https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7575

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **COMMERCIAL AND TAX DIVISION** **MISCELLANEOUS APPLICATION NO. E230 OF 2021** **STANDARDINVESTMENTBANKLIMITED……..……DH/APPLICANT** **VERSUS** **BOMAS OF KENYA LIMITED……………………...**.**JD/RESPONDENT** **AND** **KENYA COMMERCIAL BANK LIMITED…….……..1ST GARNISHEE** **STANDARD CHARTERED BANK LIMITED…………2ND GARNISHEE** **COOPERATIVE BANK OF KENYA**..........................**3RD GARNISHEE** **RULING** 1. There are three (3) pending applications before the Court. 2. The Decree holder’s applications dated 26th January 2026 and 18th May 2026 both primarily seek garnishee orders nisi and absolute directing the garnishees to release to the Decree Holder any sums held in accounts in favour of the judgment debtor (JD) to satisfy the decree given on 11.7.2023. 3. The Judgment Debtors' application dated 28th January 2026 seeking postponement of paying the decretal sum for a period of 90 days. 4. By directions issued by Hon. Justice Gikonyo on 18th May 2026 the Court is to determine only the application dated 18th May 2026 at this juncture. Accordingly, this ruling is confined to the said application. **Application dated 18th May 2026** 1. The application is brought under Sections 1A, 1B, 3A, 38 (a), 38 (b), 38 (f), and 44 (1) of the Civil Procedure Act, Order 22 rules 6, 9, 10, 48, 55 and 56, Order 23 rules 1 – 4 and Order 51 rule 1 of the Civil Procedure Rules, 2010. The Decree Holder seeks garnishee orders nisi and absolute against the 2nd and 3rd garnishees attaching all monies they hold on behalf of the Judgment Debtor in the following accounts: Standard Chartered Bank Kenya, account no. 08202489053700; and Co-operative Bank of Kenya, account no. 01101903877001. The relief is sought to satisfy the decree dated 11th July 2023, the amount then unsatisfied being Kshs. 63,773,547.90 as at 18th May 2026. 2. The application is supported by the annexed affidavit of Job Kihumba, sworn on 18th May 2026, which relies on his affidavit sworn 26th January 2026. The deponent avers that following the garnishee proceedings commenced by the application dated 26th January 2026, the 1st and 2nd garnishees disclosed that the Judgment Debtor held funds amounting to Kshs. 629,745.04 in the attached accounts, sums which are grossly insufficient to satisfy the decretal debt. 3. The deponent further states that the Decree Holder has established that the Judgment Debtor maintained additional bank accounts with the proposed garnishees, specifically the two accounts referred to at paragraph 5 above, which were not previously disclosed and whose balances ought to be made available in satisfaction of the decree. 4. The deponent asserts that the Judgment Debtor has consistently failed to satisfy the award for over six years despite repeated undertakings and indulgence by the Decree Holder. 5. The Judgment Debtor opposes the application by a replying affidavit sworn by Jimmy Okindang’i on 25th May 2026. The deponent avers that there was already a pending garnishee application dated 26th January 2026 and a separate application dated 28th January 2026 seeking stay/postponement of execution, both of which had been scheduled for hearing. He contends that the institution of a second garnishee application before the determination of the pending applications amounts to multiplicity of execution proceedings and is oppressive. 6. The deponent avers that the account alleged to be held with Standard Chartered Bank does not belong to the Judgment Debtor and that the amount held in the account with the 3rd garnishee is incapable of settling the debt. He further avers that garnishment of all the Judgment Debtor’s accounts would unduly prejudice the operations of Bomas of Kenya, a state corporation employing over 300 persons, and would serve no practical purpose in satisfying the decree. 7. The deponent contends that the Judgment Debtor has demonstrated a willingness to settle the decree and paid Kshs. 30,000,000/= by instalments between December 2023 and September 2024. He explains that subsequent default resulted from circumstances beyond the Judgment Debtor’s control following commencement of the Bomas International Convention Complex (BICC) project, which led to closure of commercial operations and an estimated 84% reduction in revenue. Efforts are said to be ongoing to secure funding through the Ministry of Tourism and Wildlife, the National Treasury and the pending bills process to facilitate settlement of the decretal debt. On that basis the Judgment Debtor urges dismissal of the 18th May 2026 garnishee application. **2nd Garnishee’s Replying Affidavit** 1. The 2nd Garnishee filed a replying affidavit sworn by Barbara Mwangi on 26th May 2026. She stated that the 2nd garnishee does not hold account No. 08202489053700 on behalf of the judgment debtor and urged the court that it be discharged from the proceedings with costs of Kshs. 40,000/=. **3rd Garnishee’s Replying Affidavit** 1. This was sworn by Jacksom Oire on 26th May 2026. He confirmed that the judgment debtor holds account No. 01101903877001 with the 3rd Garnishee. He stated the account has a sum of Kshs. 24,111.26 which is insufficient to settle the decretal sum. 2. The application was heard by oral highlights of counsels. 3. Mr. Mueke for the Decree Holder submitted that the Judgment Debtor, in an attempt to defeat execution, has opened new accounts as per auditors’ enquiries and that nothing in law bars concurrent garnishee applications (relying on Order 22 Rule 17). He contended that the accounts attached in the earlier application dated 26th January 2026 hold only Kshs. 620,000/= (sic - limited funds) and that additional funds have been diverted into the alleged new account. 4. Counsel for the Decree Holder further submitted that a successful party is entitled to the fruits of the judgment irrespective of the Judgment Debtor’s budgetary allocations and that a sum of Kshs. 44 million was received and spirited away into a new account. 