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ELRCDismissedNot stated in the judgment· [2023] KEELRC 2994 (KLR)

Kimonye v Kenya Meat Commission; Co-operative Bank Ltd (Athi River) (Garnishee) (Cause 465 of 2017) [2023] KEELRC 2994 (KLR)

Environment and Labour Relations placeholder - trial court (single judge, Nairobi)
23 November 2023
JGJacob Gakeri
2,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to let a judgment creditor seize a debtor's bank account because an appeal and stay application were still pending.

What this practically means

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Executive summary

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This ruling by Dr. Jacob Gakeri, Judge, determined a Decree-Holder's Ex parte Notice of Motion dated 15th September 2023 seeking to make absolute a Garnishee Order Nisi issued on 27th September 2023 against the Judgement-Debtor's account at Co-operative Bank, Athi River Branch, to satisfy a decretal sum of approximately Kshs.10,711,124.35 plus taxed costs of Kshs.802,208.31 arising from a judgment of 17th November 2021. The Garnishee confirmed a credit balance of Kshs.12,134,099.92 and raised no objection. The Judgement-Debtor, a State Corporation under the Kenya Meat Commission Act, opposed, citing a pending appeal and stay application before the Court of Appeal, a reference before the court, the hardship caused by the freezing of its main operations account, and an alleged right to be heard. The court framed a single issue: whether the application was merited. Applying Order 23 Rules 1 and 4 of the Civil Procedure Rules, 2010, and guided by Mativo J's decision in Mengich, the court acknowledged the Decree-Holder's entitlement to enjoy the fruits of judgment but held that, given the pending appeal, stay application and reference, exercising discretion in favour of the Decree-Holder would not facilitate just, efficient, expeditious and proportionate resolution. The court declined to make the Garnishee Order Nisi absolute and ordered each party to bear their own costs. The application was effectively dismissed.

Key legal issues

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01

Whether the Garnishee Order Nisi should be made absolute

Holding

No. Although the Garnishee did not dispute the debt and the decree was unsatisfied, the court declined to exercise its discretion in favour of the Decree-Holder because of the pending appeal, stay application and reference.

Reasoning

The court accepted the garnishee confirmed a sufficient credit balance and raised no objection, satisfying Order 23 Rules 1 and 4. However, noting the pending appeal and stay application at the Court of Appeal plus the Judgement-Debtor's reference, the court held that making the order absolute would not facilitate just, efficient, expeditious and proportionate resolution under Article 159(2)(d).

p. 5

Legal principles established

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  • Garnishee proceedings are a two-stage process: order nisi then order absolute
  • The order contemplated by Order 23 of the Civil Procedure Rules is discretionary and may be refused if inequitable, provided the discretion is exercised judicially

Court orders

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  1. 1.The Garnishee Order Nisi made on 27th September 2023 was not made absolute; the application to make it absolute was declined
  2. 2.Parties shall bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 23 Rules 1, 2, 3, 4
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Civil Procedure Rules, 2010Order 22 Rule 42
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 1B
  • Kenya Meat Commission ActNot specified

Cases cited (8)

  • Nyandoro & Co. Advocates v National Water Conservation and Pipeline Corporation; Kenya Commercial Bank Group Ltd (Garnishee)
    (2021) eKLR
  • Ngaywa Ngigi & Kibet Advocates v Invesco Assurance Co. Ltd; Diamond Trust Bank (Garnishee)
    (2020) eKLR
  • Tom Ojienda & Associates v National Land Commission; National Bank of Kenya & another (Garnishee)
    (2022) eKLR
  • Patel v E.A Handling Services Ltd
    (1974) EZ 75
  • Maina v Muriuki
    (1984) KLR 407
  • Richard Nchapi Leiyagu v IEBC & 2 others
    (2013) eKLR
  • Alphonse Mwendwa Nyalita v Caroline Wanyua Mwendwa & another
    (2021) eKLR
  • Mengich t/a Mengich & Co. Advocates & another v Joseph Mabwai & 10 others
    (2018) eKLR
Jurisdiction invoked
Order 23 Rules 1, 2, 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Kimonye v Kenya Meat Commission; Co-operative Bank Ltd (Athi River) (Garnishee) (Cause 465 of 2017) [2023] KEELRC 2994 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2994/eng@2023-11-23

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