Government of Makueni County & 2 others v Kavila; Kenya Commercial Bank Limited (Garnishee) (Environment and Land Petition 4 of 2017) [2025] KEELC 6186 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Who should bear the costs of the withdrawn garnishee application dated 5th October, 2023
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.
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.