https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7126

Equity Bank of Kenya & another v Attorney General & 3 others (Petition E017 of 2025) [2026] KEHC 7126 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 7126 (KLR) Republic of Kenya In the High Court at Machakos Petition E017 of 2025 RC Rutto, J May 15, 2026 IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 40 OF THE CONSTITUTION OF KENYA 2010 Between Equity Bank of Kenya 1st Petitioner Kenya Bankers Association 2nd Petitioner and Attorney General Respondent and Fitidis Group of Companies 1st Interested Party Light Steel Building Kenya Limited 2nd Interested Party Civicon Company Limited 3rd Interested Party Judgment A. Background to the petition 1.The interested parties entered into two oral contracts, the first for construction services, particularly roofing, walling and ceiling and the second for the erection of galvanized steel studs and installation of gypsum boards. The 1st and 2nd interested parties instituted Machakos Civil Case No. 56 of 2015, claiming breach of contract and seeking damages. The 3rd interested party filed a defence and counterclaim. 2.The High Court (Odunga J as he then was) entered judgment in favour of the 1st and 2nd interested parties and against the 3rd interested party. It granted an injunction restraining the 3rd interested party from commencing and continuing the construction in dispute, awarded the 1st and 2nd interested parties special damages of USD 292,041.88, general damages, interest at the then prevailing bank lending rate and costs of the suit. B. Petitioners’ Case 3.By a petition dated 3rd June 2025 and supporting Affidavit sworn by Kariuki Kingori, the 1st petitioner's Manager Legal Services, on the same date, the petitioners contend that the 1st and 2nd interested parties sought to attach the movable property of the 3rd interested party held in the bank accounts at the 1st petitioner’s Lavington Branch. They contend that on 21st December 2020, the Deputy Registrar, Machakos High Court (Hon. Ondieki, as he then was) issued Garnishee Order Nisi directing the attachment of the funds in said accounts to answer the decree in favour of the 1st and 2nd interested parties for the sum of Kshs. 45,092,059 together with interest and costs. The nisi orders were made absolute by the Deputy Registrar (Hon. Analo) on 1st September 2021. 4.They argue that at the time of these orders, the cumulative amounts in the named accounts of the 3rd interested parties were Kshs. ,364,199.17. However, the 1st and 2nd interested parties instructed their auctioneers, Joseph Kaharo Mundia T/A Upstate Kenya Auctioneers, to issue a proclamation notice for the realisation of Kshs. 46,270,732.51, being the alleged decretal sum. They urge that their application challenging the proclamation was dismissed by a Ruling delivered on 27th June 2022, wherein the court (Hon E M Analo) held that the 1st petitioner had failed to provide up-to-date bank statements and thus had approached the court with unclean hands. 5.The 1st petitioner argues that its application for a stay of execution and review of the orders of 27th June 2022 was dismissed by the court (M.W.Muigai,) on 19th January 2024, wherein the learned Judge had acknowledged the difference in opinion between the 1st petitioner and the Hon. Deputy Registrar. It is deposed that despite this acknowledgement, the Judge directed that if aggrieved by the ruling of 27th June 2022, the forum for redress was an appeal to the Court of Appeal. 6.After this ruling, the petitioners assert that the 1st and 2nd interested parties obtained warrants against the movable property owned by the 1st petitioner, for the sum of Kshs. 84,593,536.95. It is therefore the petitioners' claim that the move to attach the 1st petitioner’s assets to satisfy a decree exceeding the funds held by the 1st petitioner in the 3rd interested party’s accounts and arising from a suit where the 1st petitioner was not a party is a breach of the bank's right to property under Article 40 of the Constitution. Particulars of breach 7.In the submissions of the 1st and 2nd petitioners dated 8th September 2025 and 3rd November 2025 respectively, the petitioners contend that Article 40(1) of the Constitution guarantees every person the right to acquire and own property and to enjoy protection from arbitrary deprivation of such property. Consequently, they submit that the actions of the 1st and 2nd interested parties in instructing the auctioneer to proclaim and attach the assets of the 1st petitioner without judicial sanction amount to arbitrary deprivation of property contrary to Article 40. 8.C oncerning execution of judgments, it is the petitioners’ case that pursuant to Section 44 of the Civil Procedure Act, Cap 21, only property, movable or immovable, belonging to a judgment debtor, or over which, or the profits of which, the judgment debtor has a disposing power, or may exercise for his own benefit, whether held in their own name or by another person in trust for them is liable for attachment and sale in execution of a decree. They contend that garnishee orders, therefore, cannot be judiciously issued against persons not indebted to the judgment debtor. 