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High CourtDismissedNotice of motion dated 16.04.19 (garnishee proceedings)
Robert Mauwa (suing as Advocate for the Decree Holder) v Music Publishers Association of Kenya & Bernard Kioko t/a Bernsoft Group Ltd & 2 Garnishees (Equity Bank & Commercial Bank of Africa)
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·~2 min to read original · ~4 min briefThe bottom line
#Banks won't be forced to pay a large debt if the funds they hold are insufficient to cover the full amount.
What this practically means
#Executive summary
#The applicant, an advocate holding a decree of Kshs. 12,932,119.56 plus interest at 14% from 20.09.2018 (unsatisfied balance Kshs. 13,838,242.66) against Music Publishers Association of Kenya and Bernard Kioko t/a Bernsoft Group Ltd, moved the court by notice of motion dated 16.04.2019 under Sections 1A, 3A and 3B of the Civil Procedure Act and Order 23 Rules 1, 4 and 10 of the Civil Procedure Rules for garnishee orders nisi against Equity Bank (1st Garnishee) and Commercial Bank of Africa (2nd Garnishee), attaching all monies held in accounts in the name of the judgment debtors. The supporting affidavit of Robert Mauwa annexed a cheque drawn on the 2nd Judgment Debtor's account and a statement showing a balance of Kshs. 3,108.15 with the 1st Garnishee as at 31.12.2017. The 2nd Garnishee opposed through a replying affidavit of Fidelis O. Momo, showing a closing balance of Kshs. 6,021.53 as at 01.05.2019, insufficient to satisfy the decree. The 1st Garnishee, though served, filed no response and sent no representative. The court outlined the nature of garnishee proceedings, noting that a garnishee order can only issue where the law recognises a debt and that a notice to a garnishee binds the funds in its hands. Finding the debt and the garnishees' custody of funds undisputed but the balances demonstrably insufficient to satisfy the decree and the costs of the proceedings, the court held that granting the orders would be an exercise in futility. The motion dated 16.04.2019 was disallowed with no order as to costs.
Key legal issues
#01
Whether garnishee orders nisi should issue against the two banks
Holding
Application disallowed because the balances held by the garnishees were insufficient to satisfy the decree
Reasoning
The court found no dispute that the judgment debtors were indebted to the applicant and that the garnishees held funds on their behalf. However, the evidence showed the account balances (Kshs. 3,108.15 with Equity Bank as at 31.12.17 and Kshs. 6,021.53 with CBA as at 01.05.2019) fell far short of the unsatisfied decretal sum of Kshs. 13,838,242.66 plus interest, making the orders futile. The 1st Garnishee did not respond despite service.
p. 2
Legal principles established
#- Garnishee proceedings involve a third party holding funds or property of a judgment debtor being called upon to honour the judgment creditor's claim; a garnishee order can only issue where the law recognises a debt, and a notice to the garnishee binds the funds in its hands
- A garnishee order will not issue where the funds held by the garnishee are insufficient to satisfy the decree and the costs of the proceedings
Court orders
#- 1.The notice of motion dated 16.04.19 is disallowed with no order as to costs
- Jurisdiction invoked
- Sections 1A, 3A and 3B of the Civil Procedure Act Cap 21 and Order 23 Rules 1, 4 and 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Mauwa (suing as Advocate for the Decree Holder) v Music Publishers Association of Kenya & Bernard Kioko t/a Bernsoft Group Ltd & 2 Garnishees (Equity Bank & Commercial Bank of Africa)", Case Analysis (2019). Notice of motion dated 16.04.19 (garnishee proceedings). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.