[2024] KECPT 1716 (KLR)
The Tribunal found that as at the date the garnishee order was served, the respondent's account with the garnishee bank held only Kshs. 6,285.12. The garnishee bank's status as a secured creditor entitled it to priority over other creditors, and there was no evidence to show that additional funds had been received...
Source-derived case information.
- Citation
- [2024] KECPT 1716 (KLR)
- Parties
- Applicant: Martin Onyango Aloka; Respondent: Amiair Sacco Society Limited; Respondent: Co-operative Bank Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E298/176 of 2016
- Procedural Posture
- Garnishee Application / Ruling on Application for Garnishee Order Absolute
- Outcome
- application dismissed
- Judges
- BM Kimemia, Janet Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Garnishee Orders, Enforcement of Judgments, Priority of Creditors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Martin Onyango Aloka
Applicant
Amiair Sacco Society Limited
Respondent
Co-operative Bank Limited
Respondent
Procedural Posture
Garnishee Application / Ruling on Application for Garnishee Order Absolute
Legal Issues
- 1 Whether the garnishee order nisi should be made absolute against the garnishee bank.
- 2 Whether the garnishee bank held funds belonging to the respondent at the time of service of the order.
- 3 Whether the garnishee bank's status as a secured creditor affects its obligation under the garnishee order.
Ratio Decidendi
The Tribunal found that as at the date the garnishee order was served, the respondent's account with the garnishee bank held only Kshs. 6,285.12. The garnishee bank's status as a secured creditor entitled it to priority over other creditors, and there was no evidence to show that additional funds had been received or that the garnishee was in a position to pay the decree. The legal effect of a garnishee order nisi is to freeze the funds in the account as at the date of service, and if there are insufficient funds, the order cannot be made absolute. Consequently, the application to make the garnishee order absolute failed.
Court Disposition
application dismissed
Orders
- The application dated 25/7/2024 for a garnishee order absolute is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
Aloka v Amiair Sacco Society Limited; Co-operative Bank Limited (Garnishee) (Tribunal Case E298/176 of 2016) [2024] KECPT 1716 (KLR) (3 October 2024) (Ruling)
Neutral citation: [2024] KECPT 1716 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case E298/176 of 2016
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
October 3, 2024
Between
Martin Onyango Aloka
Claimant
and
Amiair Sacco Society Limited
Respondent
and
Co-operative Bank Limited
Garnishee
Ruling
1. Application dated 25/7/2024 is for Ruling. The same is for Garnishee orders.We have looked into the Garnishee Replying Affidavit where they admit what the Respondent is their client, however, as at 30/7/2024, when the orders were received, the account had Kshs. 6,285. 12/=
2. We have also noted the Garnishee states they are unable to comply with the order because it is a secured creditor shoes interest rank in priority over other creditors.The Applicant further filed a Further Affidavit sworn on 12/8/2024 stating the account is active receiving funds and garnishee ought to prioritize payment without evidence availed; and prayed the decree nisi be made absolute.
3. In the case of Joachimson –vs- Swiss Bank Co-operative (1921) 3KB 110 at 131, (1921). All ER Rep 92 at 102 Lord Athens stated;“it is trite law that as soon as the Garnishee Order Nisi is served on the bank, it operates as an injunction. It prevents the bank/Garnishee from paying money to its customer until the garnishee order is made absolute, or is discharged, as the case may be. It binds the debts in the hands of the garnishee and creates a charge in favor of the judgement creditor.What a Garnishee Order Nisi does is to freeze the sum in the hands of the bank until the Garnishee order is made absolute, then the Garnishee Bank becomes liable to pay the Decree holder”
4. As such, as at the date of the order, there were no funds.Application dated 25/7/2024 therefore fails.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 3. 10. 2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024HON. BEATRICE SAWE MEMBER SIGNED 3. 10. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 10. 2024HON. PHILIP GICHUKI MEMBER SIGNED 3. 10. 2024HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 10. 2024HON. PAUL AOL MEMBER SIGNED 3. 10. 2024Tribunal Clerk MutaiOkello advocate for the Decree-holderAmiair Sacco LimitedCooperative Bank -No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024