[2018] KEHC 6496 (KLR)
The court found that the applicant had established the existence of a valid decree for Kshs. 32,365,240 against the judgment debtor, and that the garnishee, Chase Bank Limited, was within the court's jurisdiction and had been properly served with the application. In the absence of any response or opposition from the...
Source-derived case information.
- Citation
- [2018] KEHC 6496 (KLR)
- Parties
- Plaintiff: Akbarali Karim Kurji; Defendant: Argyrios Saliarelis; Respondent: Chase Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 66 of 2017
- Procedural Posture
- Garnishee Application / Ruling on Garnishee Application
- Outcome
- application allowed
- Judges
- LM Njuguna
- Legal Topics
- Garnishee Orders, Judgment Enforcement, Execution of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Akbarali Karim Kurji
Plaintiff
Argyrios Saliarelis
Defendant
Chase Bank Limited
Respondent
Procedural Posture
Garnishee Application / Ruling on Garnishee Application
Legal Issues
- 1 Whether the applicant is entitled to a garnishee order nisi against the garnishee bank to satisfy the decretal sum.
- 2 Whether the garnishee was properly served and whether there is any opposition to the application.
Ratio Decidendi
The court found that the applicant had established the existence of a valid decree for Kshs. 32,365,240 against the judgment debtor, and that the garnishee, Chase Bank Limited, was within the court's jurisdiction and had been properly served with the application. In the absence of any response or opposition from the garnishee, and no evidence to the contrary, the court presumed the existence of an account held by the judgment debtor with the garnishee. The court held that the applicant had made out a case for the grant of a garnishee order nisi to attach funds in the judgment debtor's account to satisfy the decree, costs, and interest. The application was allowed as prayed, with costs to...
Court Disposition
application allowed
Orders
- A garnishee order nisi is issued against Chase Bank Limited for funds held in the name of the judgment debtor to satisfy the decretal sum, costs, and interest.
- Costs of the application awarded to the applicant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL SUIT NO. 66 OF 2017
AKBARALI KARIM KURJI...............................................PLAINTIFF
-VERSUS-
ARGYRIOS SALIARELIS......DEFENDANT/JUDGMENT DEBTOR
CHASE BANK LIMITED..................................................GRANISHEE
RULING
Having obtained a judgment against the Defendant/Judgment debtor, the Applicant instituted garnishee proceedings by way of a Notice of Motion dated 15th September, 2017 seeking orders that, all the money belonging to the judgment debtor and held by M/S Chase Bank Limited (the Garnishee) in the Bank’s branch at Riverside Branch and elsewhere in the name of the Judgment debtor be paid to the decree holder to the extent of the decretal sum together with costs and interest including costs of this application.
In support of the application, the Plaintiff swore an Affidavit dated 15th September, 2017 and deponed that pursuant to a default judgment delivered on 6th June, 2017, the Applicant was awarded the sum of Kshs. 32,365,240/= . The Applicant extracted a decree for the said award which remained unsettled at the time of the application. He further deponed that the Judgment debtor has an account with the Garnishee at the said Riverside branch but he does not know the account number. Nonetheless, he depones that he believes that the account has enough monies to satisfy the whole of the decree or substantial part of it. Therefore, the Applicant seeks a garnishee order nisi to issue against the Garnishee to enable it satisfy all or part of the decretal amount. The Garnishee did not file a Reply to the Application despite having being served.
Order 23 Rule 1 under which the application herein is brought provides that,
“1. (1) 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.”
The Applicant has established that the Judgment debtor owes him the said sum of Kshs. 32,365,240/=. Annexed to his Affidavit is the decree to that effect. As deponed by the Applicant, this court finds that the Garnishee is within the jurisdiction of this Court. In the absence of the Garnishee’s response to the Application and in the absence of evidence to the contrary, the Court can only presume that the Garnishee has not denied that the Judgment debtor has an account with it even though it may not be possible for the court to establish whether the Garnishee has funds in the said account to settle the decree. Nonetheless there is an Affidavit of Service on record showing that the Garnishee was properly served with this application.
The Applicant has a decree which he would like to execute by way of garnishee proceedings. He has made out his case to warrant the orders sought and I allow the Application as prayed.
Costs to the Applicant.
Dated, Signed and Delivered at Nairobi this 15thDay of March, 2018.
…………………………….
L. NJUGUNA
JUDGE
In the Presence of
…………………………. For the Applicant
………………………….FortheRespondent