Trident Insurance Company v Anthony Musyoki Mwangi

3. The Applicant holds that the Respondent operates an account with Safaricom PLC, being Paybill No. 985850 which is held by the Garnishee and has funds to satisfy the Judgment. The Applicant has deponed that it will be in the interest of justice that the decretal sum of Kshs. 93,590/= as well as accrued interest and costs be attached from the said account. 4. The 2nd Garnishee filed Replying Affidavit which was sworn by Stella Mutindi its Senior Merchant officer, on 27th June, 2025 It confirms that it is required to attach monies in Paybill No. 985850 in respect to the party and party bill of costs for the sum of Kshs. 93,590.00 as per the Certificate of Taxation dated 3rd June, 2025. It confirms that indeed the Respondent/Judgment debtor operates the Pay Bill No. 985850 which has a sum of Kshs. 1,772,478.89 which is sufficient to satisfy the decretal sum. The 2nd Garnishee confirms that it is ready, able and willing to remit the said decretal sum and the costs of the 2nd Garnishee which the court may award and for the garnishee to be discharged from the proceedings upon determination. Analysis and Determination 5. Having listened to the oral submissions by counsel for the Applicant and I have read through the grounds in support of the application in the Supporting Affidavit filed by the Applicant alongside the Replying Affidavit of the 2nd Garnishee the court finds that the main issue for determination is whether the application has merits to warrant the orders sought. 6. Given that the Respondent/Judgment Debtor has not filed any response to the application and the 2nd Garnishee not being opposed to settling the decretal sum owing to the Applicant, the fact that the Respondent’s Paybill Number 985850 held by them has sufficient funds, the Court proceeds to allow the application and orders the Garnishee Order Nisi to be made Absolute. 7. The other issue for determination is with regard to costs, where Counsel for the Applicant and the 2nd Garnishee have not indicated the costs they seek. The issue of costs is enshrined under Section 27 of the Civil Procedure Act which provides as follows:27 (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or Judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers; “ Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise direct.” 8. In regard to the above cited provision, it is trite that the issue of costs is usually in the discretion of a court and it is meant to compensate a successful party in a case following the basic principle that costs must follow the event. However, courts have recognized that this principle should not be used to penalize the losing party. In the case of Republic –vs- Rosemary Wairimu Munene, Ex-Parte Applicant –vs- Ihururu Dairy Farmers Co-operative Society Ltd, Judicial Review Application No.6 of 2014 the Court held as follows in this regard:“ The issue of costs is the discretion of the court as provided under the above Section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13764/eng@2025-09-19 2

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is for compensating the successful party for the trouble taken in prosecuting or defending the case. 9. Paragraph 14(b) of part A of the Sixth Schedule of the Advocates Remuneration Order, provides that instructions fees to Institute or Defend garnishee proceedings shall not be less than Kshs. 14,000/- 10. In the instant case, the Applicant/Judgment Creditor instituted the Garnishee proceedings while the Garnishee instructed a Firm of Advocates to defend it, who then filed a Notice of Appointment of Advocates and Replying Affidavit. Having done this, these parties require compensation. In exercise of its discretion and in the interest of justice, this Court finds a figure of Kshs. 20,000/= for the Applicant and the sum of Kshs. 15,000 for the 2nd Garnishee to be reasonable and proceeds to order that they each be paid the said sum so as to avoid the filing of multiple applications and put this matter to rest. 11. In the upshot, the Notice of Motion application dated 16th June, 2025 is hereby allowed with the following orders:a. Garnishee Order Nisi be and is hereby made absolute and the monies attached for the decretal sum of Kshs. 93,590/= be released to the Respondent/Decree holder to satisfy the decretal debt outstanding at the time of determination of these proceedings. b. The Respondent/Judgment Debtor to further pay the Applicant Kshs.20,000/= and the 2nd Garnishee Kshs. 15,000/= as costs of the Garnishee proceedings. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 19TH DAY OF SEPTEMBER, 2025. D. O. CHEPKWONY JUDGE In the presence of: Mr. Nyaga counsel for the Respondent/Applicant Mr. Ojung’a for Garnishee Court Assistant – Sakina/Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13764/eng@2025-09-19 3

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