[2023] KECPT 451 (KLR)

Onyamo v Emergency Co-operative Savings and Credit Society Limited (Tribunal Case 150 of 2021) [2023] KECPT 451 (KLR) (27 July 2023) (Ruling)

Neutral citation: [2023] KECPT 451 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 150 of 2021

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

July 27, 2023

Between

Kennedy Mang'are Onyamo

Claimant

and

Emergency Co-operative Savings and Credit Society Limited

Respondent

Ruling

1. The Applicant has filed a Notice of Motion application under Certificate of Urgency dated April 25, 2022, seeking orders for setting aside the Garnishee Orders Absolute which were issued by the Tribunal on April 13, 2022.

2. The application is based on the claim that the Applicant upon being served with the Garnishee application, instructed their advocates to immediately enter and defend the application, appearance but they never did nor did they indicate to the court the status of the Account No xxxx which is domiciled at the Garnishee bank on behalf of the Judgment Debtor, and as such, the Garnishee application proceeded undefended with a Garnishee Order Absolute being issued on April 13, 2022.

3. The Respondent have filed submission in their Defence to the Application, which include annexed affidavit of Lucy Muthama the Legal Officer of the Garnishee, Order 23 Rule 5 and order 12 Rule 7 of the Civil Procedure Rules as amended in 2020, List of Authorities supporting the position that the mistakes of an instructed advocate should not be visited upon their client ,and bank statement indicating the financial position or his ability to pay vide Account No xxxx which could not at the time of issuing a Garnishee order Nisi, fully or partially satisfy the decretal amount of Kenya shillings Two Hundred and fifty seven thousands, Two hundred and Eighty five and seventeen cents(Kshs 257,285. 17/=).

4. The Tribunal relies on the case of Martin Mwangi Ndirangu Vs Ivesco Assurance Co Ltd (2020) eKLR where the Honorable Justice C. Kariuki Outlined The Stages In A Garnashee Application'Order 23,Rule 1 of the civil procedure Rules, 2010 on attachment of debts provides that: -'1(1)A court may, upon the ex parte application of the 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 allowances coming within the provision 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 cost 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 cost aforesaid .Third ,the above rule contemplates the existence of a decree for the amount claimed. Generally, garnishee proceedings is done in two different stages.(2)The first stage is for 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 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 hand should not be paid over to the Judgment Creditor, and if the court is satisfied that the Judgment Creditor is entitled to attached debt, the court will make a Garnishee Order Nisi attaching the debt.(3)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 the 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.'24. 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.25. The Garnishee, where necessary also have an option of disputing liability to pay the debt26. The primary object of a Garnishee order is to make the debt due by the debtor of the judgment available to the Decree Holder in execution without driving him to the suit.27. The court may, in the case of debt (other than a debt secured by a mortgage or charge), upon the application of the attaching creditors, issue a notice to Garnishee liable to pay such debt, calling upon him either to pay into court the debt due from him to the Judgment Debtor or is so much thereof as may be sufficient to satisfy the Decree and cost of execution, or to appear and show cause why he should not do so.28. Seveth, the order contemplated by Order 23 is discretionary and the court may have refused to pass such order if it is inequitable. The discretion, however, must be exercised judicially. where the court finds that there is a bona fide dispute against the claim and the dispute is not false or frivolous, it should not take action under this rule.'We have read and considered the evidence adduced and we find the excuse given for not defending Garnishee application to be flimsy.There is evidence and Admissions by the Applicant /Respondent that he was served with the Certificate of Urgency, Notice of Motion Application, Supporting Affidavit, and annexures all dated January 7, 2022 together with orders issued on January 28, 2022, but he chose not to challenge the proceedings now giving a flimsy excuse that it is the curiously unnamed advocates he had instructed that failed him.In Tana And Athi Rivers Development Authority Vs Jeremiah Kimigho Mwakio & 3 Others [2015]eKLR the court while relying on the Ketteman And Others V Hansel Properties Ltd [1988]1 ALL ER 38had this to say on the mistakes of advocates;'Thus, there is a corollary to the hallowed maxim that mistakes of counsel should not be visited on a client. This is to be found in the case of Ketteman &others v Hansel properties ltd [1988]1ALL ER 38; in which an application was brought for belated amendment of the defense ;an amendment which had been necessitated by mistake of counsel .In this judgment, Lord Griffith stated that:'Legal business should not be conducted efficiently. we can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of lawyers to fall on their own heads rather than allowing an amendment at a very late stage in the proceedings.Needless to say, the application to amend a defense on the basis of inadvertent mistake of an advocate was disallowed.To our mind therefore this is a clear case where the mistakes of counsel if at all should be laid at the doorstep of the client. Accordingly, we find no merit in this appeal and the same is dismissed with cost to the Respondent.'

5. We therefore as a Tribunal dismiss the application dated April 25, 2022 with orders given by this court on January 28, 2022 not vacated.We direct as follows;a.Application dated April 25, 2022 is found to be without merit and dismissed with costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. Hon. Beatrice Kimemia Chairperson Signed 27. 4.2023Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023Hon. Beatrice Sawe Member Signed 27. 4.2023Hon. Fridah Lotuiya Member Signed 27. 4.2023Hon. Philip Gichuki Member Signed 27. 4.2023Hon. Michael Chesikaw Member Signed 27. 4.2023Hon. Paul Aol Member Signed 27. 4.2023Tribunal Clerk Jemimah/JonahNo appearance by parties.Ms. Odoyo Advocate for Garnishee/ApplicantNo appearance by Claimant and RespondentOdoyo advocate: we pray for stay pending appeal.Tribunal- 30 days stay granted.