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ELRCPartially AllowedNotice of Motion dated 7th January 2025 (Garnishee proceedings)· [2025] KEELRC 1095 (KLR)

Mwangi v President Football Kenya Federation; KCB Bank Kenya Limited (Garnishee) (Cause 299 of 2016) [2025] KEELRC 1095 (KLR)

Employment and Labour Relations Court
4 April 2025
2,049 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court stayed a six-year-old garnishee order against KCB because the judgment debtor's account had no funds, sparing the bank from paying a debt it never held money for.

What this practically means

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Executive summary

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The Garnishee, Kenya Commercial Bank, moved the court by Notice of Motion dated 7th January 2025 seeking to stay and set aside a Garnishee Order Absolute issued by Mbaru J on 24th April 2019 in favour of the Claimant/Decree Holder against the Respondent/Judgment Debtor's account. The application was brought under Order 22 Rule 22(1), Order 23 Rules 1(1), 5, 9 and 10 and Order 51 Rule 1 of the Civil Procedure Rules and sections 1A(1), 3A and 63(e) of the Civil Procedure Act. The Garnishee, through its Manager Purity Gathiru, averred that it only became aware of the proceedings on 19th December 2024 when served with the Order Absolute; that the application and Order Nisi of 14th March 2019 were not on the e-filing platform and there was no affidavit of service; and that the judgment debtor's account held no funds, the account having been closed in 2020. It feared contempt proceedings and attachment while unable to recover any monies paid from the decree holder. The Claimant/Decree Holder, though served, filed no response. The court applied the two-stage framework of garnishee proceedings from the Kenya Electricity Transmission Company case and the burden-shifting principle from Lesinko Njoroge & Gathogo Advocates, and the evidential approach in Ngaywa Ngigi & Kibet Advocates. Finding the bank statement dated 1st November 2020 showed no funds in account 1180172760, the court stayed the Garnishee Order Absolute of 24th April 2019 but did not set it aside or order a de novo hearing. Each party was ordered to meet their respective costs. The ruling was delivered virtually at Nakuru on 4th April 2025.

Key legal issues

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01

Whether the Garnishee Order Absolute of 24th April 2019 should be stayed or set aside

Holding

The order was stayed because the garnishee proved there were no funds in the judgment debtor's account capable of attachment

Reasoning

The court noted the garnishee was allegedly never served with the Order Nisi or the application leading to the Order Absolute, and only became aware of the matter when served on 19th December 2024. The garnishee exhibited a bank statement dated 1st November 2020 showing no funds in account 1180172760. Applying the two-stage garnishee framework and the burden-shifting principle, the court found the garnishee had proved insufficient funds, justifying a stay of execution rather than a de novo hearing.

p. 4
02

Burden of proof on a garnishee disputing indebtedness

Holding

Once the decree-holder alleges the garnishee's indebtedness, the burden shifts to the garnishee to provide robust, clear and persuasive evidence that the funds are not owed or payable

Reasoning

Relying on Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co, the court applied the principle that the judgment creditor presents allegations of the garnishee's indebtedness backed by credible evidence, after which the burden shifts to the garnishee. The garnishee discharged this burden by exhibiting the judgment debtor's account statement showing a nil balance and that the account was closed in 2020.

p. 4

Legal principles established

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  • Garnishee proceedings have two stages: an ex parte stage (order nisi) and a show-cause stage (order absolute), at which the garnishee becomes liable only if it holds funds to the credit of the judgment debtor
  • Where a garnishee tenders credible evidence, such as an account statement, showing no funds held to the credit of the judgment debtor, the decree-holder's application fails

Court orders

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  1. 1.Stay of the Garnishee Order Absolute issued on 24th April 2019
  2. 2.Each party to meet their respective costs
Jurisdiction invoked
Order 22 Rule 22(1), Order 23 Rules 1(1), 5, 9 and 10, Order 51 Rule 1 of the Civil Procedure Rules; sections 1A(1), 3A and 63(e) of the Civil Procedure Act

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, "Mwangi v President Football Kenya Federation; KCB Bank Kenya Limited (Garnishee) (Cause 299 of 2016) [2025] KEELRC 1095 (KLR)", Case Analysis (2025). Notice of Motion dated 7th January 2025 (Garnishee proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1095/eng@2025-04-04

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