[2023] KECPT 71 (KLR)

Ndonga v Kisumu Centre Juakali Artisan Coop Society Limited (Tribunal Case 254 of 2018) [2023] KECPT 71 (KLR) (2 March 2023) (Ruling)

Neutral citation: [2023] KECPT 71 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 254 of 2018

BM Kimemia, Chair, J. Mwatsama, Vice Chair & M. Mbeneka, Member

March 2, 2023

Between

Charles Owino Ndonga

Claimant

and

Kisumu Centre Juakali Artisan Coop Society Limited

Respondent

Ruling

1. The matter for determination is an amended Notice of Motion under Certificate of Urgency dated December 11, 2018 amended and filed on April 4, 2019 which was granted vide the Orders of April 9, 2020 and Garnishee Absolute issued on April 28, 2020 seeking the following prayers:1. That the application herein be certified urgent and service thereof be dispensed with in the first instance.2. That the Honorable Court be pleased to make a Garnishee Order Nisi against Cooperative Bank of Kenya Limited Account Number 01120614090700 Kisumu Branch, Chase Bank Limited Account Number 2054275001 Kisumu Branch, Jamii Bora Bank Limited Account Number 4021713527003 Kisumu Branch, the Garnishees herein, ordering and/or directing that all monies deposited/lying and being held in deposit by the Garnishees to the credit of Kisumu Center Juakali Artisan Savings and Credit Cooperatives the Judgment Debtor herein be attached to answer to the decree for the sum of Kshs 678,871. 00 the decree herein and interest thereon as well as costs of this Garnishee proceedings.3. That at the interparties or further hearing of this application the Garnishee Order nisi be made absolute and the monies attached be released to the decree holder to satisfy the decretal debt outstanding at the time of determination of these proceedings.4. That the costs of this application be provided for.The 3rd Garnishee Co-operative Bank filed an application dated June 9, 2020 seeking for vacation of the above orders owing to the fact that the 3rd Garnishee did not hold any account on behalf of the Judgment Debtor Kisumu Centre Jua Kali Artisan Sacco.

2. The 3rd Garnishee were struck out from the proceedings as they held an account not for the Judgment Debtor but for Kisumu Centre Jua Kali Sacco.The 2nd Garnishee filed written submissions dated August 19, 2020 indicating that they were never served with the Garnishee application and that they did not hold an account for Kisumu Jua Kali Artisan Sacco and prayed for review of absolute orders against the 2nd Garnishee.The application dated July 21, 2020 and June 29, 2020 were heard together and the Garnishee order absolute was set aside on September 17, 2020.

3. The application pending for determination is therefore the application dated December 11, 2018 and amended Notice of Motion on April 4, 2019. The 3rd Garnishee in their written submissions filed on November 25, 2021 submitted that they did not hold any account belonging to Kisumu Jua Kali Artisan Sacco. That the Account Number 01120614090700 Kisumu branch has insufficient funds to offset the decretal sum and has a balance of Kshs 11,052/10. That the account holder of the said account is different being Kisumu Centre Jua Kali Sacco Limited as opposed to the Judgment Debtor named herein.

4. The 2nd Garnishee also submitted that the account belonged to Kisumu Centre Jua Kali Sacco Limited as opposed to the Judgment Debtor Kisumu Centre Jua Kali Artisans Sacco Limited. That the 2nd Garnishee holds no funds for the Judgment Debtor Kisumu Centre Jua Kali Artisans Sacco Limited hence it’s not in a position to settle the decretal sum and the decree-nisi cannot therefore be made absolute.

5. We have carefully considered the submissions of the parties. We note that parties are bound by their proceedings. The Judgment Debtor herein is Kisumu Jua Kali Artisans Sacco Limited whereas the accounts held by the 2nd and 3rd Garnishee are for Kisumu Centre Jua Kali Sacco Limited. The explanation given by the Judgment Creditor is that they are both the same Sacco. However, no evidence has been availed to prove that Kisumu Jua Kali Artisans Sacco Limited and Kisumu Centre Jua Kali Sacco Limited are the same entity. Without the said evidence, we find that the Judgment Creditor’s application against the Garnishees fails. The said application is accordingly dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF MARCH, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 2. 3.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 2. 3.2023M. MBENEKA MEMBER SIGNED 2. 3.2023TRIBUNAL CLERK J. MUTAIKARINZA ADVOCATE FOR THE GARNISHEE: That is Cooperative Bank and Jamii Bora BankNo appearance by Claimant and RespondentOtieno Yogo advocate for Claimant – no appearanceKarinza – We pray for a copy of the RulingTribunal – Counsel to follow up in the Registry.