1.Before the Court are three Applications to be canvassed together. The 1st Application is a Notice of Motion dated 25th November 2021 brought under Order 23 Rule (1), (2), (3), Order 50 Rule 1 of the Civil Procedure Rules 2010, and Section 1A, 1B, 3A and 9 of the Civil Procedure Act. The Applicant sought the following orders;a.There be issued a garnishee order nisi against Bank of Africa Kenya Limited-Nairobi Branch (1st Garnishee) ordering that all monies deposited, lying and being held in deposit in Bank Account Number xxxx to the credit of the Judgment Debtor/Respondent in the account of Crosslink Services, to answer to the Decree issued on 12th November 2021 by this Court.b.There be issued a garnishee order nisi against Equity Bank Kenya Limited-Moi Avenue Branch (2nd Garnishee) ordering that all monies deposited, lying and being held in deposit in Bank Account Number xxxx to the credit of the Judgment Debtor/Respondent in the account of Crosslink Services, to answer to the Decree issued on 12th November 2021 by this Court.c.The garnishee orders nisi in (prayer 2 and 3 above) be made absolute.
2.The Application was supported by the sworn Affidavit of Muriuki Muriungi who stated that default Judgment against the Judgment Debtor/Respondent herein for the sum of USD 277,014.00 with interest at commercial rates was entered by this Court (Deputy Registrar Hon. Claire Wanyama) on 12th November 2021.
3.The Decree in issue was final and has not been challenged and remains unsatisfied to date either in part or in full. Thus, the Decree Holder/Applicant is apprehensive that the Judgment Debtor/Respondent may dissipate its assets to frustrate the efforts of the Decree Holder/Applicant to enjoy the fruits of a legally obtained judgment.
4.The Judgment Debtor/Respondent herein has monies lying in two bank accounts at Bank of Africa Kenya Limited and Equity Bank of Kenya Limited that may be garnisheed in satisfaction of the Decree.
5.The 1st Garnishee through its Replying Affidavit dated 1st December 2021 stated that the balances due on the said accounts as at the date indicated, being the sum of USD 54, 325.00. The said amounts as is evident from the attached statement of account is however incapable of satisfying the full amounts of the decree. Further, that the garnishee is hence willing to comply with any directives issued by the Court subject to the Judgment Debtor meeting any related costs including the transaction costs and the costs of this garnishee proceedings.
6.The 2nd Garnishee through its Replying Affidavit dated 6th December 2021 stated that the account held by the Garnishee on behalf of the Judgment Debtor had as at 6th December, 2021 the sum of Kshs. -2.15 USD which amount is insufficient to satisfy the decretal amount as prayed in the Decree Holders Application. Therefore, the Garnishee prayed to be discharged as a Garnishee from the proceedings of this suit.
7.The 2nd Application is a Notice of Motion dated 20th December 2021 brought under Article 159 of the Constitution of Kenya, Section IA, 1B, 3A of the Civil Procedure Act and Order 10 Rule 11 Order 23 & Order 51 rule 1 of the Civil Procedure Rules. The Applicant sought the following orders;a.Pending hearing and determination of this Application, the interlocutory judgment entered in the suit on 12th November, 2021 together with all the subsequent garnishee proceedings including but not limited to the garnishee orders nisi dated 28th November, 2021 be stayed.b.The interlocutory judgment entered herein on 12th November, 2021 be set aside, and the Defendant be granted leave to defend the suit and file a defence.
8.The Application was supported by the sworn Affidavit of Samuel Onyango Oyoowho stated that the Defendant was late in filing his defence because he was still waiting for critical documents from Democratic Republic of Congo (DRC). The Defendant had indicated this to the Deputy Registrar, and sought more time and indulgence to do so.
9.The Applicant stated that the interlocutory judgment cannot be executed in law by way of garnishee proceedings or at all since it is not final judgment. In any event the Defendant has appealed against the case in DRC, and the same has been stayed. The foreign judgment cannot therefore be enforced in Kenya
10.The Decree Holder responded to the Application vide Grounds of Opposition dated 21st February 2021 stating that the Default Judgment entered by this Court on 12th November 2021 and which the Judgment Debtor seeks to have set aside and stay execution on the basis that it is an interlocutory judgment was NEVER an interlocutory judgment but rather a final judgment given that it was for a liquidated sum. In addition, the said Notice of Motion Application was filed after an inordinate delay.
11.The court lacks jurisdiction to determine the issues contained in the Judgment Debtor’s draft defence as they amount to reopening the merits of judgment issued by a competent court of foreign jurisdiction.
