Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment (Decree arising from claim against Explico Insurance Company Limited)· [2023] KEELRC 13 (KLR)

Muthee v Explico Insurance Company Ltd; Prime Bank Limited & another (Garnishee) (Cause 1463 of 2018) [2023] KEELRC 13 (KLR)

Employment and Labour Relations Court
12 January 2023
1,276 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court froze a debtor's Prime Bank account to pay a judgment debt, but refused to touch accounts already frozen by another court order.

What this practically means

#

Executive summary

#
This was a garnishee application by Notice of Motion dated July 7, 2022 brought by the Decree-holder, Geofirey Muriithi Muthee, seeking orders nisi and garnishee orders absolute against Prime Bank Limited and M. Oriental Bank Limited to attach the Judgement-debtor Explico Insurance Company Limited's accounts in satisfaction of a decree of Kshs.5,439,310.25 plus costs, evidenced by a certificate of taxation of June 29, 2022, which remained unsatisfied. The Decree-holder deponed that the accounts were active and sufficiently credited and that he was unaware of other attachable assets. M. Oriental Bank Limited, through a replying affidavit sworn by its Twala branch manager, opposed the application, showing that the accounts were already frozen by orders of Justice Okwany issued November 4, 2021 in HCCC E901 of 2021 (Sahi Rajeshwar Harbana Bal v Explico Insurance Company Limited), by orders in HC Insolvency Petition No. E030 of 2020, and by a KRA agency notice for Kshs.43,187,619, with other garnishee orders also freezing the same accounts in subordinate courts. Prime Bank Limited did not respond or object. No submissions were filed despite the court's directions of October 13, 2022. The court declined to grant prayers 3 and 5 against M. Oriental Bank because the account remained frozen by unvacated High Court orders, and issued no orders as to costs against that bank. It granted prayers 2 and 4, freezing the Judgement-debtor's Prime Bank account and making the garnishee order absolute, with the costs of the garnishee proceedings borne by the respondent. Judgment was delivered virtually at Nairobi on January 12, 2023.

Key legal issues

#
01

Whether garnishee orders could issue against M. Oriental Bank Limited

Holding

Refused because the accounts were subject to prior, subsisting and live High Court freezing orders in HCCC E901 of 2021 and an insolvency petition, and there was no evidence those orders had been vacated

Reasoning

The court relied on the uncontroverted replying affidavit of the branch manager of M. Oriental Bank Limited showing that the Judgement-debtor's accounts were already frozen by orders of Justice Okwany issued on November 4, 2021, and by orders in an insolvency petition, and further that a KRA agency notice was in place. Absent evidence that those orders had been vacated or set aside, attaching the same funds would conflict with subsisting orders of a court of co-ordinate jurisdiction.

p. 3
02

Whether garnishee orders could issue against Prime Bank Limited

Holding

Granted, as the garnishee raised no objection to the Order Nisi or the making of the order absolute

Reasoning

Prime Bank Limited, though not represented, filed no objection or replying affidavit contesting the attachment of the Judgement-debtor's accounts. The Decree-holder had established a decree and certificate of taxation for Kshs.5,439,310.25 plus costs, still unsatisfied. The court accordingly granted both the Order Nisi freezing the account and the Garnishee Order Absolute, with costs of the proceedings against the Judgement-debtor.

p. 3

Legal principles established

#
  • A garnishee order cannot be made against funds in an account already frozen by a subsisting order of a superior court that has not been vacated or set aside

Court orders

#
  1. 1.Refusal of garnishee orders against M. Oriental Bank Limited (prayers 3 and 5), with no orders as to costs in respect of that bank
  2. 2.Grant of prayer 2 - Order Nisi freezing operations on A/C No. xxxx held at Prime Bank Limited by the Judgement-debtor and any other account with that garnishee
  3. 3.Grant of prayer 4 - Garnishee Order Absolute attaching such sums or debts sufficient to answer the decree owing or accruing due from Prime Bank Limited to the Judgement-debtor, together with costs of the garnishee proceedings borne by the respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
Jurisdiction invoked
Original jurisdiction to execute a decree issued in this case; garnishee proceedings under the Civil Procedure Act (chapter 21)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muthee v Explico Insurance Company Ltd; Prime Bank Limited & another (Garnishee) (Cause 1463 of 2018) [2023] KEELRC 13 (KLR)", Case Analysis (2023). Not stated in the judgment (Decree arising from claim against Explico Insurance Company Limited). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/13/eng@2023-01-12

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