Diamond Trust Bank Kenya Limited v Kazungu Gogo Mwanzele & another [2020] eKLR Case Summary

Case Brief: Diamond Trust Bank Kenya Limited v Kazungu Gogo Mwanzele & another [2020] eKLR


1. Case Information:
- Name of the Case: Diamond Trust Bank Kenya Limited v. Kazungu Gogo Mwanzele & Invesco Assurance Co. Ltd.
- Case Number: Misc. Civil Application No. 171 of 2020
- Court: High Court of Kenya at Mombasa
- Date Delivered: October 23, 2020
- Category of Law: Civil
- Judge(s): P.J.O. Otieno
- Country: Kenya

2. Questions Presented:
The central legal issues in this case include:
- Whether the applicant, Diamond Trust Bank Kenya Limited, is entitled to leave to appeal against the trial court's decision that issued a garnishee order absolute against it.
- Whether the application for stay pending the intended appeal should be granted.

3. Facts of the Case:
The applicant, Diamond Trust Bank Kenya Limited, sought an order for leave to appeal against a ruling from the trial court that issued a garnishee order absolute on April 24, 2020. The bank contended that it was neither a defendant nor a judgment-debtor in the underlying matter and that the accounts in question did not contain sufficient funds to satisfy the decree owed to the first respondent, Kazungu Gogo Mwanzele. The bank became aware of the ruling only on August 13, 2020, when the first respondent attempted to enforce the garnishee order.

4. Procedural History:
The case began with the applicant's Notice of Motion dated August 19, 2020, seeking leave to appeal and a stay of execution pending the appeal. The first respondent filed a replying affidavit asserting that the ruling was communicated via email and that the applicant had acknowledged receipt of the order. The respondents argued that the application was filed out of time and lacked merit. The court considered the submissions from both parties, including a statement of grounds of opposition from the respondents, which claimed the court lacked jurisdiction to entertain the application.

5. Analysis:
- Rules: The court considered Order 43 Rule 3, which mandates that leave to appeal must be sought before the trial court within 14 days of the ruling. The court also referenced the principle that leave to appeal should only be granted if there are grounds that merit serious judicial consideration.
- Case Law: The court cited *Joyce Bochere Nyamweya v. Jemima Nyaboke* [2016] eKLR, which established that leave to appeal is granted when there are prima facie grounds for serious judicial consideration. The court also referenced *Serephen Nyasani Menge v. Rispa Onsare* [2018] eKLR, reinforcing the requirement for leave to be sought before the trial court.
- Application: The court found that the applicant's claims regarding its status as a garnishee were tenuous, as garnishee proceedings are execution proceedings where the garnishee can become a judgment debtor. The court determined that the applicant failed to demonstrate any serious matter warranting leave to appeal, particularly given the lack of any disputed evidence regarding the existence of the accounts in question.

6. Conclusion:
The court dismissed the application for leave to appeal, finding it incompetent due to being filed outside the stipulated time without a request for an extension. Consequently, the request for a stay pending the intended appeal was also rendered moot. The ruling emphasized the importance of timely legal action and the principle of finality in litigation.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The High Court of Kenya dismissed Diamond Trust Bank Kenya Limited's application for leave to appeal against a garnishee order absolute, concluding that the application was filed out of time and lacked merit. The decision underscores the necessity for litigants to adhere to procedural timelines and the court's role in ensuring that only arguable appeals proceed. The ruling reinforces the principle that garnishees can be held liable in execution proceedings, even if they are not direct parties to the underlying judgment.