Githae v Urithi Housing Co-operative; Equity Bank Kenya & another (Garnishee) [2023] KECPT 809 (KLR)

Githae v Urithi Housing Co-operative; Equity Bank Kenya & another (Garnishee) (Tribunal Case 24 of 2020) [2023] KECPT 809 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 809 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 24 of 2020

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 31, 2023

Between

Harran Murigu Githae

Claimant

and

Urithi Housing Co-operative

Respondent

and

Equity Bank Kenya

Garnishee

K-Rep bank Limited

Garnishee

Ruling

1. This Ruling is precipitated by the fact that a judgment dated 7th October 2021 entered against the Respondent thus;“we therefore enter judgement in favour of the Claimant against the Respondent for Kshs 500,000/= plus costs and interest in the suit from the date of filling the suit”

2. Through an Amended Notice of Motion dated 17th January 2022 brought under Section 1A, 1B and 3A of the Civil Procedure Act, Order 23 rule 1,2,8 and 9, order 50 Rule 1 of theCPC Rules the Claimant brought an action against the 1st Garnishee Holder namely Equity Bank Kenya seeking for the following orders;i.That an order for attachment be issued for the sum of money held by the 1st Garnishee in Account no 0340xxxxx7977 and 01012xxxxx2623 for satisfaction of the detrimental sum in the Judgement together with the costs of the garnishee proceedings and incidental costs.ii.That an order nisi be issued ordering that all monies held for the Judgement debtor by Equity Bank 1st Garnishee and K-Rep Bank Ltd 2nd Garnishee.iii.That an order freezing the operations of the named accounts in Equity bank Kenya – Thika branch account no. 0340xxxxx7977 and K-Rep bank Ltd Account No. 0101xxxxx02623 held by the Judgment Debtor.

3. Further, the Claimant/Decree Holder filed Written Submissions dated 27th February 2022 and dwelt on the orders sought.

4. Vide the Replying Affidavit dated 4th October 2022 Equity Bank Ltd – the 1st Garnishee responded at Paragraph 3 that;“the bank holds the Account No. 0340xxxxx977 for the Respondent”

5. At paragraph 5 of the said Replying Affidavit the 1st Garnishee stated that the amount in the account has been preserved in a previous court order to satisfy the following;a.Nairobi Tribunal Case No. 168 of 2019 George Kimani Mungai v Urithi Housing Cooperative Society Ltd and EBKLb.Nairobi Tribunal Case No. 55 of 2021 Mary Kemunto Mayieka and 104 others vs Urithi Housing Co-operative Sacco Ltd and Samuel Ngundo Maina.

Issues For Determination. 6. Having considered the Claimants Amended Notice of Motion, the written submissions and the 1st Garnishee Replying Affidavit, we are faced with two (2) issues for determinationi.Whether the Decree held should be satisfied from the amounts held by the 1st Garnishee in Account No. 0340xxxxx7977ii.Whether the Decree can be satisfied through attachment of any other bank account held in any other Bank?

7. Having perused the Tribunal’s proceedings in Tribunal’s Case No. 55 of 2021 and Case no. 168 of 2019 together with the orders, we find that the Account No. 0340xxxxx7977 held at Equity bank Ltd – 1st Garnishee was frozen for the satisfaction of the decretal amounts in the cause.

8. Thus the amounts held in the Account No. 340xxxxx7977 is not available to satisfy the Claimant’s Decree.

9. Similarly, Equity Bank Account No. 0340xxxxx6554 and Equity Bank Investment Account no. 0340xxxxx9391 held for the 1st Respondent is frozen and not available to satisfy any other subsequent orders.

10. However, we note that Spire Bank Ltd (formerly K.Rep Bank) 2nd Garnishee have not filed any response regarding Account No. 0101xxxxx2623.

Orders.i.The Claimant’s amended notice of motion dated 4/8/22 is disallowed.ii.Costs shall be in the cause.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAHEchon advocate holding brief for Mwangi for the Respondent.Muyala advocate holding brief for Mr. Andati for the Claimant.