferring him to other creditors. If no sufficient reason appears, the garnishee order is made absolute, to pay to the Judgment-Creditor, or into court, whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer, just as if the Judgment-Debtor directed the bank to pay it.”
17. In this application, the Garnishee who is also the 2nd respondent herein, does not dispute the fact that the judgment-debtor, who is the 1st respondent herein maintains an account with it. The 2nd respondent however asserts that the said account does not have sufficient funds to satisfy the sum of Kshs.52,500,000/= as ordered and/or directed by Judge P. Mulwa in his ruling of 4th July, 2024 delivered in HCCOMM NO. 60 of 2016. The Garnishee however confirmed that as at 8th April, 2024, the 1st respondent’s bank account had a credit balance of Kshs.8,032,030.08.
18. No evidence has been produced before this Court that demonstrates compliance with Judge P. Mulwa’s orders by the 1st respondent and/or that shows that the 1st respondent has lodged an appeal or applied for a review of the ruling of 4th July, 2024. Since the said ruling has not been varied and/or set aside, the 1st respondent is bound by it, and it ought to comply with the orders issued therein.
19. In the said circumstances, it is my finding that the applicant has made out a case to warrant this Court to exercise its discretion in its favour by having the funds held by the Garnishee on behalf of the judgment-debtor being used to offset part of the Kshs.52,500,000/= owed to the applicant by the 1st respondent, since the said funds are not sufficient to settle the entire debt.
20. In the end, I find that the applicant’s amended Notice of Motion dated 24th July, 2024 is merited. It is allowed in the following terms -
i) The Garnishee Order Nisi made on 3rd April, 2024 is hereby made Absolute specifically for the attachment of the sum of Kshs.8,032,030.08 being the credit amount held by the garnishee in the judgment debtor’s Bank Account Number 3000190689 at Prime Bank Limited Riverside Branch; and
ii) Costs of amended Notice of Motion dated 24th July, 2024 is awarded to the applicant and the 2nd respondent and shall be borne by the judgment-debtor. The costs due to the 2nd respondent shall be agreed on between the 1st and 2nd respondents.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 23rd day of August, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Ogendo h/b for Mr. Tito for the applicant
Mr. Ometo h/b for Dr. Arwa for the 1st respondent
Mr. Mutua for the 2nd respondent
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM MISC. NO. E267 OF 2024
PATRICK SAGWA KISIA T/A
STEG CONSULTANTS …………………...….APPLICANT/DECREE-HOLDER
-VERSUS-
KAY CONSTRUCTION COMPANY
LIMITED.…………………………....1ST RESPONDENT/JUDGMENT-DEBTOR
PRIME BANK LIMITED……….……………..2ND RESPONDENT/GARNISHEE
RULING
1. The applicant/decree holder filed a Notice of Motion application dated 12th March, 2024 pursuant to the provisions of Order 23 Rule 1 of the Civil Procedure Rules, 2010, and Sections 1A, 1B & 3A of the Civil Procedure Act. The applicant seeks orders that this Court issues a Garnishee Order Nisi to the Garnishee, to show cause why the 1st respondent’s account with them should not be attached in satisfaction of the applicant’s decree, an order for the attachment of the 1st respondent’s bank account with the Garnishee to answer and/or satisfy the decree issued on 25th March, 2022, and an order directing the Garnishee to pay the applicant Kshs.142,234,965.60 plus interest at 12% per annum accruing from the date of judgment until payment in full in satisfaction of the applicant’s decree.
2. The application was supported by an affidavit sworn on the same day by Patrick Sagwa Kisia, the applicant herein. He averred that he obtained judgment against the 1st respondent for Kshs.142,234,965.60, then extracted a decree on 25th March, 2022 and served it on the 1st respondent. He claimed that the 1st respondent holds an account with the 2nd respondent being Acc. No. 3000190689 Riverside Branch, which account has money or is set to receive money sufficient to wholly satisfy the decretal sum.
3. In opposition thereto, the 2nd respondent filed a replying affidavit sworn on 6th May, 2024 by George W. Mathui, a Senior Manager-Legal, at the 2nd respondent bank. He confirmed that the 1st respondent holds Acc. No. 3000190689 at the 2nd respondent’s Riverside Branch. He produced the 2nd respondent’s statement of account for the said account, and averred that as at 8th April, 2024, the aforesaid account had a credit balance of Kshs.8,032,030.08, which amount is not sufficient to satisfy the decree in issue. Mr. Muthui averred that the 2nd respondent has no claim over the said balance and confirmed that the 2nd respondent will abide by this Court’s directions with respect to the application herein. He prayed that it be allowed to retain/deduct Kshs.100,000/= plus VAT from the said sum or such other reasonable sum as this Court may assess to cover its costs of participating in these proceedings on full indemnity basis.
