https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3775

Maina v Riara Downs Management Public Ltd Company (Environment and Land Appeal E027 of 2025) [2026] KEELC 3775 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3775 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E027 of 2025 EK Wabwoto, J June 18, 2026 Between Kiragu Maina Appellant and Riara Downs management Public Limited Company Respondent Ruling 1.This Court has considered the Application filed by the Respondent/Applicant Riara Downs Management Public Limited Company seeking to set aside and/or discharge the ex-parte Garnishee Order Nisi issued on 7th April, 2025 by the trial court against Diamond Trust Bank of Kenya Limited (Account No. 0690xxxxxx) and NCBA Bank Kenya PLC (Account No. 618xxxxxxx), on the grounds that the said order has been overtaken by events and is inconsistent with the stay of execution orders granted on 28th October, 2025. 2.The Applicant relies on the Supporting Affidavit sworn by Kuiyaki Gacanja 9th February 2026 and the Further Affidavit 9th March 2026. The Respondent/Appellant has filed a Replying Affidavit sworn on 17th February 2026 opposing the application. 3.Written submissions have been filed by both parties. The Applicant relies on Njoroge Regeru & Co. Advocates written submissions dated 9th March 2026, while the Respondent/Appellant relies on Mutua-Waweru & Co. Advocates written submissions dated 10th March 2026. Background facts 4.The trial court delivered judgment on 23rd January 2025 in MCELC No. E311 of 2023 Kiragu Maina v Riara Downs Management Public Limited Company, awarding the plaintiff now Appellant Kshs. 253,640.00 with costs and interest. 5.Being dissatisfied with the judgment, both parties filed an appeal and cross-appeal before this Court, resulting in ELC Appeal No. E027 of 2025. 6.On 7th April 2025, before the filing of the appeal, the trial court issued an ex-parte Garnishee Order Nisi against the two bank accounts, seeking to preserve funds for satisfaction of the judgment debt. 7.On 31st January 2025, the Appellant filed the appeal in this Court. The Record of Appeal was filed on 12th March 2025. 8.On 15th April 2025, the Respondent filed an Application before this Court seeking, inter alia: stay of execution of the judgment; extension of time to file cross-appeal; and security for costs in a joint interest-earning account. 9.On 28th October 2025, this Court (Hon. Lady Justice J.G. Kemei) delivered a Ruling allowing the Application on the following terms: stay of execution of the judgment pending the hearing and determination of the appeal and intended cross-appeal; leave to lodge cross-appeal within 7 days; deposit of Kshs. 253,640.00 into a joint interest-earning account held by the parties' respective Counsel within 14 days; preparation and filing of the record of appeal within 14 days of filing the memorandum of cross-appeal; in default, the orders shall lapse automatically; and costs in favour of the Respondent/Applicant. 10.The Applicant fully complied with these conditions. The deposit was made on 10th November 2025 into I&M Bank (Account No. CIF – 080xxxxxx). The Memorandum of Cross-Appeal and Record of Appeal were filed and served on 5th and 10th November 2025 respectively. 11.On 22nd January 2026, both parties appeared before this Court for mention of the appeal. Counsel confirmed compliance with the stay orders, and the Court directed further directions to be issued. 12.However, the Garnishee Order Nisi issued on 7th April 2025 remains subsisting, with funds totalling Kshs. 996,304.00 frozen in the two bank accounts (NCBA: Kshs. 448,042.00; Diamond Trust: Kshs. 548,272.00). 13.On 21st January 2026, the Applicant filed an Application in the trial court seeking to have the Garnishee Order Nisi discharged. However, the trial court declined to entertain this application, directing instead that the file be transmitted to this Court in light of the pending appeal. 14.Constrained by this, the Applicant filed the present Application on 9th February 2026 seeking to discharge the garnishee order. Issues for determination 15.The pertinent issues arising for determination are:i.Whether this Honourable Court (sitting in appellate capacity) has jurisdiction to set aside or discharge a garnishee order nisi issued by the trial court;ii.Whether the stay of execution orders granted on 28th October 2025 operate to suspend, nullify, or render inoperative the garnishee proceedings and the garnishee order nisi;iii.Whether a stay order issued after a garnishee order has been made can render the latter inoperative;iv.Whether garnishee proceedings can operate as parallel proceedings once a judgment has been stayed pending appeal;v.Whether the Kshs. 253,640.00 deposit is sufficient to discharge the protective purpose served by the garnishee order; andvi.What approach best serves the interests of justice and prevents undue prejudice to either party. Analysis and determination (A) The question of jurisdiction 16.The Appellant argues that this Court lacks jurisdiction to set aside the Garnishee Order Nisi because the order was issued by the trial court, not this Court; the garnishee application remains pending before the trial court; and the jurisdiction to vary, discharge, or confirm the order is reserved exclusively to the trial court. 