9.On Garnishee proceedings under Order 23 of the Civil Procedure Rules, the petitioners urge that a judgment creditor can only attach what is owed to the judgment debtor by a third party (the garnishee), which attachment is limited to the debts and not the general property of the garnishee. For these reasons, the petitioners submit that the 1st petitioner cannot be subjected to the attachment of its own properties outside the funds held in the 3rd interested party’s accounts. They rely on Maurice M. Munya & 148 others vs CFC Stanbic Bank Limited (formerly Stanbic Bank of Kenya Limited) [2019] eKLR; Advocates vs Invesco Assurance Co. Limited & 2 others (Misc Civil App No. 1 of 2023) [2024] KEHC 12723; Barclays Bank of Kenya Limited vs Kepha Nyabera & 191 others & another [2013] eKLR; Awo Shariff Mohammed T/A Mohammed Investment vs. Abdulkadir Shariff Abdirahim & 5 Others [2007] KEHC 2632 (KLR). 10.The petitioners further urge that allowing execution against a garnishee’s own property in the absence of clear legal liability violates not only constitutional and procedural safeguards but also raises grave implications for commercial certainty in Kenya’s banking sector. They also emphasize that pursuant to Rule 12 of the Auctioneers Act, a proclamation issued against the assets of a party not sued by the decree holder in the primary proceedings is unlawful, unless the court has expressly sanctioned such action after legal proceedings joining a third party. 11.As regards the bank-customer relationship, the petitioners argue that there is no legal mechanism, either under common law, the Banking Act, or civil procedure, that allows a bank customer to offload their liability onto the bank as the 1st and 2nd interested parties purport to enforce. It is the petitioners’ case that allowing the decree-holders’ access to the 1st Petitioner’s property would, in effect, extend the law beyond its settled boundaries and would effectively compel a third party, who stands outside the original judgment, to satisfy a debt not of its own, a result which is both legally untenable and manifestly unjust. 12.They plead that the question regarding the issuance of warrants of attachment and proclamation notice against a bank in respect of the liabilities of its customers to third parties is a substantial question of law that affects the 2nd petitioner and its entire membership of commercial banks. Therefore, the 2nd petitioner desires the High Court to determine it, to clarify the legal environment that commercial banks operate in. 13.In response to the challenge to this Court’s jurisdiction, it is the petitioners’ case that the petition raises distinct constitutional grievances on violations of human rights. Further, that the High Court has jurisdiction to grant the reliefs provided under Articles 22, 23 and 165 of the Constitution. They restate their case and argue that the petition has set out with precision the provisions said to be infringed and the manner in which they are infringed in accordance with the principles settled in Anarita Karimi Njeru vs Republic [1979] KLR; Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR; and Kamumo vs Mugo & 6 others [2025] KEELC 7456 (KLR). They also urge the court to evaluate the petition in the context of the requirement of Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 14.On the objection that the court is functus officio, the petitioners rely on the Supreme Court decision in Odinga vs IEBC & 3 others [2013] KESC 8 (KLR) to urge that the principle cannot be invoked to shield unconstitutional actions or to oust the court’s jurisdiction to enforce constitutional rights. The petitioners further submit that the court has jurisdiction to issue the declaratory reliefs sought, as they have satisfied the guiding principles set out in Attorney General vs Bala (Civil Appeal 223 of 2017) [3023] KECA 117 (KLR). They also urge that they have the locus standi under Article 22 to bring a constitutional petition for the enforcement of their constitutional rights. Reliefs Sought 15.Based on the foregoing, the petitioners seek the following reliefs;a.A declaration that, within the meaning of Section 44 of the Civil Procedure Act, Cap 21 and Article 40 of the Constitution and considering the scope of the bank-customer relationship, garnishee proceedings against a commercial bank do not entitle the decree holder to attach and proclaim the movable assets owned by the bankb.A declaration that, within the meaning of Section 44 of the Civil Procedure Act, and Article 40(1) of the Constitution and considering the scope of the bank-customer relationship in garnishee proceedings, a decree holder is entitled to be paid by the commercial bank the funds held by the bank in the customer’s bank account and not from the movable assets of the bank.c.A declaration that the 1st and 2nd interested parties cannot obtain warrants against the 1st petitioner pursuant to execution proceedings under Section 44 of the Civil Procedure Act, in respect of obligations due to them by a third party, the 3rd interested party.d.A declaration that, within the meaning of Section 44 of the Civil Procedure Act, and Article 40(1) of the Constitution, it is illegal and unconstitutional for the 1st and 2nd interested parties to seek to attach against the 1st petitioner in respect of liabilities due to them by a third party, the 3rd interested party.e.A permanent injunction be issued to prohibit the 1st and 2nd