https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1939

Mohamed v Red Court Hotel t/a Boma Hotel (Cause 1585 of 2017) [2026] KEELRC 1939 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1939 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause 1585 of 2017 CN Baari, J July 8, 2026 Between Noor Mohamed Claimant and Red Court Hotel t/a Boma Hotel Respondent Ruling 1.Before Court is the Claimant/Decree holder’s Motion application dated 22nd May, 2026, brought pursuant to Order 23 Rules 1, 2, 3, and 5 of the Civil Procedure Rules, 2010, Section 3A of the Civil Procedure Act, and Section 68 of the Roads Act, wherein the Claimant seeks the following reliefs: -i.Spentii.That a Garnishee Order Nisi do issue attaching all monies held by Equity Bank Kenya Limited, Mombasa Road Branch, for and on behalf of the Judgment-Debtor/Respondent, Red Court Hotels Limited t/a Boma Hotels, in Account Number 01xxxxxxxxxxx73 or in any other account in the name of the Judgment-Debtor, to answer the decretal sum of Kshs. 4,839,075.621 together with continuing interest and costs.iii.That the Garnishee be ordered to appear before this Honourable Court on a date to be fixed and show cause why the said order should not be made absolute and why the attached funds should not be paid over to the Decree-Holder Applicant in satisfaction of the Decree.iv.That the costs of this application be provided for. 2.The application is supported by grounds on the face of the Motion and the affidavit of Noor Mohammed, sworn on 22nd May, 2026. 3.The Claimant states that Judgment in this matter was entered in his favour against the Judgment Debtor/Respondent, Red Court Hotels Limited t/a Boma Hotels, and a decree was subsequently issued for Kshs.2,357,500, together with costs and interest at court rates. He avers that the decretal sum has remained wholly unpaid since February 2020 and continues to accrue interest at 14% per annum. 4.The Claimant states that as of 22nd May 2026, the outstanding amount, inclusive of accrued interest but exclusive of costs, stood at approximately Kshs.4,439,075.62. He states that he was also awarded the costs of the suit, estimated at Kshs.400,000, pending taxation. 5.The Claimant/Applicant states that the Respondent maintains Account No. 01xxxxxxxxxxx73 at Equity Bank Kenya Limited, Mombasa Road Branch, where the Garnishee is believed to hold sufficient funds to satisfy the decree, and that despite demand and the existence of a valid decree, the Respondent has failed to settle the amount due. 6.In her oral submissions, Ms. Ooga of Ondieki Orangi & Co Advocates for the Claimant/Applicant told the court that when the judgment was entered, the Judgment debtor sought time to settle the same, and that during which time a law firm by the name of Kennedy Balala & Co. Advocates purported to come on record as representing the Claimant/decree holder for purpose of executing the decree. 7.It is Ms. Ooga’s argument that the said law firm was never instructed by the Claimant/decree holder to represent him in the matter, and neither did it obtain leave of the Court to come on record post judgment pursuant to Order 9 of the Civil Procedure Rules. 8.Ms. Ooga further argues that the said firm proceeded to take a payout in favour of the Claimant/decree holder in the sum of Kshs.3,104,934 from the Respondent/Judgment debtor. Counsel argued further that the Respondent cannot purport not to know that the firm of Ondieki Orangi was the one representing the Claimant, having dealt with them throughout the hearing of the suit. 9.The Claimant/Decree holder maintains that he has to date not been paid the decretal sum, and further contends that documents authored by Kennedy Balala were not authored by him. 10.The Claimant asserts that a decree drawn and enforced by an advocate who is not properly on record is, in law, considered coram non judice, and he cannot be punished for the Respondent’s inability to do its due diligence. 11.The Garnishee responded to the application vide a replying affidavit sworn by Leah W. Gitonga on 12th June, 2026, wherein she confirms that the Judgment Debtor maintains Account No. 01xxxxxxxxxxx73, which has been attached and frozen pending determination of the garnishee application. 12.The deponent states that the account has a credit balance of Kshs.3,122,113.20, which is insufficient to satisfy the decretal sum of Kshs.4,839,075.62, together with the costs of the garnishee proceedings. It is the Garnishee’s position that a bank statement for the period 3rd June 2026 to 9th June 2026 has been annexed in support of this position. 13.The Garnishee further avers that it is unable to fully satisfy the decretal amount but undertakes to comply with any orders or directions that the Court may issue upon determination of the garnishee application. 14.The Garnishee states that it has no objection to releasing the available account balance to the Decree Holder, subject to the Court's directions, and it seeks leave for its advocate's costs of Kshs.30,000 incurred in the garnishee proceedings to be deducted from the attached funds before payment. 