17.The Applicant counters by relying on Articles 165(6) & (7) of the Constitution, arguing that this Court has supervisory jurisdiction to ensure compliance with its own orders and to prevent abuse of process. 18.This Court does have supervisory and appellate jurisdiction under Articles 165(6) & (7) of the Constitution to intervene in matters where orders issued by lower courts are inconsistent with or undermine the effect of orders of a superior court. This is particularly so where the lower court's orders operate to circumvent the effect of a stay of execution granted by an appellate court. 19.However, the exercise of this supervisory jurisdiction must be approached with caution. The general principle is that an appellate court should not assume original jurisdiction over interlocutory matters properly within the trial court's province, especially where adequate remedies exist before that court. 20.The Applicant's inability to obtain relief from the trial court is not because the trial court lacked jurisdiction, but because it exercised discretion to remit the matter to this Court in light of the pending appeal. This was an exercise of judicial discretion, not a bar to jurisdiction. 21.Nonetheless, where the continued operation of a lower court's order directly undermines and frustrates the effect of an appellate court's stay orders, the appellate court has jurisdiction to intervene to preserve the efficacy of its own orders. (B) Interaction between stay of execution orders and garnishee proceedings 22.This is the pivotal issue in the application. 23.The Applicant's position is that the stay of execution orders granted on 28th October 2025 expressly stayed “execution of the judgment and the resultant decree”; that garnishee proceedings are a mode of execution and must therefore be encompassed within the stay; that continuation of garnishee proceedings constitutes a circumvention of the stay orders; and that the decretal sum has been adequately secured through the deposit. 24.The Appellant's position is that garnishee proceedings are a distinct and independent mode of execution; that they can operate as parallel proceedings pending appeal determination; that a stay order is prospective, not retroactive, and cannot invalidate an order already made; and that the garnishee order crystallizes rights and obligations and remains valid until confirmed or set aside by the issuing court. 25.The Court must examine the principles governing the interaction between stay of execution orders and garnishee proceedings. The jurisprudence is now well-settled. Garnishee proceedings are indeed a mode of execution used to enforce money decrees. They are not separate substantive proceedings but rather enforcement mechanisms. 26.The Applicant relies on Kenya Ports Authority Retirement Benefits Scheme v Cemtec Engineering Ltd [2025] KEHC 18250 (5 December 2025), in which Justice Gregory Mutahi held: “I set aside the garnishee proceedings in the Court below, and discharge the existing orders therein, in exercise of my supervisory jurisdiction under Article 165 (6) & (7) of the Constitution.” This decision affirms that where garnishee orders are issued and a stay of execution is subsequently granted, the appellate court has jurisdiction and may indeed be obliged to intervene to give effect to its stay orders. 27.In Kimonye v Kenya Meat Commission; Co-operative Bank Ltd (Athi River) (Garnishee) [2023] KEELRC 2994 (23 November 2023), Justice Jacob Gakeri emphasized: “Being cognisant of the fact that Respondent/Judgement-Debtor has not only a pending appeal but an application for stay of execution before the Court of Appeal and a reference before the court, the court is of the view that exercising its discretion in favour of the Decree-holder would not facilitate just, efficient, expeditious and proportionate resolution of the dispute between the parties.” This principle recognises that discretion should be exercised to facilitate just resolution where there is both a pending appeal and a stay application. 