[2023] KEELRC 13 (KLR)
The court found that while the applicant was entitled to pursue garnishee proceedings to enforce the unsatisfied decree, the existence of a prior and subsisting High Court order freezing the judgment debtor's account at M. Oriental Bank Limited precluded the issuance of a further garnishee order against that...
Source-derived case information.
- Citation
- [2023] KEELRC 13 (KLR)
- Parties
- Applicant: Geoffrey Muriithi Muthee; Respondent: Explico Insurance Company Ltd; Garnishee: Prime Bank Limited; Garnishee: M Oriental Bank Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1463 of 2018
- Procedural Posture
- Garnishee Application / Ruling on Notice of Motion for Garnishee Orders
- Outcome
- Application partially allowed.
- Judges
- AN Mwaure
- Legal Topics
- Garnishee Proceedings, Enforcement of Decrees, Attachment of Debts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Muriithi Muthee
Applicant
Explico Insurance Company Ltd
Respondent
Prime Bank Limited
Garnishee
M Oriental Bank Limited
Garnishee
Procedural Posture
Garnishee Application / Ruling on Notice of Motion for Garnishee Orders
Legal Issues
- 1 Whether the court should grant garnishee orders absolute against Prime Bank Limited and M. Oriental Bank Limited to satisfy the decree in favour of the applicant.
- 2 Whether existing court orders freezing the judgment debtor's accounts at M. Oriental Bank Limited preclude the issuance of further garnishee orders against those accounts.
- 3 Whether the applicant is entitled to costs of the garnishee proceedings.
Ratio Decidendi
The court found that while the applicant was entitled to pursue garnishee proceedings to enforce the unsatisfied decree, the existence of a prior and subsisting High Court order freezing the judgment debtor's account at M. Oriental Bank Limited precluded the issuance of a further garnishee order against that account. There was no evidence that the prior freezing order had been vacated or set aside. Accordingly, the court declined to grant garnishee orders against M. Oriental Bank Limited. However, as there was no objection from Prime Bank Limited and no legal impediment shown, the court granted the applicant's prayers for an order nisi and a garnishee order absolute against Prime Bank...
Court Disposition
Application partially allowed.
Orders
- Garnishee order nisi and garnishee order absolute granted against Prime Bank Limited; operations on the judgment debtor's account(s) at Prime Bank Limited are frozen and sufficient funds to satisfy the decree and costs are to be attached.
- Application for garnishee orders against M. Oriental Bank Limited declined due to subsisting High Court freezing order; no orders as to costs against M. Oriental Bank Limited.
Full Case Text
Judgment text and source record
36 paragraphs
Muthee v Explico Insurance Company Ltd; Prime Bank Limited & another (Garnishee) (Cause 1463 of 2018) [2023] KEELRC 13 (KLR) (12 January 2023) (Ruling)
Neutral citation: [2023] KEELRC 13 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1463 of 2018
AN Mwaure, J
January 12, 2023
Between
Geoffrey Muriithi Muthee
Claimant
and
Explico Insurance Company Ltd
Respondent
and
Prime Bank Limited
Garnishee
M Oriental Bank Limited
Garnishee
Ruling
1. The claimant decree holder by way of a Notice of Motion dated July 7, 2022seeks the following prayers:-1. That service hereof be dispensed with and this application be heard ex parte in the first instance.2. That an Order Nisi upon the Garnishee do issue and same be served upon it and the Judgement-debtors, freezing operations on A/C No. xxxx held at Prime Bank Limitedby the Judgement Debtors and any other account with the Garnishee, at least Seven (7) Days before the hearing hereof.3. That an Order Nisi upon the Garnishee do issue and same be served upon it and the Judgement-debtors, freezing operations on A/C No. xxxx held at M. Oriental Bank Limitedby the Judgement Debtors and any other account with the Garnishee, at least Seven(7) daysbefore the hearing hereof.4. That this honourable court be pleased to make Garnishee Order absolute that such sums or debts as are sufficient to answer the Decree obtained by the Decree-holder against the Judgement-debtor, or the unsatisfied part thereof owing or accruing due from the Garnishee, Prime Bank Limited, to the Judgement-debtor be attached to answer the Decree passed herein against the Judgement-debtor together with the costs of these Garnishee proceedings.5. That this honourable court be pleased to make Garnishee Order absolute that such sums or debts as are sufficient to answer the Decree obtained by the Decree-holder against the Judgement-debtor, or the unsatisfied part thereof owing or accruing due from the Garnishee, M. Oriental Bank Limited,to the Judgement-debtor be attached to answer the Decree passed herein against the Judgement-debtor together with the costs of these Garnishee proceedings.6. That the costs of this application be borne by the Judgement-Debtor.
