https://new.kenyalaw.org/akn/ke/judgment/keca/2026/911

Diamond Trust Bank Kenya Ltd v Omondi alias Francisca Omosi & another (Civil Appeal E034 of 2023) [2026] KECA 911 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 911 (KLR) Republic of Kenya In the Court of Appeal at Malindi Civil Appeal E034 of 2023 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Diamond Trust Bank Kenya Limited Appellant and Francisca Akello Omondi alias Francisca Omosi 1st Respondent Invesco Assurance Company Limited 2nd Respondent (An Appeal from the Judgment and decree of the High Court of Kenya at Malindi (S. M. Githinji, J.) delivered on 18th July 2023 in Malindi HCCA Suit No. 50 of 2021 Civil Appeal 50 of 2021 ) Judgment 1.Francisca Akello Omondi, also known as Francisca Omosi, (the 1st Respondent) moved the court by way of a Notice of Motion dated 19th December 2019 under the provisions of Order 23 of the Civil Procedure Rules, seeking to attach monies held by the Appellant, Diamond Trust Bank Kenya Limited, as garnishee, to the credit of Invesco Assurance Company Limited, (the Judgment Debtor). The application arose from a judgment rendered in favour of the 1st Respondent in Kilifi SPMCC No. 157 of 2017 where she was awarded a decretal sum of Kshs. 224,555 together with interest at court rates. 2.Pursuant to the application, the trial magistrates’ court issued a Garnishee Order Nisi on 8th January 2020 and directed the Appellant to appear before the court to show cause why the funds in the Judgment Debtor’s account should not be attached to satisfy the decree. In response, the Appellant filed a Replying Affidavit sworn by Francis Kariuki, a legal officer, on behalf of the bank, where a bank statement was annexed showing that the account in question held only Kshs. 43,031, which amount it stated was insufficient to settle the decretal sum. 3.In the written submissions, the Respondent argued that the Appellant had merely produced a one-day statement, which did not reflect the true position of the account at the time the Appellant was called upon to show cause; that the disclosure was selective and misleading because the purpose of an order nisi is to preserve the funds in the account pending the hearing of the application. 4.The trial court observed that the Appellant was required to present a statement as at the date it was required to show cause, and not an outdated or selective snapshot of the account as at the date when the order nisi was issued, and that it appeared to be withholding material information necessary for the just determination of the application. The court held that the 1st Respondent had satisfied the legal threshold under Order 23 Rules 1 and 4, and ordered that all sums held by the Appellant to the credit of the Judgment Debtor be attached to satisfy the decretal sum, and granted the Respondent costs of the garnishee proceedings. 5.Aggrieved, the Appellant appealed to the High Court where it contended that the trial magistrate was in error in the interpretation and application of Order 23 of the Civil Procedure Rules, thereby reaching an erroneous conclusion. In particular, the Appellant argued that the trial court wrongly held that the statement of account it provided—showing the balance in the Judgment Debtor’s account as at 9th January 2020—was not a true statement, and faulted the court for finding that it ought to have produced a full and true account statement as at the date of hearing of the garnishee application, namely 12th February 2020, rather than as at the date when the garnishee order nisi was served. It also challenged the finding that the bank was withholding material information from the court regarding the operations of the Judgment Debtor’s account, as well as the conclusion that the account contained sufficient funds to satisfy the 1st Respondent’s decretal sum of Kshs. 224,555, despite what the Appellant maintained was uncontroverted evidence to the contrary. 6.Upon considering the appeal and the parties’ submissions, the High Court held that the governing legal framework under Order 23 of the Civil Procedure Rules was that, in garnishee proceedings, the burden shifts to the garnishee to satisfactorily demonstrate whether or not it is indebted to the judgment debtor; that, although the Appellant admitted holding the Judgment Debtor’s account, it had only furnished a one-day statement dated 9th January 2020, being the date the order nisi was served, which the High Court found inadequate; that, because the purpose of a garnishee order nisi is to preserve the account from the date of the order until the date of showing cause, the garnishee was under a legal obligation to provide a true and complete statement of account covering the period between 8th January 2020 (date of order nisi) and 7th February 2020 (date of its affidavit). The bank's failure to do so created an impression that the Appellant was withholding or concealing essential information. The High Court found that the trial magistrate rightly concluded that the Appellant failed to discharge its burden of proof by producing a selective statement, and upheld the finding that the Appellant had not proved that the account lacked sufficient funds. In so finding, the court dismissed the appeal with costs to the 1st Respondent. 