AI-generated case brief

Case Brief · caselaw.co.ke

ELRCAllowedNotice of Motion dated July 19, 2022 (ELRC Mombasa)· [2023] KEELRC 63 (KLR)

Ogechi v Kisii Safari Inn Ltd t/a Kaskazi Beach Hotel (Cause 12 of 2020) [2023] KEELRC 63 (KLR)

Employment and Labour Relations Court

19 January 2023

ANAGNES KITIKU NZEI

1,041 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~4 min to read original · ~4 min brief

The bottom line

The Employment and Labour Relations Court in Mombasa allowed a judgment creditor to seize Kshs 4,064,000 plus interest directly from an employer's bank account.

What this practically means

Executive summary

This is a ruling of the Employment and Labour Relations Court at Mombasa by Agnes Kitiku Nzei J on a Notice of Motion dated July 19, 2022 by the Claimant/Decree Holder seeking a garnishee order absolute attaching Kshs 4,064,000, being a judgment sum with interest at 14% per annum awarded on May 19, 2022, held in the Respondent/Judgement Debtor's account No 4770860018 with NCBA Bank Kenya. A Garnishee Order Nisi had issued ex parte on July 20, 2022. The Judgement Debtor opposed the application through a replying affidavit of its director, Charles Gekonde Otara, contending that it had instructed advocates to apply to set aside the ex-parte judgment and asking that the garnishee application await that outcome. That setting-aside application, by a Notice of Motion dated October 4, 2022, was dismissed by a ruling delivered the same day as this ruling. The Garnishee Bank, through a replying affidavit of Jackson Nyaga, confirmed the account but exhibited a statement showing only Kshs 148,370.32 as at August 5, 2022, insufficient to satisfy the decree. Applying Rule 32 of the ELRC (Procedure) Rules 2016 and Order 23 Rule 2 of the Civil Procedure Rules, the court held bank deposits attachable and found the Garnishee had shown no cause against payment. The Notice of Motion was allowed: a garnishee order absolute issued, with liberty for further execution if funds are insufficient, and costs awarded to the Claimant against the Judgement Debtor.

Key legal issues

Whether a garnishee order nisi should be made absolute against the Judgement Debtor's bank account

Holding

Yes - the Garnishee, other than showing the account held insufficient funds (Kshs 148,370.32), failed to show cause why it should not pay the amount held to the Decree Holder; the Order Nisi was made absolute.

Reasoning

The Court had awarded the Claimant Kshs 4,064,000 on May 19, 2022 and a decree had issued. The Judgement Debtor did not deny holding the NCBA account, and the Garnishee confirmed its existence. The Garnishee only exhibited a statement showing a balance insufficient to satisfy the decree and gave no reason why it should not pay over the funds, entitling the Decree Holder to an order absolute.

p. 2

Whether the pending application to set aside the ex-parte judgment barred execution

Holding

No - the application to set aside was dismissed by a Ruling delivered the same day (January 19, 2023), clearing the way for the garnishee order absolute.

Reasoning

The Judgement Debtor's opposition rested on its intention to set aside the ex-parte judgment of May 19, 2022. That Notice of Motion dated October 4, 2022 was heard alongside the garnishee application and dismissed by a Ruling delivered on January 19, 2023. The Court therefore proceeded to allow the garnishee application.

p. 2

Legal principles established

Rules on execution of orders and decrees of the ELRC are enforceable in accordance with the Civil Procedure Rules, and a credit in a bank deposit account is attachable under Order 23 Rule 2.

Court orders

1.A Garnishee Order Absolute issued attaching Kshs 4,064,000 plus interest at 14% per annum from May 19, 2022 until payment in full, held to the credit of the Respondent/Judgement Debtor in account No 4770860018 NCBA Bank Kenya
2.The sum held in the said bank account, or so much thereof as may be sufficient to satisfy the decree, to be paid to the Claimant/Decree Holder and/or his Advocates by the Garnishee
3.The Claimant/Decree Holder at liberty to take out further execution proceedings in the event of insufficiency of funds in the attached account
4.Costs of the application to be paid by the Respondent/Judgement Debtor

Authorities

Legislation

Civil Procedure RulesOrder 51 Rule 1
Civil Procedure RulesOrder 23 Rules 1, 2, 3 and 10
Employment and Labour Relations Court (Procedure) Rules 2016Rule 32
Constitution of KenyaArticle 159(2)

Jurisdiction invoked: Order 23 Rules 1, 2, 3 and 10 and Order 51 Rule 1 of the Civil Procedure Rules; Rule 32 of the Employment and Labour Relations Court (Procedure) Rules 2016

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ogechi v Kisii Safari Inn Ltd t/a Kaskazi Beach Hotel (Cause 12 of 2020) [2023] KEELRC 63 (KLR)", Case Analysis (2023). Notice of Motion dated July 19, 2022 (ELRC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/63/eng@2023-01-19

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