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ELRCDismissedCause No 12 of 2020· [2024] KEELRC 1388 (KLR)

Ogechi v LTI Kisii Safari Inn Ltd t/a Kaskazi Beach Hotel; Barclays Bank aka Absa Bank (Garnishee) (Cause 12 of 2020) [2024] KEELRC 1388 (KLR)

Employment and Labour Relations Court (character inferred from party designations 'Claimant/Decree Holder'; court name not printed in the excerpt)
22 February 2024
ANAGNES KITIKU NZEI
1,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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On 15/6/2023 the Court issued a garnishee order absolute attaching Kshs. 4,064,000 held to the credit of the Respondent/Judgment Debtor in account No. 2024584634 at Barclays Bank (aka Absa Bank) Limited, Diani Branch, together with interest at 14% per annum from 19th May 2022, payable to the Claimant/Decree Holder. The Garnishee then moved the Court by Notice of Motion dated 23/6/2023 seeking stay of execution of that order pending its intended appeal, contending that it had filed a replying affidavit on 30/5/2023 asserting a proprietary interest in the credit balance, that its liability was limited to what it held for the judgment debtor, and that it would suffer substantial loss and render its appeal nugatory if stay was not granted. The Claimant/Decree Holder opposed, showing that the Garnishee was served with the application and order nisi on 11/4/2023 but never appeared, that its replying affidavit was filed after the ruling date was reserved on 4/5/2023 and without leave, and that the Garnishee had continued to allow transactions in the account despite the order nisi. The Court held that a document filed after reservation of a ruling date, without leave, is of no consequence and cannot be considered; that the Garnishee never disputed service and confirmed the funds were held in credit for the judgment debtor; and that the Garnishee demonstrated neither a proprietary interest in the funds nor substantial loss. The Notice of Motion dated 23/6/2023 was dismissed with costs to the Claimant/Decree Holder.

Key legal issues

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01

Effect of filing a pleading after reservation of a ruling date

Holding

The replying affidavit of 30/5/2023 filed after the ruling date was reserved on 4/5/2023 and without leave was of no consequence and could not be considered.

Reasoning

Parties are obligated to file documents timeously. Once a ruling date is reserved, the file goes into the custody of the presiding judicial officer, who cannot reasonably be expected to be aware of documents lodged in the registry or e-filing portal thereafter. Allowing such filings would open a floodgate of illegality and injustice, and deprive the other party of the opportunity to respond.

p. 3
02

Requirements for stay of execution pending appeal

Holding

The Garnishee failed to demonstrate substantial loss, that the appeal would be rendered nugatory, or any proprietary interest in the attached funds.

Reasoning

The Garnishee itself confirmed that the funds in the subject account are held in credit for the judgment debtor. Having not opposed the decree-holder's application and having filed its replying affidavit out of time without leave, the Garnishee could not re-litigate its alleged proprietary interest at the stay stage. The wheels of justice had already moved on regarding the application.

p. 4
03

Undisputed service and the Garnishee's non-participation

Holding

Service of the application, the order nisi and subsequent notices was never disputed by the Garnishee, which did not file any affidavit disputing the decree-holder's facts.

Reasoning

The Garnishee was served with the application and order nisi on 11/4/2023, did not attend court on 20/4/2023 or 4/5/2023, and did not deny service or controvert the decree-holder's replying affidavit by any further affidavit or leave application. Its assertion that it had filed a replying affidavit did not cure its non-participation before the ruling was reserved.

p. 3

Legal principles established

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  • A document filed after the Court has reserved a ruling or judgment date, unless filed with the Court's leave or pursuant to the Court's order, is of no consequence and cannot be considered by the Court.
  • Once a ruling date is reserved, the court file is in the custody of the presiding judicial officer who cannot be expected to be aware of documents filed afterwards.

Court orders

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  1. 1.The Garnishee's Notice of Motion dated 23/6/2023 is dismissed
  2. 2.Costs of the application awarded to the Claimant/Decree Holder

Authorities

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Cases cited (1)

  • Safari Inns Ltd & 2 Others v Deutsche Investition-und Enwicklungsgellschaft (‘DEG’) & 2 Others
    [2011] eKLR, Civil Appeal No. 72 of 2008 Nairobi
Jurisdiction invoked
Inherent execution and stay jurisdiction of the first-instance court (no constitutional or statutory provision expressly cited in the judgment)

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, "Ogechi v LTI Kisii Safari Inn Ltd t/a Kaskazi Beach Hotel; Barclays Bank aka Absa Bank (Garnishee) (Cause 12 of 2020) [2024] KEELRC 1388 (KLR)", Case Analysis (2024). Cause No 12 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1388/eng@2024-02-22

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