Ngaywa Ngigi & Kibet Advocates v Invesco Assurance Company Limited; Diamond Trust Bank (Tom Mboya & Koinange Street Branches) (Garnishee) [2020] eKLR Case Summary

Court
High Court of Kenya at Embu
Category
Civil
Judge(s)
F. Muchemi
Judgment Date
October 22, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the 2020 eKLR case summary of Ngaywa Ngigi & Kibet Advocates v Invesco Assurance Company Limited. Discover key legal insights and implications for garnishee actions.

Case Brief: Ngaywa Ngigi & Kibet Advocates v Invesco Assurance Company Limited; Diamond Trust Bank (Tom Mboya & Koinange Street Branches) (Garnishee) [2020] eKLR

1. Case Information:
- Name of the Case: Ngaywa Ngigi & Kibet Advocates v. Invesco Assurance Company Limited
- Case Number: Misc. Civil Case No. 18 of 2019
- Court: High Court of Kenya at Embu
- Date Delivered: October 22, 2020
- Category of Law: Civil
- Judge(s): F. Muchemi
- Country: Kenya

2. Questions Presented:
The central legal issues presented before the court were whether the applicant, Ngaywa Ngigi & Kibet Advocates, had met the necessary legal requirements to obtain a garnishee order against Invesco Assurance Company Limited, and whether the funds held by the garnishee (Diamond Trust Bank) were attachable to satisfy the judgment debt.

3. Facts of the Case:
The applicant, Ngaywa Ngigi & Kibet Advocates, obtained a judgment against Invesco Assurance Company Limited on September 18, 2019, for a decretal sum of Kshs. 223,696. The applicant filed an application on October 18, 2019, seeking to attach funds held in two bank accounts of the judgment debtor at Diamond Trust Bank to satisfy the decree. The respondent argued that if the order was granted, it would lead to financial difficulties and an inability to meet other obligations. The garnishee, Diamond Trust Bank, indicated that the accounts were overdrawn and did not have sufficient funds to satisfy the decree.

4. Procedural History:
The case progressed through the court system with the applicant filing an urgent application for garnishee orders. The respondent filed a replying affidavit, although it was not prosecuted in court. The garnishee opposed the application, asserting that the accounts were overdrawn and thus could not satisfy the decree. Written submissions were made by both the applicant and the respondent, with the applicant asserting the existence of a debt and the respondent claiming a violation of their right to a fair hearing.

5. Analysis:
Rules:
The court considered Order 23 Rule 1 of the Civil Procedure Rules, which allows a court to issue a garnishee order upon the ex parte application of a decree-holder. The applicant must demonstrate that there is an unsatisfied decree and a debt due from the garnishee to the judgment-debtor.

Case Law:
The court referenced several previous cases, including *Otieno Ragot & Co. Advocates v. City Council of Nairobi (2015) eKLR*, which established that a judgment debtor has no role in garnishee proceedings. In *James G. K. Njoroge t/a Baraka Tools & Hardware v. APA Insurance Company Limited & 3 others (2018) eKLR*, the court emphasized that the burden of proof lies with the judgment creditor to establish that a debt exists. Additionally, the court referenced *Pinnacle Projects Limited v. Presbyterian Church of East Africa, Ngong Parish & Another (2019) eKLR* concerning the right to a fair hearing.

Application:
The court found that the applicant had established the existence of a decree but failed to prove that the garnishee held attachable funds. The garnishee's affidavit indicated that the accounts were overdrawn, and the court accepted this evidence. The applicant's assertion that the garnishee did not dispute its liability was countered by the garnishee's legal officer's affidavit, which clearly disputed the claim. The court concluded that the applicant had not satisfied the conditions for granting the garnishee order.

6. Conclusion:
The court ruled against the applicant, dismissing the application for garnishee orders with costs to the garnishee. The decision underscored the importance of providing adequate evidence to establish a debt for garnishee proceedings.

7. Dissent:
There were no dissenting opinions noted in the ruling, as the decision was made by a single judge.

8. Summary:
The High Court of Kenya dismissed the application for garnishee orders sought by Ngaywa Ngigi & Kibet Advocates against Invesco Assurance Company Limited. The ruling highlighted the necessity for the applicant to prove the existence of attachable funds held by the garnishee, emphasizing that the burden of proof lies with the judgment creditor in garnishee proceedings. The outcome signifies the court's commitment to upholding procedural requirements and protecting the rights of all parties involved.

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