[2022] KEHC 15375 (KLR)

Karani v Bundi; Ethics & Anti-Corruption Commission (Garnishee) (Civil Case 105 of 2011) [2022] KEHC 15375 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15375 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 105 of 2011

JK Sergon, J

November 11, 2022

Between

Robert Thoronjo Karani

Plaintiff

and

Jeremy Miriti Bundi

Defendant

and

Ethics & Anti-Corruption Commission

Garnishee

Ruling

1. Jeremy Miriti Bundi, the defendant/applicant herein, took out the motion dated February 4, 2022 whereof he sought for the following orders:i.This application be certified as very urgent and be heard ex parte in the first instance.ii.The warrants of arrest in force against the defendant be lifted pending the hearing and determination of this application.iii.Pending hearing and determination of this application there be stay of execution of the decree against the defendant.iv.The defendant/applicant be granted leave to join the Ethics and Anti-Corruption Commission as a garnishee.v.Upon being joined as the garnishee the Ethics and Anti-Corruption Commission be ordered to pay the plaintiff the decretal sum plus costs of the suit as per the judgment of this court, on behalf of the defendant.vi.Upon being joined as the garnishee the Ethics and Anti-Corruption Commission be ordered to pay the defendant’s costs of this suit.vii.The proceedings in this matter relating to the notice to show cause dated October 1, 2021 any warrants of arrest issued and all proceedings for execution of the decretal amount be stayed and or set aside until this application is heard and determined.viii.Costs of this application be provided for.

2. The defendant/applicant filed an affidavit he swore in support of the motion. When served with the motion, Ethics and Anti-Corruption Commission (EACC), the intended garnishee herein, opposed the application by filing grounds of opposition and a notice of preliminary objection both dated March 22, 2022.

3. Robert Thoronjo Karani, the plaintiff herein indicated that he was not opposing the motion. The defendant was granted leave to file a replying affidavit to oppose the notice of preliminary objection, the subject matter of this ruling.

4. In the notice of preliminary objection, the intended garnishee raised the following grounds:i.That the application is incompetent, misconceived and fatally defective in substance and form and contrary to the law relating to garnishee proceedings.ii.That the applicant lacks locus standi to lodge the application as provided under order 23 of the Civil Procedure Rules.iii.That the application is fatally and incurably defective as it is brought under the wrong provisions of the law.iv.That the application is otherwise frivolous, vexatious and an abuse of the court process.

5. It is important to note that he defendant/applicant did not file a replying affidavit at the time of writing this ruling. It is the submission of the intended garnishee that the defendant/ applicant’s motion is incompetent, misconceived and fatally defective in substance and in form. It is argued that the garnishee application is contrary to the law relating to garnishee proceedings.

6. It is further stated that the applicant lacks the requisite locus standito take out the motion under order 23 of theCivil Procedure Rulesand that the same is brought under the wrong provisions of the law.

7. In the substantive application, the defendant/applicant is seeking for inter alia an order enjoining EACC, the intended garnishee, as a garnishee and thereafter an order directing EACC to pay the plaintiff the decretal sum plus costs of the suit as per the judgment of this court on behalf of the defendant.

8. The pertinent issue raised by the intended garnishee is whether the defendant’s application is competent and whether the applicant has the locus standito take out such an application.

9. A careful reading of the provisions of order 23 of the Civil Procedure Ruleswill reveal that a party who is mandated in law to make a garnishee application is a decree holder. The instant garnishee application has been taken out by the defendant judgment debtor. I am persuaded by the arguments of the intended garnishee that the defendant judgment debtor has nolocus standi to file the instant application under order 23(1) of the Civil Procedure Rules. This therefore renders the motion dated February 4, 2022 to be incompetently before this court hence amenable to being struck out.

10. I am satisfied that the intended garnishee’s notice of preliminary objection has merit. The same is upheld. Consequently, the motion dated February 4, 2022 is hereby ordered struck out with costs to the intended garnishee.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. J. K. SERGONJUDGEIn the presence of:.....................for the Plaintiff...........for the Defendant/Applicant.....................for the Garnishee