interested parties from attaching the assets of the 1st petitioner in any manner whatsoever, in respect of obligations due to them from a third party, the 3rd interested party.f.Costs of the Petition. C. The Respondent’s Case 16.The respondent objected to the petition by way of grounds of opposition dated 22nd July 2025 to the effect that the petition is incompetent, misconceived, misleading, and fatally defective. They also contend that the petition fails to precisely set out the alleged violations or substantiate the allegations. They argue that the petitioners make mere allegations lacking precision, contrary to the threshold settled in Anarita Karimi Njeru Vs Republic [1976-1980] KLR 1272; and Mumo Matemu Vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. It is also the respondent’s case that this court is functus officio and lacks jurisdiction to determine the petition, as the issues raised were determined by courts of competent jurisdiction. D. 1st and 2nd Interested Parties case 17.The 1st and 2nd Interested parties oppose the petition by a replying affidavit sworn by Christakis Fitidis, the Chief Executive Officer of the 1st and 2nd interested parties, on 10th June 2025, and submissions dated 11th September 2025. The interested parties contend that the 1st petitioner was served with the garnishee nisi orders and required to appear and attend court before the orders were confirmed absolute, but failed to satisfy the court why the orders could not be made absolute. 18.It is also the 1st and 2nd interested parties’ assertion that the 1st Petitioner has misled the Court in its petition and has left out further proceedings on the matter. They argue that the 1st petitioner filed various applications seeking to frustrate the realisation of their judgment. They aver that the 1st petitioner filed applications seeking to set aside the absolute garnishee orders, which were dismissed on the grounds that the 1st petitioner had come to court with unclean hands. 19.It is their case that the 1st petitioner filed a notice of appeal simultaneously with Civil Appeal (Application) No. E419 of 2024, for stay of execution, which application was denied for lack of merit. Thereafter, the interested parties contend that the 1st petitioner filed another application in the Commercial Court at Machakos seeking a stay of execution of the warrants of attachment, which application was also dismissed by Maina E.J. 20.For these reasons, it is their case that the matters raised in the petition have been heard and determined by three Judges of the High Court and the Court of Appeal and are therefore res judicata. They cite Samuel Kamau Macharia Vs Kenya Commercial Bank & 2 others [2012] eKLR to urge that the court’s jurisdiction flows from the Constitution or legislation and cannot be arrogated by parties. They also cite the Court of Appeal in Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others [2017] eKLR to submit that res judicata applies not only to substantive issues but to constitutional litigation, prohibiting parties from reopening determined issues. Further, they cite the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR to emphasize the need for finality and certainty in litigation. 21.Moreover, they submit that the petition does not raise any violations of the Constitution but raises issues of a contractual and commercial nature. They rely on the Court of Appeal in Trusted Society of Human Rights Alliance vs Mumo Matemu [2014] eKLR and Harrikissoon vs Attorney General of Trinidad and Tobago [1980] AC 265 to persuade the court that not every legal infraction amounts to a breach of fundamental rights. E. 3rd Interested Party’s Case 22.The 3rd interested party, through the submissions dated 15th September 2024, supports the petition. It essentially restated the petitioners’ case, adding that the issuance of the proclamation notices against the 1st petitioner’s property violates the right to property under Article 40 of the Constitution. The 3rd interested party further argues that the 1st and 2nd interested parties, by purporting to attach the 1st petitioner’s property, have subjected the 1st petitioner to arbitrary deprivation of property contrary to Article 40(2). F. Analysis for Determination 23.Arising from the petition, the responses thereto, as well as the parties’ written submissions, the following issues arise for determination:a.Whether this Court has the jurisdiction to determine the petition;b.Whether the 1st petitioner's right to property under Article 40 of the Constitution had been infringed; andc.What are the appropriate orders to issue, including on costs? G. Analysis i. Whether this Court has the jurisdiction to determine the petition 24.The challenge to this Court’s jurisdiction is threefold. First, the respondent and the 1st and 2nd interested parties argue that the matters raised by the petitioners are res judicata. Second, that the Court is thus functus officio, having conclusively pronounced itself. Lastly, they contend that the petition fails to meet the tenets of a constitutional petition set out in the Anarita Karimi Njeru and Mumo Matemu Cases Supra. To support their case, it is contended that the petition offends Section 7 of the Civil Procedure Act and settled jurisprudence on the finality of litigation, for the reason that, having filed several matters before the High Court and the Court of Appeal, the 1st petitioners now seek to reopen concluded issues. In the same breath, it is urged that this Court is functus. 