5. Mr. Maina for the Judgment Debtor submitted that the instant application is improper and an abuse of the court process. He emphasized the parties’ right to a fair hearing and submitted that, in the proper application of law, first-in-time should prevail, and therefore, the earlier filed applications ought to be heard and determined before any subsequent garnishee application. 6. Counsel for the Judgment Debtor further submitted that the Kshs. 40 million referred to was received from the Tourism Fund to pay for a contract and was duly paid out; that determining the 18th May application would effectively pre-empt and determine the Judgment Debtor’s application seeking postponement of execution. **Analysis and determination** 1. I have considered the application dated 18th May 2026, the affidavits filed in support and in opposition thereto, together with the oral highlights by counsel. The sole issue for determination is whether the Decree Holder is entitled to institute a further garnishee application while the garnishee proceedings commenced by the application dated 26th January 2026 and the Judgment Debtor’s application dated 28th January 2026 remain pending before the trial Court. 2. There is no dispute that the Decree Holder is a successful litigant. Equally, there is no dispute that the decree arising from the arbitral award remains substantially unsatisfied. The right of a successful litigant to enjoy the fruits of his judgment is a fundamental principle of the law. In **Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63**, the Court observed that a successful party should not be deprived of the fruits of his judgment without just cause. 3. The Court’s duty is to administer justice fairly, proportionately and efficiently in accordance with Sections 1A and 1B of the Civil Procedure Act (overriding objective and duty to further the overriding objective). Order 23 of the Civil Procedure Rules provides for garnishee proceedings and enables a Court to attach debts due from third parties to a judgment debtor in satisfaction of a decree. 4. **Order 23 rules 1** provides, in material part, that: ***“A court may, upon the ex parte application of a decree holder, and either before or after an oral examination of the judgment-debtor, and upon affidavit by the decree holder or his advocate stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment -debtor and is within the jurisdiction, order that all debts (other than the salaries or allowances coming and is within the provisions of Order 22, rule 42 owing from such third persons (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall Appear before the court to show cause why he should not pay to the decree-holder the debt due from him to the judgment debtor or so much thereof as maybe sufficient to satisfy the decree together with the costs aforesaid.”*** 1. The record shows that by the time the present application was filed, the application dated 26th January 2026 was still pending before the Court. Indeed, garnishee orders nisi had already been issued, and the Garnishees had responded by disclosing the funds held in the Judgment Debtor’s accounts. Also pending was the Judgment Debtor’s application dated 28th January 2026 seeking postponement of payment of the decretal sum. 2. The Decree Holder contends that the Judgment Debtor has opened or concealed additional accounts and that further garnishee relief is necessary to realize the decretal sum. The Judgment Debtor contends the second garnishee application is an abuse and that the earlier proceedings (first-in-time) should be determined first. 3. Where there are concurrent execution processes relating to the same decree the Court has a discretion to manage the proceedings so as to avoid duplication, confusion and oppression. 4. In the present case the 18th May 2026 application was filed while the earlier garnishee proceedings (26th January 2026) and the Judgment Debtor’s stay/postponement application (28th January 2026) were pending. The earlier proceedings had progressed to disclosure by garnishees and were properly before the Court. The Decree Holder’s asserted reliance on auditors’ enquiries and discovery of alleged additional accounts is not, on the material before the Court, supported by contemporaneous evidence sufficient to justify launching a parallel garnishee application rather than seeking appropriate relief within the pending proceedings. 5. **Order 22 Rule 17**of the **Civil Procedure Rules** provides that: ***“The court may, in its discretion, refuse execution at the same time against the person and property of the judgment debtor.”*** 1. Permitting the 18th May 2026 application to proceed concurrently would risk multiplicity, confusion of process and possible oppression of the Judgment Debtor and third parties, contrary to the Court’s discretion under Order 22 rule17 and the overriding objective. The mere assertion that new accounts exist, without prompt full disclosure and without first seeking appropriate directions in the pending proceedings, does not entitle the Decree Holder to run parallel garnishee applications. 2. Accordingly, the Notice of Motion dated 18th May 2026 is struck out with costs. 3. For the avoidance of doubt, the Decree Holder shall be at liberty to seek appropriate directions in the pending garnishee proceedings dated 26th January 2026 in respect of any additional accounts or assets discovered during the course of execution. It is so ordered **RULING** delivered virtually, dated and signed at **NAIROBI** This **2nd** day of **June** 2026. **P.M. MULWA** **JUDGE** **In the presence of:** *Mr. Mueke* for D/holder *Mr. Maina* for J/debtor *Mr. Gichana* for 1st Garnishee *Mr. M. Muriithi h/b for Mr. L. Ondieki* for 2nd Garnishee *Ms. Ochieng* for 3rd Garnishee Court Assistant*: Sharon*