https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/301

 **REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI** **TRIBUNAL CASE NO. E264 OF 2023** **(Coram: Hon. J. Mwatsama - Chairperson, Hon. B. Sawe - Member, Hon. F. Lotuiya - Member, Hon. M. Chesikaw - Member and Hon. P. Aol - Member.)** **WINFRED OMWAKA.......................................................CLAIMANT VERSUS** **COSMOS SACCO LTD...............................................RESPONDENT AND CO-OPERATIVE BANK OF KENYA** **(INDUSTRIAL BRANCH) ……………………………...…. GARNISHEE** **RULING** The Notice of Motion Application 27th November, 2025 is brought under section 40 of the Small Claims Court Act; Rule 25 (1) of the Small Claims Court Rules and Order 23 Rule 1 of the Civil Procedure Rules seeking among others; 1. Spent 2. THAT the Honorable Court be pleased to make a Garnishee Order Nisi forthwith attaching the sum of Kshs. 814,060/= being the decretal sum, interest and costs in the suit plus interest at the rate of 12% per annum, which sums are held to the credit of Metropolitan National Sacco Limited the Judgment Debtor in this suit in Account No. 01120027127200 held by the Garnishee herein. 3. THAT an order nisi upon the Garnishees do issue and the same be served on the Garnishees before being served on the Respondent or their Advocates. 4. THAT the Garnishees do appear before the court on an appointed date and time to show cause why they should not pay the Decree Holder the decretal sum herein or so much thereof as may be sufficient to satisfy the said sum of Kshs. 814,060/= being Principal amounts invested, costs for the suits and interests at the court rate. 5. THAT upon *inter-partes* hearing of the Application, the Honourable Tribunal be pleased to issue a Garnishee order Absolute in terms of prayer 2 herein above. The Application was supported by the Affidavit of WINFRED OMWAKA on the grounds that: **a)** THAT the Honourable court entered judgment in the matter herein in favour of the Applicant as against the Respondent and a decree was issued for the sum of Kshs. 814,060/= being Principal amount, costs for the suit and interests at the court rate. **b)** THAT several attempts to establish assets owned by the Respondent have been made by the Applicant in vain thus it is not possible for the Applicant to apply for the other modes of execution. **c)** THAT it is prudent that the Applicant enjoys the fruits of judgment herein by amounts in the Respondent account to be garnisheed towards answering the decrees herein. **d)** THAT the Garnishee Cooperative Bank of Kenya are holding funds to the credit of the Respondent herein the Judgment Debtor in Account No. 01120027127200. **e)** THAT for reasons above, it is in the interest of justice the application for execution by way of garnishee proceedings be allowed. The Judgement Creditor filed another application dated 27th January 2026 seeking the same orders with the decretal sum plus interest having accrued to the tune of Kshs. 990,230/= This Tribunal on 2nd February, 2026 gave directions for the Application to be served, with the Garnishee given 14 days to respond. An order of Garnishee Order Nisi was also issued against the Garnishee - Cooperative Bank of Kenya, Account Number 01120027127200 to settle the decretal sum of Kshs. 990,230/= The Legal Officer of the Garnishee MELODY J. YEGO filed a Replying Affidavit dated 24th February, 2026 stating among others: 1. That it is not in dispute that the Judgement Debtor has an account number 01120027127200 with the Garnishee. 2. That the Account Number 01120027127200 has a book balance of Kshs. 635,708.03/= but is also a subject of two other garnishee proceedings in **CTC/E265/2023: ALICE K. KENYANI VS COSMOS SACCO LTD & CTC/E263/2023: ELIZABETH PETER VS COSMOS SACCO LTD** 3. That the garnished account is not sufficient to satisfy the decretal sum and the costs of the garnishee proceedings. On 17th June, 2026 the Advocate for the Garnishee at the hearing of the Application stated that the account in question has a book balance of Kshs. 635,708/=, but also that the Judgement Debtor is indebted to the garnishee to a tune of Kshs. 3,000,000/= and that the garnishee has a lien over the account in question and prayed that the garnishee be discharged. We have considered the two Applications and the Affidavit filed in response, and the only question remaining for determination is as to whether the Garnishee Order Nisi issued on 2nd February, 2026 should be made absolute. **Should the Garnishee Order Nisi issued on 2nd February, 2026 be made absolute?** 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.”*** From the facts of this case, it is clear to us that the garnishee is not disputing that the Judgement Debtor has an account with them, only that the money in the account cannot satisfy the Decree, and also that the account is also subject to another two garnishee proceedings **(CTC/E265/2023: ALICE K. KENYANI VS COSMOS SACCO LTD & CTC/E263/2023: ELIZABETH PETER VS COSMOS SACCO LTD)** As a Tribunal, we have considered the response of the garnishee on why they cannot satisfy the decree and note the following: 1. The fact that they have not deposited any document in court proving the existence of the lien of Kshs. 3,000,000/= 2. The fact that a decree is a formal and final expression of a court's decision (the order that conclusively determines the rights of parties in a suit). 3. The fact that part settlement of a decree is allowed in garnishee proceedings As such, we are not persuaded by the reasons given by the garnishee that they cannot satisfy the decree of this Tribunal. **Final Orders** 1. The Notice of Motion Applications dated 27th November, 2025 and 27th January, 2026 are found to be merited and the Garnishee, Cooperative Bank of Kenya Limited, is ordered to pay WINFRED OMWAKA the sum of Kshs. 200,000/= from the money they hold in Account Number 01120027127200 to partly settle the Decree issued in favour of the Claimant against the Judgement Debtor. 2. No orders as to costs. Ruling dated and delivered *virtually* at **Nairobi** this **23rd** day of **July, 2026.** **Hon. J. Mwatsama Chairperson Signed 23/7/2026** **Hon. B. Sawe Member Signed 23/7/2026** **Hon. Fridah Lotuiya Member Signed 23/7/2026** **Hon. M. Chesikaw Member Signed 23/7/2026** **Hon. P. Aol Member Signed 23/7/2026** Court Assistant – Koki Kichwei advocate for the Garnishee Winfred Omwaka – No appearance **Hon. J. Mwatsama Chairperson Signed 23/7/2026**