https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11935

Malde (Suing as Executor of the Will of Laitaben Kantilal Shah - Deceased) v Spike Bank Limited (Successor in Title to the Southern Credit Banking Corporation Limited Assets and Liabilities) & another (Commercial Case 278 of 2017) [2026] KEHC 11935 (KLR) (Commercial and Tax) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 11935 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case 278 of 2017 JWW Mong'are, J July 17, 2026 Between Dinit Virchand Malde (Suing as Executor of the Will of Laitaben Kantilal Shah - Deceased) Plaintiff and Spike Bank Limited (Successor in Title to the Southern Credit Banking Corporation Limited Assets and Liabilities) Defendant and Mwalimu Sacco Limited Garnishee Ruling Introduction & Background 1.The Plaintiff has filed the Notice of Motion dated 29th May 2025 under Order 45 Rule 1(1)(b) of the Civil Procedure Rules and Articles 50 and 159(2) of the Constitution seeking to review and set aside the court’s ruling dated 14th February 2025 that dismissed the Plaintiff's earlier application for a garnishee order absolute against the Garnishee, which would have compelled the Garnishee to pay the Plaintiff the money owed by the Defendant. 2.The application is supported by the grounds on its face and the affidavit sworn on 29th May 2025 by the Plaintiff’s advocate, Peter Mbithi. It is opposed by the Defendant through the replying affidavit of its Ag. Managing Director, Brian Kilonzo sworn on 1st July 2025 and by the Garnishee through the replying affidavit of its Head of Legal Department, Brenda Kiberenge sworn on 12th August 2025. The application was canvassed by way of written submissions which are on record and I have considered the same together with the pleadings and I will be making relevant references to them in my analysis and determination below. Analysis and Determination 3.From the parties’ submissions, the primary issue for the court’s determination is whether the court ought to review its ruling that dismissed the Plaintiff’s garnishee application. The parties agree that under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, an applicant is required to show either that there was an error apparent on the face of record or that there has been discovery of new and important matter which was not available despite the exercise of due diligence or for any other sufficient reason for the court to review. 4.The Plaintiff’s application is anchored on the ground of a mistake and/or error on the face of the record as it states that the court mistakenly focused on whether the Garnishee held funds received from the sale of the Defendant to Equity Bank Limited. The Plaintiff contends that the funds he is claiming were not part of the liabilities transferred to Equity Bank, instead, he asserts that the Garnishee acquired these funds when it originally took over all the assets and liabilities of the Defendant’s predecessor, Southern Credit Banking Corporation Limited, and has held them since then. That therefore, the liability to pay the Plaintiff rests with the Garnishee. 5.The Plaintiff states that the Defendant is fast tracking means to dissolve itself and he is apprehensive that if the Garnishee is not ordered to pay the debt, the Defendant will be liquidated, leaving the Plaintiff unable to recover the substantial decretal sum of over Kshs.53,568,569.74/- that remains unpaid. The Plaintiff states that no party will suffer prejudice if the application is granted, and that it is in the interest of justice to do so. 6.In response, the Defendant depones that the Garnishee does not hold any funds on its behalf and therefore the Garnishee has been wrongfully included in this execution proceedings. It claims that the Central Bank of Kenya announced that Equity Bank acquired certain assets and liabilities of the Defendant, effective 31st January 2023 and the Defendant ceased operations as a bank from 4th September 2023 and was deregistered from the Deposit Insurance Fund on the same date. That a voluntary liquidation notice was published on 5th January 2024, confirming that the Defendant is in the process of being wound up. 7.The Defendant claims that the Defendant's assets were liquidated at reduced values and that the Plaintiff participated in the disposal process and it dismisses the Plaintiff's allegations of a conspiracy to defraud as baseless, pointing to public records of the liquidation process as evidence that everything was done transparently and in accordance with the law. The Defendant states that the Plaintiff failed to provide proof demonstrating that the Garnishee owes any debt to the Defendant, which is the requirement for a garnishee order to be issued. As such, the Defendant maintains that the Plaintiff has not met the legal threshold to obtain a garnishee order because he has not proven that the Garnishee is indebted to the Defendant. 8.On its part, the Garnishee asserts that the court's Ruling was sound and credible based on the evidence presented and that the Plaintiff has not demonstrated any error apparent on the face of the record that would warrant a review. The Garnishee states that the issues raised by the Plaintiff have already been heard and conclusively determined and the Court has become functus officio and cannot revisit its own decision. It argues that the Plaintiff is essentially asking the Court to sit on appeal against its own decision which is impermissible and that it has failed to produce any new evidence to support the claim that the Garnishee is indebted to the Defendant. 