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High CourtPartially AllowedNot stated in judgment (garnishee application dated 1st July 2020)

Kinyanjui Theuri (Decree Holder) v Garnishee (Jamii Bora Bank) & Judgment Debtor

High Court of Kenya
17 December 2020
979 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

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Once a court orders funds attached, the bank must stop all payments; releasing money after service is a breach of court order.

What this practically means

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Executive summary

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This ruling by the High Court at Nakuru (Rachel Ngetich J) determined a garnishee application dated 1st July 2020 in consolidated suits in which judgment had been entered for the decree holder against the judgment debtor for kshs 3,242,350. A Decree Nisi had been issued on 2nd July 2020 against Jamii Bora Bank, attaching the judgment debtor's account no. 5071679423001. The applicant alleged that after service of the Order Nisi on 3rd July 2020, the bank released kshs 1,300,000 the same day and further sums of kshs 2,000,000 and kshs 150,000 on 8th and 9th July 2020, in collusion with the judgment debtor, and sought that the credit deposits be applied to the decree and that the bank be punished for contempt. The garnishee acknowledged a credit balance of kshs 553,209.85 as at 14th July 2020, claimed service occurred at 4.30 p.m. after the first transfer, and asserted the later transfers were automatic overdraft repayments not subject to attachment. The court confirmed from the account statement that the balance at close of 2nd July 2020 was kshs 1,407,346.85, held that the Order Nisi prohibited any release of funds until discharged or applied to the decree, and found the transfers on 8th and 9th July - five and six days after service - established disobedience regardless of the timing of the first transfer. The court declared the garnishee in contempt, made the Order Nisi absolute, and ordered the garnishee to release the decretal amount of kshs 3,242,350 to the applicants. No costs order was recorded.

Key legal issues

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01

Whether funds paid out after service of the Order Nisi remained attachable

Holding

Yes; payments made 5 and 6 days after service breached the Order Nisi even if the first transfer may have preceded service

Reasoning

The court perused the account statement and confirmed a credit balance of kshs 1,407,346.85 at close of 2nd July 2020. Although the garnishee claimed service at 4.30 p.m. on 3rd July 2020 with no documentary proof, transfers of kshs 2,000,000 and kshs 150,000 on 8th and 9th July were indisputably after service, so the order was breached.

p. 2
02

Whether the overdraft arrangement with the judgment debtor exempted the transferred funds from attachment

Holding

No; the arrangement did not exempt the funds from the attachment

Reasoning

The garnishee argued the 8th and 9th July transfers were automatic payments under an overdraft arrangement with the judgment debtor and thus not subject to attachment. The court rejected this, holding the Order Nisi prohibited release of money from the account until discharged or applied to the decree, and found the bank in disobedience.

p. 2

Legal principles established

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  • The effect of an Order Nisi is to prohibit the garnishee from releasing money from the attached account until the order is discharged or applied to satisfy the decree if made absolute
  • A garnishee that releases attached funds after service of an Order Nisi is in contempt of the court order

Court orders

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  1. 1.Finding that the Garnishee acted in disobedience of the Court Order issued on 2nd July 2020
  2. 2.The Order Nisi is ordered absolute
  3. 3.The Garnishee to release the decretal amount of kshs 3,242,350 to the applicants
Jurisdiction invoked
Inherent garnishee jurisdiction under Civil Procedure Act and Rules (garnishee proceedings after entry of judgment); not expressly cited in the ruling

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, "Kinyanjui Theuri (Decree Holder) v Garnishee (Jamii Bora Bank) & Judgment Debtor", Case Analysis (2020). Not stated in judgment (garnishee application dated 1st July 2020). Source: 

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