15.On its part, the Respondent/Judgment debtor opposed the application vide a Replying affidavit sworn on 12th June, 2026, by Johnson Wambua. 16.The Respondent prays that the Garnishee Order Nisi issued on 25th May 2026 be discharged and set aside on the grounds that the decree has already been fully satisfied, the Applicant is guilty of material non-disclosure, and the application constitutes an abuse of the court process. 17.The Respondent contends that making the garnishee order absolute would result in double execution of a decree that has already been settled. The Respondent acknowledges that judgment was delivered on 13th February 2020, awarding the Claimant Kshs.2,387,500, together with costs and interest. It states that the Claimant subsequently changed advocates to Kennedy Balala & Co. Advocates, who came on record on 27th April 2021 and initiated execution proceedings by obtaining warrants of attachment, instructing Icon Auctioneers, and serving a proclamation for Kshs.2,745,934, inclusive of auctioneer's fees. 18.According to the Respondent, the Claimant had full knowledge of and expressly authorized those execution proceedings, and relies on the Claimant's Replying Affidavit sworn on 16th July 2021, in which the Claimant acknowledged that his advocates had explained the proceedings to him, confirmed that they had issued a demand letter dated 29th April 2021, and admitted that Icon Auctioneers had been instructed and the Respondent should settle the auctioneer's charges. 19.The Respondent relies on these facts to argue that the Claimant was actively involved in the earlier execution process. 20.The Respondent contends that it is false and misleading for the Claimant's current advocates, Ondieki Orangi & Co. Advocates, to describe the former advocates, Kennedy Balala & Co. Advocates, as strangers to the record. It maintains that the court record shows that Kennedy Balala & Co. Advocates acted for the Claimant by issuing demand letters, instructing auctioneers, and pursuing execution. 21.The Respondent further states that, following the re-issuance of warrants of attachment on 10th November 2021 and the threat of attachment and forcible entry, it complied with the execution process by paying Kshs.3,104,934 on 17th December 2021 into the bank account designated by the Claimant's advocates, being the decretal amount together with accrued interest and costs. 22.It avers that it also paid Kshs.295,000 directly to Icon Auctioneers as auctioneers' fees, and asserts further that these payments fully and conclusively satisfied the decree and that, from 17th December 2021, the decree was fully discharged, with the Respondent ceasing to be a judgment debtor in the matter. 23.The Respondent contends that the garnishee application is an abuse of the court process, arguing that the decree was fully settled in 2021 and that the Claimant deliberately failed to disclose this fact. It maintains that the Claimant had already initiated earlier execution proceedings and, despite a pending application addressing the same issue, filed the present ex parte garnishee application without disclosing the prior execution, the alleged payments made in satisfaction of the decree, or the existence of the pending proceedings. The Respondent argues that these omissions amount to material non-disclosure and justify setting aside the Garnishee Order Nisi. 24.The Respondent contends that the Garnishee Order Nisi was obtained through material non-disclosure, as the decree had allegedly been fully satisfied in 2021 by payment to the Claimant's then advocates. It argues that any dispute over those funds is between the Claimant and his former advocates and cannot justify a second execution against the Respondent. 25.The Respondent further states that the attachment of its main operational bank account has disrupted its business and statutory obligations, causing it significant prejudice. 26.It therefore seeks the discharge of the Garnishee Order Nisi and dismissal of the application with costs. 27.The application was urged orally before the court on 15th June, 2026, where Counsels for both parties reiterated their positions as captured herein. Analysis and Determination 28.The sole issue falling for determination is whether the Claimant has established a basis for the Court to make the Garnishee Order Nisi issued on 25th May 2026 absolute. 29.The object of Garnishee proceedings is to enable a decree-holder realize the fruits of a lawful judgment where the decree remains unsatisfied. The Court of Appeal in Kenyatta University –vs- Isaac Karumba Nyuthe NRB HCCA NO 193 of 2012(2014) eKLR, reaffirmed that the purpose of execution proceedings is to enable a successful litigant enjoy the fruits of their judgment, while at the same time ensuring that execution is undertaken strictly within the confines of the law. 30.In the present application, there is no dispute that judgment was entered in favour of the Claimant and that a decree was subsequently issued. Equally undisputed is the fact that the Garnishee holds funds belonging to the Judgment Debtor amounting to Kshs.3,122,113.20. 