https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10273

Otieno t/a OM Otieno & Company Advocates v Africa Merchant Assurance Company Ltd & another (Miscellaneous Civil Application E013 of 2022) [2026] KEHC 10273 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10273 (KLR) Republic of Kenya In the High Court at Kericho Miscellaneous Civil Application E013 of 2022 TA Odera, J July 13, 2026 Between Ouma Maurice Otieno T/A OM Otieno & Company Advocates Decree holder and Africa Merchant Assurance Company Limited Judgment debtor and Safaricom Plc Garnishee Ruling 1.The Decree-Holder moved this Court by way of garnishee proceedings vide the Chamber Summons dated 1st July 2026, brought pursuant to Order 23 rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. 2.The Decree-Holder seeks an order attaching monies held by Safaricom PLC, the Garnishee, on behalf of Africa Merchant Assurance Company Limited, the Judgment-Debtor, in M-Pesa Till Numbers 545400 and 4106404, or in any other account operated by the Judgment-Debtor, in satisfaction of the sum of Kshs. 366,329/=. 3.The Decree-Holder further seeks that the garnishee order nisi issued by this Court be made absolute and that the attached funds be released to it in satisfaction of the outstanding decretal sum, together with costs. 4.The application is supported by the affidavit of Ouma Maurice Otieno, Advocate, sworn on 1st July 2026. He states that he obtained a decree against the Judgment-Debtor, which remains unsatisfied despite demands and previous attempts at execution. 5.The Decree-Holder exhibited a decree issued on 25th February 2025. Under that decree, a certificate of costs was adopted as the judgment and decree of the Court, with interest at 14% per annum until payment in full. 6.According to the supporting affidavit, the sum sought in the present proceedings comprises the principal sum, accrued interest and costs incurred in the execution proceedings, amounting in total to Kshs. 366,329/=. 7.Upon considering the application ex parte, the Court issued a garnishee order nisi on 4th July 2026, attaching the funds held by the Garnishee on behalf of the Judgment-Debtor and directing the Garnishee to show cause why the order should not be made absolute. 8.The Garnishee responded by way of the replying affidavit of Stella Mutindi Mutua, sworn on 9th July 2026. The deponent describes herself as a Senior Merchant Officer in the Enterprise Channels Department- M-Pesa Services of the Garnishee. 9.The Garnishee states that there is no M-Pesa Till Number 545400 held or operated by the Judgment-Debtor. 10.It nevertheless confirms that the Judgment-Debtor operates Till Number 4106404, which is aggregated under organizational short code 6716100. More importantly, the Garnishee expressly confirms that the said organizational short code is sufficiently funded to meet the decretal sum of Kshs. 366,329/=. 11.The Garnishee does not, therefore, dispute its indebtedness to the Judgment-Debtor or the availability of sufficient funds to satisfy the amount sought by the Decree-Holder. It undertakes to release the sum within seven days of being served with a garnishee order absolute, subject to its costs. Issue for Determination 12.The sole issue arising for determination is whether the garnishee order nisi issued on 4th July 2026 should be made absolute. Analysis 13.Garnishee proceedings are governed by Order 23 of the Civil Procedure Rules. Under Order 23 rule 1, a decree-holder may apply for attachment of a debt owed to the judgment-debtor by a third party where the decree remains wholly or partly unsatisfied. 14.The purpose of garnishee proceedings is to enable a successful litigant to realize the fruits of a judgment by attaching a debt due from a third party to the judgment-debtor. The procedure under Order 23 is a self-contained mode of execution consisting of two principal stages: first, the issuance of a garnishee order nisi; and secondly, after service and hearing, the determination of whether that order should be made absolute. See Nyandoro & Company Advocates v National Water Conservation and Pipeline Corporation; Kenya Commercial Bank Group Limited (Garnishee) [2021] eKLR. 15.Order 23 rule 4 of the Civil Procedure Rules provides that where the garnishee does not dispute the debt due or claimed to be due from it to the judgment-debtor, the Court may order execution against the garnishee for so much of the debt as is sufficient to satisfy the decree, together with the costs of the garnishee proceedings. 16.Once a garnishee order nisi is served upon the garnishee, it binds the debt in the garnishee’s hands pending the determination of the proceedings. The garnishee is then required either to admit the debt or to place before the Court evidence showing why the funds are unavailable or not legally attachable. 17.In the present case, there is a valid and unsatisfied decree against the Judgment-Debtor. There is no evidence that the decree has been set aside, varied, satisfied or stayed. 18.The Garnishee was duly served with the order nisi and entered appearance through its replying affidavit. Although it denies the existence of Till Number 545400, it unequivocally confirms that Till Number 4106404 is operated by the Judgment-Debtor under organizational short code 6716100. 19.The Garnishee further admits that the organizational short code holds sufficient funds to meet the decretal sum of Kshs. 366,329/=. That admission disposes of the central question in the garnishee proceedings. 20.The Judgment-Debtor has not placed before the Court any evidence demonstrating that the decree has been settled or that the funds admitted by the Garnishee are exempt from attachment. There is consequently no lawful basis upon which the Decree-Holder should be denied the fruits of its judgment. 21.I have also considered the Garnishee’s application for costs. A garnishee is a third party brought into execution proceedings solely because it holds funds belonging to the judgment-debtor. It is ordinarily entitled to reasonable costs incurred in complying with the proceedings. Such costs should, however, ultimately be borne by the Judgment-Debtor whose failure to satisfy the decree necessitated the proceedings. Reasonable garnishee costs may be awarded from funds held for the judgment-debtor without diminishing the amount payable to the decree-holder, where sufficient additional funds are available, as was held in Rachier & Amollo Advocates v Kenya Bureau of Standards; National Bank of Kenya Limited & Others (Garnishees) [2023] KEHC 18852 (KLR). 22.In the circumstances, the order nisi should be made absolute in respect of Till Number 4106404, aggregated under organizational short code 6716100, to the extent of Kshs. 366,329/=. Disposition. 23.Accordingly, the Chamber Summons dated 1st July 2026 is allowed on the following terms:a.The garnishee order nisi issued on 4th July 2026 is hereby made absolute against Safaricom PLC in respect of funds held on behalf of Africa Merchant Assurance Company Limited in M-Pesa Till Number 4106404, aggregated under organizational short code 6716100.b.Safaricom PLC shall, within fourteen (14) days of service of this order, pay to Ouma Maurice Otieno t/a O.M. Otieno & Company Advocates the sum of Kshs. 366,329/= in satisfaction of the decree.c.Upon payment of the said sum, the Garnishee shall be discharged from any further liability to the Judgment-Debtor in respect of the amount paid pursuant to this order.d.The Garnishee shall file its bill of costs for taxation by the Deputy Registrar.e.The costs of the Chamber Summons dated 1st July 2026 are assessed at Kshs. 20,000 and shall be borne by the Judgment-Debtor. 24.It is so ordered. T. A. ODERA JUDGE 13. 7.26DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF JULY 2026 IN THE PRESENCE OF:MR O.M OTIENO FOR THE APPLICANT /JUDGMENT CREDITOR, MR ETYANG FOR THE JUDGMENT DEBTOR, MISS OMALA HOLDING BRIEF FOR MR OJONGA FOR THE GARNISHEE & CA BUSIENEI