[2019] KECPT 64 (KLR)
The Tribunal found that the garnishee did not hold any funds on behalf of the judgment debtor at the time of the application. The garnishee's role was limited to acting on instructions for remittance or deductions, and the actual funds were held by the respondent in trust for its members. Since the applicant failed...
Source-derived case information.
- Citation
- [2019] KECPT 64 (KLR)
- Parties
- Applicant: Kenya Union of Savings & Credit Co-operative Limited; Respondent: Maseno University SACCO Society Limited; Respondent: Maseno University
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 804 of 2016
- Procedural Posture
- Garnishee Application / Ruling on Ex Parte Notice of Motion for Garnishee Order
- Outcome
- application dismissed with costs
- Legal Topics
- Garnishee Proceedings, Execution of Decree, Attachment of Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Savings & Credit Co-operative Limited
Applicant
Maseno University SACCO Society Limited
Respondent
Maseno University
Respondent
Procedural Posture
Garnishee Application / Ruling on Ex Parte Notice of Motion for Garnishee Order
Legal Issues
- 1 Whether the garnishee holds funds on behalf of the judgment debtor that can be attached to satisfy the decretal sum.
- 2 Whether the order nisi should be made absolute against the garnishee.
Ratio Decidendi
The Tribunal found that the garnishee did not hold any funds on behalf of the judgment debtor at the time of the application. The garnishee's role was limited to acting on instructions for remittance or deductions, and the actual funds were held by the respondent in trust for its members. Since the applicant failed to demonstrate that the garnishee was indebted to the judgment debtor or held attachable funds, the Tribunal declined to make the order nisi absolute and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 13.11.18 is dismissed with costs.
- The order nisi issued on 19.11.18 is not made absolute.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO.804 OF 2016
KENYA UNION OF SAVINGS & CREDIT
CO-OPERATIVE LIMITED...............................................................CLAIMANT
VERSUS
MASENO UNIVERSITY SACCO SOCIETY LIMITED............RESPONDENT
AND
MASENO UNIVERSITY...................................................................RESPONDENT
RULING
The Matter for determination is an ex-parte Notice of Motion application dated 13. 11. 18 based on the grounds on the face of the application supported by the affidavit of GRACE MUIRURI seeking the following orders:-
1. Thatthe application be certified urgent and heard in the first instance.
2. ThatDecree Nisi do issue in terms of prayer three (3) hereof, pending hearing and determination of this application.
3. Thatall funds held in favour of the respondent judgment debtor by Maseno University be attached to settle the Decretal sum herein plus costs and interest on which the Decree is unpaid for Kshs.36,120,708/=
4. Thatthe Garnishees do within seven (7) days, after the service of the order herein upon them, inform this court, the amount of money they owes the respondent judgment debtor and show cause why it should not pay to the claimant /applicant the debt due from it to the respondent judgment debtor.
5. That the costs of this application be provided for.
The same is opposed vide the replying affidavit of EDWARD MUMO KITATI the finance manager of the garnishee filed on 24. 1.19.
The Garnishee filed their written submission on 30. 7.19. We note that the applicant did not file their written submissions as ordered on 17. 6.19 and 30. 7.19.
The geist of the application is that the judgment Creditor/Claimant obtained a judgment for Kshs.36,120,708/= against the Respondent herein on 3. 2.17.
That the Respondent has no known assets capable of satisfying the partial decree.
That the Garnishee holds moneys inform of membership contribution for the members of the Respondent.
That the said money can be used to satisfy the decree.
We have considered the submission of the Garnishee and the application of the Claimant/ Judgment Creditor.
The garnishee has submitted that they do not hold any money on behalf of the judgment debtor.
That the members deductions of the respondents are remitted to the respondent who holds the money in trust for the members.
That the Garnishee has no duty to decide on how the respondent’s employee/staff utilize their savings but only acts on instructions for any remittance or deductions.
That at the time of this application, the Garnishee was not holding any moneys on behalf of the Respondent.
Therefore they cannot remit moneys they do not hold.
We therefore find that the Garnishee does not owe any money remittable to the Claimant that can be levied to satisfy the decretal amount.
We therefore decline to make the order nisi issued on 19. 11. 18 absolute to levy execution against the garnishee.
The application dated 13. 11. 18 is dismissed with costs.
Read and delivered in open court, this 7TH of November 2019
In the presence of:
Claimant:Modi advocate for Claimant/Applicant.
Respondent:Non-appearance.
Court Assistant:Leweri and Buluma.
B. Kimemia - Chairman-signed.
R. Mwambura – Member-signed.
P. Swanya - Member-signed.