31.The issue in dispute is whether the decree remains unsatisfied. The Claimant maintains that no payment was ever made to him and contends that the firm of Kennedy Balala & Co. Advocates, through whom the Respondent claims to have settled the decree, was never properly on record after judgment, as it neither obtained leave under Order 9 Rule 9 of the Civil Procedure Rules nor had his instructions. According to the Claimant, any payment made through that firm cannot constitute satisfaction of the decree. 32.The Respondent, on the other hand, has produced material showing that a Notice of Change of Advocates was filed in favour of Kennedy Balala & Co. Advocates, that the said advocates commenced execution proceedings by obtaining warrants of attachment and instructing auctioneers, that the Claimant himself swore an affidavit in July 2021 acknowledging those execution proceedings, that payment of Kshs.3,104,934 was made pursuant to the execution process into an account designated by those advocates, and finally, the auctioneers' charges of Kshs.295,000 were separately settled pursuant to those same instructions. 33.These, in my view, are not peripheral allegations. They raise a serious factual dispute as to whether the decree was satisfied through advocates who appeared to act for the Claimant. 34.The Court further notes that the Claimant has not merely denied receiving the money, but also disputes the authority of Kennedy Balala & Co. Advocates to receive payment on his behalf. 35.Conversely, the Respondent asserts that it satisfied the decree pursuant to court sanctioned execution initiated by advocates appearing on the court record and acting for the Claimant. 36.In the opinion of this court, this dispute cannot be resolved merely through garnishee proceedings. The Court is persuaded that once credible evidence is placed before it showing that payment may have been made pursuant to execution, the issue ceases to be one of straightforward execution and instead becomes one requiring determination of whether the decree has already been satisfied. 37.In Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd [1980] KEHC 11 (KLR), the Court observed that an advocate on record ordinarily possesses ostensible authority to receive payment on behalf of a client unless that authority has been withdrawn or limited and such limitation communicated to the opposite party. 38.In my considered view, parties dealing with advocates acting on record are generally entitled to assume that the advocate possesses the ordinary authority incidental to the retainer. 39.It then follows that issues such as whether Kennedy Balala & Co. Advocates were properly on record after judgment, whether leave under Order 9 Rule 9 was obtained or required in the circumstances, whether the Respondent was entitled to rely on the apparent authority of those advocates, and whether payment discharged the Respondent's obligations, are substantive questions which cannot in my view be conclusively determined within the confines of the present garnishee proceedings. 40.In light of the foregoing, the Court finds that the Respondent has demonstrated the existence of substantial issues regarding prior execution and alleged settlement of the decree, which cast doubt on whether the decree remains outstanding in the amount claimed. 41.The Garnishee itself has adopted a neutral position, only confirming that it is holding Kshs.3,122,113.20 belonging to the Respondent and its expresses willingness to comply with any lawful orders of the Court. 42.The Court is also alive to the fact that a garnishee order freezes funds belonging to the judgment debtor, and noting that there exists a genuine dispute on whether the decree has already been discharged, I am slow to authorize attachment as doing so may result in double recovery to the detriment of the Respondent. 43.Accordingly, I find and hold that the Claimant has not demonstrated, on the material presently before the Court, that the decree remains unsatisfied so as to warrant making the Garnishee Order Nisi absolute. In the premise, the Garnishee Order Nisi issued on 25th May 2026 is hereby discharged. 44.The Notice of Motion dated 22nd May 2026 is dismissed. 45.The Garnishee is awarded costs of the garnishee proceedings assessed at Kshs.20,000 to be borne by the Respondent/Judgment debtor. 46.I make no orders on costs as between the Claimant and the Respondent. 47.Orders accordingly. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 8TH DAY OF JULY, 2026.C. N. BAARIJUDGEAppearance:Ms. Ooga present for the Claimant/Decree HolderMr. Ahmed & Mr. Nura present for the Respondent/Judgment debtorMs. Moraa h/b for Ms. Muthoni for the GarnisheeMs. Esther S -C/A