[2023] KECPT 439 (KLR)

Makiya v Emergency Co-operative Savings & Credit Limited (Tribunal Case 301 of 2019) [2023] KECPT 439 (KLR) (Civ) (27 April 2023) (Ruling)

Neutral citation: [2023] KECPT 439 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 301 of 2019

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

April 27, 2023

Between

Meshack Omae Ombeo Makiya

Claimant

and

Emergency Co-operative Savings & Credit Limited

Respondent

Ruling

1. The applicant has filed a notice of motion application dated April 25, 2022, seeking orders of setting aside the garnishee orders and a right of fair hearing of the application be allowed.The application is based on the claim that they issued or instructed their advocates to enter an appearance and handle the matter on their, behalf with the said curiously unnamed advocate neither entering an appearance nor indicating to the court the status of the accounts held by the judgment debtor of the garnishee as such the garnishee application proceeded undefended and a garnishee order obsolete was issued on April 13, 2022

2. The respondents have filed submissions in their defence to their application which include Annexed Affidavit of Lucy Muthama order 23 rule. rule 5 and order 12 rule 7 of theCivil Procedure Rules as amended in 2020 list of authorities supporting the position that the mistake of an instructed advocate should not be visited upon the garnishee, and a statement indicating the financial position of the respondent as per the account ordered to pay account Number 011200xxxxx800The garnishee orders Nisi filed or partially satisfy the decretal amount of Kenya Shillings Two Hundred and Seventy-Eight Thousand Three Hundred and Eighty-Seven (ksh 287,387. 00)

3. We have read and considered the evidence on records and find the excuse given to be flimsy that the application for setting aside is allowed because some curiously unnamed advocate was given instructions that did not enter appearance and as such the garnishee order application proceeded undefended.The tribunal relies on the case of Martin Mwangi Ndirangu vs Invesco Assurance Company Limited (2020) EKLR where the honorable justice G Kariuki Outlined The Stages In A garnishee application:“By notice of motion dated August 25, 2020 the applicant/plaintiff seeks orders; principally that court do find that the 3rd garnishee’s failure to remit the sum of Kshs 5,150,404/- in satisfaction of a garnishee absolute order, as per the ruling of July 29, 2020 issued by this court, is an act in contempt of court.2. Upon granting of prayer 2 above, this court do impose a fine/penalty of Kenya Shillings Five Million (Kshs 5,000,000/-) against the 3rd garnishee (contemnor) to satisfy the penalty for contempt. Upon grant of prayer No 2 and 3 above, this Court do issue an order that the 3rd garnishee’s Managing Director and Chief Executive Officer, Ms Rebecca Mbithi, be committed to civil jail for a period of six (6) months.3. In alternative, court is urged to issue an order compelling the 3rd garnishee to fully comply with the orders issued on the July 29, 2020 within the next 7 days of the application being filed.4. The applicant also seek costs of this application be borne by the 3rd garnishee. It is brought under section 5(1) of Judicature Act cap 8 Laws of Kenya and section 3A of the Civil Procedure Act.5. The application is supported by the grounds on the face of the instant motion. The applicant case is that The plaintiff herein obtained judgment against the defendant and subsequently moved this court for garnishee orders as against several financial institutions, the 3rd garnishee included. The latter was initially served with a garnishee order nisi in April, 2019, which order was ignored by the 3rd garnishee. A subsequent garnishee order absolute was also ignored.6. The 3rd garnishee thereafter filed an application seeking to set aside the garnishee orders absolute issued against it. The said application was canvassed via submissions by both parties and a ruling issued by this court on the July 29, 2020. 7.The ruling directed the 3rd garnishee to immediately honour the garnishee orders by remitting the sum of Kshs 5,150,404/- to the Plaintiff, failure of which the latter was entitled to move this court for appropriate contempt orders.8. The 3rd garnishee, in clear breach of these orders, has now proceeded to only remit the paltry sum of Kshs.400,000/- out of the sum of Kshs 5,150,404/- and alleges that the amount is the lumpsum amount collected from the defendant’s account.9. This is despite filing the defendant’s bank statements in court showing positive bank balances sufficient to cater for the full judgement sum. The 3rd garnishee’s acts are not only in a blatant breach of the court’s orders but also an act of contempt aimed in aiding the defendant from paying the plaintiff his well-deserved, unchallenged and long-awaited fruits of judgment.10. Despite repeated requests and demands to the 3rd garnishee to honour the orders of court issued on July 29, 2020, the 3rd garnishee has declined to fully honour the same. The application is supported also by the affidavit of David N Njoroge sworn on August 25, 2020 which reiterates the content of the aforesaid grounds.11. The same effect reiterates, that, subsequent to hearing of the 3rd garnishee’s application seeking to set aside garnishee orders absolute served upon it in February 2020, this court delivered its ruling on the july 29, 2020 directing the 3rd garnishee to immediately honour the garnishee orders by remitting the sum of Kshs 5,150,404/- to the Plaintiff, failure of which the latter was entitled to move this court for appropriate contempt orders.12. The said ruling delivered on July 29, 2020 was immediately extracted and served upon the 3rd garnishee, seeking their compliance on a timely basis as directed by the court.13. The 3rd garnishee, in clear breach of these orders, only remitted the sum of Kshs 400,000/- out of the sum of Kshs 5,150,404/- and alleged that the amount is the lupsum amount collected from the defendant’s account. This is despite filing the defendant’s bank statements in court showing positive bank balances sufficient to cater for the full judgment sum.14. The 3rd garnishee’s acts are not only in a blatant breach of the court’s orders but also an act of contempt aimed in aiding the defendant from paying the plaintiff his well-deserved, unchallenged and long-awaited fruits of judgment.15. Despite repeated requests and demands to the 3rd garnishee to honour the orders of court issued on July 29, 2020, the 3rd garnishee has declined to fully honour the same.16. That is therefore in the interests of fairness and justice that the orders herein be granted to ensure that the 3rd garnishee abides by the orders of this court. Unless the said orders are issued, the 3rd garnishee’s actions shall render a mockery of this court’s judicial authority.17. That it is rather evident that the 3rd garnishee’s actions are illegal and in contempt of the orders issued by this honourable court and as such, the 3rd garnishee’s Managing Director and Chief Executive Officer, Ms Rebecca Mbithi should be cited forthwith; and annexures thereto.18. The respondent rejoinder via the respondent/garnishee No 3 replying affidavit sworn by Keziah Rutto on October 8, 2020 which is summary states that;,the 3rd garnishee intends to appeal against the ruling delivered by the court on July 29, 2020 and to that end, a notice of appeal has been filed and served upon the plaintiff.19. That the 3rd garnishee has filed an application before the Court of Appeal being Civil Application No E270 of 2020, seeking stay of execution pending the hearing and determination of the intended appeal. Direction have been given on the application and the same is pending hearing and determination.20. It is conceded that a copy of the ruling was served upon the 3rd garnishee and that,the sum of Kshs 400,000/- was remitted to the plaintiff from the defendant’s bank accounts. The respondent contends that, sum of Kshs 400,000/- was the only amount that was available for attachment as at August 3, 2020 when the amount was paid to the Plaintiff.21. The 3rd garnishee depones that it could not fully comply with the garnishee order absolute issued on July 29, 2020 as there are no funds available to satisfy the said order.22. The respondent states that, the 2nd respondent’s bank accounts with the applicant currently have no funds save from account No 102xxxxx0148 which has a balance of Kshs 343,351. 50 which is allegedly frozen.23. It is also deponed that, upon remittance of the sum of Kshs 400,000/- to the plaintiff, the 3rd garnishee complied with the garnishee absolute order to the best of its capacities and it cannot therefore be said to be in breach of the order given by the court.24. It is denied, that the 3rd garnishee blatantly breached this court’s orders. The 3rd garnishee complied with the orders as best as it could and it could not pay more than was available in the defendant’s bank accounts.25. Without prejudice, the deponent has purported to swear an alternative facts ,that she is aware that in cases of contempt, fines are imposed by the court in exercise of its discretion and are not dictated by the parties.26. That it is established law that no order requiring a person to do abstain from doing an act may be enforced by contempt unless a copy of the order has been personally served on the alleged contemnor and endorsed with a notice of penal consequences.27. That the plaintiff has not demonstrated that the 3rd garnishee’s Chief Executive Officer Ms Rebecca Mbithi was personally served with the order herein or that she was aware of the same.28. That the Plaintiff has not annexed an affidavit as proof of service upon the 3rd garnishee’s Chief Executive Officer Ms Rebecca Mbithi. That Prayer 4 seeking the committal to civil jail of the 3rd garnishee’s Chief Executive Officer cannot issue as personal service of the order was not effected upon her.There is no evidence and admission by the applicant/respondent that was served with the certificate of urgency, notice of motion application, supporting affidavit, and annexures all dated January 7, 2022 together with the orders issued January 28, 2022 he chose not to challenge the proceedings, now giving the flimsy excuse that it is the curiously named advocate he instructed that failed him.

