https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/323

**** **REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI** **TRIBUNAL CASE NO. E653 OF 2025** **(Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. P. Aol- Member, Hon. M. Chesikaw-Member)** **JONATHAN YAMBA NGOME …………………….………. CLAIMANT** ***VERSUS*** **METROPOLITAN NATIONAL SACCO** **SOCIETY LIMITED…………………………………………. RESPONDENT** ***AND*** **NATIONAL BANK OD KENYA LIMITED ………………. 1ST GARNISHEE** **CO-OPERATIVE BANK OF KENYA LIMITED ……..….. 2ND GARNISHEE** **RULING** The Notice of Motion Application dated 27th February, 2026 is brought under *Order 22 Rule 31, 32, 33 and 35, Order 23 Rules 1, 2 and 3 of Civil Procedure Rules* and all other enabling provisions of the law seeking among others: 1. Spent 2. THAT pending the hearing and determination of this application *interpartes,* this Honorable Tribunal be pleased to issue orders forthwith, attaching the Decretal sum of Kshs. 218,487.48 from funds held by the Garnishees in the Respondent/Judgment Debtor's Bank Account Numbers: 3. National Bank of Kenya Limited Account Numbers; 01009050990700, 01037099718700 and 01009099718700 held at Kiambu Branch, the 1st Garnishee herein. 4. Cooperative Bank Account Number 01100063114800, the 2nd Garnishee herein. 5. Kenya Commercial Bank Account Number 1101935928, the 3rd Garnishee herein. 6. THAT this Honourable Tribunal be pleased to issue a Garnishee Order Absolute compelling the 1st, 2nd and 3rd Garnishees to release and/or transfer into the Claimant/Decree-Holder's Bank Account Number 01100280725001 held at Cooperative Bank Limited, Githurai Kimbo Branch, the sum of Kshs. 218,487.48, plus costs of these garnishee proceedings, from funds held by the Garnishees in the Respondent/Judgment Debtor's Bank Accounts: 7. National Bank of Kenya Limited Account Numbers; 01009050990700, 01037099718700 and 01009099718700 held at Kiambu Branch, the 1st Garnishee herein. 8. Cooperative Bank Account Number 01100063114800, the 2nd Garnishee herein. 9. Kenya Commercial Bank Account Number 1101935928, the 3rd Garnishee herein. The Application was based on the Affidavit of Jonathan Yamba Ngome on the grounds 1. THAT the Respondent/Judgement Debtor is indebted to the Claimant/Decree Holder to the tune of Kshs. 218,487.48, as at 22nd January 2026, pursuant to a judgment entered on 8th October 2025 and a subsequent decree and certificate of costs issued on the same day. 2. THAT pursuant to the judgment of the Court and the subsequent decree aforementioned, the principal sum continues to accrue Interest at Court rates (12% pa) until payment in full. 3. THAT despite the Claimant/Decree Holder having been awarded the judgment and Decretal sum by this Honorable Court, the Respondent/Judgment Debtor has frustrated, declined and / or refused to cause payment of the same, to the detriment of the Claimant/Judgment Debtor. 4. THAT thus the Claimant/Decree holder has not been able to execute the decree so far owing to the Respondent/Judgement Debtor's malicious and frivolous attempts at denying the decree holder the fruits of his judgement. 5. THAT the Respondent/Judgment Debtor operates different Bank Accounts with the 1st, 2nd and 3rd Garnishees, which if garnished, can be enough to offset the Decretal sum owed to the Claimant/Decree Holder, being; 6. National Bank of Kenya Limited Account Numbers; 01009050990700, 01037099718700 and 01009099718700 held at Kiambu Branch, the 1st Garnishee herein. 7. Cooperative Bank Account Number 01100063114800, the 2nd Garnishee herein. 8. Kenya Commercial Bank Account Number 1101935928, the 3rd Garnishee herein. 9. THAT unless a Garnishee order Nisi is issued ex-parte in the first instance, the Respondent/Judgement Debtor may move or withdraw the funds from the accounts, making the hearing and filing of this application nugatory and thwarting any efforts and chances of recovery of the Decretal sum from the Respondent/Judgment Debtor. 10. THAT no prejudice will be suffered by the Garnishees since the funds held in Respondent/Judgment Debtor's Bank Accounts are to the credit of the Respondent/Judgment Debtor. 11. THAT it is in the interest of justice that a Garnishee Order be issued to compel the Garnishees to release to the Claimant/Decree-Holder the sum Kshs. 218,487.48 plus the costs of these garnishee proceedings, from funds held by the Garnishees in Respondent/Judgment Debtor's Bank Accounts above listed. 