[2022] KEHC 2445 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL APPEAL NO. 154 OF 2019

SBM BANK LIMITED...................................................................APPELLANT

VERSUS

SASAH CONTRACTORS LIMITED................................1ST RESPONDENT

INVESTEQ CAPITAL LIMITED.....................................2ND RESPONDENT

JUDGMENT

The appeal before me arises from the Ruling dated 13th December 2019. The said Ruling was in relation to the application dated 8th August 2019.

1. The application came up for hearing on 5th December 2019. On that date, the Plaintiff was represented by Mr. David Otieno, Advocate. However, the Garnishee was not represented.

2. As the hearing date had been fixed with the consent of the parties, the trial court allowed the Plaintiff to prosecute it notwithstanding the absence of the garnishee.

3. In the Ruling dated 13th December 2019 the learned trial magistrate granted the order through which the garnishee nisi was made absolute. In the result, the garnishee was ordered to release the money which it was holding, to the decree-holder.

4. The garnishee was dissatisfied with the Ruling, and that is what prompted this appeal.

5. The Appellant has consolidated its grounds of appeal into the following 3 issues;

“a) Whether the Learned Magistrateought to have considered the replying affidavit on record.

b) How much the Garnishee held on behalf of the Judgement Debtor.

c) Whether the decree holder is entitled to Kshs 2,968,124. 60. ”

6. When canvassing the appeal, the Appellant pointed out that the learned trial magistrate set out the documents which she had taken into account when determining the application.

7. It is evident that the trial court did not cite the replying affidavit amongst the documents which were accorded consideration.

8. In its submissions, the 1st Respondent acknowledged that the garnishee had filed the Replying Affidavit of KEVIN KIMANIon 20th August 2019.

9. Indeed, when canvassing its case the 1st Respondent delved into the contents of the said affidavit. This is what the Respondent said;

“4. 2

………….. In the Replying Affidavitof Kevin Kimani, the Appellant disclosed that out of the amount belonging to the Judgement Debtor that was blocked when theGarnishee’s predecessor went into administration, Kshs 4,581,103. 00 was placed into a savings accountbelonging to the Judgement Debtor.”

10. It was the understanding of the Respondent that Kimani’s replying affidavit made it clear that a sum equivalent to that which was placed in the savings account, had been placed in another current account.

11. If that be the case, the Respondent submitted that the total sum available in the 2 accounts was Kshs 9,162,206. 00.

12. Considering that the garnishee was required to pay Kshs 8,295,054/50 to the Respondent, it was the submission of the Respondent that the Appellant had sufficient funds to settle the claim.

13. As is required of a first appellate court, I have re-evaluated the evidence on record before the trial court.

14. I am afraid that I did not trace in the Replying Affidavit of Kevin Kimani, the facts alluded to by the 1st Respondent, concerning the money placed in the savings account and in the current account.

15. If anything, the deponent concluded his evidence by saying that the total amount available, to be paid out in 3 trunches, was Kshs 6,108,138/=.

16. Indeed those facts have already been alluded to by this Court in the Rulings delivered on 15th April 2020 and on 15th October 2020.

17. In a nutshell, a re-evaluation of the evidence on record shows that the amount of money available in the hands of the garnishee was Kshs 6,108,138/=.

18. The garnishee cannot have been compelled to pay to the 1st Respondent an amount of money which was in excess of the money which the garnishee was holding to the order of the Judgment Debtor.

19. More significantly, I find that the trial court erred when it failed to take into consideration a replying affidavit which was already on record when the application came up for hearing.

20. Had the trial court given consideration to the replying affidavit, it would have ascertained that the garnishee was only holding a sum not exceeding Kshs 6,108,138/=, to the order of the Judgment Debtor. If anything, even that amount was not readily available, according to the garnishee.

21. Nonetheless, because the garnishee had not provided the court with the requisite documentation which would have enabled the court to determine the existence of the alleged moratorium, as well as the terms thereof, the trial court would have been entitled to assume that no such moratorium was in place.

22. In conclusion, I find that the trial court erred by failing to take into account the contents of the replying affidavit that was on record.

23. However, after re-evaluating the evidence on record, I find that the 1st Respondent was entitled to receive Kshs 6,108,138/= from the garnishee. However, the garnishee was not obliged to pay the sum of Kshs 2,186,916/=, as the garnishee was not personally indebted to the 1st Respondent.

24. The appeal is partially successful.

25. I order that each party will meet its own costs of the said appeal.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 10TH DAY OF FEBRUARY 2022

FRED A. OCHIENG

JUDGE