https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7047

Orion East Africa Limited v Tetu Coffee Growers Co-operative Society Limited (In Liquidation); Co-operative Bank of Kenya Limited (Garnishee) (Civil Suit 1822 of 2000) [2026] KEHC 7047 (KLR) (Commercial and Tax) (11 May 2026) (Ruling) Neutral citation: [2026] KEHC 7047 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Suit 1822 of 2000 BK Njoroge, J May 11, 2026 Between Orion East Africa Limited Decree holder and Tetu Coffee Growers Co-operative Society Limited (In Liquidation) Judgment debtor and The Co-operative Bank of Kenya Limited Garnishee Ruling 1.Orion East Africa Limited is the Decree Holder in this post Judgement application. It has made several attempts to attach shares held by the Judgement Debtor. In a rather curious way, it seeks to attach the shares against the Garnishee Co-operative Bank of Kenya Limited. The manner this is being done is as if the shares are monies in an account held by the Garnishee Bank. 2.It does concern this Court that what is sought to be executed is a Consent order dated 4th December, 2001 recorded before Hon. Justice Osiemo. That an unduly long period of time for a Decree to remain unexecuted. 3.The Court in this Ruling will also seek to identify the challenges that may have led to the execution of this Decree. Background Facts 4.The Applicant filed the Notice of Motion dated 17th July, 2024 seeking the following orders;a.The Court to set aside the Attachment in Execution dated 24th June, 2024 or deem the same as withdrawn;b.The Court to order that Peter Ruo Maina has no locus standi to represent Orion East Africa Limited, the Decree-Holder herein in these proceedings;c.The Court be pleased to order the Decree-Holder, whether by itself, officers, members, agents, servants and/ or employees or otherwise howsoever, to channel all correspondence and pleadings in this case to the Applicant’s Advocates on record;d.Costs of this Application be borne by the Decree-Holder 5.The Application was supported by the Affidavit of Florence Njuguna. She stated that the impugned Attachment in Execution dated 24th June 2024 is res judicata, having been conclusively addressed in prior rulings by Lady Justice Sewe and Lady Justice Maureen Odero. This was on the proper procedure for attachment of shares under Order 22 Rule 40(1) of the Civil Procedure Rules, which was not followed in the present instance. 6.No application was made, or any prohibition order issued under Order 22 Rule 40(1), rendering the attachment unlawful and irregular. This is particularly so, as parallel execution proceedings commenced on 1st August 2023 remain pending. That execution had been stayed by the Court on 9th November 2023. 7.Further, Co-operative Bank of Kenya Limited had long been discharged as garnishee. That no fresh garnishee proceedings were instituted. That the continued actions of the Decree-Holder—including improper representation and coercive conduct—amount to an abuse of the Court process despite the decree having been satisfied. 8.Orion East Africa Limited, the Decree Holder has opposed the Application vide the Preliminary Objection dated 18th October, 2024. In a nutshell it stated that MR. RUO MAINA, as the intercessor for Orion East Africa Limited. He is a senior citizen within the meaning of Article 57 of the Constitution of Kenya, 2010, and is therefore entitled to the full enjoyment of his inalienable rights and privileges, including the right to participate in the affairs of his companies. The State and by extension this Court is under a constitutional obligation to ensure that he participates fully in society, lives in dignity, is protected from abuse, and receives reasonable care and assistance in the administration of justice. Issues for determination 9.The Court has carefully considered the Application, the response and the written submissions by the parties and the issues for determination are;a.Whether the Court should set aside the Attachment in Execution dated 24th June, 2024.b.Whether Peter Ruo Maina has locus standi to represent Orion East Africa Limited, the Decree-Holder herein in these proceedings.c.Whether the Court should direct that the Decree Holder do serve all process and correspondence upon the Garnishee/Applicant’s Advocates on record.d.Whether the Notice of Preliminary Objection dated 18th October, 2024 is merited. Analysis 10.Attachment of shares of a Company is provided for by Order 22 Rule 40(1) of the Civil Procedure Rules which provides as follows;40.Attachment of share and other property not in possession of judgment-debtor [Order 22, rule 40.](1)In the case of—(a)a share in the capital of a corporation; or(b)other movable property not in the possession of the judgment-debtor, for the attachment of which specific provision is not made by these Rules the attachment shall be made by a written order prohibiting—(i)in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon; or(ii)in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.(2)A copy of such order shall be affixed on some conspicuous part of the precincts of the court, and another copy shall be sent, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid) to the person in possession of the same.(3)If the person in possession of the movable property does not lay claim to such property under rule 51, the court may make an order for actual seizure of the property as if it were in the possession of the judgment-debtor. a) Whether the Court should set aside the Attachment in Execution dated 24th June, 2024. 