28.The Appellant argues that a stay order cannot retroactively invalidate a garnishee order already made. This argument has some force in principle. However, the better view, supported by the recent cases cited, is that a stay of execution order suspends execution proceedings that would continue to operate during the pendency of an appeal; garnishee proceedings initiated before a stay order was granted may continue in a suspended state, but cannot be actively prosecuted or brought to finality during the stay; and the prospective/retroactive distinction relates to whether orders already fully executed can be undone, not whether ongoing proceedings must cease. 29.The Court's stay orders expressly stated that execution was “stayed pending the hearing and determination of the Appeal and intended Cross-Appeal.” The phrase “execution of the judgment and the resultant Decree” must be interpreted broadly to encompass all modes of execution, including garnishee proceedings. To hold otherwise would mean that a party, faced with a stay order, could continue pursuing parallel garnishee proceedings while the appeal is pending, thereby circumventing the stay. This would be anathema to the principles underlying stay orders. 30.The stay of execution orders granted on 28th October 2025 do operate to suspend the garnishee proceedings and render the continued prosecution of the garnishee application impermissible. Once a stay of execution is granted, all modes of execution including garnishee proceedings must be suspended pending the determination of the appeal. 31.However, this does not mean the Garnishee Order Nisi itself becomes void or automatically discharged. Rather, it becomes dormant, pending either the determination of the appeal and cross-appeal, after which execution can proceed, or the explicit discharge by the competent court. (C) Adequacy of security 32.A critical consideration is whether the deposit of Kshs. 253,640.00 into the joint interest-earning account adequately secures the judgment debt and removes the necessity for the garnishee order. 33.The facts are as follows: the judgment amount is Kshs. 253,640.00; the deposit made is Kshs. 253,640.00 (10th November 2025); the outstanding balance is nil (the full amount has been deposited); and the frozen funds in garnishee accounts are Kshs. 996,304.00. 34.The Applicant has deposited exactly the amount of the judgment debt into a court-appointed joint account in the names of both parties' respective Counsel. The deposit slip dated 10th November 2025 and the Affidavit of Service 21st January 2026 confirm compliance. 35.This deposit fully secures the decretal sum; is held in a neutral account controlled by officers of the court; earns interest for the benefit of the parties; and is accessible to the Appellant upon final determination of the appeal should the appeal be dismissed. 36.The Appellant's argument that there remains an “outstanding balance of Kshs. 143,700.00” is factually incorrect and appears to be based on a misreading of the trial court's judgment. The judgment awarded Kshs. 253,640.00, not Kshs. 397,340.00 (Kshs. 253,640 + Kshs. 143,700). The claimed balance does not exist. 37.Given that the full judgment debt has been secured through deposit, there is no longer any legitimate protective purpose served by maintaining the Garnishee Order Nisi in force. (D) Justice and proportionality 38.The Applicant faces severe operational hardship. The Applicant operates and maintains common areas in a residential development. The continued freezing of Kshs. 996,304.00 in operational bank accounts prevents payment of salaries to employees; payment of utility bills (electricity, water) for common areas; maintenance of the development; and regular operations. Bank statements (NCBA dated 4 March 2026) show the account balance is Kshs. 611,100.00, yet Kshs. 448,042.00 is frozen. 39.The Appellant's counter-arguments are that the Applicant has adequate security through the deposit; no third-party rights are affected (the accounts belong to the Applicant); preserving the garnishee order ensures that if the cross-appeal succeeds, execution can proceed immediately; and the Appellant would face prejudice if forced to recommence execution for any shortfall. 40.In exercising discretion whether to discharge the garnishee order, the Court must balance the Appellant's right to recover judgment (though adequately secured through deposit); the Applicant's operational hardship (substantial and ongoing); and the interests of justice (both parties have rights deserving protection). 41.The principle articulated in cases like Kimonye and Kenya Ports Authority is that where there is adequate security, courts should exercise discretion in a manner that facilitates just, efficient, and proportionate resolution. 