https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10726

Ndambuki v Africa Merchants Assurance Co. Ltd & another (Miscellaneous Civil Application E087 of 2025) [2026] KEHC 10726 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEHC 10726 (KLR) Republic of Kenya In the High Court at Makueni Miscellaneous Civil Application E087 of 2025 JN Onyiego, J July 14, 2026 Between Nzyoki Ndambuki Judgment Creditor and Africa Merchants Assurance Co. Ltd Judgment debtor and Safaricom Plc Garnishee Ruling 1.The application for determination filed under Certificate of Urgency, is the one dated 25/09/2025 filed under Order 51 Rule 1, Order 23 Rules 1, 4 & 10 of the Civil Procedure Rules, Sections 1A, 1B & 3A of the Civil Procedure Act and all other enabling provisions of the law seeking the following orders;a.Spent.b.That Garnishee order nisi do issue against the Garnishee directing that all monies held by them in the judgment Debtor’s/Respondent’s Mpesa buy Goods & Services Till Number 4106404 be attached to answer the amounts unsatisfied of Kenya Shillings 3,828,578/= being the decretal sum together with interests and any further interest that may accrue from the date of this application till payment in full as well as costs of this Garnishee proceedings.c.That at the inter-partes hearing or further hearing of this application, the Garnishee order nisi be made absolute and the monies attached be released to the Judgment creditor to satisfy the decree outstanding at the time of determination of these proceedings.d.That the costs of this application be provided for. 2.The application is supported by the grounds on its face, the affidavit sworn by Nzyoki Ndambuki on the same day and his Further Affidavit sworn on 20/02/2026. He deposed that the filing of Civil Suit No. 143 of 2018 (declaratory suit) was necessitated by failure of the judgment debtor to satisfy the decree (NN1) in Civil Suit No. 75 of 2015 dated 22/05/2018. That, the Judgment Creditor applied to execute the decree (NN2a) in the declaratory suit by way of attachment (NN2b) which application was allowed. 3.That, the attachment has hit a dead end as it has come to light that the properties attached could not be taken by the auctioneers for sale due to tight security at the premises. That, the decree dated 01/03/2022 remains unsatisfied and there is need to attach the Judgment Debtor’s account held by the Garnishee. That, unless a Garnishee order nisi is issued forthwith, the Judgment Debtor shall withdraw any money held in its accounts to defeat the ends of justice. 4.The application is opposed through the Replying Affidavit of Mercy Waweru sworn on 05/02/2026 in which she deposed that the balance in the Judgment Debtor’s said account is Kshs. 2,530,400/=. 5.She averred that the Judgment Debtor is willing and able to pay a monthly installment of Kshs. 200,000/= towards satisfaction of the decretal sum. That, this court should limit liability to Kshs. 3,000,000/= as per Section 5(b) of the Insurance (Motor Vehicle Third Party Risks) Act. That, the garnishee orders were sought without disclosing this statutory limitation. 6.She stated that, if funds are withdrawn from the Judgment Debtor’s financial accounts, it would cause irreparable financial and operational disruptions which would be difficult to reverse even if this court ultimately sets aside the judgment. That, the costs of the Garnishee be assessed at Kshs. 14,000/= as provided for in law. 7.The Garnishee’s Replying Affidavit was sworn by Cerere Kihoro on 10/12/2025 who deposed that he is a Legal Counsel at Safari Com PLC hence competent to swear the affidavit. 8.That, upon receiving the court order issued on 24/11/2025, they checked their records and discovered that the Judgment Debtor’s Mpesa Business Till No. 4106404 had an active Mpesa business Till Account. That, they proceeded to set aside Kshs. 3,828, 578/= from the said Till Account into a Special Utility Account. 9.He averred that the said Till Account has sufficient funds capable of satisfying the whole decretal amount. A copy of the Respondent’s Special Utility Account Statement is exhibited as CK 1. That, the Garnishee is therefore able to honor any garnishee order in respect to the sums claimed by the Decree Holder in this application. 