[2020] KEHC 8159 (KLR)
The court held that the applicant's challenge to the garnishee orders should have been made before the court executing the decree or by way of appeal, as provided under Section 34 of the Civil Procedure Act. Judicial review is not the appropriate forum for such challenges, as the law expressly requires that all...
Source-derived case information.
- Citation
- [2020] KEHC 8159 (KLR)
- Parties
- Applicant: Invesco Assurance Company Limited; Respondent: The Chief Magistrate’s Court Homabay Law Courts; Respondent: The Chief Magistrate’s Court Kisumu Law Courts; Respondent: Okongó Wandago & Co. Advocates; Respondent: Safaricom Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 5 of 2020
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection/striking Out
- Outcome
- Cause struck out with costs to the 1st Interested Party.
- Judges
- TW Cherere
- Legal Topics
- Judicial Review Procedure, Garnishee Orders, Execution of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Invesco Assurance Company Limited
Applicant
The Chief Magistrate’s Court Homabay Law Courts
Respondent
The Chief Magistrate’s Court Kisumu Law Courts
Respondent
Okongó Wandago & Co. Advocates
Respondent
Safaricom Limited
Respondent
Procedural Posture
Judicial Review / Ruling on Preliminary Objection/striking Out
Legal Issues
- 1 Whether the applicant can challenge garnishee orders through judicial review proceedings instead of before the executing court or by appeal.
- 2 Whether the High Court has jurisdiction to entertain a separate suit regarding execution of decrees issued by subordinate courts.
Ratio Decidendi
The court held that the applicant's challenge to the garnishee orders should have been made before the court executing the decree or by way of appeal, as provided under Section 34 of the Civil Procedure Act. Judicial review is not the appropriate forum for such challenges, as the law expressly requires that all questions relating to execution of decrees be determined by the executing court. Consequently, the judicial review cause was struck out for being improperly before the court.
Court Disposition
Cause struck out with costs to the 1st Interested Party.
Orders
- This cause is struck out with costs to the 1st Interested Party being the only party that defended the chamber summons dated 24th January, 2020.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE-J)
JUDICIAL REVIEW MISC. CAUSE NO. 05 OF 2020
IN THE MATTER OF: APPLICATION BY INVESCO ASSURANCECOMPANY LIMITED
FOR JUDICIAL REVIEW ORDERS OF CERTORARI, PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF: IN THE MATTER OF THE HIGH COURT
(ORGANIZATION AND ADMINISTRATION) ACT, 2015
AND
IN THE MATTER OF: IN THE MATTER OF THE MAGISTRATE’S COURT ACT, 2015
AND
IN THE MATTER OF: IN THE MATTER OF FAIR ADMINISTRATION ACTIONS ACT, 2015
AND
IN THE MATTER OF: IN THE MATTER OF SAFARICOM PAYBILL NO. 980100 AND 980101
BETWEEN
REPUBLIC.............................................................................................................APPLICANT
AND
THE CHIEF MAGISTRATE’S COURT HOMABAY LAW COURTS.........1st RESPONDENT
THE CHIEF MAGISTRATE’S COURT KISUMU LAW COURTS...........2ND RESPONDENT
AND
OKONGÓ WANDAGO & CO. ADVOCATES..................................1ST INTERESTED PARTY
SAFARICOM LIMITED.....................................................................2ND INTERESTED PARTY
Exparte: INVESCO ASSURANCE COMPANY LIMITED
RULING
1. By this Judicial Review Cause Petition and chamber summons both filed on 27th January, 2020, the Applicant mainly challenges decree orders nisi and decree absolute issued in favour of the 1st Interested Party garnisheeing Mpesa Safaricom Paybill No. 980100 and 980101 issued in various cases in Kisumu and Homabay Chief Magistrate’s Courts.
2. I have considered the submission by Mr. Kingara for the Applicant and Mr. Omondi for the 1st Interested Party.
3. I have also considered the provisions of Section 34 of the Civil Procedure Act (Cap 21 Laws of Kenya) which deals with questions to be determined by court executing decree and it states as follows:
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.
4. Order 49 rule 7 (2) provides that:
An appeal from a decision of the registrar under the Orders referred to in subrule (1) shall be to a judge in chambers.
5. From the foregoing, I am persuaded that the Applicant’s remedy if it is aggrieved by the garnishee orders lies in challenging them before the court executing the decree or by way of an appeal and not by filing a separate suit.
6. It is hereby ordered that:
1. This cause is struck out with costs to the 1st Interested Party being the only party that defended the chamber summons dated 24th January, 2020
DATED AND DELIVERED IN KISUMU 13th THISDAYOFFebruary2020
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Amondi/Okodoi
For the Applicant - Mr. Kingara
For the Respondents - Ms. Langát
For the 1st Interested Party - Mr. Omondi
For the 2nd Interested Party - N/A