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ELCDismissedNot stated in the judgment· [2025] KEELC 6186 (KLR)

Government of Makueni County & 2 others v Kavila; Kenya Commercial Bank Limited (Garnishee) (Environment and Land Petition 4 of 2017) [2025] KEELC 6186 (KLR)

High Court of Kenya
25 September 2025
1,790 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed that withdrawing garnishee proceedings costs you money if you didn't check the debtor's bank balance first.

What this practically means

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Executive summary

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The Applicants, decree-holders in a matter in which decree had been entered in their favour on 28th November, 2019 and taxed at Kshs.672,985/= on 19th September, 2023, filed garnishee proceedings by Notice of Motion dated 5th October, 2023, and an order nisi issued on 9th October, 2023. The garnishee's replying affidavit sworn on 21st December, 2023 revealed that the Respondent's account had a nil balance. On 22nd January, 2024, the court allowed withdrawal of the garnishee application with costs to the garnishee. The Applicants then moved the court by Motion dated 1st August, 2024 under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules seeking review of that order so that the Respondent would bear the costs of the withdrawn garnishee application, arguing that the proceedings were necessitated by the Respondent's failure to satisfy the decree. The Respondent opposed, contending that garnishee proceedings subsist between the decree-holder and the garnishee and that he played no role in them. The garnishee likewise opposed, pointing out that the order of 22nd January, 2024 was explicit that the Applicants bear those costs. E. O. Obaga J held that garnishee proceedings were mainly between the Applicants and the garnishee; that the Applicants brought the garnishee to court without inquiring whether it held sufficient funds and themselves chose to withdraw; and that no sufficient ground existed to disturb the court's costs discretion. The application was also filed over six months after the order, which the court found to be unreasonable delay. The application was dismissed with costs to the garnishee, with no costs granted to the Respondent.

Key legal issues

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01

Whether the court should review its order of 22nd January, 2024 under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

Holding

The application for review was dismissed. The court held there was no sufficient reason to review its costs discretion and that the application was filed after an unreasonable delay of over six months.

Reasoning

The court restated the review grounds in Section 80 and Order 45 Rule 1, citing the Court of Appeal's Benjoh Amalgamated decision. It found that the original order allocating costs to the garnishee was a proper exercise of discretion since the Applicants brought the garnishee proceedings without confirming sufficient funds and then withdrew the application themselves. Delay of over six months further disentitled the Applicants.

p. 4
02

Who should bear the costs of the withdrawn garnishee application dated 5th October, 2023

Holding

The costs remained payable by the Applicants to the garnishee; the Respondent was not liable because garnishee proceedings were mainly between the decree-holders and the garnishee, and the Applicants chose to withdraw.

Reasoning

Relying on Order 23 Rule 1(2), the court noted that garnishee proceedings lie between the decree-holder and the garnishee, with the judgment-debtor served as of course. The Applicants initiated the proceedings without inquiring into the account balance and elected to withdraw when the nil balance was revealed, so the Respondent could not be saddled with those costs.

p. 4

Legal principles established

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  • A party seeking review of a costs order must show sufficient reason, and the court's discretion on costs at the time of withdrawal will not be disturbed absent such grounds.
  • An application for review must be made without unreasonable delay; a delay of over six months was held unreasonable on the facts.

Court orders

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  1. 1.The Notice of Motion dated 1st August, 2024 seeking review of the order of 22nd January, 2024 is dismissed with costs to the garnishee
  2. 2.No costs are granted to the Respondent
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010 (review jurisdiction)

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, "Government of Makueni County & 2 others v Kavila; Kenya Commercial Bank Limited (Garnishee) (Environment and Land Petition 4 of 2017) [2025] KEELC 6186 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6186/eng@2025-09-25

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