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ELRCPartially Allowed· [2021] KEELRC 1491 (KLR)

Thierry Poussard v Bradley Limited; Ecobank Kenya Limited (Garnishee) [2021] KEELRC 1491 (KLR)

Employment and Labour Relations Court
29 March 2021
MMM. Mbaru
1,082 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 claimant, a decree-holder, applied by notice dated 25th February 2021 under Order 23 Rule 1 of the Civil Procedure Rules for a garnishee order nisi, and that it be made absolute, against monies held by Eco Bank Limited, Thika Branch, to the credit of the judgment-debtor Bradeley Limited. Judgment had been entered on 28th October 2019 for Ksh.22,200,000 plus costs and interest; a decree for Ksh.25,534,910 issued on 6th October 2020. Ordinary execution was impossible because the respondent had ceased operations in Kenya, closed its offices and had no known attachable assets; it had also allegedly transferred Ksh.44 million offshore pending a stay application. The garnishee, through the replying affidavit of Michael Muriira, assistant branch operations manager, disclosed three accounts: a USD account overdrawn by USD 272.09, a Kenya Shillings account holding Ksh.3,302,861.29 and a Euro account holding EUR 495.32, leaving an available balance of Ksh.3,321,092.82 after deduction of overdrawn amounts and Ksh.17,400 costs, which it was willing to release upon reconciliation within 7 days. The respondent attended but filed no response or submissions; only the claimant filed submissions, relying on Order 23 Rules 1 and 4 and two authorities. The court, being satisfied on the merits under Order 23, declared the Order Nisi absolute and ordered payment to the claimant of Kshs.3,321,109.82 from the three accounts upon reconciliation and lapse of 7 days, with the respondent to bear the costs. The full decretal sum could not be satisfied as the available funds fell far short of the decree.

Key legal issues

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Whether the garnishee order nisi should be made absolute against Eco Bank Limited

Holding

Yes, to the extent of the available balance. The court was satisfied on the merits that the judgment-debtor held accounts with the garnishee, and ordered the Order Nisi made absolute for the available sum of Kshs.3,321,109.82 less garnishee costs, payable after reconciliation and lapse of 7 days.

Reasoning

The claimant held a decree of Ksh.25,534,910 issued on 6th October 2020 which remained unsatisfied; ordinary execution was impossible as the respondent had ceased operations in Kenya. The garnishee confirmed by affidavit the balances in the judgment-debtor's three accounts, one overdrawn. Meeting the Order 23 requirements, the court attached the available credit only, and directed reconciliation and payment within 7 days, with costs to the respondent judgment-debtor.

p. 2

Legal principles established

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  • Under Order 23 Rule 1, a court may, on ex parte application of the decree-holder supported by affidavit showing an unsatisfied decree and a debt owed by a third person to the judgment-debtor, order that the debt be attached to answer the decree together with costs of the garnishee proceedings.

Court orders

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  1. 1.The Order Nisi is declared absolute
  2. 2.The claimant shall forthwith be paid from deposits held by the garnishee to the credit of the respondent, judgment-debtor, namely Kshs. 3,321,109.82 from accounts No.xxxx, xxxx and xxxx at Thika Branch, upon undertaking a reconciliation and upon the lapse of 7 days from the date of the order
  3. 3.The respondent shall meet the costs of these proceedings
Jurisdiction invoked
Order 23 Rule 1 of the Civil Procedure Rules (garnishee proceedings in execution of a decree issued by this court)

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, "Thierry Poussard v Bradley Limited; Ecobank Kenya Limited (Garnishee) [2021] KEELRC 1491 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1491/eng@2021-03-29

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