[2018] KEHC 6956 (KLR)
The court held that the plaintiff's application for garnishee proceedings was merited as there was a valid and enforceable judgment against the defendants, and no stay of execution had been sought. The objections raised by the judgment debtors regarding jurisdiction and liability had already been determined and were...
Source-derived case information.
- Citation
- [2018] KEHC 6956 (KLR)
- Parties
- Plaintiff: Leonard Kipgetich Chelule t/a Choka Chelule & Co; Defendant: Wilson Kipkemboi Kipkoti; Defendant: John Ngata Kariuki; Respondent: Barclays Bank of Kenya; Respondent: Kenya Commercial Bank
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 81 of 2016
- Procedural Posture
- Civil Case / Ruling on Garnishee Application
- Outcome
- Application allowed. Order Nisi made absolute against the 1st garnishee. Costs to the plaintiff.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Garnishee Proceedings, Enforcement of Judgments, Professional Undertakings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Kipgetich Chelule t/a Choka Chelule & Co
Plaintiff
Wilson Kipkemboi Kipkoti
Defendant
John Ngata Kariuki
Defendant
Barclays Bank of Kenya
Respondent
Kenya Commercial Bank
Respondent
Procedural Posture
Civil Case / Ruling on Garnishee Application
Legal Issues
- 1 Whether the plaintiff is entitled to enforce the decree by way of garnishee proceedings.
- 2 Whether the objections raised by the judgment debtors regarding jurisdiction and liability can be revisited at the enforcement stage.
- 3 Whether the funds in the 1st garnishee's account can be attached to satisfy the decree.
Ratio Decidendi
The court held that the plaintiff's application for garnishee proceedings was merited as there was a valid and enforceable judgment against the defendants, and no stay of execution had been sought. The objections raised by the judgment debtors regarding jurisdiction and liability had already been determined and were therefore res judicata. The court found that the account with the 1st garnishee contained funds belonging to the judgment debtors, making it proper to make the Order Nisi absolute and allow execution against the 1st garnishee. The application by the plaintiff was therefore allowed in its entirety, and the costs of the application were awarded to the plaintiff.
Court Disposition
Application allowed. Order Nisi made absolute against the 1st garnishee. Costs to the plaintiff.
Orders
- The Order Nisi issued on 21st June, 2017 is made absolute and shall be executed against the 1st garnishee in its entirety.
- The costs of this application shall be payable by the judgment debtors to the plaintiff.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 81 OF 2016
LEONARD KIPGETICH CHELULE T/A CHOKA
CHELULE & CO...............................................................................PLAINTIFF
VERSUS
WILSON KIPKEMBOI KIPKOTI....1ST DEFENDANT/JUDGMENT DEBTOR
JOHN NGATA KARIUKI.................2ND DEFENDANT/JUDGMENT DEBTOR
AND
BARCLAYS BANK OF KENYA...............................................1ST GARNISHEE
KENYA COMMERCIAL BANK .............................................2ND GARNISHEE
RULING
The plaintiff is a firm of advocates who brought a suit against the defendants jointly and severally to enforce a professional undertaking. Upon judgment, they moved the court to enforce the order against the defendants by way of garnishee proceedings. To that effect a Notice of Motion under Order 23 rule 1 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act was filed on 21st June, 2017.
The court was persuaded to issue a Order Nisi and ordered service upon the defendants and cited garnishees. Upon service, parties filed their reply to the application. Before the said application was filed Thuranira J delt with an application lodged by the defendants/judgment debtors to set aside the interlocutory Judgment entered against them.
The judge dismissed the application and held that the court had jurisdiction to address the matter; that the defendants were liable to the plaintiff and that there was a lawful judgment on record.
The matters raised by the defendant on jurisdiction and liability are therefore res judicata and cannot be revisited in an application for enforcement of the decree.
The account of the judgment debtors with the 2nd garnishee has no money. However, that is not the case with their account held in the 1st garnishee.
I have considered all the material in totality. The application by the plaintiff cannot be resisted. There is a decree due and payable. There is no application for stay of execution. The judgment debtors merely want to postpone an obvious eventuality. The court is not available to aid them along that path.
The application by the plaintiff therefore succeeds. The Order Nisi issued on 21st June, 2017 is hereby made absolute and shall be executed against the 1st garnishee in its entirety. The costs of this application shall be payable by the judgment debtors to the plaintiff.
Orders accordingly.
Dated, signed and delivered at Nairobi this 20th of March, 2018.
A. MBOGHOLI MSAGHA
JUDGE