25.The petitioners, on the other hand, oppose these assertions and contend that the Court is clothed with the requisite jurisdiction under Articles 22, 23 and 165 of the Constitution. The petitioners assert that the petition raises cogent constitutional questions and grievances and has satisfied the principles settled by the Anarita Karimi Njeru case [Supra] and Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. 26.As regards the argument on res judicata and functus, the petitioners argue that these principles cannot be invoked to shield unconstitutional actions or to oust the court’s jurisdiction to enforce constitutional rights. They emphasize that they have the locus to approach the court by way of a constitutional petition and that the court has the jurisdiction to grant the relief sought under Article 23 of the Constitution. 27.To establish jurisdiction, it is important to appreciate that the High Court has jurisdiction to hear and determine petitions for the breach of constitutional rights. Article 23(1) of the Constitution explicitly states that:The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights 28.Similarly, Article 165(3)(b) of the Constitution clothes the High Court with jurisdiction to determine questions of constitutional breaches and infringement. Article 165(3)(b) states:Subject to clause (5), the High Court shall have—jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. 29.In this petition, questions as to the exercise of this court’s jurisdiction as above stated have been raised, and it is incumbent on this court to also satisfy itself that it can rightfully invoke its jurisdiction as invited by the petitioners. In particular, whether the issues raised in this petition are res judicata and, consequently, whether this court is functus officio. 30.As pertains to res judicata, Section 7 of the Civil Procedure Act provides as follows:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. 31.The Civil Procedure has also provided explanations with respect to the application of the res judicata rule, in the following terms:“Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question, whether or not it was instituted before it.Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation (4) — Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree, shall, for this section, be deemed to have been refused.Explanation (6) — Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for this section, be deemed to claim under the persons so litigating. 32.Res judicata has been subject to judicial determinations in Kenya. The Supreme Court in the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) comprehensively addressed the different facets making up the doctrine of res judicata. On when to invoke it, the Apex Court had this to say:For res judicata to be invoked in a civil matter, the following elements must be demonstrated:a.There is a former judgment or order which was final;b.The judgment or order was on merit;c.The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd.There must be between the first and the second action identical parties, subject matter and cause of action. 33.In Kenya Commercial Bank Ltd & another vs Muiri Coffee Estate Ltd & 3 others [2016] KESC 6 (KLR), the Supreme Court determined that:“… whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction." 34.The Court of Appeal in Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd [2017] KECA 98 (KLR) restated the elements as follows:The elements of res judicata have been held to be conjunctive rather than disjunctive. As such, the elements reproduced below must all be present before a suit or an issue is deemed res judicata on account of a former suit;a.The suit or issue was directly and substantially in issue in the former suit.b.That former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. 35.The High Court in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] KEHC 3922 (KLR) brought to force the acid test that courts should consider when determining whether a civil suit is res judicata, thus:i.the matter in issue is identical in both suits;ii.the parties in the suit are the same;iii.the sameness of the title/claim;iv.the concurrence of jurisdiction; andv.the finality of the previous decision. 36.Guided by its jurisprudence, it is clear that the doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; it ensures that litigation comes to an end, and the verdict duly translates into fruits for one party, and liability for another party, conclusively. 37.This principle is not a technicality limiting the scope for substantial justice. The relevance of res judicata is not affected by the substantial-justice principle of Article 159 of the Constitution, intended to override technicalities of procedure. Res judicata, therefore, entails more than procedural technicality and lies on the plane of a substantive legal concept. (See Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd [Supra]) 38.As to whether the principle of res judicata applies to constitutional petitions, the Supreme Court in John Florence Maritime Services Ltd [Supra] found that:“If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further article 50 on right to fair hearing and article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other." 