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ELRCAllowedNot stated in the judgment extract· [2021] KEELRC 2409 (KLR)

National Union of Water and Sewerage Employees Union v Garissa Water & Company Limited; Garnishee First Community Bank Limited [2021] KEELRC 2409 (KLR)

Employment and Labour Relations Court
1 December 2021
1,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court froze a company's bank account to pay a union Kshs. 1.9 million, and the bank itself may now have to pay because it ignored the freeze.

What this practically means

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Executive summary

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The claimant union applied for a garnishee order nisi and absolute to attach the respondent's account No. 2976982901 at First Community Bank, Garissa Branch, to satisfy Ksh.1,932,000.00 said to be due under a consent order recorded on 14th February 2019, which required the respondent to pay Ksh.764,822 by instalments, continue deducting and remitting monthly union dues, and provided that default would attract execution. The claimant, through Elijah Otieno Awach, averred the respondent had defaulted and owed Ksh.1,932,000.00 as at July 2020. An Order Nisi issued on 28th August 2020. The garnishee filed a Replying Affidavit sworn by Claris Ajwang Ogombo which was undated and unstated as to place of commissioning. Applying section 5 of the Oaths and Statutory Declarations Act, the Court of Appeal decision in Toshike Construction and the Supreme Court decision in Gideon Sitelu Konchellah, the court held the affidavit had no probative value, leaving no reply to the motion. The garnishee argued orally that the account was overdrawn by Ksh.14,897,241 after an overdraft facility, leaving no funds to attach. The court was satisfied the garnishee and respondent were served on 2nd November 2020, found the garnishee had continued transacting on the attached account to the claimant's detriment, and declared the Order Nisi absolute, ordering payment of Ksh.1,932,000.00 from the attached deposits or, if the garnishee had dissipated funds after 2nd November 2020, from its own accounts until the decree was satisfied in full. The respondent was ordered to meet the costs.

Key legal issues

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01

Probative value of an undated Replying Affidavit

Holding

The undated Replying Affidavit lacking place of commissioning had no probative value; there was effectively no reply to the Notice of Motion.

Reasoning

Section 5 of the Oaths and Statutory Declarations Act requires the Commissioner for Oaths to state truly in the jurat the place and date the affidavit was taken. The Court of Appeal in Toshike Construction held omissions as to date, place and commissioner cannot vitiate an application, but the Supreme Court in Konchellah treated a defective Replying Affidavit as destroying the foundational pleading. Here the affidavit was entirely undated and unstated as to place, so it carried no evidential weight.

p. 2
02

Service of the Order Nisi and hearing notice

Holding

The court was satisfied both the respondent and the garnishee were served on 2nd November 2020, supported by an Affidavit of Service.

Reasoning

The court initially was not satisfied service had been effected and adjourned to allow proper service. An Affidavit of Service by Peter Muendo Keli confirmed that on 2nd November 2020 he served the garnishee at Garissa with the hearing notice, stamped as received the same date, and the respondent was served on the same date.

p. 3
03

Making the Order Nisi absolute despite the account being in debit

Holding

Despite service, the garnishee continued transacting on the attached account to the claimant's detriment; the Order Nisi was made absolute, with personal liability on the garnishee if funds had been moved away.

Reasoning

The garnishee contended the account was in the negative (–Ksh.14,897,241) after advancing an overdraft. The court found the garnishee had continued transactions with the respondent on the attached account after the Order Nisi, to the claimant's detriment, and accordingly made the order absolute, requiring payment from the garnishee's own accounts if it had dissipated amounts above the decree sum after 2nd November 2020.

p. 3

Legal principles established

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  • An affidavit must be dated and state the place it was sworn; errors and omissions as to date, place and commissioner are generally not fatal, but a wholly undated affidavit with no place of swearing has no probative value.
  • A garnishee served with an Order Nisi who allows continued transactions on the attached account to the judgment debtor's benefit may be personally liable to satisfy the decree from its own accounts.

Court orders

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  1. 1.The Order Nisi declared absolute
  2. 2.The claimant shall forthwith be paid Kshs. 1,932,000.00 from deposits held by the garnishee in the attached account No. 297698290 Garissa Branch to the credit of the respondent
  3. 3.Where the garnishee moved amounts over and above Kshs. 1,932,000.00 to the benefit of the respondent after 2nd November 2020 and there is no sufficient balance, payment shall be made from the garnishee's own account(s) to satisfy the decree until paid in full to the claimant's account 01120201219200 Co-operative Bank Buru Buru Branch Nairobi
  4. 4.The respondent shall meet the costs of these proceedings
Jurisdiction invoked
Enforcement of a decree/consent order of the same court through garnishee proceedings (order issued by this court on 14th February 2019)

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, "National Union of Water and Sewerage Employees Union v Garissa Water & Company Limited; Garnishee First Community Bank Limited [2021] KEELRC 2409 (KLR)", Case Analysis (2021). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2409/eng@2021-12-01

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