[2024] KECPT 1707 (KLR)

Mwinzila v Transcom Co-operative Savings & Credit Society; Co-operative Bank of Kenya Limited (Garnishee) (Tribunal Case 222/E284 of 2022) [2024] KECPT 1707 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1707 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 222/E284 of 2022

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

October 3, 2024

Between

Joseph Malonza Mwinzila

Claimant

and

Transcom Co-operative Savings & Credit Society

Respondent

and

Co-operative Bank of Kenya Limited

Garnishee

(Coram: Hon. B. Kimemia- chairperson, Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Ruling

1. This ruling dispenses with the Notice of Motion Application dated 15th November 2023, supported by an affidavit sworn by one Joseph Maina, the Director of the judgment debtor, and brought under Section 21(4) of the Government Proceedings Act, Section 1A, 1B, 3A and 80 of the Civil Procedure Act, Order 22 Rule 22, Order 23 Rule 1, Order 29 Rule 2(2)(C). Order 45 Rule 1, 2, 3(2) and 5 and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of law.The Application seeks the following orders:a.. Spentb.Spent

2. The Application is premised on the grounds on its face which are inter alia that: This Tribunal issued garnishee order nisi for the attachment of sums in the Applicant’s bank account in Co-operative Bank of Kenya Account No. 01120000602800 as are sufficient to satisfy the decretal sum together with the costs of garnishee. That the Notice of Motion application dated 30th October 2023 is fatally defective for being premised on confidential and privileged information. That as a result of the orders of this Tribunal, the Applicant is unable to meet its statutory and contractual obligations including payment of rent for its offices and risks eviction.

3. The Decree Holder (DH)/ Respondent filed their Grounds of Opposition and a Replying Affidavit to the Applicant's Application. In their response, the Decree Holder aver that they filed their Garnishee Application and the Tribunal gave the garnishee order lawfully within Order 23 rule 1 of the Civil Procedure Rules. The Judgment Debtor contends that the account details were known to him at all times since he was a contributing member of the Sacco. He also states that the Applicant is not a government entity subject to the Government Proceedings Act.

Analysis 4. This Tribunal has considered the Application, the Replying Affidavit, and the Submissions of both the Claimant and the Respondent. The question that this Tribunal has to answer is whether the Applicant’s Application is merited and whether he is entitled to the reliefs sought.

5. The relief sought is to alter, vary, set aside and or review the orders of this Tribunal issued on 3rd November 2023. The reason given by the Applicant is that the Application was based on confidential and privileged information which was obtained illegally and unethically.

6. It is not in doubt that a judgement was delivered against the Judgement Debtor, and that a garnishee order nisi was issued on 3rd November 2023. The question before this court is whether the notice of application was incompetent because it is founded on illegally obtained privileged and confidential information. In their Supporting Affidavit Judgement Debtor depone that the Decree Holder has not obtained how he obtained the bank account details of the Applicant. The question we ask ourselves is, is there a duty on the Respondent to disclose how he got the bank account details? We think not. It is upon the Applicant herein to prove on a balance of probability that the said information was obtained illegally in breach of confidentiality. The alleged illegality in obtaining the said information is a factual issue that needs to be proved. The Applicant has not adduced any evidence on how the account details were illegally obtained.

7. Despite not being his duty, the Respondent (Decree-Holder) has gone ahead to explain to this court how he accessed the account details. The Decree Holder depone that the subject Judgment Debtor’s bank account details were at all times known to him as until his retirement from civil service he had been a contributing member of the Judgment Debtor.

8. Financial constraints of the Judgement Debtor cannot be a basis for reviewing or setting aside a garnishee order Nisi.

9. In the upshot of the foregoing, we find the Applicant’s Application dated 15. 11. 2023 lacks merit, and the same is hereby dismissed with costs to the Respondent.

File closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. HON. B. KIMEMIA - CHAIRPERSON SIGNED 3. 10. 2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 3. 10. 2024HON. BEATRICE SAWE - MEMBER SIGNED 3. 10. 2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 3. 10. 2024HON. PHILIP GICHUKI - MEMBER SIGNED 3. 10. 2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 3. 10. 2024HON. PAUL AOL - MEMBER SIGNED 3. 10. 2024TRIBUNAL CLERK MUTAINo appearance by parties.Ruling delivered in absence of parties.