Ouma Njoga & Company Advocates v Charles Ochieng Opiyo & Lake Basin Development Authority [2022] KEELRC 338 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

MISC CIVIL APPLICATION NO. 26 OF 2020

IN THE MATTER OF AN ADVOCATE

AND

IN THE MATTER OF THE ADVOCATES ACT

AND

IN THE MATTER OF THE ADVOCATES REMUNERATION ORDER, 2014

BETWEEN

OUMA NJOGA & COMPANY ADVOCATES................APPLICANT/DECREE HOLDER

VERSUS

CHARLES OCHIENG OPIYO……………………RESPONDENT/JUDGMENT DEBTOR

AND

LAKE BASIN DEVELOPMENT AUTHORITY…………………………..….GARNISHEE

RULING

1. By a Notice of Motion Application dated 14th January, 2022, the Applicant/Decree Holder, seeks that the Garnishee Order Nisi granted herein, be made absolute, and the monies attached released to the Applicant/Decree-Holder to satisfy the Decree outstanding in this matter.

2. The application is supported by grounds on the face of the motion and the affidavit of Robert Ouma Njoga, the crux of which is that the Applicant has obtained a decree against the Respondent/Judgment Debtor herein, and which decree remains unsatisfied.

3.  The Applicant further argues that the Garnishee is indebted to the Respondent/Judgment Debtor, arising from a decree dated 14th April, 2021, issued in Kisumu ELRC NO. 147 OF 2016, between the Respondent/Judgment Debtor and the Garnishee. (CHARLES OCHIENG V LAKE BASIN DEVELOPMENT AUTHORITY).

4. The Respondent/Judgment Debtor did not oppose the application.

5.  The Garnishee opposed the application vide grounds of opposition dated 26th January, 2022 and a Replying affidavit sworn by Michael Okukon 12th February, 2022.

6.  The Garnishee argues that the Respondent/Judgment Debtor is in the process of filing an appeal against the Decree of 14th April, 2021, and the appeal will be rendered nugatory should the orders sought be granted. The Garnishee further avers that she shall be filing a Notice of Cross Appeal once the Respondent/Judgment Debtor’s appeal is lodged before the Court of Appeal, and hence is unable to comply with the orders sought.

7.  The application was heard interparties before this Court on 15th February, 2022, in the presence of all the parties. Mr. Ouma appearing for the Applicant, argued that the Garnishee is a Judgment Debtor in a matter where the Respondent/Judgment Debtor herein, is a Judgment creditor.  He further argues that vide the decree issued in ELRC Cause No. 147 of 2016, the Garnishee owes the Respondent/Judgment Debtor herein Kshs.485,520/-, which sum is due and payable to the Respondent/Judgment Debtor, and which sum is sufficient to liquidate this garnishee proceedings.

8. The Applicant/Decree-Holder further argues that the sum owed to her by the Respondent/Judgment Debtor, is Kshs. 226,144. 20, and which sum is the subject of this garnishee proceedings.

9.  Mr. Ouma further argues that the Decree subject of this proceedings is not subject of any stay, and that no appeal has been filed against it. He further argues that the Respondent/Judgment-Debtor has acknowledged owing the Applicant, and has been waiting for payment from the Garnishee to enable him pay up.

10.   The Respondent/Judgment-Debtor, submitted that he is not opposed to the Garnishee paying the Applicant/Decree Holder.

Determination

11.  I have considered the Application, the grounds in support, the Grounds of opposition and the parties’ oral submissions. The issue for determination is whether the Applicant/Decree- Holder is entitled to the order sought.

12.  Order 23 of the Civil Procedure Rules, states as follows:

“(1) A court may, upon the ex parte application of a decree- holder, and either before or after an oral examination of the judgment- debtor, and upon affidavit by the decree-holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree- holder the debt due from him to the judgmentdebtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid.

(2) At least seven days before the day of hearing the order nisi shall be served on the garnishee, and, unless otherwise ordered, on the judgment-debtor.

Order 23, rule 4- Execution against garnishee.

If the garnishee does not dispute the debt due or claimed to be due from him to the judgment-debtor, or, if he does not appear upon the day of hearing named in an order nisi, then the court may order execution against the person and goods of the garnishee to levy the amount due from him, or so much thereof as may be sufficient to satisfy the decree, together with the costs of the garnishee proceedings”

13.  The Garnishee’s position is that the Respondent/Judgment-Debtor, initiated the process of filing an appeal and that she also intends to file a cross-appeal once the Respondent/Judgment-Debtor’s Appeal is filed. This is the only ground upon which the Garnishee has based her opposition to the issuance of a garnishee order absolute sought herein. The Garnishee has not disputed her liability to pay the debt. (See Martin Mwangi Ndirangu v Invesco Assurance Co. Ltd [2020] eKLR).

14.  The Respondent/Judgment-Debtor, on his part, has indicated to this court that he is not opposed to the issuance of the garnishee order sought herein.

15.  In conclusion, the Garnishee having failed to show cause why the Garnishee Order Nisi attaching the debt should not be made absolute, the Garnishee order Nisi issued herein, is hereby confirmed absolute as against the Garnishee for the sum of Kshs. 226,144. 20/-

16.  To bring this matter to a close, I make no orders as to costs.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT ATKISUMU THIS 24TH DAY OF MARCH, 2022.

CHRISTINE N. BAARI

JUDGE

Appearance:

N/A for the Applicant/Decree Holder

N/A for the Respondent/Judgment Debtor

N/A for the Garnishee

Christine Omollo – C/A