39.In Silas Make Otuke v Attorney General & 3 others [2014] KEHC 5552 (KLR), the High Court held that:“Accordingly, we unhesitatingly find that the principle of res judicata is applicable to Constitutional litigation and its relevance is not affected by the substantial justice principle of Article 159 of the Constitution, which overrides technicalities of procedure." 40.This finding was echoed by the High Court in Charo Kazungu Matsere & 273 Ors. v Kencent Holdings Limited & Anor. [2012] KEHC 4161 (KLR) and Booth Irrigation v. Mombasa Water Products Ltd. (Booth Irrigation No. 1) Nairobi HC Misc. Appl. NO. 1052 of 2004, that:“Although Constitutional Applications should be heard on merit, I find that there is nothing that would prevent a challenger of the alleged contravention moving this court to demonstrate that the application does violate fundamental principles of law, including public policy, for example, the matter raised was res judicata. Res Judicata is in turn based on the principle grounded on public policy that litigation at some point must come to an end. Res judicata is a fundamental principle of our law.” 41.Therefore, res judicata applies to constitutional petitions subject to the settled principles as enunciated above . In this matter, as is evident from the record, the 1st and 2nd interested parties filed Machakos Civil Case No. 56 of 2015, claiming a breach of contract. The 3rd interested party filed a defence and counterclaim. The High Court (Odunga J as he then was) entered judgment in favour of the 1st and 2nd interested parties and dismissed the counterclaim. The trial Judge issued an injunction restraining the 3rd interested party from commencing and continuing the construction in dispute, awarded special damages of USD 292,041.88, general damages, interest at the then prevailing bank lending rate and costs of the suit. 42.The 1st and 2nd interested parties moved the trial court by way of garnishee proceedings under Order 23 Rules (1) and (2), Order 51 Rule 1 of the Civil Procedure Rules, 2010. They sought a garnishee order against the monies held in the 3rd interested party’s accounts held with the 1st petitioner’s bank. In response, the 1st petitioner argued that two accounts were held in lien, and the other accounts, which were the subject of the nisi orders, were not sufficient to satisfy the judgment debt. 43.The Deputy Registrar granted an absolute garnishee on 1st September 2021. It was determined that the 1st petitioner had failed to prove the basis of the alleged lien and failed to make full disclosure of the funds in the accounts, as its annexed bank statements were not up to date. For these reasons, the registrar concluded that the 1st petitioner had not approached the court with clean hands. 44.Aggrieved, the 1st petitioner filed an application seeking to be discharged upon remitting the funds held in the 3rd interested party’s account dated 13th September 2021. According to the 1st petitioner, the 1st and 2nd interested parties had instructed Joseph Kahoro Mundia T/A Upstate Kenya Auctioneers to proclaim and attach its wholly owned equipment in the realization of Kshs.46,270,732.51/- being the amount of the Decree. As a result, the Auctioneer had issued a proclamation notice. Citing Order 23 of the Civil Procedure Rules, it contended that the 1st and 2nd interested parties had grossly misinterpreted the Ruling dated 1st September 2021 in seeking to have the 1st petitioner settle the entire decretal sum, even if the Order issued by the Court directed the 1st petitioner to release all monies it collectively holds on behalf of the 3rd interested party. 45.In its ruling delivered on 27th June 2022, (Odunga J, as he then was) evaluated the provisions of Order 23 on Garnishee proceedings, the facts of this matter, the settled law on garnishee proceedings and dismissed the application for lack of merit. The learned Judge determined that the 1st petitioner was given an opportunity to show cause why the garnishee absolute could not be issued, but did not satisfy the Court that, at the time the decree nisi was served upon it, it did not hold the whole amount. It was the court's further finding that the order nisi was issued on 22nd December, 2020, the garnishee attached bank statements illustrating transactions from 24th February, 2020, to 27th August, 2020 and that the various attached bank statements were not up to date. The Court therefore found that the garnishee had not approached the court with clean hands as to benefit from an equitable relief. 46.Consequently, the court directed that unless the said order was reviewed or set aside, the garnishee had no option but to pay the sum in question. Further, that the law does not permit the garnishee, after a decree absolute has been issued, to claim that it only has part of the same decree. The court found that such was an issue that ought to be dealt with at the hearing of the proceedings to seek to make the decree nisi absolute. 