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ELCPartially AllowedNotice of Motion dated 12th March, 2021· [2021] KEELC 1527 (KLR)

Maurice Oduor Nyakone v Diamond Property Merchants Ltd; Co-operative Bank of Kenya Ltd & another (Garnishee) [2021] KEELC 1527 (KLR)

High Court of Kenya
14 October 2021
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, Maurice Oduor Nyakone, obtained a Decree on 9th March 2021 after the court adopted an arbitral award dated 12th June 2020 and an award on costs dated 24th August 2020, with a total decretal sum of Kshs. 1,766,456/=. By a Notice of Motion dated 12th March 2021 under Order 23 Rules 1, 2 and 4 of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act, he sought a garnishee order nisi and absolute against Cooperative Bank of Kenya Ltd (1st Garnishee) and Equity Bank Kenya Ltd (2nd Garnishee), which held accounts for the judgment debtor. The 1st Garnishee confirmed holding a preserved book balance of Kshs. 205,255.45 as at 19th March 2021 and accepted liability only to that extent; the 2nd Garnishee confirmed a balance of only Kshs. 21.65 and sought discharge. Framing two issues - whether a Garnishee Order Absolute should issue and who should bear costs - the court granted an Order Absolute against the 1st Garnishee restricted to Kshs. 205,255/=, payable to the Applicant's advocates' NCBA account, and discharged the 2nd Garnishee together with the Order Nisii issued on 24th March 2021. On costs, applying the NWCPAC case, the court held the Applicant should bear the garnishees' costs, pegged to Schedule VI paragraph 14(a) of the Advocates Remuneration (Amendment) Order 2014 and assessed at Kshs. 4,200/-. The application was allowed save for costs. Delivered virtually at Machakos on 14th October 2021 by Christine Ochieng, Judge.

Key legal issues

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01

Whether a Garnishee Order Absolute should issue

Holding

Order Absolute issued against the 1st Garnishee restricted to the admitted balance of Kshs. 205,255/=; the 2nd Garnishee discharged as no funds were held

Reasoning

The court had issued an unsatisfied decree of Kshs. 1,766,456 in the applicant's favour. Order 23 Rule 1(1) permits attachment of debts owed to the judgment debtor by a third party. The 1st Garnishee admitted holding Kshs. 205,255.45 which it had preserved, so the order was granted only to that extent. The 2nd Garnishee held only Kshs. 21.65 and was discharged, with the Order Nisii of 24th March 2021 set aside.

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02

Who should bear the costs of the garnishee proceedings

Holding

Costs borne by the Applicant but pegged to the Advocates Remuneration (Amendment) Order 2014, Schedule VI paragraph 14(a), at Kshs. 4,200/-

Reasoning

The court associated itself with the NWCPAC case and held that since neither Garnishee opposed the proceedings, costs should follow the standard tariff under Schedule VI paragraph 14(a) of the Advocates Remuneration (Amendment) Order 2014 rather than being visited on the Garnishees. The applicant himself had proposed this pegging and assessment of Kshs. 4,200/- in his submissions.

Legal principles established

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  • Garnishee proceedings are available to a decree holder to reach a debt due to the judgment debtor from the garnishee sufficient to satisfy a decree
  • A garnishee's liability is limited to the balance it actually holds for the judgment debtor

Court orders

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  1. 1.Garnishee Order Absolute issued against the 1st Garnishee (Cooperative Bank of Kenya Ltd) restricted to Kshs. 205,255/= to be paid to the Applicant's advocates' bank account (COL LAW ADVOCATES LLP CLIENT AC, NCBA, A/C 3690110024, Kenyatta Avenue Branch)
  2. 2.The 2nd Garnishee (Equity Bank Kenya Ltd) discharged from the proceedings including the Garnishee Order Nisii issued on 24th March, 2021
  3. 3.Costs of the garnishee proceedings borne by the Applicant, pegged to the Advocates Remuneration (Amendment) Order 2014, Schedule VI paragraph 14(a), assessed at Kshs. 4,200/-
  4. 4.Application dated 12th March 2021 allowed save for the issue of costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 23 Rule 1, 2 & 4 (and Rule 1(1))
  • Civil Procedure ActSections 3A and 63(e)
  • Advocates Remuneration (Amendment) Order 2014Schedule VI paragraph 14(a)

Cases cited (1)

  • Board of Trustees, National Water Conservation & Pipeline Corporation (NWCPAC) Staff Superannuation Scheme V Mombasa Water Supply & Sanitation Co. Ltd
    (2017) eKLR
Jurisdiction invoked
Order 23 Rule 1, 2 & 4 of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maurice Oduor Nyakone v Diamond Property Merchants Ltd; Co-operative Bank of Kenya Ltd & another (Garnishee) [2021] KEELC 1527 (KLR)", Case Analysis (2021). Notice of Motion dated 12th March, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1527/eng@2021-10-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.