[2005] KEHC 294 (KLR)
The court held that the decretal sum due from Sunbird to Crescent is a debt within the meaning of Order 22 rule 1 Civil Procedure Rules and is therefore attachable to satisfy the unsatisfied decree owed by Crescent to the applicant. The court distinguished the Israelson v Dawson case, noting that it involved direct...
Source-derived case information.
- Citation
- [2005] KEHC 294 (KLR)
- Parties
- Plaintiff: Tornado Carriers; Defendant: Crescent Construction; Garnishee: Sunbird Company Ltd.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 56 of 2003
- Procedural Posture
- Civil Case / Ruling on Garnishee Application
- Outcome
- application granted
- Legal Topics
- Garnishee Orders, Debt Attachment, Execution of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tornado Carriers
Plaintiff
Crescent Construction
Defendant
Sunbird Company Ltd.
Garnishee
Procedural Posture
Civil Case / Ruling on Garnishee Application
Legal Issues
- 1 Whether the proceeds of a decree held by the defendant against a third party (garnishee) can be attached to satisfy the plaintiff's unsatisfied decree.
- 2 Whether the sum due from Sunbird to Crescent constitutes a debt attachable under Order 22 rule 1 Civil Procedure Rules.
- 3 Whether the authority of Israelson v Dawson applies to the present garnishee proceedings.
Ratio Decidendi
The court held that the decretal sum due from Sunbird to Crescent is a debt within the meaning of Order 22 rule 1 Civil Procedure Rules and is therefore attachable to satisfy the unsatisfied decree owed by Crescent to the applicant. The court distinguished the Israelson v Dawson case, noting that it involved direct attachment against an insurer without a declaratory judgment, which was not the situation in the present case. The court found that the applicant is entitled to orders absolute for attachment of the proceeds of the decree, with costs.
Court Disposition
application granted
Orders
- Orders absolute for attachment of the proceeds of the decree due from Sunbird to Crescent are granted.
- Applicant is awarded costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Case 56 of 2003
TORNADO CARRIERS ................................................................................ PLAINTIFF
- Versus -
CRESCENT CONSTRUCTION ........................................................... DEFENDANT
Coram: Before Hon. Justice Mwera
Mutubia for Applicant/DH
N/A for Respondent/JD
Lijodi for the Garnishee
Court clerk – Kazungu
R U L I N G
The plaintiff decree-holder, asked this court under the provisions of Order 22 rules 1, 10 Civil Procedure Act that the proceeds of the decree the defendant M/s Crescent Transportation Company has against the garnishee herein, Sunbird Company Ltd. in the sum of Sh. 1,255,365/08, following the judgment in favour of the defendant in SRMCC 821/2003 against Sunbird, be attached to pay to the plaintiff and thus partly satisfy its decree herein of Sh. 3,023,340/= which has remained unsatisfied since 25/3/2004. That was basically Mr. Mutubia’s argument in that the decree in SRMCC 821/2003 which Crescent was about to execute constitutes a debt which under the provisions of order 22 rule 1 Civil Procedure Rules can be attached.
Mr. Lijodi’s position was that that decree followed a judgment in a running-down case where the plaintiff, Crescent, in SRMCC 821/2003 can only recover if it gets a declaratory judgment against Sunbird. That in the light of ISRAELSON VS DAWSON (PORT OF MANCHESTER INSURANCE CO. LTD., Garnishee) (1933) 1 KB 301 liability under a policy of insurance cannot constitute a debt. Mr. Lijodi added that a company called United Insurance had insured Sunbird. That it was no longer in business and that similarly Crescent no longer operates in Kenya.
In the court’s view the applicant has a decree against Crescent. It has not been satisfied. Equally true and admitted, Crescent has an unsatisfied decree against Sunbird, the garnishee herein. Without going behind, and particularly the state of things in SRMCC 821/2003 or which party has done/gone where, this court holds that the decretal sum due from Sunbird to Crescent is a debt in the context of Order 22 rule 1 Civil Procedure Rules. A certain sum of money is stated in that decree as due to Crescent from Sunbird. If it is not paid Crescent may attach the properties of Sunbird, sell the same and realize the decretal sum. But Sunbird can as well pay that sum directly to the applicant only that the applicant cannot sue to recover it. The proceeds of that decree will only be attached if it is paid. Accordingly the applicant is granted orders absolute.
The Israelsoncase above is not applicable here. First, Mr. Lijodi did not place before this court the contents and extent of the application of Order 45 rule 1 of the Rules of the Supreme Court (UK) to see if they are in substance the same as in our Order 22 rule 1 Civil Procedure Rules. Secondly, In that case the applicant (injured party) went straight to seek garnishee orders against the insurer Port of Manchester Insurance Company Ltd. arguing that since it had a liability to compensate the insured under the insurance policy issued, then the applicant was as well entitled to direct attachment of what was due under that policy. That could not be. And that is not the case here.
In sum the orders are granted with costs.
Delivered on 1/12/2005.
J.W. MWERA
JUDGE