[2020] KEELRC 1462 (KLR)
The court found that there was an unsatisfied decree in favour of the applicant and that the garnishee held sufficient funds in the judgment debtor's account to satisfy the decretal sum and costs. The preliminary objection raised by the judgment debtor was dismissed as lacking merit and being intended only to delay...
Source-derived case information.
- Citation
- [2020] KEELRC 1462 (KLR)
- Parties
- Applicant: Siganga and Company Advocates; Respondent: Great Lakes University Kisumu; Respondent: Equity Bank (Kenya) Limited; Respondent: KCB Bank Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 36 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Garnishee Application
- Outcome
- application granted
- Judges
- MN Nduma
- Legal Topics
- Garnishee Proceedings, Execution of Decree, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Siganga and Company Advocates
Applicant
Great Lakes University Kisumu
Respondent
Equity Bank (Kenya) Limited
Respondent
KCB Bank Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Garnishee Application
Legal Issues
- 1 Whether the applicant is entitled to a garnishee order nisi against the judgment debtor's bank account.
- 2 Whether the garnishee holds sufficient funds to satisfy the decree and costs.
- 3 Whether the preliminary objection by the judgment debtor on procedural grounds has merit.
Ratio Decidendi
The court found that there was an unsatisfied decree in favour of the applicant and that the garnishee held sufficient funds in the judgment debtor's account to satisfy the decretal sum and costs. The preliminary objection raised by the judgment debtor was dismissed as lacking merit and being intended only to delay settlement. The court confirmed the decree nisi and ordered the garnishee to release the funds to the applicant, subject to deduction of its own costs. The application was therefore granted as prayed, enabling execution of the decree through garnishee proceedings.
Court Disposition
application granted
Orders
- The application dated 17th January 2020 is granted confirming the decree nisi.
- The garnishee is to defray its own costs of these proceedings and release the funds to the applicant as prayed.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
MISCELLANEOUS APPLICATION NO. 36 OF 2018
(Before Hon. Justice Mathews N. Nduma)
SIGANGA AND COMPANY ADVOCATES.............DECREE HOLDER/RESPONDENT
VERSUS
GREAT LAKES UNIVERSITY KISUMU...........JUDGMENT DEBTOR/RESPONDENT
AND
EQUITY BANK (KENYA) LIMITED........................................................1ST GARNISHEE
KCB BANK LIMITED................................................................................2ND GARNISHEE
RULING
1. Application dated 17th January 2020 sought an order in the following terms:
(a) That Honourable court be pleased to make a Garnishee Order Nisi against KCB BANK LIMITED the Garnishee held in bank account Number 1117142876 at their Kisumu Branch, Ordering that all monies deposited, lying and being held in deposit by the Garnishees to the credit of GREAT LAKES UNIVERSITY OF KISUMU, the judgment debtor herein be attached to answer the Decree for the sum of Kshs. 2,469,808/= being the amount in respect of which costs were awarded together with interest at Court Rates from October 25, 2018 until payment in full being Kshs. 432,216. 40.
(b) That the Honourable court be pleased to order that the sum due to the decree holder is Kshs. 2,902,024. 40.
(c) That an order Nisi upon the Garnishee do issue and the same be served on the garnishee before being served on the defendant/judgment debtor.
(d) That the Garnishees do appear before this court on an appointed date and time to show cause why it should not pay the Decree holder Kshs. 2,902,024. 40 being the Decretal sum in favour of the Decree holder herein.
(e) That the Honourable Court be pleased to order the Garnishee to show cause why it should not pay the Decree Holder further costs of these Garnishee proceedings.
(f) That the decree Holder be at liberty to apply for any such further orders/or directions as the honourable court may deem fit and just to grant.
(g) That the Garnishees settle the sums claimed to the credit of SIGANGA and COMPANY CLIENT ACCOUNT, NCBA BANK, KISUMU BRANCH A/C NO. 100230959.
(h) That the costs of this application be assessed by the Honourable Court and be borne by the Garnishees jointly and severally.
2. The application is supported by grounds set out on the face of the Notice of Motion and in particular the Decree holder has demonstrated the existence of a lawful decree of Employment and Labour Relations Court capable of execution. That the judgment Debtor was indebted to the Decree holder in the sum of Kshs. 2,902,024. 40 as at January 17th 2020.
3. That the Garnishee holds an account/accounts of the judgment Debtor with sums sufficient to settle the decretal amount, costs of the suit as well as costs of the Garnishee proceedings herein.
4. That the judgment Debtor maintains an account Number 1117142876 with the Garnishee at Kisumu Branch.
5. That the application be granted as prayed.
6. The Garnishee filed a replying affidavit dated 5th February 2020 in which one Calisto Orwa Deposes that the judgment debtors account held with the Garnishee at Kisumu Branch held Kshs. 3,762,625. 55 as at 21st January 2020 and the garnishee is willing if ordered to release the said sum to the applicant subject to deducting any applicable bank charges and the legal costs relating to this litigation and others in this series of suits.
7. The judgment debtor filed a preliminary objection that the application violates Section 1(A), 3 (A) of the Civil Procedure Act, Order 23 Rule 1 of the Civil Procedure Rules Cap 2, Laws of Kenya and Article 50 and 159 of the constitution of Kenya 2010 and it be dismissed with costs.
8. The objector argues that as at 20th January 2020 when decree nisi was issued by the court, the decree had not been extracted and so, the application lacks merit and it be dismissed with costs.
9. The undeniable fact is that there is unsatisfied decree in existence in favour of the applicant against the judgment debtor. The Garnishee has demonstrated that it holds sufficient funds to settle the judgment debt including the costs of the application and the Garnishee in these proceedings.
10. The court has considered the objection by the judgment debtor and finds the same to be without merit. The same is only aimed at delaying the settlement of the judgment debt in favour of the applicant, the decree holder.
11. Accordingly the application is granted confirming the decree nisi in terms of the application dated 17th January 2020 and filed on 20th January 2020. In addition the Garnishee to defray its own costs of these proceedings and release the funds to the applicant, Decree holder as prayed.
Ruling Dated, Signed and delivered this 9th day of March, 2020
Mathews N. Nduma
Judge
Appearances
Dave Siganga for the Applicant/Decree Holder
M/S Onsongo for the Garnishee
Mr. Kago for Judgment debtor
Chrispo – Court Clerk