Advocates v Invesco Assurance Company Limited; NCBA Bank Kenya PLC (Garnishee) [2022] KEHC 417 (KLR)

Advocates v Invesco Assurance Company Limited; NCBA Bank Kenya PLC (Garnishee) (Miscellaneous Civil Application 427 of 2017) [2022] KEHC 417 (KLR) (Civ) (6 May 2022) (Advisory Opinion)

Neutral citation: [2022] KEHC 417 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Miscellaneous Civil Application 427 of 2017

JK Sergon, J

May 6, 2022

Between

Ngaywa Ngigi & Kibet Advocates

Applicant

and

Invesco Assurance Company Limited

Respondent

and

NCBA Bank Kenya PLC

Garnishee

Advisory Opinion

1. The applicant/decree holder in the present instance brought the Notice of Motion dated 27th February, 2020 supported by the grounds presented on its face and the facts deponed to in the affidavit of advocate Joseph N. Ngigi.

2. The decree holder sought for the following orders in its Motion:i.Spent.i.That Garnishee orders nisi do issue against the Garnishee to attach any monies held by them in favour of the respondent’s Account Number 1007794618 held at the Garnishee NCBA Bank Kenya PLC and any other account by the aforesaid held at the Garnishee bank in satisfaction of the decretal amount of Kshs.61,276/= in this matter.ii.That the Garnishee does appear before the court to show cause why they should not pay to the decree holder Kshs.61,276/= plus costs from the amount held by the respondent at their Account Number 1007794618 at the Garnishee bank and/or any other account held by the aforesaid.iii.That the Garnishee order nisi be made absolute.iv.That costs be provided for.

3. The Garnishee responded to the Motion by putting in the replying affidavit sworn by its Legal Counsel, Jackson Nyaga, on 1st December, 2020.

4. The respondent/judgment debtor did not participate in these proceedings.

5. The Motion was canvassed through written submissions, which I have considered together with the grounds featuring on the face of the Motion; and the affidavits both supporting and resisting the same.

6. A brief background of the matter is that the applicant filed theAdvocate-Client Bill of Costs dated 22nd September, 2017 against the respondent in the present miscellaneous application, arising out of Milimani CMCC no. 3659 of 2016 in which the applicant acted for the respondent at all material times.

7. The Bill of Costs proceeded for taxation and was taxed by the taxing master at the sum of Kshs.61,276/= and a Certificate of Taxation was issued on 15th February, 2019. Consequently, a decree was issued to that effect on 24th September, 2019.

8. Going by the record, the applicant is seeking to recover the aforementioned decretal sum by way of Garnishee proceedings and hence the instant Motion.

9. Returning to the Motion, advocate John Ngigi in his affidavit in support thereof states that the respondent has to date failed to satisfy the decretal sum taxed by the taxing master and that there is reason to believe that the respondent’s Account Number 100xxxxx (“the Account”) held with the Garnishee, holds sufficient funds for satisfaction of the decree.

10. In reply, Jackson Nyaga states that contrary to the averments being made by the applicant, the Account does not have any funds and that the balance of Kshs.236,058. 07 held in the Account as at 18th September, 2020 has been garnished by way of a Garnishee Order Absolute in Milimani CMCC no. 6113 of 2015 (Mercy Nduta Mwangi t/a Mwangi Kengara & Co. Advocates v Invesco Assurance Company Limited & NCBA Bank Kenya PLC).

11. At the submissions stage, the applicant reiterates that it is more plausible than not that the Account contains sufficient funds to satisfy the decretal sum sought and further submits that in any event, at the time the Garnishee Order Nisi in Milimani CMCC no. 6113 of 2015 was made absolute, the Garnishee had already been served with an Order Nisi in the instant matter and hence it should be obligated to pay the decretal sum to the applicant.

12. The applicant makes reference to the case of Kinyanjui Njuguna & Co. Advocates v Invesco Insurance Co. Ltd; Jamii Bora Bank (Garnishee) [2020] eKLR where the court ordered the Garnishee therein to pay the decretal sum to the applicant, upon disobeying an already existing order nisi and releasing funds to a third party.

13. On its part, the Garnishee reiterates its earlier position that there are insufficient funds to enable the payment of the decretal sum being sought herein.

14. The Garnishee further submits that in any event, its role pursuant to the provisions of Order 23 of the Civil Procedure Rules is simply to confirm the holding details of an account and to further confirm whether such account has sufficient funds to satisfy the decree in question.

15. According to the Garnishee, the Account is overdrawn and therefore lacks sufficient funds to satisfy the decree in the present instance.

16. The Garnishee therefore urges this court to have the Garnishee Order Nisi lifted and consequently, have it discharged so that the applicant can pursue other avenues of executing its decree.

17. Upon my perusal of the record, it is apparent that the Garnishee Order Nisi in the present matter was served upon the Garnishee on 2nd March, 2020 which goes to show that orders (ii) and (iii) of the Motion are now spent, leaving order (iv) pending for determination.

18. Upon my further perusal of the record, there is nothing to ascertain the amount of monies which were being held in the Account as at the time of issuance of the Order Nisi.

19. Be that as it may, it is apparent that the applicant did not dispute the averments made by the Garnishee that upon service of the Order Nisi, it received various sums of money in satisfaction of decrees in other separate matters which had been issued before 2nd March, 2020.

20. Moreover, I observed that at the time of issuance of the Order Absolute for payment of the sum of Kshs.236,058. 71 in Milimani CMCC no. 6113 of 2015 on 27th October, 2020, the Garnishee had already been served with an Order Nisi in the instant matter and no proper explanation has been given as to why the decree holder in the above matter was given priority over the applicant herein.

21. In that respect, I find the arguments by the applicant on the plausible disobedience of an already existing Order Nisi to be reasonable and I am of the view that the Garnishee ought to be held accountable.

22. In so finding, I associate myself with the rendition made in the case of Kinyanjui Njuguna & Co. Advocates v Invesco Insurance Co. Ltd; Jamii Bora Bank (Garnishee)[2020] eKLR cited in the applicant’s submissions, where the court held the Garnishee accountable to pay the decretal sum upon disobeying an Order Nisi.

23. The upshot therefore is that the Notice of Motion dated 27th February, 2020 is allowed in terms of order (iv) and consequently, the Order Nisi is hereby made absolute and the Garnishee is hereby ordered to release to the applicant the decretal sum of Kshs.61,276/= within 20 days from this day.

24. A fair order on costs in the circumstances is to direct that the respondent do pay the applicant’s costs of the Motion.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. …………………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Applicant/Decree holder……………………………. for the Respondent/Judgment debtor…………………………….. for the Garnishee