Prof. Tom Ojienda & Associates v Music Copyright Society of Kenya

Analysis and determination. 4. The Applicant filed submissions dated 22 8 2025 in support of the present application. 5. At the time of writing this ruling, neither the judgment debtor nor the garnishee had filed submissions in opposition to the instant application. 6. The Applicant is seeking a garnishee order absolute to be issued to the garnishee herein in satisfaction of a decree issued in its favour on 10 3 2025. The decree orders the payment of Kshs.1,144,167.58 =. 7. The Applicant contended that despite judgment having been entered against the judgment debtor on 7 3 2025 and a decree on 10 3 2025, it has refused to satisfy the said judgment. 8. Further, the Applicant asserted that the judgment debtor has two accounts with the garnishee herein, being NCBA Bank of Kenya Account Numbers 5527990048 and 5527990011 at Westlands Branch, which accounts have sufficient sums to settle the decretal sums. 9. It is against this background that the Applicant prayed that the garnishee order nisi already issued be made absolute. 10. Order 23, rule 1 of the Civil Procedure Rules states: 11. “ (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 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 judgmentdebtor 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. (3) Service on the judgment-debtor may be made either at the address for service if the judgment-debtor has appeared in the suit and given an address for service, or on his advocate if he has appeared by advocate, or if there has been no appearance then by leaving the order at his usual residence or place of business or in such manner as the court may direct.” Order 23 rule 4 states:“ If the garnishee does not dispute the debt due or claimed to be due from him to the judgment-debtor, or, if he does not appear upon the day of hearing named in an order nisi, then the court may order execution against the person and goods of the garnishee to levy the amount due from him, or so much thereof as may be sufficient to satisfy the decree, together https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16635/eng@2025-10-30 2

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with the costs of the garnishee proceedings; and the order absolute shall be in Form No. 17 or 18 of Appendix A, as the case may require.” 12. Garnishee proceedings were well explained in Mengich t a Mengich & Co. Advocates & Another vs Joseph Mabwai & 10 Others [2018] eKLR where the court stated as follows: “ Garnishee proceedings are done in two different stages. The first stage is for the Garnishee Order Nisi, while the second stage is for the Garnishee Order Absolute. At the first stage, the judgment creditor makes an application ex parte to the court that the judgment debt in the hands of the third party, the garnishee, be paid directly to the judgment creditor unless there is an explanation from the garnishee why the order nisi should not be made absolute. If the judgment creditor satisfies the court on the existence of the garnishee who is holding money due to the judgment debtor, such third party (garnishee) will be called upon to show cause why the judgment debtor’s money in its hands should not be paid over to the judgment creditor, and if the court is satisfied that the judgment creditor is entitled to attach the debt, the court will make a Garnishee Order Nisi attaching the debt. The essence of the order nisi is to direct the garnishee to appear in court on a specified date to show cause why an order should not be made upon him for the payment to the judgment creditor of the amount of debt owed to the judgment debtor. It is a requirement that a copy of the order nisi must be served on the garnishee and judgment debtor at least 7 days before the adjourned date for hearing. The second stage is for the garnishee order absolute, where on the adjourned date, the garnishee fails to attend court or show good cause why the order nisi attaching the debt should not be made absolute, the court may subject to certain limitations make the garnishee order absolute. The garnishee, where necessary, also has an option of disputing liability to pay the debt.” 13. In this case a garnishee nisi order was issued by this court on 15 7 2025, and the next step is for the court to grant a garnishee order absolute where the garnishee has not provided a valid reason as to why payment should not be made to the Applicant herein or where the garnishee does not appear upon the day of hearing named in an order nisi. 14. There is no dispute that a decree was issued against the judgment debtor, which remains unsatisfied to date. The Applicant claimed that there are two bank accounts held by the garnishee on behalf of the judgment debtor, which sums would be able to satisfy the decree. 15. The garnishee and judgment debtor herein were served with the garnishee order nisi on 18 7 2025 as evidenced by the affidavit of services worn on 21 7 2025, which was filed on the e-filing portal. 16. The service with the pleadings notwithstanding, both the garnishee and the judgment debtor did not appear in court on 28 7 2025 to show cause why the bank accounts held by the garnishee should not be attached to satisfy the decree. They have also failed to file any response to the present application. 17. In Ngaywa Ngigi & Kibet Advocates v Invesco Assurance Co. Ltd; Diamond Trust Bank (Garnishee) [2020] KEHC 6442 (KLR), it was held: “ It is the position of the law that in garnishee proceedings, the Garnishee Banks are only required to appear before the court to acknowledge or dispute the debts. In the present case, the Garnishee Bank did not appear or file a response, and in the absence of evidence to the contrary, I find that they acknowledged that the Respondent held accounts with them, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16635/eng@2025-10-30 3

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it was not necessary for the court to question them and cross-examine them as they did not have any objections in relation to the attachment.” 18. I fully concur with the authorities cited above and apply the same reasoning to the circumstances of this court. 19. The garnishee having failed to appear before the court to dispute the attachment of the money in the judgment debtor’s account, the Court makes the conclusion that the garnishee does not dispute holding monies on account of the Judgment Debtor as pleaded by the Decree-Holder. 20. In light of the foregoing, I grant the instant application as prayed and the Garnishee Order Absolute accordingly issued. 21. It is so ordered. SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS 30 TH OCTOBER 2025 ADO MOSES JUDGE In the presence of: C A – Moses https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16635/eng@2025-10-30 4

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