[2023] KEHC 21648 (KLR)
The court held that it could not make a final order against the Nairobi City County Government (the garnishee) without first serving it and giving it an opportunity to be heard. The applicant failed to follow the proper procedure by not serving the garnishee with the application and not obtaining a preliminary...
Source-derived case information.
- Citation
- [2023] KEHC 21648 (KLR)
- Parties
- Applicant: Kwengu & Company Advocates; Respondent: Gold Lida Limited; Respondent: Foton East Africa Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 391 of 2018
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Garnishee Application
- Outcome
- adjourned for proper service; no final orders granted
- Judges
- A Mabeya
- Legal Topics
- Garnishee Proceedings, Advocate Fee Recovery, Decree Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kwengu & Company Advocates
Applicant
Gold Lida Limited
Respondent
Foton East Africa Limited
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Garnishee Application
Legal Issues
- 1 Whether the garnishee application can be granted without service upon the garnishee.
- 2 Whether the court can issue a final garnishee order without hearing the garnishee.
- 3 Whether the applicant followed the proper procedure for garnishee proceedings.
Ratio Decidendi
The court held that it could not make a final order against the Nairobi City County Government (the garnishee) without first serving it and giving it an opportunity to be heard. The applicant failed to follow the proper procedure by not serving the garnishee with the application and not obtaining a preliminary garnishee order nisi. The rules of natural justice and the Civil Procedure Rules require that the garnishee be notified and given a chance to show cause why the funds should not be released. Therefore, the application could not be granted at this stage, and the court directed that the application be served upon both the garnishee and the respondents for hearing on a later date.
Court Disposition
adjourned for proper service; no final orders granted
Orders
- The application to be served upon both the garnishee and respondents forthwith.
- The matter is set for hearing on 25/8/2023.
Full Case Text
Judgment text and source record
25 paragraphs
Kwengu & Company Advocates v Gold Lida Limited & another (Miscellaneous Application 391 of 2018) [2023] KEHC 21648 (KLR) (Commercial and Tax) (18 August 2023) (Ruling)
Neutral citation: [2023] KEHC 21648 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial and Tax
Miscellaneous Application 391 of 2018
A Mabeya, J
August 18, 2023
Between
Kwengu & Company Advocates
Advocate
and
Gold Lida Limited
1st Client
Foton East Africa Limited
2nd Client
Ruling
1. Before Court is the Motion on Notice by the Advocate/Applicant dated 2/8/2023. It was brought, interalia, under Order 48 and Section 52 of the Advocates Act Cap 16 Laws of Kenya.
2. The application was in the nature of a garnishee proceeding for payment of a sum of Kshs. 106,736,84/83 held by the Nairobi City County Government in satisfaction of a decree in favour of the advocate made on 1/8/2023.
3. The Advocates Case is that he obtained the said decree for legal fees. That the 2nd respondent has a decree of Kshs. 142,064,075/= made in its favour on 29/6/2023, against the Nairobi City County in NBI HCCOM NO. 588 of 2015 Foton East Africa Ltd vs Nairobi City County.
4. That the 2nd respondent had closed shop in Kenya and its directors and shareholders relocated to China. That the 2nd respondent has no known assets in Kenya save for the said decree. That the fruits of his judgment should not be rendered nugatory.
5. Although the court directed that the application be served upon the parties, the Advocate only served the respondents. He did not serve the Garnishee. The proper procedure was to have a preliminary Garnishee Order Nisi issued to attach the monies held by the Nairobi City County and require the Garnishee Show Cause why it should not release and/or pay the attached sum to the Advocate.
6. Since the Nairobi City County was never served, the Court cannot make a final order against it and require it to pay the claimed amount without first hearing it.
7. Accordingly, I direct that the application be reserved upon both the Garnishee and respondents forthwith for hearing on 25/8/2023. It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF AUGUST, 2023. A. MABEYA, FCIArbJUDGE