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|Case Number:||Tribunal Case 804 of 2016|
|Parties:||Kenya Union of Savings & Credit Co-operative Limited v Maseno University Sacco Society Limited & Maseno University|
|Date Delivered:||07 Nov 2019|
|Judge(s):||B. Kimemia - Chairman, R. Mwambura – Member & P. Swanya - Member|
|Citation:||Kenya Union of Savings & Credit Co-operative Limited v Maseno University Sacco Society Limited & another  eKLR|
|Case Outcome:||Application dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO.804 OF 2016
KENYA UNION OF SAVINGS & CREDIT
MASENO UNIVERSITY SACCO SOCIETY LIMITED............RESPONDENT
The Matter for determination is an ex-parte Notice of Motion application dated 13.11.18 based on the grounds on the face of the application supported by the affidavit of GRACE MUIRURI seeking the following orders:-
1. That the application be certified urgent and heard in the first instance.
2. That Decree Nisi do issue in terms of prayer three (3) hereof, pending hearing and determination of this application.
3. That all funds held in favour of the respondent judgment debtor by Maseno University be attached to settle the Decretal sum herein plus costs and interest on which the Decree is unpaid for Kshs.36,120,708/=
4. That the Garnishees do within seven (7) days, after the service of the order herein upon them, inform this court, the amount of money they owes the respondent judgment debtor and show cause why it should not pay to the claimant /applicant the debt due from it to the respondent judgment debtor.
5. That the costs of this application be provided for.
The same is opposed vide the replying affidavit of EDWARD MUMO KITATI the finance manager of the garnishee filed on 24.1.19.
The Garnishee filed their written submission on 30.7.19. We note that the applicant did not file their written submissions as ordered on 17.6.19 and 30.7.19.
The geist of the application is that the judgment Creditor/Claimant obtained a judgment for Kshs.36,120,708/= against the Respondent herein on 3.2.17.
That the Respondent has no known assets capable of satisfying the partial decree.
That the Garnishee holds moneys inform of membership contribution for the members of the Respondent.
That the said money can be used to satisfy the decree.
We have considered the submission of the Garnishee and the application of the Claimant/ Judgment Creditor.
The garnishee has submitted that they do not hold any money on behalf of the judgment debtor.
That the members deductions of the respondents are remitted to the respondent who holds the money in trust for the members.
That the Garnishee has no duty to decide on how the respondent’s employee/staff utilize their savings but only acts on instructions for any remittance or deductions.
That at the time of this application, the Garnishee was not holding any moneys on behalf of the Respondent.
Therefore they cannot remit moneys they do not hold.
We therefore find that the Garnishee does not owe any money remittable to the Claimant that can be levied to satisfy the decretal amount.
We therefore decline to make the order nisi issued on 19.11.18 absolute to levy execution against the garnishee.
The application dated 13.11.18 is dismissed with costs.
Read and delivered in open court, this 7TH of November 2019
In the presence of:
Claimant: Modi advocate for Claimant/Applicant.
Court Assistant: Leweri and Buluma.
B. Kimemia - Chairman-signed.
R. Mwambura – Member-signed.
P. Swanya - Member-signed.