7.Aggrieved, the Appellant has filed an appeal to this Court on grounds that: the learned Judge was in error in failing to properly consider the definition of “debts due or accruing” in respect of credit balances in bank accounts attached pursuant to garnishee proceedings under Order 23 Rule 2 of the Civil Procedure Rules; in failing to hold that, being an application to attach debts, the Garnishee Order Nisi dated 8th January 2020 only attached any unclaimed credit balances in the 2nd Respondent’s attached account No. 00022xxx14 as at the date of service, namely 9th January 2020, as provided under Order 23 Rules 2 and 3 of the Civil Procedure Rules; in failing to hold that the statement of the 2nd Respondent’s account No. 0002xxx14 as at 9th January 2020, produced by the Appellant in its Replying Affidavit dated 7th February 2020, was sufficient to demonstrate that the Appellant was not indebted to the 2nd Respondent; in holding that the Appellant was required to produce additional statements of the 2nd Respondent’s account No. 0002xxx14 covering the period from 8th January 2020 to 7th February 2020, yet no specific order for such production was issued; in failing to address the probative value of the statement of account No. 0002xxx14 for the period from 10th January 2020 to 7th February 2020 when assessing whether the Appellant was indebted to the 2nd Respondent as at 9th January 2020; in failing to properly consider the legal framework governing garnishee proceedings and, in so doing, arrived at an erroneous conclusion; and in failing to set aside the Garnishee Order Absolute dated 13th May 2020. 8.When the appeal came up for hearing on a virtual platform, learned counsel Mr. Janjo appeared for the Appellant, learned counsel Ms. Osino appeared for the 1st Respondent and, though served, there was no appearance for the 2nd Respondent. 9.In their brief oral submissions, counsel for the Appellant begun by submitting that the 1st Respondent’s surreptitious attempt to question the jurisdiction of this Court on account of the failure to seek leave to bring this appeal was unwarranted and incompetent, for the reason that Order 43 rule 1 of the Civil Procedure Code is only restricted to orders pertaining to the original jurisdiction of the High Court. 10.It was further submitted that the High Court fundamentally misdirected itself on the law governing garnishee proceedings under Order 23 of the Civil Procedure Rules in that, under Order 23 Rule 2 and Rule 3, a garnishee order nisi only attaches to existing and unclaimed credit balances in the Judgment Debtor’s account as at the date of service of the order nisi, and not any deposits that may be made thereafter; that the 2nd Respondent’s Bank’s statement as at 9th January 2020, the date of service, was sufficient and constituted prima facie evidence showing that the Appellant was not indebted to the 2nd Respondent. To buttress this argument, counsel relied on the definition of a “debt” in the case of Webb vs Stenton [1883] 11 QBD 518 for the proposition that where a debt is described as a present obligation to pay even if payable in the future—debitum in praesenti, solvendum in future, which principle was approved by the Supreme Court of India in the case of Kesoram Industries & Cotton Mills Ltd vs Commissioner of Wealth Tax (AIR 1966 SC 1370); that, for a bank balance to be attachable, there must be an existing, present, and ascertainable liability owed by the garnishee to the Judgment Debtor at the time of attachment and, therefore, the only relevant inquiry was the state of the account as at the date of service of the order nisi, and not the subsequent dates. 11.Counsel further relied on Halsbury’s Laws of England, Vol. 5 [2009] para. 1418 to support argument that a garnishee order nisi binds the debts in the hands of the garnishee as at the date of service, and does not attach future, contingent, or subsequently arising debts. Accordingly, the Appellant faulted the High Court for requiring the production of account statements from 8th January 2020 to 7th February 2020 despite the absence of any court order to this effect, or a further affidavit from the 1st Respondent disputing the Bank’s evidence. Counsel concluded by submitting that the High Court misconstrued the governing principles and wrongly upheld the garnishee order absolute, thereby imposing a liability where none existed. 12.In their written submissions and brief oral highlights, counsel for the 1st Respondent submitted that the present appeal is incompetent for want of jurisdiction for the reason that the Appellant had filed this second appeal without obtaining the mandatory leave of the court, contrary to Order 43 Rule 2 of the Civil Procedure Rules and Rules 89(1)(i) and 88(2)(a) of the Court of Appeal Rules, which require an order granting leave to appear on the record. Counsel relied on the foundational jurisdictional principle in National Land Commission vs Tom Ojienda & Associates; National Bank of Kenya & Another (Garnishee) (Civil Appeal E247 of 2022) [2023] KECA 1537 (KLR), to argue that absence of leave rendered the entire appeal incompetent and liable to be struck out. 13.Without prejudice to the objection raised, counsel went on to submit that the learned High Court Judge properly exercised the duty of a first appellate and re-evaluated the evidence and arrived at the correct conclusion that the Appellant had withheld material information; that, although the Appellant admitted holding the 2nd Respondent’s bank account, it only produced a one- day statement for 9th January 2020 and failed to account for funds in the account from the time the garnishee order nisi was issued on 8th January 2020 to the time it filed its Replying Affidavit on 7th February 2020, which omission violated the duty of a garnishee to fully disclose the true state of the account when called upon to show cause. 