Directline Assurance Co v Esther Wambui Ngure

of Taxation dated 3rd June, 2025 for the sum of Kshs.242,604.16 (Two Hundred and Forty Two Thousand, Six Hundred and Four and Sixteen Cents). 3. The Applicant holds that the Respondent operates two accounts, the first one being with the 1st Garnishee, Diamond Trust Bank )K) Ltd, under Account No.0801334001 held at Capital Centre Branch and the second one is with the 2nd Garnishee, Safaricom PLC under Safaricom Paybill No.98XXXX, both with funds sufficient to satisfy the Judgment. It is the Applicant’s contention that it will be in the interest of justice for the decretal sum of Kshs.242,604.16 as well as accrued interest and costs to be attached from the said account. 4. The 2nd Garnishee filed Replying Affidavit which was sworn by Stella Mutindi, its Senior Merchant Officer, sworn on 27th June, 2025 wherein it confirms that is required to attach monies in Paybill No.50XXXX in respect to the Party to Party Bill of Costs for the sum of Kshs.242,604.16 as per the Certificate of Taxation dated 3rd June, 2025. The 2nd Garnishee also confirms that indeed the Respondent/Judgment-Debtor operates the Paybill which has a sum of Kshs.2,881,081.00 which is sufficient to satisfy the decretal sum. The said Garnishee holds that it is ready, able and willing to remit the said decretal sum and its costs as may be awarded by the court. 5. On 10th September, 2025, the application dated 16th September, 2025, came up for interparties hearing whereby counsel for the Appellants, M/s Kahiki submitted that their application dated 25th September, 2024 in which they are seeking release of the amounts deposited in court to be released by virtue of letter dated 31st May, 2022 was coming up for hearing. She also stated that they had not received any response to their application and sought to have the same allowed in the terms presented. 6. Mr. Njagi, counsel for the Respondent/Applicant in Notice of Motion application dated 16th June, 2025 indicated that they were not opposed to the application dated 25th September, 2024 and that the same be allowed in terms of prayers No.(1) and (2) thereof. Mr. Njagi went on to submit that they were also seeking Garnishee Orders vide an application dated 16th June, 2025 following Garnishee Order Nisi issued against the Garnishees in this case. He went on to indicate that they had received a response from the 2nd Garnishee, Safaricom PLC vide a Replying Affidavit dated 27th June, 2025 in which it has been confirmed that they have sufficient grounds to satisfy the taxed costs of Kshs.242,604.16. He prayed that their application be allowed in terms of prayer No.(3) and (4). 7. Mr. Ojong’a, counsel for the 2nd Garnishee confirmed that they had indeed filed a response to the application dated 27th June, 2025 and that they had no objection to the Applicants in the Notice of Motion application dated 16th June, 2025 being granted the prayers sought therein. Analysis and Determination 8. Having listened to the oral submissions by counsel for the parties herein, I have also read through the grounds upon which the application is premised on its fact and reiterated in the Supporting Affidavit filed by the Applicant and the Replying Affidavit of the 2nd Garnishee, and finds that the main issue for determination being:a. Whether the Garnishee Order Nisi may be made Absolute; and if so, b. Whether the attached monies in the accounts held by the Garnishees should be released to the Applicant. c. Whether any of the parties herein is entitled to cots. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19275/eng@2025-09-12 2

page 2 of 4

9. On the issue of whether the Garnishee Order Nisi can be made absolute, upon listening to all counsel for the parties herein, it is clear that the prayer is not opposed. In view of this, the application is allowed in this regard. 10. In regard to the attached monies in the accounts operated by the Respondent with the Garnishees respectively, it is clear that the 1st Garnishee did not file a response to the application and has also not sent representation to explain the same. However, the 2nd Garnishee filed a Replying Affidavit and through its counsel, Mr. Ojong’a has confirmed that indeed the Respondent/ Judgment-Debtor operates a Paybill Account No.50XXXX which has a sum of Kshs.2,881,081.00 which is significant to satisfy the decretal sum of Kshs.242,604.16. It is the 2nd Garnishee’s contention that it is ready, able and willing to remit the said decretal sum together with their costs to be awarded by the court. In view of this, the prayer for release of the decretal amount form the account operated by the Respondent with the 2nd Garnishee is also allowed. 11. The third issue is with regard to the Notice of Motion application dated 25th September, 2024 and filed by the Appellant in which they have sought for the release of the amounts deposited in court. Having listened to counsel for the parties herein, this prayer is unchallenged and the court proceeds to allow the same in the terms presented. 12. The fourth issue for determination is with regard to costs. It is worth-noting that although the Applicant/Judgment-Debtor and 2nd Garnishee have sought for costs of their respective pleadings. However, they did not indicate the costs they seek in their oral submissions. 13. 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 by 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.” 14. 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 appreciated 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 in this regard held as follows:“ 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 is for compensating the successful party for the trouble taken in prosecuting or defending the case”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19275/eng@2025-09-12 3

page 3 of 4

15. At Paragraph 14(b) of Part A of the Sixth Schedule of the Advocates Remuneration Order, the law provides that instructions fees to institute or defend Garnishee proceedings shall not be less than Kshs.14,000/=. 16. In the instant case, I have perused the record and established that the Applicant/Judgment-Creditor instituted the Garnishee proceedings while the 2nd Garnishee instructed a Firm of Advocates to defend it and they filed a Notice of Appointment of Advocates and Replying Affidavit. Having done this, these parties require compensation. Therefore, so as to avoid filing of multiple applications and put this matter to rest, in exercise of its discretion, and in the interest of justice, this Court finds a figure of Kshs.15,000/= for the Applicant and the sum of Kshs.10,000/= for the 2nd Garnishee to be reasonable. 17. Therefore, the court proceeds to issue the following orders:a. The Garnishee Order Nisi issued on 17th June, 202 be and is hereby made Absolute. b. The monies in Paybill No.50XXXX held by the 2nd Garnishee on behalf of the Respondent be attached for the decretal sum of Kshs.242,604.16 to be and is hereby released to the Respondent/Decree-holder to satisfy the decretal debt outstanding at the time of determination of these proceedings. c. The amounts deposited in court to be released to the Appellant. d. The Respondent/Judgment-Debtor to further pay the Applicant Kshs.15,000/= and the 2nd Garnishee Kshs.10,000/= as costs of the Garnishee proceedings. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 12TH DAY OF SEPTEMBER , 2025. D. O. CHEPKWONY JUDGE In the presence of: M/s Bahiki counsel for Appellant. M/s Rwenga for 2nd Garnishee – Safaricom PLC. Mr. Ombati holding brief for Nr. Njagi counsel for Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19275/eng@2025-09-12 4

page 4 of 4