Joseph Okello v CS 4658 Mala Savings & Credit Cooperative Society Limited & Cooperative Bank of Kenya Limited [ [2021] KECPT 549 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO 314 OF 2019

JOSEPH OKELLO.......................................................................DECREE HOLDER

VERSUS

CS 4658 MALA SAVINGS &

CREDIT COOPERATIVE SOCIETY LIMITED......................JUDGMENT DEBTOR

COOPERATIVE BANK OF KENYA LIMITED.......................................GARNISHEE

RULING

1. The matter for determination is Notice of Motion dated 28th  September   2020and filed  on2nd October  2020.

Seeking the following orders:

a. That the application be certified as extremely urgent and heard ex-parte in the first instance;

b. That the Honourable court do grant stay of execution of the order absolute issued on the 21st  September 2020 pending the inter-parties hearing and determination of this application;

c. That the Honourable Tribunal be pleased to review, vary and/or set aside the orders of the Honourable court made on 21st September 2020.

d. That this Honourable Tribunal be pleased to allow the Garnishee to put in a response to the Decree Holder’s Application dated 29th January, 2020.

e. That the costs of this application be provided for.

Based on the grounds on the face of the Application and supported by the Affidavit of Naomi Mwangilegal Officer of the Garnishee.

2. The same is proposed vide a Replying Affidavit of Earlie Ng’ani Advocate for the Decree Holder. The Application has ordered to be dispensed with by way of written Submissions. The Garnishee filed their written submissions on 4. 12. 2020 and Decree Holder filed their submissions on 18. 3.2021.

3. The gist of the Application is that the garnishee seeks a stay of execution of the order absolute issued on 21. 10. 2020 pending the determination of the instant Application and or review, vary and set aside the said orders and to allow the garnishee to put in a request to the Decree holder application dated 29. 1.2020.

The Respondent (Decree Holder) averred that the garnishee was duly served and failing to participate and admitted being indebted to the Judgment Creditor to the  tune  of Kshs.59,296/= that  the  only remedy  available  to the garnishee  is a  review  of the order  for  release  of the  said sums which is in their possession to enable them to pursue the Judgment debtor for the balance.

4. In this matter the Applicant/Garnishee submitted that the decretal amount was Kshs. 157,178. 36 and costs of Kshs. 25,875 as per application dated 28. 1.2020.

That the tribunal issued an order on 30. 1.2020 setting the application for hearing interparties on 6. 3.2020 that on 27. 7.2020 parties were ordered to file written submissions to discuss the matter.

Similar orders were issued on 24. 8.2020 and on  27. 8.2020 when the garnishee further submitted that the tribunal has jurisdiction to review and or vary its orders. But they have not sufficiently funded to satisfy the debt of the Judgment debtor and that this was a discovery on as important matter that could not be produced as the time when the decree absolute order was issued.

5. The Tribunal demand for the garnishee to settle of Kshs.183,053. 36 held in Judgment Debtor account at industries area branch get the credit balance and was Kshs. 59,296 that after issuance of the orders they froze any withdrawals of the Judgment debtor.

The Decree holder submitted that the only available remedy to the Garnishee is for review of the order for release and for them to remit the funds in their possession belonging to Judgment debtor to enable them purse the judgment debtor for the balance. The Decree holder has satisfied the provision of order 23 Rule 1 Civil Procedure Rule.

6. We have carefully considered arguments of parties and note that parties to the ruling of 17. 9.2020 the Garnishee had been duly served with the Application dated 29. 1.2020.

There was no response filed by the Garnishee despite various orders of 13. 1.2020, 22. 7.2020 , 24. 8.2020, 3. 9.2020 the decree nisi was made absolute for failure of the Garnishee to file a response and submissions as ordered.

The only remedy available to the Garnishee is foe review of the decree absolute against the Garnishee for the amount that are available in the Judgment Debtor account held in the Garnishee Bank.

That there is no reasonable explanation given by the Garnishee as to why they failed to file a response and file submissions in regard to application dated 29. 1.2020.

7. In the ruling of 17. 9.2020 it was clear that the Judgment debtor had an account with the Garnishee but funds in the Garnishee to provide the details of their indebtedness to the Judgment Debtor to enable the Tribunal to reach a just determination.

The Garnishee failed to provide the relevant information hence the decree was made absolute attaching the sum of Kshs. 183,053. 36 held in the account of the Judgment debtor example Nairobi Industrial Area Branch.

8. We find then the Garnishee can deliver only the funds held by them on behalf of the Judgment Debtor if the amount is not sufficient to satisfy the decree fully then the Garnishee after providing such details should remit the available funds to satisfy the decretal amount.

i. in the circumstances; we find that prayer 3 of the Application dated 28. 9.2020 succeeds and we accordingly review the orders of 17. 9.2020 and Order for the Garnishee to satisfy the decretal amount by remitting the funds available and held on behalf of the Judgment that is, Kshs. 55,296 to enable the Judgment Debtor  to execute Judgment on the remaining amount.

ii. We accordingly set aside the orders of 17. 9.2020 and order for the Garnishee vanishes to remit Kshs 55,296 to the Decree Holder.

iii. The Garnishee to meet the costs of this Application.

Ruling signed, dated and delivered virtually this 27th   day of May, 2021.

Hon. B. Kimemia                 Chairperson                Signed      27. 5.2021

Hon. J. Mwatsama              Deputy Chairperson Signed       27. 5.2021

Mr. P. Gichuki                      Member                       Signed      27. 5.2021

Tribunal Clerk                     Leweri

Ligami  holding brief  for  Lilan  for the Garnishee/Applicant : Present

Ng’ani  for Judgment Creditor : Present

No appearance for  Judgment Debtor

Hon. B. Kimemia                Chairperson                Signed      27. 5.2021