47.The 1st petitioner then filed another application dated 5th July 2022 seeking to review and set aside the Ruling delivered on 27th June 2022. It argued that the account statement referred to by the Deputy Registrars and affirmed by Odunga J, had no sufficient balance to settle the judgment debt. The 1st petitioner further took issue with the execution levied against it in its capacity as a banking institution, as it was not the judgment debtor. Consequently, the 1st petitioner asked the court to reconsider the law and evidence and make a different decision. 48.By a ruling delivered on 19th January 2024, M.W Muigai J dismissed the application, noting that the 1st petitioner’s requests and prayers were tantamount to asking the court to sit on appeal of its own judgment, without jurisdiction. The court found that the 1st petitioners’ application did not satisfy the grounds for review as there was no error apparent on the record. The court noted that, in their findings, both the Deputy Registrar and the Judge determined that the bank statements filed in the garnishee proceedings were not comprehensive, and that the 1st petitioner had approached the court with unclean hands. The trial Judge noted that the issue raised by the 1st petitioner could best be ventilated by way of an appeal. The 1st petitioner was granted leave to file an appeal against the High Court’s ruling by the High Court Odunga J (as he then was) and a stay of execution for 90 days, on condition that the 1st petitioner deposits Kshs 1,000,000 pending the appeal at the Court of Appeal. 49.The 1st petitioner filed a Notice of Appeal before the Court of Appeal dated 24th January 2024 against the Ruling of the High Court by Odunga J, (as he then was) and an application for stay of execution pending the hearing and determination of the appeal in Civil Appeal (Application) No. E419 of 2024. By an ex tempore Ruling of 24th September 2024, the Court of Appeal dismissed the application because it was devoid of merit. The appellate court reasoned that the concern was that the 1st petitioner was seeking an equitable remedy, yet when asked by the Court at the hearing of the application whether it had allowed the 3rd interested party to continue transacting in its accounts after service of the garnishee order, counsel answered in the affirmative. 50.The Court of Appeal emphasized that the High Court found for a fact that the applicant had approached it with unclean hands by allowing the 3rd interested party to continue transacting in the accounts that were subject to the garnishee order and by failing to provide truthful and accurate statements on the status of those accounts. A party that seeks an equitable remedy must show itself to be worthy of such a remedy. Consequently, it held that as the grant of orders under Rule 5(2)(b) of the Court of Appeal Rules is an equitable order, the principles of equity were applicable. Further, by its conduct, the 1st petitioner had demonstrated that it was undeserving of the equitable relief. 51.It would appear that the 1st petitioner abandoned this appeal. Unsatisfied, the petitioner moved back to the High Court vide an application dated 19th November 2024, seeking a stay of execution and appointment of an independent auditor to ascertain the amount of funds in the accounts held by the 3rd interested party. In a ruling by Maina J, the court dismissed the application for lack of merit. It directed that, as there was a pending appeal, the proper forum to raise the issues raised in the application was the Court of Appeal. More so, given that the same have been canvassed and determined by the High Court several times, and to determine them would be tantamount to sitting on appeal against these decisions without jurisdiction. 52.Now, guided by the above jurisprudence, chronology of proceedings and the issues raised and determined in those proceedings, I conclude that some of the issues raised by the petitioners in the petition before me were in issue and were determined before different Judges of concurrent jurisdiction. In determining these issues, the High Court has consistently found that the orders granted in the garnishee proceedings and now in issue in this Constitutional petition can only be determined under the appellate jurisdiction. The 1st petitioner moved the Court of Appeal in one instance as directed by the High Court, but it would appear that this appeal was abandoned or yet to be canvassed. 53.Does the above noted circumstances amount to res judicata and therefore oust this Court’s jurisdiction as urged in this petition? While it is settled that res judicata extends to petitions filed in enforcement of the Constitution, the elements must conjunctively be applied to the circumstances. From the existing case law, there are largely five elements that were set out above must be satisfied. These are whether the issues raised were directly and substantially in issue in the former suit; the similarity of parties, litigation under the same title, the finality of the determination and the competence of the court that determined the issue. It is therefore necessary to evaluate the present circumstances. 