14.To reinforce this submission, counsel cited the principles on material non- disclosure in Brink’s Mat Ltd vs Elcombe [1988] 3 All ER 1886 as adopted in the case of Uhuru Highway Development Ltd vs Central Bank of Kenya & 2 Others [1995] eKLR, arguing that a party who comes to court while withholding material facts cannot benefit from its own non-disclosure, and that both the Magistrate and the High Court rightly denied the Appellant the advantage it sought to derive from a selective and incomplete bank statement. 15.Counsel also submitted that the High Court correctly held that the garnishee had not discharged its legal burden under Order 23 Rule 2, and relied on Sections 107(1), 109, and 112 of the Evidence Act for the proposition that a party in exclusive possession of information is required to provide full disclosure of such information. 16.Before addressing the substantive issues raised in the appeal, we begin by addressing the 1st Respondent preliminary objection challenging the competency of the appeal, and whether this Court has jurisdiction to entertain the appeal. Counsel for the 1st Respondent submitted that the present appeal is incompetent for want of leave to appeal, arguing that, since the matter originated from garnishee proceedings brought by way of an application, the Appellant was required to obtain leave before lodging a second appeal to this Court. Reliance was placed on Section 75(1) of the Civil Procedure Act, Order 43 Rule 2 of the Civil Procedure Rules as well as Rules 88(2)(a) and 89(1)(i) of the Court of Appeal Rules. 17.Section 75(1) of the Civil Procedure Act sets out the circumstances under which an appeal may lie from orders of a court. The provision stipulates that appeals shall lie as of right from the specified orders and shall also lie from any other order with leave of the court, making such order or of the court to which the appeal would lie if leave were required. The section thereafter enumerates the categories of orders from which an appeal lies as of right. In particular, Section 75(1)(h) provides that an appeal shall also lie from any order made under the Civil Procedure Rules where the rules expressly permit such an appeal. 18.Section 75(2) of the Act further provides that no appeal shall lie from any order passed in appeal under this section, thereby limiting the scope of further appeals arising from interlocutory orders, unless the law expressly so provides otherwise. 19.In this regard, Order 43 rule 1 (1) of the Civil Procedure Rules provides:“An appeal shall lie as of right from the following orders and rules under the provisions of section 75 (1) (h) of the Act….”The rule goes on to list those orders and rules for which a right of appeal lies.Thereafter, Order 43 rule 1 (2) of the Rules further states:“An appeal shall lie with the leave of the court from any other order made under these Rules”. 20.The above cited rules are therefore patently clear that an appeal lies as of right in respect of the listed orders and rules but, for any other order, leave to appeal such order is a mandatory requirement. In so far as garnishee proceedings under Order 23 are concerned, Order 43 Rule (1) (1) clearly specifies that for garnishee orders concerning other third persons under Order 23 Rule 7, appeal as of right lies in such instances. The inference here being that, for all other garnishee orders under Order 23, leave to appeal is a necessary prerequisite. 21.The procedure for obtaining leave to appeal is provided under Order 43 Rule 1 (3) which states that an application for leave to appeal under Section 75 of the Act shall, in the first instance, be made to the court that made the order sought to be appealed from. Such an application may be made orally at the time the order is made, or within fourteen days from the date of the order. 22.This Court in the case of Nyutu Agrovet Ltd vs Airtel Networks Ltd [2015] eKLR was categorical that where there was no automatic right of appeal as stipulated under Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, then the appellate court has no jurisdiction to hear and determine an appeal unless leave of the court from which the order was made is sought and obtained. 23.In the case of Peter Nyaga Muvake vs Joseph Mutunga [2015] eKLR, this Court expressed itself thus:“… Section 75 of the Civil Procedure Act, Cap 21, stipulates the thematic orders from which appeals lie as of right. Appeals from other orders lie only with the leave of the court…As the effect of this is that no appeal lies without such leave, this Court would have no jurisdiction to entertain, hear or determine the applicant’s appeal.