9.The Garnishee reiterates that it does not hold any funds on behalf of the Defendant and it does not owe it any monies or assets, therefore, it cannot be subjected to garnishee proceedings. The Garnishee avers that any funds it had deposited with the Defendant were made in the ordinary course of banking as a customer, were the property of the Garnishee, beneficially owned by its members, were not connected to the Defendant or the subject matter of the dispute and were not part of the transaction with Equity Bank. 10.The Garnishee states that its property or funds cannot be used to satisfy a debt owed by a Judgment Debtor and doing so would wrongfully convert the Garnishee into a Judgment Debtor, which would be highly prejudicial and legally untenable. It contends that there must be finality to litigation and that the present application amounts to an abuse of the court process because it seeks to re-litigate issues already determined. That the Garnishee stands to suffer undue prejudice given the substantial amount being claimed, despite not being a party to the underlying dispute between the Plaintiff and the Defendant. 11.The Court of Appeal in National Bank of Kenya Limited v Ndungu Njau [1996] KLR 469 explained what constitutes an error of law apparent on the face of the record and the scope of review:A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the Court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be ground for review. 12.Going through the pleadings, submissions and the legal principles governing review applications, I find that the Plaintiff has not made out a case for review of the ruling. As held above the error being pointed out must be self-evident and should not require an elaborate argument to establish and it must be a mistake that is obvious upon a mere perusal of the record. An error that requires a long-drawn process of reasoning or where there could conceivably be two opinions does not qualify. I note that the Plaintiff is not pointing to a simple, obvious mistake in the record but rather, he is asking the Court to re-evaluate and re-analyze the evidence regarding who held the funds and when. This is precisely the kind of exercise that courts have held falls outside the scope of review as the Plaintiff is essentially asking the Court to sit on appeal against its own decision, which is impermissible. The fact that the Plaintiff believes the Court should have reached a different conclusion on the evidence is a ground for appeal, not review. 13.I also note that the Plaintiff has submitted that there is new and important information that was not available at the time of the ruling. Whereas this ground has been introduced in his submissions rather than pleadings, I will consider it for the sake of completeness even though ordinarily, the same would have been disregarded by the court. On this issue, the Court of Appeal in Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR) explained as follows:-The motion before the superior court was based on the discovery of new facts. However, it is not every new fact that will qualify for interference with the judgment or decree sought to be reviewed. In the words of the rule itself, it is“………discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed…….”The construction and application of that provision has been discussed in many previous decisions but we shall take it from the commentary by Mulla on similar provisions of the Indian Civil Procedure Code, 15th Edition at page 2726, thus:“Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.” 14.The Plaintiff has not presented any new documentary evidence and the facts he relies on that the Garnishee acquired the Defendant's assets and liabilities and that the Defendant's liability to the Plaintiff was not transferred to Equity Bank were already known and argued in the previous garnishee application. The Court considered these facts and found them insufficient to prove that the Garnishee was indebted to the Defendant. Once again, a review cannot be used to re-litigate the same facts with a different interpretation. 15.I also note that the Plaintiff stated that it would be in the interests of justice to grant the review which ground would fall under “any other sufficient reason”. However, whereas the court has inherent powers, these cannot be used to reopen a case simply because a party is unhappy with the outcome. The "sufficient reason" must be analogous to the other grounds but in this case, the Plaintiff's position is essentially that the Court misapplied the law to the facts which cannot be a ground for review (see Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) 16.For the above reasons, I find that there is no self-evident error, no new evidence and no sufficient reason to review the court’s ruling. The ruling was based on a clear legal requirement that the Plaintiff failed to prove that the Garnishee owed any debt to the Defendant. The Plaintiff has not provided any new material to change this conclusion and I agree with the Defendant and the Garnishee that the application is therefore an abuse of the court process and an attempt to delay the finality of litigation. Conclusion and Disposition 17.In the foregoing, the Plaintiff's application dated 29th May 2025 is dismissed with costs to the Garnishee assessed at Kshs. 20,000.00/- to be paid by the JudgmentDebtor/Defendant. It is so ordered. DATED SIGNED AND DELIVERED virtually at NAIROBI this 17TH DAY OF JULY 2026............................................................................J.W.W. MONGAREJUDGEIN THE PRESENCE OFMr. Mutuku Mbithi for the Plaintiff/Applicant - Decree Holder.Ms. Tamlekha holding brief for Mr. Kimani for the Defendant-Judgment Debtor.Mr. Somba Kioko for the Garnishee.Amos- Court Assistant