54.It is conceded that there exists Machakos Civil Case No.56 of 2015 Fitidis Group of Companies & Another versus Civicon Company Limited. The suit primarily revolved around breach of contract and damages resulting to a monetary award. However, it is important to point out that the Petitioners were not parties to the contract in issue, the ensuing litigation or the monetary award. The 1st petitioner only joined in the matter through garnishee proceedings, as the successful party at the High Court moved to execute the decree issued in its favour, the judgment debtor having failed to settle the decree. At any rate, the 2nd petitioner was never a party at any stage of the proceedings in Civil Case No.56 of 2015 Fitidis Group of Companies & Another versus Civicon Company Limited. 55.The above circumstances in my view brings to the fore two questions. Was it open for the 1st petitioner to appeal and if so, to what extent? In answering the above questions, it is important to appreciate that such an appeal would only be limited to that against the ruling making the garnishee order nisi absolute. 56.In my view, such an appeal could only be limited to addressing whether the ruling on garnishee order absolute was made correctly, addressing the finding that the 1st petitioner had come with unclean hands, something that was consistently referred to in the subsequent rulings. In that scenario, the 1st petitioner would not be able to raise any new cause of action for instance on breach of constitutional violations and seek relief including those raised in the present petition. 57.Besides, the petition seeks inter alia a declaration that, within the meaning of Section 44 of the Civil Procedure Act, and Article 40(1) of the Constitution, provisions that they were not directly subject to contestation in any of the rulings made in Machakos Civil Case No.56 of 2015 Fitidis Group of Companies & Another versus Civicon Company Limited. The petitioners have also raised concerns surrounding a proclamation notice issued against assets of a party not sued by the decree holder in the primary court proceedings pursuant to Rule 12 of the Auctioneers Rules 1997. 58.Further, the constitutional violations raised in the petition only occurred after the ruling by the learned Magistrate making the garnishee order absolute. It was not open to the 1st petitioner to anticipate the finding including on the conduct of the 1st petitioner as to pre-empt the same by making the argument relating to violation of the right to property. It is unsurprising that my brother Odunga J (as he then was) in his ruling made on 27th June 2022 was categorical that he was not dealing with an appeal against the finding that the 1st appellant had approached the court with unclean hands. 59.More importantly, it was not open to the learned magistrate, in handling execution and stay of execution proceedings, to determine alleged violations to the constitution. The jurisdiction to determine violations of the constitutional rights is exclusively bestowed upon the High Court and can only be invoked as stipulated under Articles 22 and 165 (3) (d) (ii) of the Constitution. These provisions also set out the procedure to be followed when invoking the High Court’s jurisdiction as a constitutional court. 60.Notably, the 1st petitioner’s participation in Civil Case No.56 of 2015 Fitidis Group of Companies & Another versus Civicon Company Limited is akin to that of an interested party, peripheral to the main dispute. In Muruatetu & another Vs Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR) the issues for determination remain those presented by the principal parties, or as framed by the court, and an Interested Party cannot introduce new issues for determination. Such a party must demonstrate a stake in the proceedings, but that stake cannot translate into the introduction of fresh issues. Similarly, in Mbaazi Avenue Residents’ Association & another Vs National Environment Management Authority & 2 others [2026] KESC 30 (KLR) the Supreme Court reaffirmed that an Interested Party cannot institute or sustain an appeal where none of the principal parties has done so. 61.In Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others (Petition 15 of 2020) [2023] KESC 14 (KLR) the supreme court observed as follows:“It is worthy of note that the way the dispute is prosecuted through litigation and the surrounding issues determine whether indeed it qualifies to be considered as a constitutional question or not. It is readily determinable for some of them and almost improbable to distinguish constitutional and other underlying issues in others. It is therefore best left to the court on a case to case basis upon critically evaluating the facts, evidence and arguments before it. There will be a level of factual contestations that will inform the court’s determination even at an interim stage to determine whether or not the court should exercise its discretion in favour of the applicant seeking conservatory orders. 62.In the circumstances, therefore I find that the jurisdiction of this Court to determine this petition has not been ousted on account of res judicata and the court is not functus officio. 63.In the same breadth, the objection on lack of specificity as enunciated in the celebrated case of Annerita Karimi Njeru case cannot stand. The petitioner’s grievance is fairly succinct, the facts pointing to the constitutional grievance already mentioned. 