Lidechi v Urithi Housing Co-operative; Equity Bank Kenya & another (Garnishee) [2023] KECPT 828 (KLR)

Lidechi v Urithi Housing Co-operative; Equity Bank Kenya & another (Garnishee) (Tribunal Case 23 of 2020) [2023] KECPT 828 (KLR) (Civ) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 828 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 23 of 2020

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

August 31, 2023

Between

Gillian Adisa Lidechi

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 the CPC 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 xxxx and xxxx 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. xxxx and K-Rep bank Ltd Account No. xxxx 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. xxxx 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. xxxxii.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. xxxx 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. xxxx is not available to satisfy the Claimant’s Decree.

9. Similarly, Equity Bank Account No. xxxx and Equity Bank Investment Account no. xxxx 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. xxxx.

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 KIMEMIACHAIRPERSONHON. J. MWATSAMADEPUTY CHAIRPERSONHON. BEATRICE SAWEMEMBERHON. FRIDAH LOTUIYAMEMBERHON. PHILIP GICHUKIMEMBERHON. MICHAEL CHESIKAWMEMBERHON. PAUL AOLMEMBER