12. THAT the application has been brought without undue delay, in pursuit of execution of a money Decree by the Claimant/Decree Holder, who stands aggrieved and prejudiced by the Respondent/Judgment Debtor's unwillingness to pay his long overdue Decretal sum of Kshs. 218,487.48. This Honourable Tribunal on 2nd March, 2026 gave directions for the Application to be served, with the Honourable Tribunal also issuing Garnishee Order Nisi against National Bank of Kenya, Kiambu Branch, Account Number 01009050990700, 01037099718700 and 01009099718700 being held by the Judgment Debtor and Cooperative Bank Account Number 01100063114800 in the name of the Judgment Debtor and Kenya Commercial Bank Account Number 1101935928 being held by the Judgment Debtor to satisfy the decretal sum herein of KShs. 218,487.48 pending mention on 17th March 2026. **1st Garnishee Replying Affidavit** The 1st Garnishee through their Acting Branch Manager Fredrick Ngugi filed a Replying Affidavit dated 18th March, 2026 stating among others; 1. That he confirms that the Judgment Debtor is the holder of the account numbers 01037099718700 and 01009099718700 with the 1st Garnishee at its Kiambu Branch and the account number 01009050990700 at its Limuru Branch. 2. That as at 17th March, 2026 the account numbers 01009050990700 and 01009099718700 both had a closing book balance of Kes. 0/- as these two accounts were closed in April, 2020. 3. That further to the above, as at 17th March, 2026 the account 01037099718700 had a **negative** closing balance of the sum of **Kes. 20,292.79**/= showing that the account is overdrawn. 4. That in that regard, the three accounts 01009050990700, 01009099718700 and 01009099718700 have an accumulative negative balance of Kes. 20,292.79/= which is insufficient to cover the decretal sum, interest and costs sought by the Decree holder. 5. That consequently, the 1" Garnishee humbly prays that it be discharged from the proceedings with costs of Kes. 30,000/- *to* be borne by the Judgement debtor. **2nd Garnishee Replying Affidavit** The 2nd Garnishee through their Legal Officer Melody Yego filed a Replying Affidavit dated 23rd April, 2026 stating among others; 1. That she confirms that the judgement debtor operates and maintains accounts with the 2nd Garnishee, being account No. 01100063114800 2. That the Garnished Account is not capable of attachment as the 2nd Garnishee advanced **a loan of Kshs. 5,555,053,363.97,** and as part of security, the judgement debtor executed a charge on all cash deposits and funds held on by the 2nd Garnishee on behalf the judgement debtor including the Garnished Accounts, and the judgement debtor is still indebted to the 2nd Garnishee with the current outstanding loan facility being **Kshs**. **5,555,053,363.97** as at 29th August 2025*.* 3. That the funds held in the garnished accounts are not available as the judgement debtor is still indented to the 2nd garnishee to a large extent, as such, the 2nd Garnishee Bank prays that it be discharged from the present proceedings with provisions of costs. **3rd Garnishee Replying Affidavit** The 3rd Garnishee through their Manager Service, Quality and Compliance Daniel Gichohi Kamau filed a Replying Affidavit dated 15th July, 2026 stating among others; 1. That as at 18th March 2026, the Judgment Debtor's account number 1101935928 held a ledger balance of Kshs.36,228.14 (Kenya Shillings Thirty-Six Thousand, Two Hundred and Twenty-Eight and Fourteen cents) which has been wholly locked, pursuant to Garnishee Orders issued PRIOR. 2. That additionally, the Judgment Debtor's account is subject to an Agency Notice dated 27th January 2023 for Ksh.9,799,085.91, issued by the Kenya Revenue Authority under section 42 of the Tax Procedures Act, which Notice has not been amended, revoked and/or withdrawn and is therefore still in force. 3. That as a result, the 3rd Garnishee does not hold any available amount for attachment or otherwise, monies due to and owing/recoverable by the Judgment Debtor as envisioned by the provisions of Order 23 of the Civil Procedure Rules and as such there is no remaining balance available for attachment in the Judgment Debtor's subject account to satisfy either whole or part of the decretal sum. 4. That the 3rd Garnishee therefore disputes the debt claimed to be due from it by the Judgment Debtor and is not in a position to honour any Garnishee Orders and/or release any funds from the subject account to the Decree Holder, since it does not hold any available funds, to meet the decretal amount or partial thereof. 5. That the 3rd Garnishee will require to pay its advocates, costs of the garnishee proceedings, and humbly prays that those costs be borne by the Judgment Debtor or the same be deducted from the Defendant's account. We have considered the Application and the Replying Affidavits filed, and the only question remaining for determination is as to whether the Tribunal should confirm or discharge the Garnishee Order Nisi issued on 2nd March, 2026 **Should the Tribunal confirm or discharge the Garnishee Order Nisi issued on 2nd March, 2026?** The law governing garnishee proceedings is Order 23 Rule 1(1) of the Civil Procedure Rules which provides: ***“A court may, upon the ex-parte application of a decree holder, and either before or after an oral examination of the judgment debtor, and upon affidavit by the decree holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, Rule 42 owing from such third person (hereinafter called the “Garnishee”) to the judgment debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree holder the debt due from him to the judgment debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid.”