REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU (CORAM: CHERERE-J) JUDICIAL REVIEW MISC. CAUSE NO. 05 OF 2020 IN THE MATTER OF: APPLICATION BY INVESCO ASSURANCE COMPANY LIMITED FOR JUDICIAL REVIEW ORDERS OF CERTORARI, PROHIBITION AND MANDAMUS AND IN THE MATTER OF: IN THE MATTER OF THE HIGH COURT (ORGANIZATION AND ADMINISTRATION) ACT, 2015 AND IN THE MATTER OF: IN THE MATTER OF THE MAGISTRATE’S COURT ACT, 2015 AND IN THE MATTER OF: IN THE MATTER OF FAIR ADMINISTRATION ACTIONS ACT, 2015 AND IN THE MATTER OF: IN THE MATTER OF SAFARICOM PAYBILL NO. 980100 AND 980101 BETWEEN REPUBLIC.............................................................................................................APPLICANT AND THE CHIEF MAGISTRATE’S COURT HOMABAY LAW COURTS.........1st RESPONDENT THE CHIEF MAGISTRATE’S COURT KISUMU LAW COURTS...........2ND RESPONDENT AND OKONGÓ WANDAGO & CO. ADVOCATES..................................1 ST INTERESTED PARTY SAFARICOM LIMITED.....................................................................2 ND INTERESTED PARTY Exparte: INVESCO ASSURANCE COMPANY LIMITED RULING 1. By this Judicial Review Cause Petition and chamber summons both filed on 27 th January, 2020, the Applicant mainly challenges decree
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orders nisi and decree absolute issued in favour of the 1 st Interested Party garnisheeing Mpesa Safaricom Paybill No. 980100 and 980101 issued in various cases in Kisumu and Homabay Chief Magistrate’s Courts. 2. I have considered the submission by Mr. Kingara for the Applicant and Mr. Omondi for the 1 st Interested Party. 3. I have also considered the provisions of Section 34 of the Civil Procedure Act (Cap 21 Laws of Kenya) which deals with questions to be determined by court executing decree and it states as follows: (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. 4. Order 49 rule 7 (2) provides that: An appeal from a decision of the registrar under the Orders referred to in subrule (1) shall be to a judge in chambers. 5. From the foregoing, I am persuaded that the Applicant’s remedy if it is aggrieved by the garnishee orders lies in challenging them before the court executing the decree or by way of an appeal and not by filing a separate suit. 6. It is hereby ordered that: 1. This cause is struck out with costs to the 1 st Interested Party being the only party that defended the chamber summons dated 24th January, 2020 DATED AND DELIVERED IN KISUMU 13th THIS DAY OF February 2020 T. W. CHERERE JUDGE Read in open court in the presence ofCourt Assistant - Amondi/Okodoi For the Applicant - Mr. Kingara For the Respondents - Ms. Langát For the 1st Interested Party - Mr. Omondi For the 2nd Interested Party - N/A
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