[2008] KEHC 2954 (KLR)

[2008] KEHC 2954 (KLR)

The court found that at the time the Garnishee order absolute was made, the Garnishee's advocate did not have full instructions regarding the amount held in the judgment debtor's account. Upon subsequent clarification, it was established that only Kshs.1,512,947.30 was available in the specified account. The court accepted that the Garnishee could not be compelled to pay more than what was actually held for the judgment debtor. The Garnishee had acted in good faith by depositing the available amount with the court. There was no evidence that the judgment debtor held other accounts with the Garnishee relevant to the proceedings. The court therefore found merit in the application and varied...

Citation
[2008] KEHC 2954 (KLR)
Parties
Plaintiff: Mohawk Limited; Defendant: Devcon Group Limited; Applicant: Equity Bank Limited (Garnishee)
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
8 February 2008
Case Number
? 13 of 2005
Procedural Posture
Civil Case / Ruling on Application to Review/vary Garnishee Order Absolute
Outcome
application allowed in part; garnishee order absolute varied to reflect actual funds held; costs to respondent
Legal Topics
Garnishee Orders, Review of Court Orders, Execution of Decrees, Bank Liability, Variation of Judgments
Source Language
English
Civil Procedure Banking and Finance Garnishee Orders Review of Court Orders Execution of Decrees Bank Liability Variation of Judgments

Case Brief

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Parties

Mohawk Limited

Plaintiff

Devcon Group Limited

Defendant

Equity Bank Limited (Garnishee)

Applicant

Procedural Posture

Civil Case / Ruling on Application to Review/vary Garnishee Order Absolute

Legal Issues

  1. 1 Whether the Garnishee order absolute should be reviewed or varied to reflect the actual amount held in the judgment debtor's account.
  2. 2 Whether the Garnishee is liable to satisfy the entire decretal sum or only the amount available in the specified account.
  3. 3 Whether the grounds for review or variation of the Garnishee order absolute have been satisfied.

Ratio Decidendi

The court found that at the time the Garnishee order absolute was made, the Garnishee's advocate did not have full instructions regarding the amount held in the judgment debtor's account. Upon subsequent clarification, it was established that only Kshs.1,512,947.30 was available in the specified account. The court accepted that the Garnishee could not be compelled to pay more than what was actually held for the judgment debtor. The Garnishee had acted in good faith by depositing the available amount with the court. There was no evidence that the judgment debtor held other accounts with the Garnishee relevant to the proceedings. The court therefore found merit in the application and varied...

Court Disposition

application allowed in part; garnishee order absolute varied to reflect actual funds held; costs to respondent

Orders

  • The Garnishee order absolute is varied to require the Garnishee to satisfy the decree only to the extent of Kshs.1,512,947.30 held in the specified account.
  • The sum of Kshs.1,512,947.30 deposited by the Garnishee with the court on 18th December, 2007 shall be released to the Decree Holder's Advocate.