10.That, the Garnishee is ready and willing to release the amounts held in the Mpesa Business Till Special Utility Account net of its legal costs of Kshs. 40,000/= and transaction costs. 11.In rejoinder, Nzyoki Ndambuki swore a Further Affidavit on 20/02/2026 where he deposed that the Judgment Debtor had leave to appeal if there were any difficulties in fulfilling the judgment or had grounds to warrant a capitation of payment at Kshs. 3,000,000/=. 12.That, the conduct of the Judgment Debtor is proof enough of their laxity and lack of seriousness. That, they only filed a reply to the application, without leave of court, on 08/02/2026 yet they had been served as early as 13/10/2025 as per the Return of Service marked NN5. 13.He deposed that, according to information from his Advocates which he verily believes, even though a statutory cap of Kshs. 3,000,000/= exists, the interests on the Kshs. 3,000,000/= are payable since they accrued due to inaction and non-payment by the insurer. That, there are also costs of litigation and it is unfortunate that he had to spend money to force the insurer which was well aware of their liability to the insured. 14.It was deponed that the failure to pay the judgment award in 2017 is what has led to ballooning of sums and there has been no show of good faith let alone an attempt to settle the sums over the 9 years. That, following the court directions on 09/02/2026, his Advocates prepared a reconciled statement on the decretal sum, costs and interest (NN6). 15.That, failure to honor the decree of this court amounts to contempt and the same cannot be allowed in the guise of hiding behind the provisions of the Insurance (Motor Vehicle Third Party Risks) Act. That, the grant of the orders prayed for will finally allow him to enjoy the fruits of his judgment 10 years later. 16.Directions were given that the application be canvassed through written submissions. The only submissions on record are for the Judgment-Creditor. 17.However, during the pendency of this application, parties agreed to have the Garnishee release Kshs.3,000,000/= from their account to the Judgment Creditor. With that in mind, the court is left to determine when costs and interest are payable in view of the aforesaid insurance provision which caps amount payable by the insurance at 3 million. 18.The issue for determination was stated to be; whether the provisions of section 5 of the Insurance (Motor Vehicle Third Party Risks) Act (the Act) applies to costs and interest. 19.It was submitted that according to Section 5(b) of the Act, the insurer pays Kshs. 3,000,000/= and the insured pays the balance of the decretal sum. Reliance was placed on Law Society of Kenya -vs- Attorney General (2016) eKLR where the court stated;“In the end, I hold that the principal Act does not exclude compensation to affect proprietary rights. It only limits who pays how much by apportioning a maximum of Kshs. 3,000,000/= to be paid by the insurer and the additional sum if any by the insured.” 20.It was submitted that costs and interest are not included in the statutory limit and reliance was placed on the cases of Peter Gichihi Njuguna -vs- Jubilee Insurance Co. Ltd [2016] KEHC 5545 (KLR) & Kiamuko & Anor (Suing as Administrators of the estate of Evans Kyalo Maundu) -vs- ICEA Lion General Insurance Co. Ltd (2022) KEHC 11682 (KLR). 21.It was contended that it is not unusual for insurance firms to wait until the decretal sum balloons before they can act on the same with the hope of invoking Section 5(b) of the Act. That, courts have come to the rescue of Decree Holders by finding that, over and above the capped sum of Kshs. 3,000,000/=, the firms should pay for costs and interests on the capped sum. 22.A decree nisi was granted by this court on 24/11/2025 and the court is now being called upon to make the decree nisi absolute. 23.From the evidence on record, it is evident that the Applicant has a decree against the Respondent for Kshs. 3,828,578/= issued on 01/02/2022 in Makueni CMCC 143 of 2018 (declaratory suit). The declaratory suit was necessitated by the Respondent’s failure to satisfy the decree in Makueni CMCC 75 of 2015 (primary suit). 24.The Respondent does not deny the decree but avers that the same should be capped at the Statutory limit of Kshs. 3,000,000/= as per the provisions of Cap 5(b) of the Insurance (Motor Vehicle Third Party Risks) Act. As stated earlier, parties having agreed on 9-2-2026 for the Garnishee to disburse the sum of 3 Million to the Decree Holder and the garnishee order made absolute, this court is left with the issue of whether costs and interest form part of the capped amount at 3 Million. 