42.Here, security is fully adequate (one hundred percent of judgment debt deposited); the Applicant's hardship is substantial and ongoing (frozen operational funds exceeding deposit by Kshs. 743,264); the Appellant's rights are fully protected (deposit held in court, earning interest); and no prejudice accrues to the Appellant if the order is discharged, as the deposit remains available. (E) The remaining balance argument 43.The Appellant argues that the Applicant only deposited Kshs. 253,640.00, leaving a balance of Kshs. 143,700.00 outstanding. If the garnishee order is discharged, the Appellant would be forced to commence fresh execution proceedings. 44.This argument is based on a factual error. The trial court judgment awarded a total of Kshs. 253,640.00, not Kshs. 397,340.00. The deposit of Kshs. 253,640.00 covers the entire judgment debt. 45.The Appellant may be confusing the judgment amount with the sum ordered in costs or additional interest accruing post-judgment. However, the stay orders expressly required deposit of “Kshs. 253,640/” the judgment sum and the Applicant has complied fully. 46.There is no outstanding balance requiring continued garnishee proceedings. Findings of fact 47.Having considered the evidence and submissions, the Court finds as follows:i.The trial court validly issued the Garnishee Order Nisi on 7th April 2025 in the course of enforcing the judgment.ii.This Court validly granted a stay of execution on 28th October 2025, which suspended all execution proceedings, including garnishee proceedings.iii.The Applicant fully complied with the conditions of the stay orders by depositing Kshs. 253,640.00 into a joint interest-earning account within the prescribed timeframe.iv.The deposit of Kshs. 253,640.00 fully secures and covers the entire judgment debt of Kshs. 253,640.00, with no outstanding balance.v.The continued freezing of Kshs. 996,304.00 in the Applicant's operational bank accounts serves no further protective purpose and causes substantial and ongoing operational hardship.vi.There is no third-party interest implicated; the frozen accounts belong exclusively to the Applicant.vii.The Appellant's rights are fully protected through the deposit held in court.viii.The continued maintenance of the Garnishee Order Nisi, despite the stay of execution and adequate security, operates to circumvent and frustrate the effect of the Court's stay orders. 56.The principles articulated in Kenya Ports Authority Retirement Benefits Scheme v Cemtec Engineering Ltd and Kimonye v Kenya Meat Commission support the discharge of garnishee orders where there is adequate security and a stay of execution is in force. Conclusions 57.This Court has jurisdiction to intervene in the garnishee proceedings to preserve the efficacy of its own stay orders and to prevent abuse of process. 58.The stay of execution orders granted on 28th October 2025 suspend all modes of execution, including garnishee proceedings, pending the determination of the appeal and cross-appeal. 59.The continued maintenance of the Garnishee Order Nisi, despite the stay of execution and adequate security, is inconsistent with and operates to circumvent the effect of the stay orders. 60.The Applicant has provided adequate security through deposit of the full judgment debt into a court-appointed joint account. 61.There is no outstanding balance for which the Appellant requires garnishee protection. 62.The discretionary exercise of jurisdiction to discharge the garnishee order serves the interests of justice, as it prevents ongoing operational hardship to the Applicant while fully protecting the Appellant's judgment through the court-held deposit. 63.The proper course is to discharge the Garnishee Order Nisi while preserving the deposit as security for the judgment debt pending final determination of the appeal and cross-appeal. Final orders 64.Accordingly, the Application is ALLOWED with the following orders:i.The ex-parte Garnishee Order Nisi issued on 7th April 2025 by the trial court against Diamond Trust Bank of Kenya Limited (Account No. 0690xxxxxx) and NCBA Bank Kenya PLC (Account No. 618xxxxxxx) is set aside and discharged.ii.The trial court is directed to issue instructions to the Garnishee Banks to release the frozen funds in the said accounts, with the exception of the sum of Kshs. 253,640.00, which shall remain secured through the joint interest-earning account held at I&M Bank (Account No. CIF – 080xxxxxx) in the names of the parties' respective Counsel.iii.The said joint interest-earning account shall remain in place and shall serve as security for the judgment debt pending the hearing, determination, and final disposition of the Appeal and Cross-Appeal by this Court.iv.Each party to bear own costs of the application. DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE, 2026E.K. WABWOTOJUDGEIn the presence of:Mr. Muiruri for the Appellant.Mr. Odour for the Respondent/Applicant.Court Assistants; Mary Ngoira and David Ngoosa.