[2020] KECPT 66 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 314 OF 2019

JOSEPH OKELLO.............................................CLAIMANT

VERSUS

CS 4658 MALA SACCO SOCIETY LTD.....RESPONDENT

CO-OPERATIVE BANK OF KENYA.............GARNISHEE

RULING

What is before us for consideration and determination is the Judgment Creditor Application dated 29/1/2020. It’s seeking, in the main, for orders inter alia:

1. That the Application herein be certified urgent and be heard forexpartein the first instance;

2. That all debts owing or accruing due from the Garnishee to the Judgment Debtor be attached to answer the decree dated 11th November, 2019 for the sum of Kshs. 157,178. 36 debt and Kshs. 25,857 costs; and

3. That the Costs of the Garnishee be provided for.

The Application is supported by the grounds on its face and the affidavit of Earlie Ng’ani sworn on even date.

Vide the instant Application, the Decree Holder contend that there exist a Decree against the Respondent dated 11/11/19. That it is for Kshs. 183,053. 36 with Kshs. 157,178. 30 being the principal amount plus interest and Kshs. 25,875 being costs. That to date, the Decree remains unsatisfied yet the Respondent /Judgment debtor has deposits held by the Garnishee. That it is thus in the interest of justice for the said deposits to be attached to satisfy the decree.

Response by the Respondent

The Judgment Debtor has opposed the Application by filing a Replying Affidavit sworn by Charles Ouko Oketch on 20/5/2020. That vide the said response the Judgment Debtor contend that it does not deny the fact that it owes the decree holder his deposits but that it is incapable of satisfying the decree wholly as it is financially strapped. That it has, on several occasions brought this fact to the knowledge the Decree Holder.

That the attachment of monies held by the Garnishee will be prejudicial to it as the said funds belong to its members. That it has been following up on loan defaulters to put the Sacco to liquidity. That it is thus praying for the monies owed to the Claimant to be paid in instalment.

Garnishee’s Response

Despite being served with the Application, the Garnishee did not file any response to the Application.

Disposal of the Application

Vide the directions gives on 22/7/2020, the Application was canvassed by way of written submissions. The Decree Holder filed his on 27/1/2020. The Respondent and the Garnishee did not file their respective submissions.

Issues for determination

We have framed the following issues for determination:

a. Whether the Decree Holder has established a proper basis to warrant the Tribunal to attach the Respondent’s funds held by the Garnishee; and

b. Who should meet the costs of the Application.

Garnishee Proceedings

Garnishee proceedings are governed by Order 23 of the Civil Procedure Rules. Order 23 rule (1) provides in this regard thus;

“A court may, upon the ex-parte Application 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..”

Thus, for Garnishee proceedings to be founded, the Garnishee must be indebted to judgment debtor. This is what Garnishee proceedings entail. This was the holding of the court in the case of Ecobank Kenya Ltd-Vs- True North Construction Company Ltd & Another [2018]eKLR. In the pertinent part, the court had thus;

“The object of Garnishee proceedings is to enable a decree holder to reach 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.”

It follows therefore that in terms of Order 23 Rule (1) of the Civil Procedure Rules all we need to satisfy ourselves when faced with an Application of this nature is whether or not the Garnishee is indebted to the judgment debtor. From the material before us, it is apparent that the Garnishee holds funds on behalf of the judgment debtor. Whilst the Garnishee has not made any representation with respect to the instant Application it is apparent that the Judgment debtor has confirmed that indeed it has an account with the Garnishee.

We have considered the judgment debtor grounds in opposition to the instant Application. We find that the same are untenable. The Decree remains unchallenged and the same remains unsatisfied.

Conclusion

The upshot of the foregoing is that we find merit in the Decree Holder’s Application dated 29/1/2020 and hereby allow it in the following terms:

a. That a Decree Absolute is hereby issued directed at the Garnishee attaching the sum of Kshs. 183,053. 36 held in account No. 01120027132500 at its Nairobi Industrial Area Branch.

b. The Respondent/Judgment Debtor to meet the costs of Garnishee proceedings .

Ruling read, dated and delivered virtually this 17th day of September, 2020.

Hon. B. Kimemia Chairman ………………….

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

P. Gichuki Member …………………

Mr. Ngania - Claimant

Garnishee - Absent

Charles Ouko Oketch - Respondent