64.Having dispensed with the jurisdictional contours, is the petition merited as sought? A perusal of the same reveals that there is common ground that there is a decree that remained unsettled in Civil Case No.56 of 2015 Fitidis Group of Companies & Another versus Civicon Company Limited. It is also uncontested that there exists a Garnishee order absolute against the 1st petitioner and the attempts to discharge and/ or review the same by the 1st petitioner did not yield fruits largely due to the conduct of the 1st petitioner who was described as having unclean hands. 65.At the core of the petition is the scope of attachable property to that which belongs to the judgment debtor. The petitioners contend that allowing execution against a garnishee’s own property absent clear liability would not only violate constitutional procedural safeguards but would also have grave implications for commercial certainty in Kenya’s banking sector. The petitioners challenge the scope and extent of garnishee process as a result of which the petitioners seek declaratory reliefs. In interrogating the merits of the arguments, I am mindful that garnishee proceedings are not a recent creation to the execution process but rather a settled process. 66.Garnishee proceedings are well explained by Lord Denning in Choice Investments Ltd vs Jeromniumon (Midland Bank Ltd. Garnishee) [1981] 1 All ER 225. In its ruling by Odunga J on 27th June 2022 the court summarized the settled garnishee process as follows:“ 21..What comes from the foregoing is that in the first instance a decree nisi is issued to the garnishee requiring him to appear and show cause why the sum due to the decree holder from the judgment debtor cannot be paid to the decree holder from the amount held by the garnishee in credit for the judgment debtor. Once served with the said notice, the garnishee can do either of two things: First, it can immediately pay the sum to the decree holder or into court and secondly, it can, either by an affidavit or physically appear in court and dispute holding either the whole amount demanded or part of it. Where he proves to the satisfaction of the court that he does not hold any money in credit for the judgment debtor, he will be discharged from liability. Similarly, if he proves that he only holds a sum less than the amount in question, he will be discharged upon paying the same. However, if he fails to satisfy the court on either of those circumstances of fails to appear, a decree absolute will issue in which event he becomes liable to pay the whole amount in question” (Emphasis in mine) 67.With the above summary, he found that the 1st petitioner had failed to satisfy the court on either of the circumstance’s consequent to which a decree absolute was issued. The learned judge made a further observation that the process does not permit the garnishee, after a decree absolute has been issued to claim that it only has part of the sum decreed as that is an issue that ought to be dealt with at the hearing of the proceedings seeking to make the decree nisi absolute. He concluded that the unless the said order absolute is reviewed or set aside, the garnishee has no option but to pay the sum in question. He also clarified that the application before him was not seeking to review such orders. 68.Without diminishing the petitioners’ constitutionally underpinned fears and attempt to seek redress, the foregoing position, to my mind, militates against the reopening of the issue through this forum. This is because it could lead to the undesirable position of either reviewing or sitting on appeal, just like my brother Odunga J (as he then was) cautioned. I am reluctant to consider the constitutionality of the garnishee process or award the declaratory reliefs sought under the circumstances. I say so mindful of the 2nd petitioner status and the banking sector and the position adopted in this petition. 69.I am however, satisfied that the questions raised in the petition remain valid. Article 23 of the Constitution empowers the Court to fashion appropriate reliefs in proceedings seeking redress under Article 22 of the Constitution. In the interests of justice, the 1st petitioner should have its day in court, albeit in pursuit of an appeal against the ruling making the decree nisi absolute, as rightly noted by Odunga J (as he then was). In view of effluxion of time since the ruling was made, I grant leave to the 1st petitioners to appeal accordingly.Since the court had preserved the status quo among the parties through its orders issued on 4th June 2025 it is only just that the substratum of the matter be preserved pending the filing of the appeal. H. Disposition 70.I therefore make the following orders:a.The petition dated 3rd June 2025 is allowed to the extent that;i.Leave is granted to the 1st Petitioner to appeal against the Ruling of the Deputy Registrar dated 1st September 2021 making the decree nisi, absolute in Machakos Civil Case No.56 of 2015 Fitidis Group of Companies & Another versus Civicon Company Limited.ii.The petitioners to file the appeal within 14 days from the date of this judgmentb.Stay pending the filing of appeal is granted on condition that security in the sum of Kshs.5,000,000/= be deposited in court failure to which the stay orders automatically lapsec.No order as to costs. Each Party to bear its costsOrders accordingly. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 15TH DAY OF MAY, 2026RHODA RUTTOJUDGEIn the presence of;………………………………..Petitioners…………………………………Respondents………………………………………..Interested partySelina Court Assistant PEt e017 of 2025 0