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ELCPartially AllowedELC Case No. 389 of 2015 (Garnishee Application dated 13th July, 2023)· [2024] KEELC 4666 (KLR)

Syke Enterprise Limited & another v Moi Teaching and Referral Hospital Staff Pension Scheme & 4 others; National Bank of Kenya & another (Garnishee) (Environment & Land Case 389 of 2015 & 30 of 2016 (Consolidated)) [2024] KEELC 4666 (KLR)

Environment and Land Court
12 June 2024
5,646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court froze bank accounts to recover a Kshs.19.6 million debt, ruling that guarantors and the debtor's trading-name company are fully liable.

What this practically means

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Executive summary

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The Decree Holder, Kap Koilel Estates Limited, moved the court by Notice of Motion dated 13th July 2023 seeking garnishee orders nisi, later to be made absolute, against National Bank of Kenya and Equity Bank Kenya, attaching monies held in accounts of the 2nd and 4th Defendants/Judgment Debtors to satisfy a decree of Kshs.19,615,000/- issued on 22nd March 2023. The 1st Garnishee disclosed two accounts with balances of Kshs.444.32 and Kshs.2,641,073.20 and did not oppose release less its costs of Kshs.100,000/-. The Judgment Debtor opposed, contending the application was res judicata, offended Order 22 Rule 7(2) and Order 23, and that companies are separate from their directors. The court framed two issues: whether the 2nd, 3rd and 4th Defendants could be liable for a judgment against the Judgment Debtor, and whether the conditions for a garnishee order absolute were met. The court held that although the 2nd and 3rd Defendants were not liable as directors, they signed the lease as guarantors, whose guarantee covered decretal liabilities; and that Hotel Horizon Limited was not separate from Syke Enterprises Limited. The judgment debtor was held to have no locus in garnishee proceedings. The 2nd Garnishee, having filed no response, was deemed to have acknowledged holding accounts for the 4th Defendant. The court made the order nisi absolute against both garnishees, allowed garnishee costs from the attached sums, and awarded the Decree Holder its costs of the garnishee proceedings from the accounts.

Key legal issues

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01

Whether directors who signed a guarantee under a lease are liable for the decretal sum against the tenant company

Holding

The 2nd and 3rd Defendants, though not liable as directors, voluntarily guaranteed the tenant's obligations under the lease; the guarantee of 'non-payment of rent or other breaches' covers the decretal liability and they remain liable as the principal obligation is undischarged.

Reasoning

The lease dated 6th August 2013 was signed by the 2nd and 3rd Defendants both as directors and separately as guarantors. Clause 12(b) guarantees indemnity for non-payment of rent and other breaches. Halsbury's Laws establishes that a judgment against the principal debtor may bind a guarantor if the guarantee on its true construction covers the liability arising from the judgment itself. The principal obligation (rent) was never discharged, so the guarantors remain liable.

p. 7
02

Whether Hotel Horizon Limited's accounts are attachable when judgment was against Syke Enterprises Limited

Holding

Yes - the court found Syke Enterprises and Hotel Horizon Limited to be one and the same entity, the latter being the trading name of the former's hotel business; any alleged formal separation was false.

Reasoning

Clause 12 of the lease allowed the tenant to change the business name with landlord consent. The Decree Holder received rent cheques from Hotel Horizon Ltd from July 2013 to January 2016, and Jacqueline C. Korir admitted being a director of both companies. An earlier ruling found the two entities were the same, and the judgment debtor produced no sub-tenancy lease to prove separation.

p. 7
03

Whether the conditions for a Garnishee Order Absolute were met

Holding

Yes. There was an unsatisfied decree, and both garnishees were shown to hold debts due to the judgment debtors; the 1st Garnishee admitted the balances, and the 2nd Garnishee, having neither appeared nor disputed the debt, was deemed to have acknowledged holding accounts for the 4th Defendant.

Reasoning

Order 23 Rule 1 requires an unsatisfied decree and a debt due from a garnishee within jurisdiction. The 1st Garnishee's Branch Manager disclosed balances and did not oppose release less its costs. The 2nd Garnishee was duly served but filed no response and did not deny holding accounts for the 4th Defendant; under Order 23 Rule 4 and the Invesco authority, non-appearance amounts to acknowledgement, justifying confirmation of the order nisi.

p. 9
04

Whether the application is res judicata given the ruling of 16th May 2016

Holding

No. The earlier ruling dealt with items seized in distress for rent and amendment of pleadings; the prayer for freezing of accounts was not determined therein.

Reasoning

The res judicata objection was raised by the 2nd Defendant, who has no audience in garnishee proceedings. In any event, the 16th May 2016 ruling concerned distress for rent and amendment of pleadings, and the freezing of accounts prayer was never dealt with, so the present application is not barred.

p. 10

Legal principles established

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  • A garnishee that fails to appear or file a response acknowledging or disputing the debt is deemed to have acknowledged that the judgment debtor holds accounts with it.
  • A guarantor may be liable to settle a decretal sum where the guarantee can be construed to cover the liability of the principal debtor arising from the judgment itself.
  • Judgment debtors have no locus to oppose garnishee proceedings, which are between the decree holder and the garnishee.

Court orders

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  1. 1.The Garnishee Order Nisi made on 17th July, 2023 is made absolute and execution issued against National Bank of Kenya Limited (1st Garnishee) directing it to pay the amount in Account No. 0102xxxxxxxxxx (Kshs.2,641,073.20 CR) or so much thereof towards satisfaction of the decree and costs of the garnishee proceedings
  2. 2.A Garnishee Order Absolute issued against the 2nd Garnishee Bank (Equity Bank Kenya) attaching all monies held in accounts to the credit of the Defendants/Judgment Debtors to answer the decree of Kshs.19,615,000/-
  3. 3.The Garnishees shall recover their costs from the sums in the said accounts
  4. 4.The Decree Holder shall recover the costs of these garnishee proceedings from the said accounts
Jurisdiction invoked
Order 23 of the Civil Procedure Rules; Section 38 of the Civil Procedure Act (execution of decrees)

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, "Syke Enterprise Limited & another v Moi Teaching and Referral Hospital Staff Pension Scheme & 4 others; National Bank of Kenya & another (Garnishee) (Environment & Land Case 389 of 2015 & 30 of 2016 (Consolidated)) [2024] KEELC 4666 (KLR)", Case Analysis (2024). ELC Case No. 389 of 2015 (Garnishee Application dated 13th July, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4666/eng@2024-06-12

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