Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 12 of 2020· [2024] KEELRC 1378 (KLR)

Ogechi v Lti Kisii Safari Inn Ltd t/a Kaskazi Beach Hotel; Barclays Bank a.k.a. Absa Bank Ltd (Garnishee) (Cause 12 of 2020) [2024] KEELRC 1378 (KLR)

Employment and Labour Relations Court
22 February 2024
ANAgnes Kitiku Nzei
1,030 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to stop garnishee execution because the company failed to prove the two names were different entities, offer security, or show substantial loss.

What this practically means

#

Executive summary

#
This ruling by the Employment and Labour Relations Court at Mombasa determined a Notice of Motion dated 22nd June 2023 by the Respondent/Applicant (the judgment debtor) seeking a temporary stay of execution of a ruling and orders made on 15th June 2023 (a garnishee order) pending an intended appeal. The application, brought under Sections 1A, 1B and 3A of the Civil Procedure Act, was premised on an affidavit of Dr. Charles Gekonde Otara asserting that the garnishee order was made against LTI Kisii Safari Inns Limited while the respondent was Kisii Safari Inns Limited, a distinct entity never party to the proceedings. The Claimant/Decree Holder opposed, exhibiting a Certificate of Change of Name dated 3rd May 1991 and a Court of Appeal decision confirming that the two names referred to the same company, and a CR-12 showing Dr. Otara as a director. The court found the two names referred to one and the same company, that the judgment debtor had used the names interchangeably, and that a reasonable measure of apparent dishonesty had been demonstrated, noting that deliberate misleading of a court on oath bears criminal culpability. The court further found the debtor had neither furnished security for due performance of the decree nor demonstrated substantial loss, as required by Order 42 Rule 6(2). The application was dismissed with costs.

Key legal issues

#
01

Whether LTI Kisii Safari Inns Limited and Kisii Safari Inns Limited are distinct entities

Holding

They are one and the same company, differing only by a change of name, and the garnishee order properly attaches the judgment debtor's funds

Reasoning

The decree holder exhibited a Certificate of Change of Name dated 3rd May 1991 and a Court of Appeal decision acknowledging the name change. The judgment debtor produced no separate certificates of incorporation to prove two distinct companies and had used the two names interchangeably. The garnishee bank account was in the name Kisii Safari Inns, the name the debtor changed to.

p. 2
02

Whether the conditions for stay of execution pending appeal were met

Holding

No: no security was offered and no substantial loss was demonstrated, so the application failed

Reasoning

The court held its discretion is constrained by Order 42 Rule 6(2). The judgment debtor neither gave nor committed to furnishing security for due performance of the decree, nor demonstrated it would suffer substantial loss if the orders of 15th June 2023 were executed. The application therefore had to be dismissed.

p. 3

Legal principles established

#
  • The discretion to grant a stay of execution pending appeal is fettered by the conditions in Order 42 Rule 6(2), including security for due performance and demonstration of substantial loss

Court orders

#
  1. 1.The judgment debtor's application dated 22/6/2023 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (1)

  • LTI Safari Inns Ltd & 2 Others vs. Deutsche Investitions-Und Enwicklungsgellschaft ('Deg') & 2 Others
    [2011] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6(2) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ogechi v Lti Kisii Safari Inn Ltd t/a Kaskazi Beach Hotel; Barclays Bank a.k.a. Absa Bank Ltd (Garnishee) (Cause 12 of 2020) [2024] KEELRC 1378 (KLR)", Case Analysis (2024). Cause No 12 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1378/eng@2024-02-22

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