[2021] KEELRC 1491 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO.2465 OF 2017

THIERRY POUSSARD.....................................CLAIMANT

VERSUS

BRADLEY LIMITED ...................................RESPONDENT

AND

ECOBANK KENYA LIMITED .......................GARNISHEE

RULING

The claimant filed application dated 25th February, 2021 under the provisions of Order 23 Rule 1 of the Civil Procedure Rules and seeking for orders that;

a) Pending the hearing and determination of the instant application a garnishee order nisi be issued ordering that all monies held in deposit to the benefit of Bradeley Limited by Eco Bank Limited at Thika Branch in account number xxxx or any other account held by the judgement- debtor with Eco Bank Limited be attached to answer the decree issued in favour of the decree – holder on 6thOctober, 2020 for the sum of … Ksh.25, 534,910.

b) An order be ad is hereby issued directing Eco Bank Limited, the garnishee to appeal before this court on an appointed date and time to show cause why the garnishee order nisi so issued should not be made absolute and why they should not release to the decree holder all monies (or such monies as are sufficient to answer to the decreeissue don 6thOctober, 20020) held in the deposit for the benefit of Bradley Ltd, in account number xxxx or any other account held by the judgement-debtor with Eco Bank Limited

c) The garnishee orders be made absolute

d) The court be pleased to make such other consequential orders as are necessary for the execution of the decree.

e) The costs of this application be borne by the judgement debtor.

The application is supported by the affidavit of the claimant and on the grounds that on 28th October, 2019 judgement was entered herein against the respondent for the sum of Ksh.22,200,000 and costs together with interests and which decretal sum stands at Ksh.25,534,910. Pursuant to the judgement a decree was issued on 6th October, 2020 and costs assessed at Ksh.799, 834, 95.

The applicant instructed Bernac Auctioneers to execute the decree against the respondent but has become impossible since the respondent company ceased operations in Kenya in the year 2018 and have closed their registered offices and have no known assets for attachment to satisfy the court decree. Despite the judgement, there is no effort to settle the same.

As a result, the debt remains unsatisfied and outstanding at Ksh.25, 534,910. The respondent holds an account with the garnishee at Thika branch which is well funded and has sufficient credit to satisfy the decree and hence seek for a garnishee order in favour of the claimant. Pending the application for stay of execution, the respondent made a transfer of ksh.44 million from its account with the garnishee to an offshore account with the sole aim of frustrating the decree herein.

Application be allowed as prayed with costs.

In reply, the garnishee filed the Replying Affidavit of Muchael Muriira the assistant branch operations manager, Thika branch of the garnishee and who avers that the respondent as the judgement – debtor operates account No.xxxx, xxxx and xxxx and the amounts held by the bank in these accounts are;

a) Negative USD – 272. 09 in account No.xxxx.

b) Ksh.3, 302,861. 29 in account No.xxxx.

c) Euros 495. 32 in account No.xxxx

The respondent has overdrawn the USD account and there is a balance of ksh.3, 321,092. 82 in the Kenya Shillings Account and after the deduction of the overdrawn amounts and ksh.17, 400 for defending these proceedings the garnishee is ready and willing to release the balance of Ksh.3, 321,092. 82 which is available and requires 7 days to reconcile the accounts and pay the balance.

The respondent attended but filed no responses or submissions.

Only the claimant filed written submissions and relied on Order 23 Rule 1 and 4 of the Civil Procedure Rules and the case of Francis Kaiga v Institute for Security Studies; Eco Bank (K) Limited [2019] eKLRand Jasbir Singh Rai & others v Tarlochan Singh Rai & 4 others [2014] eKLR.

Determination

Order 23 Rule 1 provides that;

(1) A court may, upon the ex parte application of the 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 salary or allowances coming within the provisions of Order 22 rule 42 owing from such third person

(hereinafter called the “garnishee”) to the judgment- debtor shall be attached to answer the decree together with costs of the garnishee proceedings; and by the same or subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay the decree-holder the debt due from him to the judgement-debtor or so much thereof as may be sufficient to satisfy the decree together with costs aforesaid.

The claimant as the judgement creditor has moved the court seeking to have his decree herein satisfied by the judgement debtor by attachment of money held by the garnishee on the judgement debtor’s behalf/account held at Eco Bank, Thika Branch account number xxxx.

The garnishee attended and vie the Replying Affidavit of Michael Muriira confirmed that the respondent as the judgement – debtor operates account No.xxxx, xxxx and xxxx and the amounts held by the bank in these accounts are;

a) Negative USD – 272. 09 in account No.xxxx.

b) Ksh.3, 302,861. 29 in account No.xxxx.

c) Euros 495. 32 in account No.xxxx

That the total available balances upon deduction of overdrawn funds and costs attending herein is Kshs. Ksh.3, 321,092. 82.

As required under Order 23 of the Civil Procedure Rules, the orders of 3rd February, 2021 the court is satisfied on the merits of the application dated 25th February, 2021. the Order Nisi attaching the respondent’s accounts held with the garnishee and holding bank balances of ksh.3, 321,109. 82 which is less garnishee costs shall be made available to the claimant herein upon the garnishee undertaking reconciliation.

Accordingly, the Order Nisi is hereby declared absolute and the following orders issued;

(a) the claimant shall forthwith be paid from deposits held by the garnishee to the credit of the respondent, judgement-debtor, namely, Kshs. 3,321,109. 82 and from accounts No.xxxx; .xxxx and xxxx at Thika Branch and upon undertaking a reconciliation and upon the lapse of 7 days from the date hereof.

(b) The respondent shall meet the costs of these proceedings.

DELIVERED AT NAIROBI THIS 29TH MARCH, 2021.

M. MBARU

JUDGE

In the presence of: ………………………………. ………………………………