ANALYSIS: GARNISHEE PROCEEDINGS IN KENYA

1. Introduction

Garnishee proceedings are a form of execution of court decrees where a creditor seeks to recover a debt by targeting a third party (the garnishee) who owes or holds money for the judgment debtor (JD). This is an indirect way of enforcing a judgment where the debtor is unable or unwilling to satisfy the decree.

2. Legal Framework

Garnishee proceedings in Kenya are governed primarily by:

• Civil Procedure Act, Cap. 21, Laws of Kenya — specifically Section 44 and 45.
• Order 23 of the Civil Procedure Rules, 2010.
• Relevant case law, including:
• Kenya Commercial Bank Ltd v. Samuel Kamau Macharia [2008] eKLR
• Africa Merchant Assurance Co Ltd v. George Kimani Njau [2020] eKLR

3. Key Definitions

Garnishment

A judicial process where the court directs a third party (garnishee) to pay a debt owed to the judgment debtor, directly to the decree holder.

Garnishee

Under Order 23 Rule 1, a garnishee is a person or institution who owes a debt to the judgment debtor or holds money/property on their behalf (commonly a bank).

Order Nisi

An interim court order requiring the garnishee to appear before the court and explain why the debt they hold on behalf of the JD should not be paid to the decree holder.

Order Absolute

The final order directing the garnishee to pay the funds directly to the decree holder, if no valid objection is raised.

4. Procedure for Garnishee Proceedings

Step 1: Application for Order Nisi

• The decree holder files an ex parte application under Order 23 Rule 1(1), supported by an affidavit.
• The affidavit must disclose:
• Existence of a valid decree.
• Existence of a debt owed by the garnishee to the judgment debtor.
• Evidence that the garnishee is within the court’s jurisdiction.

Step 2: Issuance of Order Nisi

• If the court is satisfied, it issues an Order Nisi directing the garnishee to appear and show cause why the debt should not be paid to the decree holder.
• This order must be personally served on the garnishee at least seven (7) days before the hearing — see Order 23 Rule 2.

Step 3: Hearing of Garnishee Show Cause

• On the return date, the garnishee appears in court and may:
• Admit liability and consent to the debt being paid to the decree holder.
• Contest the application (e.g., argue the funds are not available or are held in trust).
• If the garnishee fails to appear, the court may proceed ex parte and issue an Order Absolute.

Step 4: Order Absolute

• If satisfied, the court issues an Order Absolute under Order 23 Rule 4, compelling the garnishee to pay the sum directly to the decree holder.

5. Attachment of Bank Deposits

Legal Principle:

Money held in bank or building society accounts is considered a debt owed by the bank to the account holder and is, therefore, attachable through garnishee proceedings.

Limitations DO NOT prevent garnishment:

Even if the bank account has conditions such as:

• Withdrawal only upon notice,
• Requirement to present deposit book or withdrawal slip,
• Personal attendance of the account holder,

These do not affect the enforceability of a valid garnishee order once it is issued.

As per Order 23 Rule 1(1), the garnishee is liable regardless of the contractual terms, provided the funds belong to the judgment debtor.

Case law:
In Choice TV Limited v Safaricom Limited [2021] eKLR, the court affirmed that conditions placed by financial institutions cannot override a garnishee order once issued by a competent court.

6. Jurisdictional Considerations

• The garnishee must be within the jurisdiction of the court issuing the order.
• The court must have issued a valid decree and execution must be legally permissible.

7. Exceptions and Defenses by Garnishee

A garnishee may resist the order by proving:

• No debt is owed to the JD,
• The account is jointly owned and not solely in the name of the JD,
• The funds are held in trust or for a third party,
• A prior attachment or legal restriction exists on the account.

8. Limitation on Use of Garnishee Proceedings

Garnishee proceedings cannot be used:

• To attach immovable property (use attachment instead),
• Where no monetary decree exists,
• Where the judgment debtor has been declared insolvent or bankrupt, and distribution of assets must follow the insolvency process.

9. Enforcement of Order Absolute

Once the court issues an Order Absolute, the garnishee is legally bound to comply. Non-compliance may attract contempt proceedings or enforcement mechanisms under Section 38 of the Civil Procedure Act.

10. Conclusion

Garnishee proceedings offer an effective and lawful method for enforcing monetary decrees when the judgment debtor lacks liquid assets but has third parties indebted to them. However, strict procedural compliance is required, particularly regarding notice, jurisdiction, and documentation. Legal representation is highly recommended to avoid pitfalls that may render the process defective.

References:

• Civil Procedure Act, Cap. 21
• Civil Procedure Rules, 2010 – Order 23
• Kenya Commercial Bank Ltd v. Samuel Kamau Macharia [2008] eKLR
• Choice TV Limited v. Safaricom Limited [2021] eKLR
• Africa Merchant Assurance Co Ltd v. George Kimani Njau [2020] eKLR 

 

Disclaimer: This article is intended for general information purposes only and should not be construed as legal advice.