[2022] KEHC 14171 (KLR)

KCB Bank Kenya Limited v Mbogho & 2 others (Civil Appeal E257 of 2021) [2022] KEHC 14171 (KLR) (Civ) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14171 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E257 of 2021

JK Sergon, J

October 12, 2022

Between

KCB Bank Kenya Limited

Appellant

and

Prudence Shambi Mbogho

1st Respondent

Africa Merchant Assurance Co. Ltd

2nd Respondent

NCBA Bank Kenya Limited

3rd Respondent

(Being an appeal arising from the ruling and order of Hon. Kagoni E. M. Principal Magistrate delivered on 4th May 2021 in Milimani CMCC no. 502 of 2019)

Judgment

1. On May 4, 2021, the trial court delivered its ruling whereof it issued a garnishee order absolute. Being dissatisfied KCB Bank Ltd, the appellant herein preferred this appeal putting forward a total of 8 grounds of appeal.

2. When the appeal came up for hearing this court gave directions to have the appeal disposed of by written submissions.

3. I have re-evaluated the arguments which were made before the trial court. I have also taken into account the written plus the authorities cited. This is a first appeal and it is therefore the court’s duty to reanalyze and subject the evidence on record to a fresh scrutiny and come up with an independent decision.

4. The main issues for determination can be summed up to two issues:

5. Whether the trial magistrate erred in law and in fact by failing to appreciate that there was a proper response filed with respect to the garnishee order absolute and whether the appellant had provided sufficient reason for the review of orders.

6. It is appropriate at this stage to deal with order 45 rule 1 of the Civil Procedure Rules, 2010 provides thus:“Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay”

7. The trial court held that the application for review was unmerited as it failed to satisfy the requirements of order 45 of the Civil Procedure Rules.

8. In its application for review, the appellant stated that it had no funds in the accounts owing to previous attachments arising from other garnishee orders and thus is on the verge of being held in contempt of court. This, in my view is a sufficient reason for review which if not subjected to further scrutiny would put the court in a position of making an order whose compliance is impossible.

9. In its submissions the appellant explained that it’s non-attendance was not deliberate but an inadvertent mistake by its advocate. Nevertheless, there was a replying affidavit on record which should have been considered before the garnishee order absolute was made.

10. A client should not suffer for his or her advocate’s mistake and such mistake does not limit the right to be heard as provided in the Constitutionof Kenya, 2010. A similar view was held in the case of Omwoyo –vs- African Highlands & Produce Co Ltd[2002]1 Klr, where it was held that:“Time has come for legal practitioners to shoulder the consequences of their negligent act or omissions like other professionals do in their fields of endeavor. The plaintiff should not be made to shoulder the consequences of the negligence of the defendant’s advocates. This is a proper case where the defendants remedy is against its erstwhile advocates for professional negligence and not setting aside the judgment”

11. It was similarly held in the case of Phillip Chemwolo & Another –vs- Augustine Kubede [1982-88] Klr 103 at 1040where it was stated thus;“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit”.

12. In light of the foregoing, I find that the appellant had provided sufficient reason for a review of the orders and given a proper explanation as to why it failed to appear during the interpartes hearing.

13. On the first issue, the appellant avers that it was unable to satisfy the decree of the court due to insufficiency of funds in the judgment debtor’s accounts. It explained that there existed previous garnishee orders attaching the same accounts belonging to the judgment debtor that is account numbers xxxx and xxxx. The appellant attached the judgment debtor’s bank statements and the court orders as proof of the same. The bank statements have the following balances:i.xxxx - Kshs 4,625,305. 58ii.xxxx – Kshs 2,075,334. 94iii.Total – Kshs 6,700,640. 52

14. The decretal sum to be settled by the garnishee is Kshs 11,735,133. 85. There are seven previous orders on the same account with the following sums to be settled by the appellant.i.Misc Civil App No 192 of 2017- Kshs 51,175;ii.Misc Civil App No 193 of 2017 - Kshs 2,303,604;iii.Misc Civil App No 474 of 2017 - Kshs 69, 395,iv.Civil Suit No 1127 of 2017 - Kshs 314, 470; andv.Civil Suit No 8807 of 2018 - Kshs 6,780,950. 00.

15. The decretal sums in two of the orders were not included in the orders. Nevertheless, the above decretal sums total up to Kshs 9,519,594. 00.

16. From the above calculations, it is apparent that the appellant cannot satisfy the decretal amount as all there will be nothing after the previous orders are executed.

17. As said above, the court cannot act in vain. Furthermore, why would the appellant withhold the judgement debtor’s money? There would be no objection from the appellant if at all there were sufficient funds in the judgment debtor’s accounts.

18. I find that the trial court failed to consider these important factors before making a garnishee order absolute.

19. In the end, I find the appeal to be meritorious and is allowed. Consequentlyi.The ruling and order made or given on May 4, 2021 is set aside.ii.The appellant’s notice of motion dated February 3, 2020 is allowed.iii.The garnishee order absolute issued against the appellant on January 21, 2020 is set aside.iv.Costs of the appeal is awarded to the appellant to be borne by the 1st respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 12TH DAY OF OCTOBER, 2022. .…………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent................................... for the 2nd Respondent.................................... for the 3rd Respondent