*** Order 23 Rule 4 of the Civil Procedure Rules provides: ***“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 costs of the garnishee proceedings; and the order absolute shall be in Form 17 or 18 of Appendix A, as the case may require.”*** In **Mengich t/a Mengich & Co. Advocates & Another vs Joseph Mabwai & 10 Others [2018] eKLR**, the court laid out the procedure in garnishee proceedings as follows: ***“Garnishee proceedings is done in two different stages. The first stage is for the garnishee order nisi, while the second stage is for the garnishee order absolute. At the first stage, the judgment creditor makes an application ex-parte to the court that the judgment debt in the hands of the third party, the garnishee, be paid directly to the judgment creditor unless there is an explanation from the garnishee why the order nisi should not be made absolute. If the judgment creditor satisfies the court on the existence of the garnishee who is holding money due to the judgment debtor, such third party (garnishee) will be called upon to show cause why the judgment debtor’s money in its hands should not be paid over to the judgment creditor, and if the court is satisfied that the judgment creditor is entitled to attach the debt, the court will make a garnishee order nisi attaching the debt.The essence of the order nisi is to direct the garnishee to appear in court on a specified date to show cause why an order should not be made upon him for the payment to the judgment creditor of the amount of debt owed to the judgment debtor. It is a requirement that a copy of the order nisi must be served on the garnishee and judgment debtor at least 7 days before the adjourned date for hearing. The second stage is for the garnishee order absolute, where on the adjourned date, the garnishee fails to attend court or show good cause why the order nisi attaching the debt should not be made absolute, the court may subject to certain limitations make the garnishee order absolute. The garnishee, where necessary also have an option of disputing liability to pay the debt.The primary object of a garnishee order is to make the debt due by the judgment debtor available to the decree holder in execution without driving him to the suit.”*** What constitutes a good cause was ably explained in the case of **THE HON ATTORNEY – GENERAL -V- THE LAW SOCIETY OF KENYA & ANOTHER C.A CIVIL APPLICATION No 133 OF 2011 [2013 eKLR]** where **MUSINGA J.A** stated: - ***“Sufficient cause or good cause in law means: -*** ***“……… the burden placed on a litigant (usually by a Court rule or order) to show why a request should be granted or any action excused” see BLACK’S LAW DICTIONARY 9TH EDITION page 251.*** ***Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubt in a Judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.”*** Similarly, the Supreme Court of India in the case of **Parimal v Veena [2011] 3 SCC 545** observed that: ***"Sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man.”*** From the Replying Affidavits filed, it is clear to us that the 1st 2nd and 3rd Garnishees have all shown a good cause as to why they cannot satisfy the Garnishee Order Nisi issued on 2nd March, 2026. The good causes include the following: 1. The fact that in the hierarchy of what should be paid first by a Garnishee, in the event of two or more competing interests, a prior Garnishee Order Nisi ranks higher than a latter one 2. The fact that some of the garnished accounts have zero balances 3. The fact that some of the garnished accounts have negative balances 4. The fact that some of the garnished accounts were used as security guarantees for loans which have not been settled As such, we are not persuaded to confirm the Garnishee Order Nisi issued on 2nd March, 2026. **Final Orders** 1. The Notice of Motion Application dated 27th February, 2026 fails and the Garnishee Order Nisi issued on 2nd March, 2026 against National Bank of Kenya, Kiambu Branch, Account Number 01009050990700, 01037099718700 and 01009099718700 being held by the Judgment Debtor and Co-operative Bank Account Number 01100063114800 in the name of the Judgment Debtor and Kenya Commercial Bank Account Number 1101935928 being held by the Judgment Debtor is discharged 2. No orders as to costs. Ruling dated and delivered *virtually* at **Nyeri** this **20th** day of **August, 2026.** **Hon. J. Mwatsama Chairperson Signed 20/8/2026** **Hon. B. Sawe Member Signed 20/8/2026** **Hon. P. Aol Member Signed 20/8/2026** **Hon. Fridah Lotuiya Member Signed 20/8/2026** **Hon. M. Chesikaw Member Signed 20/8/2026** Court Assistant – J. Koki Raingo advocate for the Claimant/Decree Holder Atancha advocate for the 2nd Garnishee Ms. Watitu advocate for the 3rd Garnishee **Hon. J. Mwatsama Chairperson Signed 20/8/2026**