4. On 24th July, 2024, Mr. Tito, learned Counsel for the applicant informed this Court that in a ruling delivered on 4th July, 2024 by Judge P. Mulwa in HCCOMM NO. 60 of 2016, being the primary suit that gave rise to this suit, the learned Judge held that the 1st respondent should pay the applicant Kshs.52,500,000/= being 15% of Kshs.350,000,000/= already received by the 1st respondent from the Government of Kenya. Consequently, this Court gave directions for amendment of the Notice of Motion application dated 12th March, 2024. Subsequently, the applicant amended the said application on 24th July, 2024 amending the amount sought to be paid over by the Garnishee from Kshs.142,234,965.60 to Kshs. 52,500,000/=.
5. In support of the amended application, the applicant herein filed a further affidavit sworn on 24th July, 2024 by Patrick Sagwa Kisia, who deposed that he obtained a judgment dated 25th March, 2022 against the 1st respondent for sums equivalent to 15% of all monies received by the said respondent from the Government of Kenya. He further deposed that to date, the decree extracted thereafter remains unsatisfied. He averred that in the ruling delivered on 4th July 2024, the Court held that the pending review application dated 24th August, 2023 is only limited to the question of interest, but it does not arrest execution, thus its pendency is not a bar to the execution process. The applicant urged this Court to confirm the Garnishee Order Nisi to Garnishee Order Absolute, in respect to the funds held by the 2nd respondent, and order for the attachment and release of the said funds to partly satisfy the decree.
6. In opposition to the amended Notice of Motion, the 1st respondent filed a replying affidavit sworn on 29th July, 2024 by Hasmita Patel, the 1st respondent’s Director who confirmed that the 1st respondent was ordered by Judge P. Mulwa to pay the applicant Kshs.52,500,000/= towards satisfaction of the decree in issue. He averred that in making the said Order, the Court did not acknowledge the payments made so far by the 1st respondent. In addition, the 1st respondent contended that contrary to the provisions of Order 22 Rule 7 of the Civil Procedure Rules, 2010, the applicant failed to mention and/or acknowledge in the application herein that he had been paid some monies by the 1st respondent. The 1st respondent claimed to have made numerous payments to the applicant both before and after delivery of the judgment in HCCOMM NO. 60 of 2016.
7. The amended application was canvassed by way of oral submissions. Mr. Tito, learned Counsel for the applicant submitted that other than making wild allegations for payment, the 1st respondent’s Director has not adduced any evidence of payments having been made to the applicant. He further submitted that only Kshs.3,000,000/= was paid to the applicant before judgment was entered and that the said payment was reflected in the judgment.
8. Mr. Ometo, learned Counsel for the 1st respondent submitted that the amended Notice of Motion application does not refute payment made after judgment. He contended that the applicant has not complied with the provisions of Order 22 Rule 7 of the Civil Procedure Rules, 2010 by stating the amounts already paid to him by the 1st respondent before and after the judgment in HCCOMM NO. 60 of 2016 was delivered.
9. No submissions were made by Counsel for the 2nd respondent. Mr. Mutua, learned Counsel for the 2nd respondent had however from the outset said that as and when the Court gives them directions, they shall comply subject to them deducting their fees for this matter.
ANALYSIS AND DETERMINATION.
10. I have considered the applicant’s amended Notice of Motion, the grounds on the face of it and the affidavits filed in support thereof, the replying affidavits by the respondents and the oral submissions by the Counsel for the applicant and the 1st respondent. The issue that arises for determination is whether the instant application is merited.
11. Garnishee proceedings are proceedings whereby the judgment debtor’s property, or credit in possession or under control of, or owing by another, are applied to the payment of former debt to the decree holder by proper statutory process against the debtor and Garnishee. Such proceedings are provided for under Order 23 Rule 1(1) of the Civil Procedure Rules, 2010 which states that -
“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.”
12. Garnishee proceedings were defined by the Nigerian Supreme Court in C.B.N. v Auto Import Export [2013] 2 NWLR (Pt. 1337) 80 p. 126 paras. E – F which was referred to by the Court in Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation; Kenya Commercial Bank Group Limited (Garnishee) [2021] eKLR as follows -
“Garnishee proceedings are special specie of process by which a judgment creditor may attach (or garnishee) debts due in satisfaction of the judgment debt. The debt owed by the third party to the judgment debtor, on being attached, shall ultimately be paid by him to the judgment creditor on the order of court. Thus, garnishee proceedings involve the attachment of debt due from a third party to the judgment debtor, and the use of the amount of that debt in liquidating the judgment debt. In garnishee proceedings, the third party indebted to the judgment debtor is called the garnishee. The judgment creditor, on the other hand, is referred to as the garnishor.”