2. The application is grounded on the supporting affidavit of Geoffrey Muriithi Mutheeand inter-alia the grounds are:-a.The Decree herein for the sum of Kshs.5,439,310. 25/= together with costs which amounts continue to attract interest and remain unsatisfied.b.The Garnishee has accruing in its hand, credit deposits on behalf of the Judgement-debtor in respect of the Judgement-debtor’s A/C No. xxxx held at Prime Bank Limitedand A/C No. xxxx held at M. Oriental Bank Limited.c.It is only just and fair that the credit deposits be attached to satisfy the decretal sum/warrants sum and enable the Decree-holder recover what is due to it.d.The Garnishee is within the Jurisdiction of this honourable court.e.This application only seeks to enable the realization of the decretal sum.f.Such other and further grounds and reasons as shall be adduced at the hearing hereof.
3. The deponent Geoffrey Muriithi Muthee depones in his sworn affidavit dated July 7, 2022that he obtained a decree and a certificate of costs against the Judgement-debtor on April 25, 2022 for a sum of Kshs.5,439,310. 25/=
4. He says the said sum remains unpaid and he has then established the Judgement-debtor owns various accounts with Prime Bank Limited including A/C No. xxxx and A/C No. xxxx held at Oriental Bank Limited which remains active and sufficiently credited to satisfy the decree.
5. He prays that the court therefore allow the garnishee proceedings and further avers he is not aware of any other immovable or movable assets of the Judgement-debtor.
6. The parties to the application are as follows;a.The respondent represented by the firm of Omaga Advocates.b.The Decree-holder is represented by Mwangi & Kihanga Advocates and there isc.Laubor Advocates for M. Oriental Bank Limited, one of the garnishee.d.The other garnishee Prime Bank Limited was not represented.
7. The parties were ordered by this honourable court on the October 13, 2022to file their respective submissions by November 30, 2022and avail copies to the honourable court physically failure of which the court will not accept those submissions if any.
8. The court did not receive any submissions but was availed the replying affidavit by M. Oriental Bank Limited sworn by Irene, Twala branch manager of the said M. Oriental Bank and dated August 1, 2022.
9. The replying affidavit by M. Oriental Bank Limited said they were served by a court order made by Justice Okwany on November 4, 2021and is aware the matter is active in case No. HCCC E901 of 2021.
10. She says she was served with another court order in HC Insolvency Petition No. E030 of 2020 and finally was served an Agency Notice by Kenya Revenue Authority requesting remittance of Kshs.43,187,619/=.
11. She says there are other garnishee orders in various subordinate courts freezing the same account.
12. She says the bank complied with the court orders issued on November 11, 2021and will always comply with orders of this honourable court.
Determination 13. The court is seized of the Decree issued in this case in favour of the Decree-holder against Explico Insurance Company Limited and the certificate of taxation of June 29, 2022.
14. The court finds there are other earlier subsisting and live orders of High Court issued to M. Oriental Bank freezing the accounts of the Judgement-debtor being Account number xxxx issued on November 4, 2021by Justice Okwany in Case No. E901 of 2021 Sahi Rajeshwar Harbana Bal –vs-explico Insurance Company Limited as deponed by the branch manager of M. Oriental Bank Limited.
15. The court therefore is not in a position to grant the prayers No. 3 and No. 5 of the Decree-holder application since the account is still frozen by an order of a High Court and there is no evidence that the order has been vacated or set aside.The court therefore declines to grant garnishee order against M. Oriental Bank Limited and issues no orders as to costs herein.
16. As for the prayers for issuance of Order Nisi against the garnishee Prime Bank Limited, there is no objection by the said bank to issuance of the same.The court therefore hereby grants prayers 2 and prayer 4 of the Decree-holder Notice of Mention and therefore freezes operations on A/C No. xxxx held by Prime Bank Limited by the Judgement-debtor and any other account with the garnishee and also makes Garnishee Order absolute that such sums or debts as are sufficient to answer the decree obtained by the Decree-holder against the Judgement-debtor or the unsatisfied part be so applied. Thereof owing or accruing dues from the Garnishee Prime Bank Limited to the Judgement-Debtor be attached to answer the Decree passed herein against the Judgement-debtor together with costs of these garnishee proceedings being borne by the respondent.Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 12TH DAY OF JANUARY, 2023. ANNA N. MWAUREJUDGEORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on March 15, 2020 and subsequent directions of April 21, 2020that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under article 48 of the Constitution and the provisions of section 1B of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.ANNA N. MWAUREJUDGE