[2023] KEHC 19392 (KLR)

National Government - CDF Bumula v Merchandise Technology Logistics Ltd & 2 others; Equity Bank Ltd (Garnishee) (Civil Appeal E105 of 2022) [2023] KEHC 19392 (KLR) (30 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19392 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal E105 of 2022

DK Kemei, J

June 30, 2023

Between

National Government - CDF Bumula

Applicant

and

Merchandise Technology Logistics Ltd

1st Respondent

Secretary Board of Management St.Jude Muanda Secondary School

2nd Respondent

BOM St Jude

3rd Respondent

and

Equity Bank Ltd

Garnishee

Ruling

1. The application under consideration is the one dated 12th April, 2023 filed by the Appellant/Applicant seeking the following reliefs namely:a.The court to temporarily suspend, vary, stay and or vacate the orders of stay of execution of the decree in Bungoma CMCC 216A of 2019 dated 20/3/2023 as they contradict, stay and or vary this honourable court’s orders issued on 24/1/2023. b.The entire proceedings vide the application dated 20/3/2023 by the garnishee and subsequent orders made in Bungoma CMCC 216Aof 2019 be vacated, set aside and or struck out.c.The garnishee/respondent herein be ordered to meet all the costs of the subordinate court proceedings, this honourable court’s and the auctioneer’s charges.

2. The application premised on the grounds inter ali; that the issues of execution, attachment and stay of the decree in CMCC 216A of 2019 were settled by this court’s ruling rendered on 24/1/2023; that the judgement debtor in collaboration with the garnishee have filed an appeal against the findings of this court by filing stay proceedings in the subordinate court which defy this court’s orders and failing to comply with the conditions of stay; that the lower court has granted orders of stay thereby assuming supervision of this court; that the subordinate court was made aware of the orders made by this court but failed to vacate them and that the contradictory orders has led to serious abuse.

3. The garnishee through George Maloba filed a replying affidavit stating that there is no order from the subordinate court in the suit and that the decree in this suit is between the other parties of this suit except the garnishee simply because it holds an account operated by the 2nd and 3rd respondents and which the applicant wants to attach. It was further averred that the applicant moved in to attach the garnishee properties prompting it to file an application before the subordinate court to forestall the imminent execution against it despite not being a party to the suit. It was also deponed that the applicant is therefore misapprehending the law as relates to the attachment of the garnishee’s properties. Finally, it was deponed that the garnishee’s application is pending determination by the lower court.

4. The application was canvassed by way of written submissions. Both parties duly filed and exchanged submissions.

5. I have given due consideration to the rival affidavits and submissions. I find the issue for determination is whether the application is merited. From the onset, this court delivered a ruling in this matter on 24th January, 2023 inter alia conditionally staying the execution of the judgement and decree and all consequential orders in CMCC 216A of 2019 pending the hearing and determination of the appeal. To my mind, the orders were quite clear and unambiguous.

6. What then the applicant contends in this application is that the trial court has issued orders in contravention of the afore-stated order.

7. On perusing the application dated 20th march, 2023 annexed to the application herein, it is noted that the application was preferred by the garnishee after the auctioneer Crescent Auctioneers moved in and proclaimed the garnishee’s goods.

8. I have considered the order as issued by the subordinate court and the same is crafted as follows;There is a stay of execution exparte in the first instance of the warrants of attachment of property in execution of decree for money dated 1/3/2023 of the movable goods of the garnishee/ applicant.

9. A casual look at the order shows that the same was issued in favour of the garnishee who has deponed in this court that the 1st respondent moved in and executed against it by attachment of the garnishee’s property.

10. I find merit in the garnishee’s assertion that the applicant cannot lawfully execute against it unless there is in existence a decree absolute. The procedure for executing against the garnishee is provided for under Order Rule 23 Rule 4 which provides;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.

11. The Rule was interpreted in Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation; Kenya Commercial Bank Group Limited (Garnishee) [2021] eKLR where Mativo J held;A litigant is entitled to reap the fruits of his successful litigation. As a result, where a Judgment-Debtor fails to comply with the terms of a judgment, the Judgment-Creditor is entitled to enforce such judgment by adopting a suitable procedure provided under the law. By the process of garnishee, the court has power to order the garnishee to pay directly the sums it owes the Judgment-Debtor to the garnishor or so much of it as may be sufficient to satisfy the amount of the judgment and the cost of the garnishee proceedings.

12. Having appraised myself with the terms of the order issued by this court, the one issued by the subordinate court and the orders sought in this application, I find that the order issued by the trial court is not an attempt to set aside the orders of this court. The garnishee is not mentioned in the orders issued by this court and in any event, if the applicant deems that the garnishee is defying the orders of this court, there is an elaborate procedure under the Civil Procedure Rules of enforcing against an adamant garnishee by way of citing them for contempt of court orders. I find the application and the orders in the subordinate court to be an attempt by the garnishee to protect itself from unprocedural execution against it by the applicant. It is also not in dispute that the garnishee is not a party to the proceedings and neither is it a judgement debtor and that the decree had not been issued against it leading to attachment of its property. As observed above, if the garnishee was recalcitrant in obeying the order to release the monies belonging to the judgement debtor, then the appropriate procedure would have been to cite it for contempt and mount contempt proceedings against it but not to attach. As the warrants of attachment had emanated from the lower court, then the garnishee had to approach it for redress. Under those circumstances, neither the trial court nor the garnishee should be seen in bad light in the manner in which they dealt with the matter. The 1st respondent should proceed and tackle the issue as appropriate before the trial court even after it had obtained orders earlier from this court.

13. For the above-stated reasons, I find no merit in the 1st respondent’s application dated 1st April, 2023 which I hereby dismiss with costs to the garnishee.Orders accordingly.

DATED AND DELIVERED AT BUNGOMA THIS 30TH DAY OF JUNE 2023D.KEMEIJUDGEIn the presence of :Wekesa for Sichangi for 1st Respondent/ApplicantNo appearance Wekesa Simiyu for Garnishee/RespondentNo appearance Abedha for Appellant/RespondentNo appearance for 2nd and 3rd Respondents..........................Court Assistant