4. It is also important to note that it is an established law in equity that whoever seeks equity has to come with clean hands in court to be the first to do equity. The applicant/respondent was very much aware that the Tribunal issued orders on January 28, 2022 but chose to ignore them. He also had agreed in the proposed consent he submitted through his secretary Mr Jared Marube that will start making monthly deposits of Ksh 10,000 starting from the month of November 2019 with the cheques deposited on or before the 22nd day of every month. Up to the point of the tribunal considering this application, not even a single deposit has been made from November 2019 and as such, we find this application in bad faith and not made with clean hands in equity

We therefore as a tribunal dismiss this application dated April 25, 2022 with orders given by this court on January 28, 2022 not vacatedWe direct as follows:a.The respondent/applicant application dated April 25, 2022 is hereby dismissed with costs as is found to be without merit.b.The respondent gave that he had indicated that it is possible to find means to settle the garnishee, to be paying the claimant a sum of Ksh 10,000/= every month beginning with May 2023 on or before the 22nd of every month by cheque

Ruling signed, dated and delivered virtually at Nairobi this 27th day of April, 2023. Hon. Beatrice Kimemia Chairperson Signed 27. 4.2023Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023Hon. Beatrice Sawe Member Signed 27. 4.2023Hon. Fridah Lotuiya Member Signed 27. 4.2023Hon. Philip Gichuki Member Signed 27. 4.2023Hon. Michael Chesikaw Member Signed 27. 4.2023Hon. Paul Aol Member Signed 27. 4.2023Tribunal Clerk Jemimah/JonahTuwei Advocate holding brief for Mr. Kirimi advocate for ClaimantMs. Odoyo advocate for the Garnishee.Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023NRB.CTC.NO. 301 OF 2019 RULING A.W.N 0