[2021] KECPT 513 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.100 OF 2018

IRENE ADHIAMBO.......................................................................CLAIMANT

VERSUS

TRANSCOM SACCO LIMITED ............................................ RESPONDENT

RULING

Vide the Application dated 22. 10. 2019, as amended on 28. 2.2020 the Decree Holder has moved this Tribunal seeking for the following Orders:

1. That this Honourable Tribunal be pleased to issue an Order for attachment of the sums of money Kshs.166,156. 43/= held by the Garnishee (Co-operative Bank, Co-operative House Branch), Account Number 01120000602800, in the name of the Respondent/ Judgment Debtor herein in full satisfaction of the decree herein together with the costs of the garnishee proceedings and incidental costs herein;

2. That the costs of this Application be provided for.

The Application is supported by the grounds on its face and the Affidavit sworn by Decree Holder on 22. 10. 2019. The Judgment Debtor has opposed the Application by filing a Replying Affidavit sworn by its Manager Maina Nyaga on 27. 10. 2020.

Vide the directions given on 28. 7.2020, the Application was canvassed by way of written submissions. The Decree Holder filed hers on 14. 9.2020 while the Judgment Debtor did so on 14. 11. 2020.

Decree Holders Contention

Vide the instant Application the Decree Holder contends that it has a decree against the Judgment Debtor which remains unsatisfied yet the Garnishee, holds funds on behalf of the Judgment Debtor. That the said decretal amount is kshs.166,156. 43. The Decree Holder therefore prays for the said funds to be attached in satisfaction of the Decree.

Judgment Debtor’s Contention

Vide the Replying Affidavit sworn by its Manager on 27. 10. 2020,

The Judgment Debtor has opposed the Application on grounds that the decree being enforced is founded on fraudulent and false accounting. That prior to obtaining the said decree, the Decree Holder concealed material and crucial facts. That the following facts obtain as far as this matter is concerned;

a. That the Claimant’s total contribution in the Respondent before resignation was Kshs.195,300/=.

b. That she withdrew kshs.50,000/= through cheque No. 051987.

c. That the Claimant obtained a loan of kshs.21,500/=which she acknowledged at paragraph 5 of her statement of claim.

d. That she failed to deduct the following withdrawals from her shares.

Total shares Kshs.195,300/=

Less withdrawal of Kshs.50,000/=

Less advanced on 15. 11. 2017

Less interest on the loan Kshs.3,225/=

Less institutional shares (Kshs.5000/=)

Less instruction fees

Net balance Kshs.114,525/=

That the Claimant falsely accounted to the Tribunal and obtained a decree for kshs.223,343/-

That subsequently, the Judgment Debtor made the following payments vide the Claimant’s Advocate on record:

a. Kshs.128,475/= vide cheque NO. 0528718 dated 2. 10. 2018;

b. Kshs. 66,525 vide cheque No. 053565 dated 16. 1.2020;

That out of her total share contribution of kshs.195,300/= she was paid Kshs.50,000, 21,550,3,225,128,435 and 66,525/= totaling to kshs.269,775/=.

That under oath the Claimant and her advocate on record lied to the Tribunal and obtained a Decree based on fraudulent concealment of facts.

That further lied that the Respondent had not filed and served a statement of Defence yet the same was filed within the requisite timelines.

That based on the foregoing, the Tribunal should open these proceedings to allow the Judgment Debtor to file a counterclaim against the Decree Holder.

Issues for determination

The Decree Holder’s Application dated 22. 10. 2019 has presented the following issues for determination:

a. Whether the Garnishee Co-operative Bank of Kenya holds money in favour of the Judgment Debtor so as to satisfy the Decree against it?

b. Who should meet the costs of the Application?

Garnishee Proceedings

Order 23 of the Civil Procedure Rules govern Garnishee proceedings. It provides under Rule (3) thus:

“ A court may upon the ex-parte Application by the 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 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 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 be ordered to pay the decree holder the debt due to him to the Judgment debtor or so much thereof as may be sufficient to satisfy the decree together with costs aforesaid.....”.

What we gather from this provision is that for Garnishee proceedings to succeed, the Decree Holder must demonstrate that the Garnishee is indebted to Judgment Debtor and that the said Garnishee holds certain funds to the Judgment Debtor.

The Court in the case o Ecobank Limited –vs- True North Construction Company Limited & Another [2018] eKLR said this about Garnishee proceedings:

“ The object of Garnishee proceedings is to enable the Decree Holder to ...............a debt due to the Judgment Debtor from the Garnishee as may be sufficient to satisfy a Decree. Crucial thereof is that the Garnishee is indebted to the judgment Debtor.”

Taking cue from the decision of the court in the Ecobank’s case above, we pause and ask whether the Garnishee herein holds a debt on behalf of the Judgment Debtor.

We note that the Garnishee, Co-operative Bank of Kenya was served with the instant Application on 16. 10. 2020 as per Affidavit of service sworn by Victor Mulanga on even date ( 16. 10. 2020). Despite this service, the Garnishee did not participate in these proceedings. Thus in the absence of any rebuttal, we agree with the Decree Holder that the Garnishee holds funds in favour of the Judgment Debtor sufficient to satisfy the Decree.

We have noted the Response and submissions of the Judgment Debtor. We find that the same are not relevant to the Application before us. While the Judgment Debtor’s Response an submissions revolves around re-opening of the claim, the instant Application is purely executory in nature. At this stage, we are not allowed to go beyond the provisions of Order 23 of the Civil Procedure Rules. If the Judgment Debtor, desires to re-open these proceedings, then it should follow the usual channels/route to do so.

Conclusion

The upshot of the foregoing is that we find merit in the Decree Holder’s Application dated 22. 10. 2019, as amended on 28. 2.2020and allow it with costs to the Decree Holder.

Ruling signed, dated and delivered virtually this 7th day of January, 2021.

Hon. F. Terer Deputy Chairman ................................

Mr. P. Gichuki Member .................................

Mr. B. Akusala Member ..................................

In the presence of Mr. Andati for Decree Holder

Judgment Debtor absent

Court clerk Maina

Hon. F. Terer Deputy Chairman Signed 7. 1.2021