Nelson Othoo v Kenya Union of Water and Sewerage Employees & Co-operative Bank of Kenya Limited (Garnishee)

standing order for current salaries and allowances on the 10th day of each consecutive month without interruption. B. THAT the Garnishee, CO-OPERATIVE BANK OF KENYA LIMITED, do appear before this Honorable Court to show cause why it should not pay to the Claimant/Decree Holder the said sum of Kshs. 6,146,564.49 due from the Respondent/Judgment Debtor C. THAT upon the appearance of the Garnishee, or in default of such appearance, the Garnishee Order Nisi issued herein be made ABSOLUTE and the Garnishee, CO-OPERATIVE BANK OF KENYA LIMITED, be ordered and compelled to pay directly to the Claimant/Decree Holder the sum of Kshs. 6,146,564.49 in satisfaction of the Decree dated 11th April 2024 D. THAT Summons do issue for the oral examination of the Respondent’s national principals, namely ELIJAH OTIENO AWACH (General Secretary), JARED NYAWANDA (National Treasurer), and JOHN RANDA ADIE (National Chairman), to explain the continuous siphoning of union funds in defiance of this Court's Decree. E. THAT the costs of this application be provided for. Grounds of the application 2. THAT on 11th April 2024, this Court recorded a valid Consent Decree ordering the Respondent to pay salary arrears and continuous benefits to the Decree Holder. 3. THAT despite being reinstated on 16th March 2026, which retroactively restored all its legal liabilities under Section 29 of the Labour Relations Act, the Respondent has willfully refused to satisfy the decree. 4. THAT the total outstanding claim has legally accumulated to Kshs. 6,146,564.49 inclusive of statutory interest and continuous monthly salary arrears as of 31st July 2026. RULING IN GARNISHEE APPL.JR N0.027 OF 2023 Page 2|8

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5. THAT the Respondent maintains an active operational bank account, Account No. 01120201219200, at Co-operative Bank of Kenya Limited (Buru Buru Branch), which is regularly funded but deliberately diverted away from paying the Decree Holder. 6. THAT the Decree Holder's running monthly salary and allowances are currently processed from the said account by the Garnishee Bank through a pre-existing monthly standing order executed on the 10th day of each month. 7. THAT it is meet and just that the said monthly standing order be structurally protected from the attachment to prevent total stagnation of the Decree Holder's livelihood while recovering the historical debt. 8. THAT there is an imminent threat that the Respondent's national principals will completely empty the bank account during the August Recess, leaving the Decree Holder with an uncollectible, paper decree. 9. The applicant filed his affidavit of even date in support of the application. 10. The court, ex parte, on the 3rd August 2026 issued an order of Garnishee Nisi as follows: ‘In the interim, the Garnishee Co-operative Bank of Kenya Limited shall preserve monies in account No. 01120201219200 held at the Buru Buru branch for the sum of Kshs 6,146,564.49. ‘ 11. The court further ordered the garnishee bank to respond to the application pursuant to Order 23 (1) of the Civil Procedure Rules. The garnishee responded in 7 days by filing an affidavit dated 7 th August 2026 by Jackson Oire that – ‘it is within my knowledge that the account balance held in RULING IN GARNISHEE APPL.JR N0.027 OF 2023 Page 3|8

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the account as per the account statement extracted on 6th August, 2026 is Kshs. 1, 334.88/-. (Annexed herewith and marked "JO-1" is a copy of the account statement as of 6th August, 2026.)’ In essence, it denied that there were funds in the account to satisfy the decree. 12. On 22nd September 2026, the court found the garnishee's response unsatisfactory and ordered the filing of current bank statement in court to establish the actual funds held by the judgment debtor. 13. The garnishee filed a response and, in a further affidavit of Joseph Shiundu dated 30th September 2026, filed the bank statement of said account no. 01120201219200 held at Buru Buru branch and stated that it held in the account of the judgment debtor the sum of Kshs. 449,119.88, which could partially settle the decretal sum of Kshs. 6,146,564.49. The counsel for the Garnishee asked for Ksh. 15,000 as the garnishee costs. 14. The respondent filed a replying affidavit sworn by Elijah Awach, and the court noted that it was not disputed that the decretal sum had not been satisfied, which was the only relevant response to the instant application. The judgment debtor does not deny the existence of the decree or its nonsatisfaction. The judgment debtor's counsel submitted that there cannot be garnishee absolute for part performance of the decree and the court ought not to issue the order of garnishee absolute. 15. The relevant procedural law is Order 23 of the Civil Procedure Rules, to wit‘Order 23, rule 1. Order for the attachment of debts [Order 23, rule 1] (1)A court may, upon the ex parte application of a decree-holder, and either before or after an oral examination of the judgment-debtor, and upon affidavit by the decree-holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what RULING IN GARNISHEE APPL.JR N0.027 OF 2023 Page 4|8

