City Council of Nairobi v Asistiba & another; Co-operative Bank of Kenya (Garnishee) (Civil Application E268 of 2021) [2021] KECA 116 (KLR)
The bottom line
#The Court of Appeal stopped a county government's bank account from being garnished pending its appeal, ruling that multiple execution attempts over the same decree shouldn't run simultaneously.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the appeal
The contention whether the respondents are entitled to the amount claimed or only the amount in the decree is an arguable point, as is the contention that no execution may be levied against a County Government on the basis that it is equivalent to the National Government.
The Court identified two live disputes: whether the decree is limited to Kshs.12,000,000 as found by the High Court, or extends to the Kshs.17,262,904.11 claimed by the respondents; and whether execution may issue against a County Government. Both were held to raise arguable points warranting further consideration on appeal.
Nugatory effect of the appeal
If not restrained, the amount will be paid and there is no guarantee that the respondents have the capacity to refund it if the appeal succeeds; the appeal would therefore be rendered nugatory.
The second limb of the Rule 5(2)(b) test was satisfied because garnishment would irreversibly deplete the applicant's accounts. The Court reasoned that restitution by the respondents could not be guaranteed, applying the principle in Stanley Kangethe Kinyajui v Tony Ketter & Others on the nugatory-value test.
Parallel execution proceedings
The Court stayed the garnishee order nisi while cautioning parties against initiating parallel execution proceedings where live execution proceedings are already running against the same applicant.
The record showed that execution by way of mandamus, notices to show cause and warrants of arrest was already ongoing against the applicant's officers when the respondents separately sought to attach bank accounts. The Court disapproved of such parallel proceedings and stayed the garnishee order nisi pending appeal.
Legal principles established
#- Parties should not initiate parallel execution proceedings where there are running and live execution proceedings against the same applicant.
- An applicant for a stay of execution under Rule 5(2)(b) must present an arguable appeal and establish that the appeal will be rendered nugatory if the stay is not granted, considering the positions of both sides.
Court orders
#- 1.A stay of execution of the order nisi of the High Court given on 22nd July, 2021 directed to the garnishee (the Co-operative Bank of Kenya Limited)
- 2.An observation that parties should not initiate parallel execution proceedings where there are running and live execution proceedings against the same applicant
- 3.Costs of the application to abide the outcome of the appeal
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "City Council of Nairobi v Asistiba & another; Co-operative Bank of Kenya (Garnishee) (Civil Application E268 of 2021) [2021] KECA 116 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/116/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.