11.It was the Applicant’s case that the impugned Attachment in Execution dated 24th June 2024 is res judicata, having already been conclusively determined by prior rulings of the Court delivered by Lady Justice Sewe on 6th October 2017 and 25th May 2018, as well as by Lady Justice Maureen Odero on 16th October 2018. These Rulings clarified the applicable procedure for attachment of shares under Order 22 Rule 40(1) of the Civil Procedure Rules. Notably, neither was an application was made by the Decree-Holder under Order 22 Rule 40(1), nor was any prohibition order issued by the Court to validate the impugned attachment. Instead, the attachment was improperly premised on Order 22 Rule 41, rendering it unlawful and irregular. 12.Further, the execution process amounts to an abuse of the Court process. This is because prior execution proceedings commenced on or about 1st August 2023 remain pending following objections filed on 2nd August 2023. Hence precluding the Deputy Registrar from properly issuing the impugned attachment. 13.It is on record that by the Order of 4th December, 2001 Justice Osiemo, upon hearing the Counsel for the Decree-Holder and the Counsel for the Judgment-Debtor in the absence of the Counsel for the named Garnishee (emphasis ours) ordered by Consent as follows inter alia:“By consent, the Decree Holder herein do attach shares whose market value is equivalent to the amount in the Decree herein plus costs and interest held by the Co-operative Bank of Kenya Limited on the Judgment Debtor’s Account and sell the same through an authorized Stock Broker in order to realize the Decree herein.” 14.It is undisputed that the Court (Lady Justice Olga Sewe) by the Ruling dated and delivered 6th October, 2017 found that the procedure governing the attachment of shares was Order 22 Rule 40 (1) of the Civil Procedure Rules, 2010.“This is the procedure that ought to have been invoked by the Plaintiff; and therefore to the extent that it was not, the Notice to Show Cause dated 24th May 2017 which seeks the arrest and committal to civil jail of the Garnishee's Managing Director, is untenable. This is particularly so, noting that the Garnishee had been discharged from these proceedings by an Order of the Court dated 9th November 2001 before the Consent Order of 4th December 2001 was made. It is therefore on that ground that I would uphold the Preliminary Objection and find that the Notice to Show Cause dated 24th May 2017 is misconceived. The same is accordingly struck out with costs to the Garnishee.” 15.Further, the Court (Lady Justice Olga Sewe) delivered a Ruling on the Decree-Holder's application for review on 25th May, 2018. The Court dismissed the said application and held as follows:“Indeed, the Consent Order was explicit that the Decree Holder was to attach shares whose market value was equivalent to the amount in the decree herein plus costs and interest held by the Co-operative Bank of Kenya Ltd on the Judgment-Debtor's account and '...sell the same through an authorized stock broker in order to realize the decree herein.' Thus, the responsibility of realizing the attachment by way of sale of the shares through an authorized stock broker was that of the Decree Holder, and not the Garnishee. Moreover, it is instructive that by the time the Consent Order was made, the Garnishee had already been discharged from any further participation in these proceedings by dint of the Court Order dated 9th November 2001. Indeed, there is no dispute that the Garnishee was not a party to the Consent Order. It is for this reason that the Court was of the view that, while the Consent Order was valid and binding on the parties thereto, there was no legal basis for the arrest and committal to civil jail of the Managing Director of the Garnishee, granted the express provisions of Order 22 Rule 40 (1) of the Civil Procedure Rules and the Court Order of 9th November 2001. Clearly, the method adopted by the Plaintiff in enforcing the Consent Order is not the appropriate approach. 16.Additionally, on 16th October, 2018 the Court (Lady Justice Maureen Odero) delivered a Ruling on the Decree-Holder's application and dismissed the same.“The law therefore is that in relation to shares an attachment and sale order may only be satisfied by adhering to the procedure set out in Order 22 Rule 40(1) that is by means of a prohibition order. It is only once a prohibition order is made and registered against the shares that there can be deemed in law to be effective attachment of those shares.A clear reading of these final orders shows that it is only upon a prohibition order having been issued, that order seeking to compel the bank to furnish copies of Share Register showing the shares held by the Judgment-Debtor would lie. In the absence of a Prohibition Order issued under Order 22 Rule 40 (1) this present application is not tenable. The Decree-Holder herein has made no prayer for a prohibition order in terms of Order 22 Rule 40 (1).” 17.This Court has pronounced itself in different Rulings that attachment of shares in a corporation can only be by way of a prohibitory order under Order 22 Rule 40 (1) of the Civil Procedure Rules and not otherwise. The Decree Holder, in commencing the impugned execution, acts against the above-mentioned Court orders, which still stand given that no appeal has been preferred against them by the Respondent. In light of this, the Attachment in Execution dated 24th June, 2024 is hereby set aside. 18.The Court takes note that the Respondent keeps making the same application to this Court (differently constituted) seeking to attach the very same shares from a Garnishee who has long been discharged. The Court has time and time again told the Respondent that the procedure that it has followed is flawed. The Civil Procedure Rules have express procedures for attachment of shares. The Respondent though a Decree holder refuses or neglects to invoke those procedures. It is like hitting one’s head against a brick wall, repeatedly. This repeated filings of such applications ends up vexing the Court and wasting precious judicial time. It should not be encouraged. The Court need not say more. b) Whether Peter Ruo Maina has locus standi to represent Orion East Africa Limited, the Decree-Holder herein in these proceedings. 