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amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree- holder the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid.(2)At least seven days before the day of hearing the order nisi shall be served on the garnishee, and, unless otherwise ordered, on the judgment-debtor.’ 16. The respondent contended that since the money in the garnished account is not enough to settle the entire debt, the garnishee absolute cannot be issued. I find the key words in Order 23 Rule 1(above) to be – ‘stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings.’ 17. It is undisputed that the money held by the garnishee in its account no. 01120201219200 Buruburu branch belongs to the judgment debtor. The debt is not in dispute. The court finds it would be absurd to hold that, since the amount is insufficient to settle the entire debt, the order of garnishee absolute cannot issue on the available funds. That can never have been the law's intention, as it would lead to an absurd outcome. RULING IN GARNISHEE APPL.JR N0.027 OF 2023 Page 5|8

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18. Under the Civil Procedure Rules, this foregoing envisaged in Appendix A Form 18, which provides for Garnishee Order (Absolute) Where Garnishee owes less than Judgment-Debt. The court is guided in Form 18 as follows‘…It is ordered that the garnishee (after deducting therefrom....................... shillings for his costs of this application) do forthwith pay to the decree-holder .................... shillings the debt due from the garnishee to the judgment-debtor, and that in default thereof execution may issue for the same: It is ordered that the garnishee (after deducting therefrom....................... shillings for his costs of this application) do forthwith pay to the decree-holder .................... shillings the debt due from the garnishee to the judgment-debtor, and that in default thereof execution may issue for the same:’ 19. I find that the explicit form 18 under Appendix A to the Civil Procedure Rules confirms that a Garnishee Order Absolute is intended to cover cases where the garnishee holds less than the judgment debt. That is the position in the instant proceedings. The court was persuaded by the High Court's decision, which confirmed a Garnishee Nisi order absolute in similar circumstances; (Mulwa J) in Copitex Knitwear Mills Ltd v Kenya Knitting & Weaving Mills Ltd & 2 others (Civil Suit 1414 of 1998) [2026] KEHC 13298 (KLR) (Commercial and Tax) (1 September 2026) (Ruling), Neutral citation: [2026] KEHC 13298 (KLR), observed that, in execution, the applicant garnisheed the judgment debtor’s account held with Diamond Trust Bank. The Bank duly disclosed that it held Kshs. 2,435,787.80 to the judgment debtor’s credit. A Garnishee Order Absolute followed on 29th October 2025, directing payment of that sum to the Decree Holder, less the Bank’s costs. RULING IN GARNISHEE APPL.JR N0.027 OF 2023 Page 6|8

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20. Consequently, I find that Garnishee proceedings are an execution process; they are just one of the many forms available to the applicant until the decree is satisfied. I find that a Garnishee Absolute attaches whatever credit balance exists in the judgment debtor's account at the time the order nisi/absolute is served or made final, up to the total amount of the decree, plus accrued costs and interest, and the costs of the garnishee proceedings. If the account balance is less than the total judgment debt, the court orders the bank to pay over the available sum towards partial satisfaction of the decree. A bank garnishee is liable to pay only what it actually owes to the judgment debtor at the time of attachment. In this case, as per the bank statement, the garnishee is holding Kshs. 449,119.88, confirmed property of the judgment debtor. The money is available for attachment. The funds released under a Garnishee Absolute satisfy the decree only to the extent of the amount recovered. The order does not discharge the judgment debtor from paying the remaining balance. 21. Applying the foregoing, I order a garnishee order absolute for the amount held in the Co-operative Bank account no. 01120201219200 at the Buruburu branch, in respect of the judgment debtor, towards satisfaction of the decretal sum of Kshs. 6,146,564.49, less Kshs 15,000 awarded as garnishee costs. The applicant is self-represented and is awarded a similar amount of costs in the garnishee proceedings. DISPOSITION 22. The Garnishee Order Nisi of 3rd August 2026 is hereby made Absolute. It is ordered that the garnishee (after deducting therefrom Kshs. 15,000 for its costs of this application) do forthwith pay to the decree-holder/applicant, from all monies held by the judgment debtor with the garnishee bank in account no. 01120201219200, held at the Buruburu branch, towards satisfaction of the debt of Kshs. 6,146,564.49, and that, in default thereof, execution may issue for the same. RULING IN GARNISHEE APPL.JR N0.027 OF 2023 Page 7|8

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23. That the sum of Kshs.15,000 shillings, the costs of the decree-holder in this application, is hereby added to the amount of the decree and is retained out of the money recovered by the decree-holder under this order, in priority to the amount of the decree. 24. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 1 ST DAY OF OCTOBER, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicant/Decree holder – In person Garnishee – Ms Mulili Judgment Holder – Mr. Mageto RULING IN GARNISHEE APPL.JR N0.027 OF 2023 Page 8|8

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