Aloka v Amiair Sacco Society Limited; Co-operative Bank Limited (Garnishee) (Tribunal Case E298/176 of 2016) [2024] KECPT 1716 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1716 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E298/176 of 2016

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

October 3, 2024

Between

Martin Onyango Aloka

Claimant

and

Amiair Sacco Society Limited

Respondent

and

Co-operative Bank Limited

Garnishee

Ruling

1.Application dated 25/7/2024 is for Ruling. The same is for Garnishee orders.We have looked into the Garnishee Replying Affidavit where they admit what the Respondent is their client, however, as at 30/7/2024, when the orders were received, the account had Kshs. 6,285.12/=

2.We have also noted the Garnishee states they are unable to comply with the order because it is a secured creditor shoes interest rank in priority over other creditors.The Applicant further filed a Further Affidavit sworn on 12/8/2024 stating the account is active receiving funds and garnishee ought to prioritize payment without evidence availed; and prayed the decree nisi be made absolute.

3.In the case of Joachimson –vs- Swiss Bank Co-operative (1921) 3KB 110 at 131, (1921). All ER Rep 92 at 102 Lord Athens stated;“it is trite law that as soon as the Garnishee Order Nisi is served on the bank, it operates as an injunction. It prevents the bank/Garnishee from paying money to its customer until the garnishee order is made absolute, or is discharged, as the case may be. It binds the debts in the hands of the garnishee and creates a charge in favor of the judgement creditor.What a Garnishee Order Nisi does is to freeze the sum in the hands of the bank until the Garnishee order is made absolute, then the Garnishee Bank becomes liable to pay the Decree holder”

4.As such, as at the date of the order, there were no funds.Application dated 25/7/2024 therefore fails.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3^RD DAY OF OCTOBER, 2024.HON. B. KIMEMIA CHAIRPERSON SIGNED 3.10.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3.10.2024HON. BEATRICE SAWE MEMBER SIGNED 3.10.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 3.10.2024HON. PHILIP GICHUKI MEMBER SIGNED 3.10.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 3.10.2024HON. PAUL AOL MEMBER SIGNED 3.10.2024Tribunal Clerk MutaiOkello advocate for the Decree-holderAmiair Sacco LimitedCooperative Bank -No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3.10.2024