…Without leave, there can be no valid notice of appeal. And without a valid notice of appeal, the jurisdiction of this court is not properly invoked. In short, an application for stay in an intended appeal against an order which is appealable only with leave which has not been sought and obtained is dead in the water. We so find and hold.” 24.Further, in the case of National Land Commission vs Tom Ojienda & Associates; National Bank of Kenya & another (Garnishee) (Civil Appeal E247 of 2022) [2023] KECA 1537 (KLR), this Court held:“Turning to the main argument advanced on the question of leave, I do not think the requirement of obtaining leave to appeal is a technical requirement at all. It goes to the jurisdiction of the Court to hear and determine a dispute. If a party does not obtain the leave required by statute or the rules, that deficiency deprives the Court of the jurisdiction to entertain the appeal. That deficiency cannot be cured by a later acquisition of that leave and neither can it be said to have been waived by any directions given by this Court in an application for stay. The requirement for leave is a substantive requirement of law that goes to the root of the jurisdiction of the Court. As the Supreme Court remarked in Samuel Macharia Kamau v KCB & others [2012] eKLR, the Court cannot arrogate for itself jurisdiction by judicial craft: jurisdiction is a bright-line analysis: the Court has it or not. In this case, failure to obtain leave before moving to this Court deprives this Court of the jurisdiction to entertain the appeal.Our constitutional schema is such that the right to appeal against judgments or orders to this Court is not absolute in all cases and leave to appeal in certain situations is a condition precedent for the exercise of the right to appeal. As such, the requirement of leave to appeal where a statute or rule so prescribes is a jurisdictional prerequisite for hearing of an appeal, the object of which is to protect this Court from baseless appeals or to otherwise provide legitimate strictures for the exercise of the right to appeal.Having reached this consequential decision, this Court must down its tools. It cannot move a single step further to consider the appeal on its merits: The appellant did not have leave to lodge its Record of Appeal in this Court. While its lodgment of the Notice of Appeal could be saved by dint of Rule 77(4) of the Court of Appeal Rules (provided that leave was later obtained), the deficiency respecting the Record of Appeal is simply incurable.” 25.Faced with a similar situation, the High Court in the case of TatuCity Limited vs Calla Limited [2022] eKLR, stated as follows:“Equally, by virtue of the provisions of Order 43 Rule 1 (l) an appeal in respect of garnishee proceedings only lies as of right from an order made under Order 23 Rule 7 of the Civil Procedure Rules, and in all other instances, leave is required to appeal.…The onus was upon the Appellant to tender a copy of the order or proceedings in which leave was granted to appeal the order of 8th March 2021. No such order was annexed to the Appellant’s replying affidavit or cited in the memorandum of appeal. In the absence of such evidence, it appears that the appeal herein may not be competently before this court and is liable for striking out along with the accompanying motion.” 26.Similarly, Sewe, J. in the case of Edith Wairimu Njoroge vs Brooks Holdings Co. Ltd [2018] eKLR held that, where an appeal does not lie as of right from an order but only with leave, such leave was a prerequisite to the assumption of jurisdiction by the Court on Appeal. 27.The same position was reiterated in Nairobi High Court Civil Appeal 269 of 2019 David Kangethe & Simon Njangiru Kuria vs Dennis Nyangicha Nyairo, where Meoli, J. correctly held that under Order 43(1) of the Civil Procedure Rules, appeals lie as of right only in the instances expressly provided for and, in all other cases, leave of the court must first be obtained. 28.We agree and adopt the conclusions reached in the afore-cited decisions. In applying the outlined strictures to the instant appeal, the record before this Court shows that no leave to appeal against the trial magistrates’ garnishee nisi order was sought for or obtained either from the High Court or from this Court in respect of this second appeal. The requirement for leave to appeal where the law so prescribes is not a mere procedural technicality, but a jurisdictional prerequisite. The import of these provisions is that, where an appeal does not lie as of right, absent such leave, the appeal is rendered incompetent. Failure to obtain such leave to appeal deprives this Court of the jurisdiction to entertain the appeal. See also the case of 4MB Mining Limited c/o Ministry of Mining, Juba Republic of South Sudan vs Union Link Logistics & 3 others (Civil Appeal 44 of 2020) [2023] KECA 306 (KLR). 29.Accordingly, since the requisite leave to appeal was not obtained, the appeal before us is incompetent and, given the well-established edict that a court must down its tools the moment it finds that it lacks jurisdiction, we reach the conclusion that this appeal is incompetent and is hereby struck out for want of leave with costs to the 1st Respondent.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A. K. MURGOR.....................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb......................................JUDGE OF APPEALG. W. NGENYE-MACHARIA.....................................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR