[2022] KEHC 3028 (KLR)

Malonga v Samuel Onyango Oyoo t/a Crosslink Services; Bank of Africa Kenya Limited & another (Garnishee) (Civil Suit E466 of 2019) [2022] KEHC 3028 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3028 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit E466 of 2019

A Mshila, J

June 17, 2022

IN THE MATTER OF FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT AND IN THE MATTER OF THE JUDGMENT ENTERED ON 10TH APRIL 2019 IN THE COMMERCIAL COURT OF GOMA, DEMOCRATIC REPUBLIC OF CONGO RCE 528

Between

Esther Kavira Malonga

Applicant

and

Samuel Onyango Oyoo t/a Crosslink Services

Respondent

and

Bank of Africa Kenya Limited

Garnishee

Equity Bank Kenya Limited

Garnishee

Ruling

Background 1. Before the Court are three Applications to be canvassed together. The 1st Application is a Notice of Motion dated 25th November 2021 brought under Order 23 Rule (1), (2), (3), Order 50 Rule 1 of the Civil Procedure Rules 2010, and Section 1A, 1B, 3A and 9 of the Civil Procedure Act. The Applicant sought the following orders;a.There be issued a garnishee order nisi against Bank of Africa Kenya Limited-Nairobi Branch (1st Garnishee) ordering that all monies deposited, lying and being held in deposit in Bank Account Number xxxx to the credit of the Judgment Debtor/Respondent in the account of Crosslink Services, to answer to the Decree issued on 12th November 2021 by this Court.b.There be issued a garnishee order nisi against Equity Bank Kenya Limited-Moi Avenue Branch (2nd Garnishee) ordering that all monies deposited, lying and being held in deposit in Bank Account Number xxxx to the credit of the Judgment Debtor/Respondent in the account of Crosslink Services, to answer to the Decree issued on 12th November 2021 by this Court.c.The garnishee orders nisi in (prayer 2 and 3 above) be made absolute.

2. The Application was supported by the sworn Affidavit of Muriuki Muriungi who stated that default Judgment against the Judgment Debtor/Respondent herein for the sum of USD 277,014. 00 with interest at commercial rates was entered by this Court (Deputy Registrar Hon. Claire Wanyama) on 12th November 2021.

3. The Decree in issue was final and has not been challenged and remains unsatisfied to date either in part or in full. Thus, the Decree Holder/Applicant is apprehensive that the Judgment Debtor/Respondent may dissipate its assets to frustrate the efforts of the Decree Holder/Applicant to enjoy the fruits of a legally obtained judgment.

4. The Judgment Debtor/Respondent herein has monies lying in two bank accounts at Bank of Africa Kenya Limited and Equity Bank of Kenya Limited that may be garnisheed in satisfaction of the Decree.

5. The 1st Garnishee through its Replying Affidavit dated 1st December 2021 stated that the balances due on the said accounts as at the date indicated, being the sum of USD 54, 325. 00. The said amounts as is evident from the attached statement of account is however incapable of satisfying the full amounts of the decree. Further, that the garnishee is hence willing to comply with any directives issued by the Court subject to the Judgment Debtor meeting any related costs including the transaction costs and the costs of this garnishee proceedings.

6. The 2nd Garnishee through its Replying Affidavit dated 6th December 2021 stated that the account held by the Garnishee on behalf of the Judgment Debtor had as at 6th December, 2021 the sum of Kshs. -2. 15 USD which amount is insufficient to satisfy the decretal amount as prayed in the Decree Holders Application. Therefore, the Garnishee prayed to be discharged as a Garnishee from the proceedings of this suit.

7. The 2nd Application is a Notice of Motion dated 20th December 2021 brought under Article 159 of the Constitution of Kenya, Section IA, 1B, 3A of the Civil Procedure Act and Order 10 Rule 11 Order 23 & Order 51 rule 1 of the Civil Procedure Rules. The Applicant sought the following orders;a.Pending hearing and determination of this Application, the interlocutory judgment entered in the suit on 12th November, 2021 together with all the subsequent garnishee proceedings including but not limited to the garnishee orders nisi dated 28th November, 2021 be stayed.b.The interlocutory judgment entered herein on 12th November, 2021 be set aside, and the Defendant be granted leave to defend the suit and file a defence.

8. The Application was supported by the sworn Affidavit of Samuel Onyango Oyoowho stated that the Defendant was late in filing his defence because he was still waiting for critical documents from Democratic Republic of Congo (DRC). The Defendant had indicated this to the Deputy Registrar, and sought more time and indulgence to do so.

9. The Applicant stated that the interlocutory judgment cannot be executed in law by way of garnishee proceedings or at all since it is not final judgment. In any event the Defendant has appealed against the case in DRC, and the same has been stayed. The foreign judgment cannot therefore be enforced in Kenya

10. The Decree Holder responded to the Application vide Grounds of Opposition dated 21st February 2021 stating that the Default Judgment entered by this Court on 12th November 2021 and which the Judgment Debtor seeks to have set aside and stay execution on the basis that it is an interlocutory judgment was NEVER an interlocutory judgment but rather a final judgment given that it was for a liquidated sum. In addition, the said Notice of Motion Application was filed after an inordinate delay.

11. The court lacks jurisdiction to determine the issues contained in the Judgment Debtor’s draft defence as they amount to reopening the merits of judgment issued by a competent court of foreign jurisdiction.

12. The 3rd Application is a Chamber Summons dated 25th February 2022 brought under Order 1 rule 10 of the Civil Procedure rules and Section 3A of the Civil Procedure Act for orders that;a.The Court does enjoin in these proceedings Ruth AtienoOderabeing the Partner and signatory in Crosslink Servicesa Partnership business run together with Samuel Onyango Oyoo, the Judgment Debtor/Respondent herein.

13. The Application was supported by the sworn Affidavit of Ruth Atieno Oderawho stated that the interested party has just learnt of the existence of this suit and default judgment thereto entered on 12th November 2021 and the Orders freezing the bank accounts in the name of Crosslink Services, which she is a partner in the business and signatory held in the 1st and 2nd Garnishee Banks.

14. The frozen accounts do not belong to the Respondent but to the Partnership Crosslink Services in which the Applicant is a partner and signatory. The Applicant's lawful and legitimate business that entirely depends on the operation of the aforementioned bank accounts is on the verge of collapsing and she is also unable to sustain her needs and those of her family. It is in the interest of justice that the 2nd and 3rd Respondents unfreezes the Applicant's Bank Accounts.

Applicant/Plaintiff’s Case 15. The Applicant submitted that the Judgment Debtor/Respondent has not made out a case for setting aside of the judgment entered in default of filing a defence and grant of leave to defend the suit as envisaged in the case of in James Kanyiita Nderitu & Another vs. Marios Philotas Ghikas & Another [2016] eKLR. This is principally because this Application to set aside was not filed timeously, there are no good reasons explaining the failure to file a defence, allowing the application will unduly prejudice the Decree Holder, the application is an abuse of the process of this court and that the Judgment Debtor has no arguable defence (the draft defence exhibited is a sham as it raises no single triable issue).

16. The said default judgment was a final judgment and not interlocutory as it was for a liquidated sum. The Applicant argued that formal proof proceedings are only usually required for unliquidated amounts or where there is need for assessment of damages in a suit. This is not the case here. This is a merely a case of recognition and enforcement of a liquidated judgment sum that has already been adjudged by a foreign court. This court has previously stated that it does not even matter what the default judgment may be indicated in Board of ManagementSt Augustine Secondary School versus Chambalili Trading Co. Ltd [2021] eKLR.

17. The Decree Holder submits that the Garnishee Orders Nisi dated 28th November 2021 ought to be made absolute. The 1st Garnishee (Bank of Africa Kenya Limited) through its Replying Affidavit dated 1st December 2021 sworn by Solomon Kibue affirmed that it is holding a total of USD 54, 322 belonging to the Judgment Debtor. Accordingly, there is no bar to the Court issuing Garnishee Orders Absolute as per Order 23 Rule 4 of the Civil Procedure Rules 2010.

18. The only requirement under Order 23 Rule 1(2) is that garnishee order nisi must be served on both the garnishee and the Judgment Debtor at least seven days before the date of hearing of the garnishee application by the Decree Holder, which was duly done through the Judgment Debtor’s Advocate on record as apparent from the court record. Further, all the parties’ advocates were present in court on the day when the orders were made.

19. The proposed interested party in its application dated 25th February 2022 seeks to be enjoined in this suit on grounds that she is a partner in the partnership (Crosslink Services) against which there is a valid judgment and decree. It was the Applicant’s position that the said application for joinder is an abuse of the process of this Court, mischievous, opportunistic and a ruse by the Judgment Debtor to delay and frustrate the conclusion of this matter.

20. The proposed interested party’s contention that the monies borrowed by the Judgment Debtor from the Decree Holder were of a personal nature is inconsistent with the findings of the judgment of this Court dated 12th November 2021 which recognized the foreign judgment from the Commercial Court of Congo which had found as such, and which judgment is in any case not even in any case not subject to reopening on merits. That at paragraphs 6, 11 and 12 of the proposed interested party’s affidavit, she in fact acknowledges being aware of proceedings in the foreign court in the Commercial Court in Goma, DRC and that the Court there had in fact ordered a freezing of the bank accounts of the partnership in execution of the foreign judgment.

21. The proposed interested party has no legal basis to be enjoined in this matter in the first place as the said partnership is not a limited liability partnership and is therefore not a distinct legal entity. As apparent from the registration documents annexed, the partnership (Crosslink Services) is a general partnership which is an unincorporated body and under which the law of agency applies so that the actions of one partner bind the other.

22. In Express Connections Limited v Ezekiel Kiarie Kamande [2016] eKLR the Court of Appeal in the above case expressly provides that it is not necessary for all partners of a partnership to be joined in a suit as each partner is jointly and severally liable for a partnership’s liability. Accordingly, the proposed interested party has no legal or factual basis to be enjoined in the suit. Admitting the proposed interested party will serve no useful purpose other than to further delay and obstruct the cause of justice

Respondent/Defendant’s Case 23. It was the Respondent’s submission that the Interlocutory Judgement should in the interest of justice and fairness be set aside and the Defendant be allowed to file his defence. This is in line with the Defendant's Constitutional Right to fair hearing as well as the provisions of Order 10 Rule 11 of the Civil Procedure Rules which permits this Court to grant such orders.

24. The Defendant had made his intention of filing a defence clear early enough and explained the reason for his delay in filing the same to court being that there were some crucial documents which he was waiting to be sent to him from the DRC. The documents were eventually sent to and received by the Defendant on 7th December 2021. The Defendant without delay drafted his defence and then filed this Application seeking to be allowed to file the same out of time. He annexed the said defence to his Application. This therefore clearly shows that the defendant was desirous of defending the suit but for the delay experienced while waiting for his documents.

25. One of the said crucial documents was a stay order from the foreign Court of Appeal where the Defendant had filed the appeal with regards to the matter subject of this suit. It is our humble submission that a court cannot enforce a judgement which has been stayed either by the court that pronounced it or by a court to which the decision has been appealed to. It is trite that the effect of a stay of execution order is to suspend the enforcement of such a judgement pending the outcome of the appeal.

Issues for Determination 26. After carefully considering the three Applications, the responses and the written submissions. The following issues are for consideration;a)Whether the interlocutory judgment should be set aside, the garnishee proceedings stayed and the Defendant granted leave to file a defence?b)Whether Garnishee order nisi should be made absolute?c)Whether the Court should enjoin the interested party to the proceedings?

Analysis Whether the interlocutory judgment should be set aside, garnishee proceedings stayed and the defendant granted leave to file a defence; 27. Section 9 of the Civil Procedure Act provides that:“A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim, litigating under the same title, except—(a)where it has not been pronounced by a court of competent jurisdiction;(b)where it has not been given on the merits of the case;(c)where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of Kenya in cases in which such law is applicable;(d)where the proceedings in which the judgment was obtained are opposed to natural justice;(e)where it has been obtained by fraud;(f)where it sustains a claim founded on breach of any law in force in Kenya.”

28. Further, Section 10(1) of the Foreign Judgments (Reciprocal Enforcement) Act, provides that:Where a judgment has been registered under this Act an application may be made by the judgment debtor that the judgment be set aside on any of the grounds set out in subsection (2) or (3), and if the High Court is satisfied that any of those grounds has been established it shall set aside the registration of that judgment.(2)The grounds upon which a registered judgment may be set aside are that—(a)the judgment is not a judgment to which this Act applies;(b)the judgment was registered in contravention of this Act;(c)the courts of the country of the original court had no jurisdiction to adjudicate upon the cause of action upon which the judgment was given;(d)the judgment debtor did not appear in the original court and the jurisdiction of that court was based upon an agreement by the judgment debtor to submit to its jurisdiction which is invalid under the rules of private international law of Kenya;(e)the cause of action upon which the judgment was given had at the date of that judgment been the subject of a final and conclusive judgment of a court having jurisdiction to adjudicate upon that cause of action;(f)the matter in relation to which the judgment was given had, subsequent to the date of that judgment, and as a result of proceedings instituted prior to the institution of the proceedings in the original court, become the subject of a final and conclusive judgment of a court in Kenya which is irreconcilable with the judgment of the original court;(g)the judgment debtor, being the defendant in the original proceedings—(i)was not duly served with the process of the original court; or(ii)notwithstanding that he was duly served in conformity with the law of the country of that court, did not receive notice of those proceedings in sufficient time to enable him to defend the proceedings; and(iii)did not appear or appeared only for one or more of the purposes set out in section 4(2)(b);(h)the judgment was obtained by fraud, other than fraud which was, or could have been, put in issue by the judgment debtor in the proceedings in the original court or on appeal therefrom;(i)there are provisions of the law of Kenya which, by virtue of the rules of private international law of Kenya, would have been applicable notwithstanding any choice of another system of law by the judgment creditor and the judgment debtor, had the proceedings been brought in the High Court, and the judgment disregards those provisions in some material respect;(j)it was necessary for the original court, in order to give its judgment, to decide a question relating to any matter specified in paragraphs (c) to (k) of section 3(3) and the decision is different from that which the High Court, having applied the rules of private international law of Kenya to that question, would have reached;(k)the judgment has been taken on appeal, and reversed or discharged or otherwise set aside, in a court of the country of the original court;(l)the judgment debtor is a person who, under the rules of public international law, is entitled to immunity from the jurisdiction of the High Court;(m)the rights under the judgment are not vested in the person by whom the application for registration was made;(n)the enforcement of the judgment would be manifestly contrary to public policy in Kenya.(3)An application may be made under subsection (1) to set aside the judgment to the extent that its enforcement would require payment of sums in excess of monetary limits upon liability imposed by any statute of Kenya which applies under the rules of private international law of Kenya.”

29. It was the Respondent’s case that the Interlocutory Judgement should in the interest of justice and fairness be set aside and the Defendant be allowed to file his defence and that the reason for his delay in filing the same to court being that there were some crucial documents which he was waiting to be sent to him from the DRC. The documents were eventually sent to and received by the Defendant on 7th December 2021.

30. The Respondent had filed a Notice of Motion dated 10th February 2020 seeking the following orders;“3. That the Garnishee Nisi made herein on 22nd January 2020 directed at the Defendant’s Account No. [xxxx] domiciled at Bank of Africa Kenya Ltd (the Garnishee) be and is hereby set aside and or vacated.4. That execution of the foreign Judgment made on 10th April 2019 by the Commercial Court of Goma, Democratic Republic of Congo (DRC) Case No. RCE 258 be stayed pending inter-parties hearing of this application.5. That execution of the foreign Judgment made on 10th April 2019 by the Commercial Court of Goma, Democratic Republic of Congo (DRC) Case No. RCE 258 be set aside.6. That this suit be struck-out for want of jurisdiction.7. That cost of this application and the suit be borne by the Plaintiff.”

31. This Court vide the Ruling dated 12th March 2021 dismissed the said Application and stated;“The Defendants argument that there is an appeal which is pending determination in the DRC and that said appeal is a bar to this Court’s recognition and enforcement of the Foreign Judgment is misconceived. Firstly, there exists no evidence that the Defendant has actually an Appeal in the DRC. All that has been annexed is a Notice of Appeal. No substantive appeal has been exhibited in these proceedings. Secondly the mere existence of a pending Appeal would not act as a bar to the recognition and enforcement of the original Judgment delivered in the DRC. Section 9 of the Civil Procedure Act which deals with the enforcement of a Judgment from a non-designated country provides that: -“The money Judgment in the foreign Judgment must be final and conclusive. It may be final and conclusive even though it is subject to an appeal. Under Section 9 of the Civil Procedure Act, a foreign Judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim, litigating under the same title except.” [own emphasis]This matter involves a money Judgment and as such Section 9(e) is applicable.(21)The question arose as to whether the High Court had jurisdiction to issue temporary garnishee orders against the Defendant’s Bank Account pending determination of the suit. In the Jayesh Case [supra] it was held thus: -“For avoidance of doubt, we state that the High Court of Kenya pursuant to the provisions of section 3 of the Judicature Act and its original and untainted civil jurisdiction provided in Article 165(3) of the Constitution has jurisdiction to hear and determine any issue relating to enforceability of foreign judgments from non-designated countries.” [own emphasis]The issue of temporary Garnishee orders relates to the enforceability of foreign Judgments as they are in the nature of interlocutory orders sought in order to secure the property of the Judgment Debtor with the aim of satisfying the foreign Judgment should the same eventually be recognized by the Court.(22)The evidence available indicates that the Defendant failed to satisfy the Judgment issued by the Court in DRC and instead moved to Kenya no doubt in an attempt to evade justice. In my view the above circumstances do merit the grant of temporary garnishee orders to prevent the dissipation of the said Account.(23)Finally I find no merit in this application. The Notice of Motion dated 10th February 2020 is hereby dismissed in its entirety. Costs are awarded to the Plaintiff/Respondent.”

32. It is this Court’s finding that the Judgment Debtor’s Application herein has elements of res judicata as the prayers sought herein are the same as prayers sought in the Notice of Motion dated 10th February 2020 and the matter is between the same parties. The said Application was heard and determined by a competent court as stated herein above and the prayers dismissed.

33. Be as it may, the suit herein was filed on 19th December 2019 and the judgment was entered on 12th November 2021 which was well over two years. This is clearly an inordinate delay on the part of the Defendant.

34. The Court finds that the reasons advanced by the Applicant for failure to file the defence herein has no merit

Whether the Court should enjoin the interested party to the proceedings? 35. The principles of joining a party to a suit were elaborated in the case of Technomatic Limited t/aPromopack Company –versus- Kenya Wine Agencies Limited & Another [2014] eKLR where the court stated; -“When the above principles are applied to the facts of these applications it is clear that the guiding principles when an intending party is to be joined are as follows:1. He must be a necessary party.2. He must be a proper party.3. In the case of a defendant there must be a relief flowing from that defendant to the plaintiff.4. The ultimate order or decree cannot be enforced without his presence in the matter.5. His presence is necessary to enable the Court to effectively and completely to adjudicate upon and settle all questions involved in the suit”.

36. In the Supreme Court of Kenya decision, Communication Commission of Kenya & 4 Others v. Royal Media Services Limited & 7 Others [2014] eKLR, it was held: -“An Interested Party is one who has a stake in the proceedings, though he was not a party to the cause ab initio. He or she is a one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated, unless he himself or she herself, appears in the proceedings and champions his or her cause.’’

37. The Supreme Court held further that a party could be joined for reasons that:“a.His presence will result in complete settlement of all the questions involved in the proceedings.b.It is necessary to provide protection for the rights of a party who would otherwise be adversely affected in law.c.It is necessary to prevent likely proliferation of litigation.”

38. This Court held in the case of East African Development Bank v Dari Limited & 5 others [2020] eKLR, that the mandate of this court, under the Act is limited to the enforcement of foreign judgments emanating from designated countries and does not extend to reviewing, interrogating or analysing the procedures of those foreign courts or the substance of parties’ disputes.

39. Going by the above finding of the Court, it is this Court’s view that enjoining the interested party to the proceedings falls within the original court’s jurisdiction and will be better presented and determined therein.

Whether Garnishee order nisi should be made absolute? 40. On 22nd January 2020 the Court made temporary Garnishee orders against the Account of the Defendant domiciled at Bank of Africa Kenya Ltd pursuant to Section 9 of the Foreign Judgments (Reciprocal Enforcement) Act which provides that;(1)1) At the time of, or at any time subsequent to, making an application for registration under section 5, the applicant may apply ex parte to the High Court for an order that all debts, obligations and liabilities due or accruing due to the judgment debtor from any person named in the application (in this section referred to as “the garnishee”) be attached.(2)The High Court upon an application under subsection (1) may, upon the production of such further evidence as it may require and if it deems it proper, order the garnishee to pay the judgment creditor the amount of the debts, liabilities or obligations due or accruing due to the judgment debtor from the garnishee or so much thereof as is sufficient to satisfy the registered judgment and the costs of the proceedings pursuant to this section.(3)Subject to this section, the rules of court with respect to the attachment of debts due to judgment debtors shall apply to proceedings pursuant to this section.

41. Order 23, Rule 1 of the Civil Procedure Rules on attachment of debts provides; that: -“1(1)court may, upon the ex parte application of a decree- holder, and either before or after an oral examination of the judgment-debtor, and upon affidavit by the decree-holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree- holder the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid. Third, the above rule contemplates the existence of a decree for the amount claimed. Generally, Garnishee proceedings is done in two different stages.[2]The first stage is for the garnishee order nisi, while the second stage is for the garnishee order absolute.At the first stage, the judgment creditor makes an application ex parte to the Court that the judgment debt in the hands of the third party, the Garnishee, be paid directly to the judgment creditor unless there is explanation from the Garnishee why the order nisi should not be made absolute.If the judgment creditor satisfies the Court on the existence of the Garnishee who is holding money due to the judgment debtor, such third party (Garnishee) will be called upon to show cause why the judgment debtor's money in its hands should not be paid over to the judgment creditor, and if the Court is satisfied that the judgment creditor is entitled to attach the debt, the Court will make a garnishee order nisi attaching the debt.[3]The essence of the order nisi is to direct the Garnishee to appear in court on a specified date to show cause why an order should not be made upon him for the payment to the judgment creditor of the amount of debt owed to the judgment debtor. It is a requirement that a copy of the order nisi must be served on the Garnishee and judgment Debtor at least 7 days before the adjourned date for hearing.[4]If the garnishee does not dispute the debt due or claimed to be due from him to the judgment-debtor, or, if he does not appear upon the day of hearing named in an order nisi, then the court may order execution against the person and goods of the garnishee to levy the amount due from him, or so much thereof as may be sufficient to satisfy the decree, together with the costs of the garnishee proceedings; and the order absolute shall be in Form No. 17 or 18 of Appendix A, as the case may require.”

42. The stage that follows is for the order nisi to be made absolute. The 1st Garnishee through its Replying Affidavit dated 1st December 2021 stated that the balances due on the said accounts as at the date indicated, being the sum of USD 54, 325. 00. Further, the garnishee stated that it willing to comply with any directives issued by the Court subject to the Judgment Debtor meeting any related costs including the transaction costs and the costs of this garnishee proceedings.

43. The 2nd Garnishee through its Replying Affidavit dated 6th December 2021 stated that the account held by the Garnishee on behalf of the Judgment Debtor had as at 6th December, 2021 the sum of Kshs. -2. 15 USD which amount is insufficient to satisfy the decretal amount as prayed in the Decree Holders Application. Therefore, the Garnishee was discharged as a Garnishee from the proceedings of this suit.

44. The 1st Garnishee herein confirmed willingness to comply with this court’s order in accordance with the provisions of Order 23 Rule 4 of the Civil Procedure Rules.

45. It follows therefore that the Garnishee Order Nisi made is hereby made absolute. Execution be and is hereby issued against the 1st Garnishee directing it to pay the amounts in Bank Account Number xxxx towards the satisfaction of the decree and costs of these Garnishee proceedings.

Findings and Determination 46. From the afore-going reasons this court makes the following findings and determinations that;(i)This court finds the application to set aside the interlocutory judgment and stay of garnishee proceedings has all the elements of res judicata’;thus making the application incompetent and it is hereby struck out;(ii)This court finds the application for grant of leave to file a defence to be devoid of merit and it is hereby dismissed.(iii)This court lacks the jurisdiction to enjoin the interested party to these proceedings; the application is found to be incompetent and it is hereby struck out;(iv)The application for the 1st garnishee order nisito be made absolute is found to have merit and it is hereby allowed;(v)The garnishee order nisi against Bank of Africa Kenya Limited-Nairobi Branch (1st Garnishee) be and is hereby made absolute; all monies deposited, lying and being held in deposit in Bank Account Number xxxx to the credit of the Judgment Debtor/Respondent in the account of Crosslink Services be paid to the Decree/Holder in satisfaction of the Decree and costs of these Garnishee proceedings;Orders Accordingly

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 17TH DAY OF JUNE, 2022. HON. A. MSHILAJUDGEIn the presence of;Muriuki for the Plaintiff/Decree holderOgutu for the Defendant/Judgment debtorMaondo for the 1st garnisheeKimiti holding brief for Nyakor for the proposed interested partyLucy ----------------------------Court Assistant