25.The Garnishee confirmed that the Respondent’s Mpesa Business Till No. 4106404 has sufficient funds to settle the decretal sum and that the said funds had been moved to a Special Utility Account. 26.It is not in dispute that Section 5(b) of the Act caps the liability of Insurance Companies at Kshs. 3,000,000/= but it is now settled that if the capped amount remains unpaid, the resultant interest and costs are still payable by the Insurance Company. 27.In addition to the cases cited by the Applicant, there is the case of Patricia Mona Anthony & Another -vs- Africa Merchant Assurance Company Limited [2019] eKLR where the court gave a declaration that the Defendants were liable to pay Kshs. 3,000,000/= as part payment of the decree in favour of the Plaintiffs and that the amount was to attract interest at court rates from the date of the judgment until payment in full. 28.In the persuasive case of Peter Gichihi Njuguna -vs- Jubilee Insurance Co. Ltd (supra) which I am in agreement with, the court stated;“The defendant submits that under the proviso(iv) of Section 5(b), the total amount that the defendant ought to pay in an all-inclusive sum should not exceed Kshs. 3,000,000/= including costs and interest. This court begs to differ with the above submission. The Defendant had failed to honour its obligations placed on it by the above section. The plaintiff has spent money and time to pursue the payment by filing of this declaratory suit the defendant at all times knew or ought to have known that it was its obligation to settle the judgment of the primary suit – even the capped limit. Indeed, it made an offer to pay which offer was accepted but did not pay and no explanation was tendered for the failure to pay. The suit had to proceed to full hearing. I have carefully read the section under review. The drafters of the said Act No. 10 of 2006 in my considered view, did not envisage a situation, where the Insurance Company would fail to pay the claim if all conditions are met as is the case in this present case. To that extent, if by its failure, costs are incurred in pursuance of payment, the defendant ought to be penalized and condemned to pay costs to the plaintiff. Costs ordered by the court in its discretion cannot be construed to include the principal sum, in this case the capped sum of Kshs.3,000,000/=. It is trite that costs follow the event, unless otherwise ordered by the court.” 29.In our case, the judgment in the primary suit was delivered on 26/09/2017 and the Respondent’s failure to pay led to the declaratory suit in which judgment was delivered on 15/07/2021. The Applicant has made previous attempts to recover the decretal sum through sale of property as can be gleaned from the warrants marked NN2b. Clearly, it has been close to 10 years of pursuing his fruits of judgment and he has obviously incurred costs in the said pursuit. In my view, the ends of justice demand that the Respondent be condemned to pay costs and interest. 30.The Garnishee has confirmed availability of funds and willingness to release the same to the Applicant and I do not see any reason why the outstanding interest and costs should not be paid. In my view, the decree nisi already made absolute should include the sum of Kshs. 828, 578/= being that of the interest and costs over and above the 3 Million already ordered for payment and which I believe has been paid or disbursed to the Judgment Creditor. 31.Accordingly, it is my holding that the application is merited and the same is allowed as prayed. The garnishee order nisi issued herein be and is hereby declared absolute with the Garnishee directed to pay the outstanding sum of Kshs. 828,578/= to the Judgment Creditor/Applicant from the Judgment Debtor’s M-pesa Buy Goods and Services Account Till Number 4106404. The Garnishee shall be entitled to costs assessed at Kshs. 40,000/= recoverable from the same account. In the event the 3 Million has not been disbursed as directed on 9-2-2026, the same shall be recovered from the same account. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF JULY 2026...................................J. N. ONYIEGOJUDGE