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ELCPartially AllowedNot stated in the excerpt· [2024] KEELC 3359 (KLR)

Casucci v Bando Project (K) Limited; Kenya Commercial Bank Limited & another (Garnishee) (Environment & Land Case 232B of 2020) [2024] KEELC 3359 (KLR)

High Court of Kenya (not expressly named in the excerpt; presided over by a Judge sitting at Mombasa)
24 April 2024
2,050 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Mombasa court froze over Kshs 3.2 million in a judgment debtor's bank accounts, giving the debtor and banks a chance to explain why the money shouldn't go to the creditor.

What this practically means

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Executive summary

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This is a ruling on an ex parte notice of motion dated 6th December 2023 by the Decree Holder, Fatuma Kalthuma Casucci, brought under Order 51 Rule 1, Order 23 Rules 1, 2, 3 and 10 of the Civil Procedure Rules, 2010 and Article 159(2)(d) of the Constitution, seeking a garnishee order nisi attaching Kshs 3,247,926.67 held to the credit of the Judgment Debtor in accounts at Kenya Commercial Bank Limited, Mvita Branch and HFC Bank Limited, Rehani Branch, Mombasa, with interest at 12% per annum from 16th December 2020. The decree arose from a judgment of 23rd March 2023 awarding Kshs 2,900,000 with interest and costs, plus taxed party-and-party costs of Kshs 347,926.67 awarded on 27th September 2023. The court reviewed the legal framework of garnishee proceedings, drawing on Black's Law Dictionary, the English authority of Choice Investments Ltd v Jeromnimon (Denning M.R.), and Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation, explaining the two-stage process of order nisi and order absolute, and that a service of order nisi operates as an injunction freezing the debt. Finding the decree unsatisfied and that the attached letter and deposit slip confirmed the accounts belonged to the Judgment Debtor, Matheka J granted an order nisi attaching the decretal sum with interest, directed the Garnishees and Judgment Debtor to show cause why payment should not be made, and ordered costs of the application to be in the cause.

Key legal issues

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01

Requirements for a garnishee order nisi under Order 23 Rule 1 of the Civil Procedure Rules

Holding

The court may, on ex parte application supported by affidavit showing an unsatisfied decree and a third party indebted to the judgment debtor within jurisdiction, order attachment of the debts to answer the decree

Reasoning

The court perused the file and confirmed that judgment of 23rd March 2023 awarded Kshs 2,900,000 plus interest and costs; taxation on 27th September 2023 added Kshs 347,926.67, producing a decretal sum of Kshs 3,247,926.67 which remains unpaid. The Applicant attached a letter and deposit slip confirming the accounts belong to the judgment debtor. The statutory preconditions under Order 23 Rule 1 were therefore met and the application was found merited.

p. 4
02

Nature and two-stage process of garnishee proceedings

Holding

Garnishee proceedings involve two steps: an order nisi which attaches/freezes the debt, and an order absolute where no sufficient reason against payment appears

Reasoning

Relying on Choice Investments Ltd v Jeromnimon and Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation, the court explained that the order nisi operates as an injunction binding the debt in the garnishee's hands, and if no sufficient reason appears (such as the bank disputing indebtedness or unfairness to other creditors), the order is made absolute, giving the bank a good discharge on payment.

p. 3

Legal principles established

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  • Garnishee orders are premised on indebtedness; without indebtedness to the judgment debtor it would be unjust to order a third party to pay the judgment creditor
  • A garnishee order nisi operates as an injunction, freezing the debt in the hands of the bank until the order is made absolute or discharged

Court orders

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  1. 1.An Order Nisi issued attaching the sum of Kshs 3,247,926.67 being the decretal sum together with interest at 12% per annum from 16th December 2020 until payment in full, held to the credit of the Judgment Debtor in account number XXXXXXXXX at Kenya Commercial Bank Limited, Mvita Branch, Mombasa and account number XXXXXXXXX at HFC Bank Limited, Rehani Branch, Mombasa
  2. 2.The Garnishees and the Judgment Debtor to attend court to show cause why the Garnishees should not pay to the Decree Holder the decretal sum or so much thereof as may be sufficient to satisfy the said sum with interest
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 23 Rules 1, 2, 3, 4 and 10
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (5)

  • Nyandoro & Company Advocates vs National Water Conservation & Pipeline Corporation; Kenya Commercial Bank Group Limited (Garnishee)
    (2021) eKLR
  • Choice Investments Ltd vs. Jeromnimon (Midland Bank Ltd, Garnishee)
    (1981) 1 All ER 225
  • Pritchard v Westminster Bank Ltd
    [1969] 1 All ER 999, [1969] 1 WLR 547
  • Rainbow v Moorgate Properties Ltd
    [1975] 2 All ER 821, [1975] 1 WLR 788
  • Joachimson v Swiss Bank Corpn
    [1921] 3 KB 110
Jurisdiction invoked
Order 23 Rules 1, 3, 4 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 159(2)(d) of the Constitution of Kenya

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, "Casucci v Bando Project (K) Limited; Kenya Commercial Bank Limited & another (Garnishee) (Environment & Land Case 232B of 2020) [2024] KEELC 3359 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3359/eng@2024-04-24

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