[2021] KECPT 238 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.403 OF 2005

SAMMY KIPCHIRCHIR MAIYO....................................................CLAIMANT

VERSUS

AIR KENYA SACCO SOCIETY LIMITED .............................RESPONDENT

CO-OPERATIVE BANK OF KENYA..............................................GARNISHEE

RULING

1. The Notice of Motion for determination is dated 7th December 2020 and it seeks for orders:

a. The Honourable Tribunal be pleased to make a Garnishee Order Nisi against Co-operative Bank Limited, T- Mall Branch the Garnishee herein, being the “Account number [Particulars Withheld]” ordering that all monies deposited, lying and being held in deposit by the Garnishee respectively to the credit of AIR KENYA SACCO SOCIETY LIMITED the Respondent/judgment Debtor herein be attached to answer the Decree for the sum of Kshs.233,434. 80 being the amount in respect of which the Honourable Tribunal made an award and interest in favour of the Claimant/Decree Holder herein.

b. A Garnishee Order Nisi upon the Garnishee do issue and the same be served on the Garnishee before being served on the Respondent/judgment Debtor.

c. The Garnishee do appear before this Honourable Tribunal on an appointed dated and time to show cause why it should not pay the Claimant’s Advocates the sum of Kshs.233,434. 80 being the amount in the decree dated 2nd March 2006 and accrued interest in favour of the Claimant herein and further costs of these Garnishee proceedings.

d. The Claimant be at liberty to apply for any such further orders/or directions as the Honourable Tribunal may deem fit and just to grant.

e. Costs of the application be borne by the Respondent.

2. The Application is grounded on the grounds on the face of the Application and Affidavit in support of Sammy Kipchirchir Maiyosworn on 7. 12. 2020 and he avers that the Tribunal issued a decree dated 2nd March 2006 in favour of the Claimant for the sum of Kshs. 84,280/= inclusive of costs.

The Respondent is yet to satisfy the decree and to date the interest has accrued and Respondent owes the Claimant Kshs.233,434. 80/=.

Respondent bank account in order to recover the amount of Kshs.233,434. 80/=.The Respondent holds account Number [Particulars Withheld] at Co-operative Bank of Kenya T- Mall Branch.

3. The Respondent filed Preliminary Objection on a point of Law dated 25. 1.2021 in response to the Application. Stating the Notice of Motion dated 7. 12. 2020 is hopelessly misconceived, frivolous and devoid of merit.

The Respondent states the Application is time barred by virtue of Section 4 (1) C, 4(1)d, and 4 (4) Limitation of Actions Act Cap 22.

4. The parties filed their submissions with Claimant filing their written submissions dated 4. 5.2021 on 5. 5.2021 and Respondents filing their submissions dated 16. 4.2021 on 27. 4.2021.

The Garnishee did not respond to the Application despite service.

Having analyzed the pleading notice of motion the affidavit and submissions of parties the issues that arise are:

Issue one:

Whether the claim is statute barred?

Issue two:

Is the Claimant liable to be paid the sums owing .

5. Issue one:

Whether the claim is statute barred?

The Respondent avers the claim is time barred thus the Application dated 7. 12. 2020ought to be dismissed.

The Claimant seeks to execute a judgment dated 10. 2.2006 and decree of 2. 3.06.

The Respondent argues that Section 4 (1) c, 4 (1) d and 4 (4) Limitation of Action Actwhich stipulates:

“(4) An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.”

6. The judgment ought to have been executed on or before 2. 3.2017. the quoted case of M’ikiara M’Rinkanya & Another - vs- Gilbert Kabeere M’mbijiwe[2007]eKLR. Court held all post judgment proceedings including originating proceedings and interlocutory proceedings for execution of judgment are statute barred after 12 years.

The Respondent further avers the Applicant has made allegations that he made several attempts to execute the decree unfortunately but failed to attach any evidence to demonstrate any attempts taken to execute the Decree dated 2. 3.2006 other than the present Application.

In light of the same no extension of time was sought to execute Judgment/Decree.

7. The Claimant in response to the Preliminary Objection in their submissions stated it is not in dispute there is a Decree issued by the Tribunal on 2. 3.2006 and the same is yet to be satisfied. They state there were attempts made by Claimant to execute the decree and the same were unsuccessful. The remedy of Garnishee is made available to the Claimant under Order 23 Rule 1 Civil Procedure Rule 2010.

The Claimant submits the Respondent should not hide behind the provisions of the Act to avoid making good the Decree.

The claimant further submits Section 4 (4) of the Limitation of Action Act uses the word Maythus the same is at the court’s discretion.

Having looked at the issues canvassed we see no attempts by claimant or evidence of the same to show Claimant had tried getting the Respondent to pay the decree dated 2. 3. 2006.

With this in mind we find that indeed the claim is statute barred.

With the above issue No. 2 shall not be discussed as the claim fails ab initio

Upshot

The Application dated 7. 12. 2020 is dismissed

The Claimant slept on their rights and unfortunately time caught up with them and as such have to pay the price.

1. The Preliminary Objection is therefore upheld. Each party to bear their own costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2021.

HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 7.2021

HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 7.2021

MR. GITONGA KAMITI MEMBER SIGNED 29. 7.2021

TRIBUNAL CLERK MAINA CHARLES

NYANGENA ADVOCATE FOR APPLICANT/RESPONDENT

NO APPEARANCE FOR THE CLAIMANT.

HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 7.2021