13. Garnishees typically do not object to garnishee orders becoming final as long as there is a clear debt owed by the judgment debtor and the Garnishee possesses sufficient funds belonging to the debtor to cover the debt. Pursuant to the provisions of Order 23 Rule 4 of the Civil Procedure Rules, 2010, Courts have the power to order a Garnishee to pay directly the sums it owes or holds for the judgment-debtor to the decree-holder or so much of it as may be sufficient to satisfy the amount of the judgment, and the cost of the garnishee proceedings, if the Garnishee does not dispute the debt due to the judgment-debtor
14. It is not disputed that the applicant has a valid decree against the 1st respondent which has not been fully settled to date. Further, in a ruling delivered by Judge P. Mulwa on 4th July, 2024 in HCCOMM NO. 60 of 2016, being the suit that gave rise to the proceedings herein, the 1st respondent was ordered to pay the applicant Kshs.52,500,000/= which is equivalent to 15% of all the monies that the 1st respondent has received from the Government of Kenya so far. However, no evidence has been tendered by the 1st respondent before this Court to show compliance with the said directions after the delivery of the judgment. In opposition to the application herein, the 1st respondent filed a replying affidavit where it averred that it paid the applicant some money before and after the judgment in HCCOMM NO. 60 of 2016 was delivered, and that the said information has not been disclosed by the applicant in its application.
15. It is however worth noting that other than alleging that there are payments that have been made to the applicant previously, the 1st respondent has not tendered any evidence to substantiate these claims. Pursuant to the provisions of Sections 107, 108 & 109 of the Evidence Act, it is trite that he who alleges must prove, which means that the 1st respondent bears the burden of proving that other than the Kshs.3,000,000.00 that was paid before entry of judgment, there are additional payments that have been made to the applicant by the 1st respondent in satisfaction of the decree in issue. However, as explained hereinbefore, the 1st respondent did not discharge this burden of proof, hence the averments contained in its replying affidavit have little to no probative value in the present application.
16. The above notwithstanding, garnishee proceedings are commonly between the decree holder and the Garnishee. It is for the Garnishee to either refute or admit the claim made by the decree holder over the judgment debtor’s funds held by the Garnishee. In refuting the claim, the Garnishee has to demonstrate and give sufficient reasons as to why the Court should not confirm the Garnishee Order Nisi issued at the ex parte stage of these proceedings. In the case of Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation; Kenya Commercial Bank Group Limited (Garnishee) (supra), Mativo J., (as he then was) in addressing a similar issue held that-
“A reading of Order 23 of the Civil Procedure rules shows that it comprises of self-contained provisions which are distinct and independent of Order 22. It prescribes two steps in Garnishee proceedings. The first is a Garnishee Order nisi. Nisi is Norman-French. It means ‘unless.’ It is an order to the bank communicating that unless there is some sufficient reason why the bank should not pay the decree, it will be required to pay money held in the Judgement Debtor’s account. Such reason may exist if the bank disputes its indebtedness to the customer for one reason or other. Or if payment to the creditor might be unfair by preferring him to other creditors. If no sufficient reason appears, the garnishee order is made absolute, to pay to the Judgment-Creditor, or into court, whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer, just as if the Judgment-Debtor directed the bank to pay it.”
17. In this application, the Garnishee who is also the 2nd respondent herein, does not dispute the fact that the judgment-debtor, who is the 1st respondent herein maintains an account with it. The 2nd respondent however asserts that the said account does not have sufficient funds to satisfy the sum of Kshs.52,500,000/= as ordered and/or directed by Judge P. Mulwa in his ruling of 4th July, 2024 delivered in HCCOMM NO. 60 of 2016. The Garnishee however confirmed that as at 8th April, 2024, the 1st respondent’s bank account had a credit balance of Kshs.8,032,030.08.
18. No evidence has been produced before this Court that demonstrates compliance with Judge P. Mulwa’s orders by the 1st respondent and/or that shows that the 1st respondent has lodged an appeal or applied for a review of the ruling of 4th July, 2024. Since the said ruling has not been varied and/or set aside, the 1st respondent is bound by it, and it ought to comply with the orders issued therein.
19. In the said circumstances, it is my finding that the applicant has made out a case to warrant this Court to exercise its discretion in its favour by having the funds held by the Garnishee on behalf of the judgment-debtor being used to offset part of the Kshs.52,500,000/= owed to the applicant by the 1st respondent, since the said funds are not sufficient to settle the entire debt.
20. In the end, I find that the applicant’s amended Notice of Motion dated 24th July, 2024 is merited. It is allowed in the following terms -
i) The Garnishee Order Nisi made on 3rd April, 2024 is hereby made Absolute specifically for the attachment of the sum of Kshs.8,032,030.08 being the credit amount held by the garnishee in the judgment debtor’s Bank Account Number 3000190689 at Prime Bank Limited Riverside Branch; and
ii) Costs of amended Notice of Motion dated 24th July, 2024 is awarded to the applicant and the 2nd respondent and shall be borne by the judgment-debtor. The costs due to the 2nd respondent shall be agreed on between the 1st and 2nd respondents.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 23rd day of August, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Ogendo h/b for Mr. Tito for the applicant
Mr. Ometo h/b for Dr. Arwa for the 1st respondent
Mr. Mutua for the 2nd respondent
Ms B. Wokabi – Court Assistant.