19.It was the Applicant’s argument that Mr. Peter Ruo Maina lacks the requisite locus standi to represent Orion East Africa Limited. Yet he has purported to act on its behalf after judgment had already been delivered and a decree issued on 14th February 2001. In such circumstances, any change of representation could only be effected in strict compliance with Order 9 Rule 9 of the Civil Procedure Rules. This prescribes the mandatory procedure to be followed before a new Advocate or representative can come on record post-judgment. 20.In opposition, the Respondent held the position that, as the intercessor for Orion East Africa Limited, he is a senior citizen within the meaning of Article 57 of the Constitution of Kenya, 2010. That he is therefore entitled to the full enjoyment of his inalienable rights and privileges, including the right to participate in the affairs of his companies. 21.Order 9 Rule 9(a) and (b) of the Civil Procedure Rules provides that: -9.Where there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after Judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be. 22.In Florence Hare Mkaha v Pwani Mini Coach & Another (2014) eKLR, the Court observed, inter alia, that once judgment has been entered, compliance with Order 9 Rule 9 is mandatory where a party seeks to change Advocates. That requirement has not been met in the present application. This is because no application was filed to come on record, after Judgement in place of the firm of M/S. MBUGUA NG'ANG'A & CO. ADVOCATES who remain on record for the Decree-holder. Likewise, in Ngitimbe Hudson Nyanumba v Thomas Ongondo (2018) eKLR, the Court made similar observations in circumstances akin to those now advanced by the Applicant as follows;“The appellant’s Notice of Motion dated 18th July 2013 was predicated on the view that the firm of Nyamori Nyasimi came on record for the respondent after judgment without leave of the court and therefore was irregular, null and void and all orders emanating and/or ensuing thereafter were nullity and ought to be cancelled. The idea/objective behind amending the Civil Procedure Rules to provide that where judgment had been entered any change of advocate was to be with the leave of the court was aimed at preventing mischief whereafter an advocate worked tirelessly for a client upto obtaining a judgement, the advocate is debriefed by merely another advocate filing a notice of change or the client filing a notice to act in person so that execution of the decree is by another advocate who did not participate in the trial and/or by the client directly with the object of denying the advocate his fees or costs.” 23.The upshot of the above is that Order 9 Rule 9 of the Civil Procedure Rules is in mandatory terms and that a consent has to be filed under Order 9 Rule 9 (a) and (b) of the Rules. This provision sets out the procedure to be followed by a litigant seeking to act in person. In the present case the Respondent has not provided any evidence that he sought leave of the Court to act in person. c) Whether the Court should direct that the Decree Holder do serve all process and correspondence upon the Garnishee/Applicant’s Advocates on record. 24.The Court has already noted that MR. RUO MAINA is not properly on record. In the circumstances he lacks the capacity to initiate any process and proceedings in this matter. This is until he regularizes his position before the Court by filing an application seeking leave to come on record after judgement. This is as long as he presents himself as an agent of the Company. Once he does so, then all the Court process and correspondence to the Garnishee/Applicant should be channeled through the Garnishee’s Advocate on record. d) Whether the Notice of Preliminary Objection dated 18th October, 2024 is merited. 25.On the Preliminary Objection dated 18th October, 2024, the Court does not find it meritorious. It is generally wordy and lacks precision on the points of law raised. It is also evidence based and factual. It is supported by several attachments to it. It is more of a response to the present application under consideration, rather than a Preliminary Objection. The same is struck out with costs. 26.On costs, the same ordinarily follow the event and lie the discretion of the Court. The same are awarded to the Applicant. Determination 27.The Garnishee/Applicant’s application by way of a Notice of Motion dated 17th July, 2024 is allowed in the following terms;a.The Court HEREBY sets aside the Attachment in Execution dated 24th June, 2024;b.The Court HEREBY issues an order that Mr. Peter Ruo Maina has no locus standi to represent Orion East Africa Limited, the Decree-Holder herein in these proceedings, until he obtains leave to come on Record after Judgement, pursuant to Order 9 Rule 9 and 10 of the Civil Procedure Rules;c.The Court HEREBY issues an Order that the Decree-Holder, whether by itself, officers, members, agents, servants and/ or employees or otherwise howsoever, will channel all correspondence and pleadings in this case through the Garnishee/Applicant’s Advocates on record;d.The Notice of Preliminary Objection dated 18th October, 2024 is overruled and the same is HEREBY struck out for lack of merits;e.The costs of this Application be borne by the Decree-Holder 28.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 11TH DAY OF MAY, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of;N/A for Ruo Maina for the Decree Holder/Respondent.N/A for the Judgement Debtor.Mr. Kiche for the Garnishee/ApplicantMs. Susan Nzioka - Court Assistant.