12.The 3rd Application is a Chamber Summons dated 25th February 2022 brought under Order 1 rule 10 of the Civil Procedure rules and Section 3A of the Civil Procedure Act for orders that;a.The Court does enjoin in these proceedings Ruth AtienoOderabeing the Partner and signatory in Crosslink Servicesa Partnership business run together with Samuel Onyango Oyoo, the Judgment Debtor/Respondent herein.
13.The Application was supported by the sworn Affidavit of Ruth Atieno Oderawho stated that the interested party has just learnt of the existence of this suit and default judgment thereto entered on 12th November 2021 and the Orders freezing the bank accounts in the name of Crosslink Services, which she is a partner in the business and signatory held in the 1st and 2nd Garnishee Banks.
14.The frozen accounts do not belong to the Respondent but to the Partnership Crosslink Services in which the Applicant is a partner and signatory. The Applicant's lawful and legitimate business that entirely depends on the operation of the aforementioned bank accounts is on the verge of collapsing and she is also unable to sustain her needs and those of her family. It is in the interest of justice that the 2nd and 3rd Respondents unfreezes the Applicant's Bank Accounts.
15.The Applicant submitted that the Judgment Debtor/Respondent has not made out a case for setting aside of the judgment entered in default of filing a defence and grant of leave to defend the suit as envisaged in the case of in James Kanyiita Nderitu & Another vs. Marios Philotas Ghikas & Another  eKLR. This is principally because this Application to set aside was not filed timeously, there are no good reasons explaining the failure to file a defence, allowing the application will unduly prejudice the Decree Holder, the application is an abuse of the process of this court and that the Judgment Debtor has no arguable defence (the draft defence exhibited is a sham as it raises no single triable issue).
16.The said default judgment was a final judgment and not interlocutory as it was for a liquidated sum. The Applicant argued that formal proof proceedings are only usually required for unliquidated amounts or where there is need for assessment of damages in a suit. This is not the case here. This is a merely a case of recognition and enforcement of a liquidated judgment sum that has already been adjudged by a foreign court. This court has previously stated that it does not even matter what the default judgment may be indicated in Board of Management St Augustine Secondary School versus Chambalili Trading Co. Ltd  eKLR.
17.The Decree Holder submits that the Garnishee Orders Nisi dated 28th November 2021 ought to be made absolute. The 1st Garnishee (Bank of Africa Kenya Limited) through its Replying Affidavit dated 1st December 2021 sworn by Solomon Kibue affirmed that it is holding a total of USD 54, 322 belonging to the Judgment Debtor. Accordingly, there is no bar to the Court issuing Garnishee Orders Absolute as per Order 23 Rule 4 of the Civil Procedure Rules 2010.
18.The only requirement under Order 23 Rule 1(2) is that garnishee order nisi must be served on both the garnishee and the Judgment Debtor at least seven days before the date of hearing of the garnishee application by the Decree Holder, which was duly done through the Judgment Debtor’s Advocate on record as apparent from the court record. Further, all the parties’ advocates were present in court on the day when the orders were made.
19.The proposed interested party in its application dated 25th February 2022 seeks to be enjoined in this suit on grounds that she is a partner in the partnership (Crosslink Services) against which there is a valid judgment and decree. It was the Applicant’s position that the said application for joinder is an abuse of the process of this Court, mischievous, opportunistic and a ruse by the Judgment Debtor to delay and frustrate the conclusion of this matter.
20.The proposed interested party’s contention that the monies borrowed by the Judgment Debtor from the Decree Holder were of a personal nature is inconsistent with the findings of the judgment of this Court dated 12th November 2021 which recognized the foreign judgment from the Commercial Court of Congo which had found as such, and which judgment is in any case not even in any case not subject to reopening on merits. That at paragraphs 6, 11 and 12 of the proposed interested party’s affidavit, she in fact acknowledges being aware of proceedings in the foreign court in the Commercial Court in Goma, DRC and that the Court there had in fact ordered a freezing of the bank accounts of the partnership in execution of the foreign judgment.
21.The proposed interested party has no legal basis to be enjoined in this matter in the first place as the said partnership is not a limited liability partnership and is therefore not a distinct legal entity. As apparent from the registration documents annexed, the partnership (Crosslink Services) is a general partnership which is an unincorporated body and under which the law of agency applies so that the actions of one partner bind the other.
22.In Express Connections Limited v Ezekiel Kiarie Kamande  eKLR the Court of Appeal in the above case expressly provides that it is not necessary for all partners of a partnership to be joined in a suit as each partner is jointly and severally liable for a partnership’s liability. Accordingly, the proposed interested party has no legal or factual basis to be enjoined in the suit. Admitting the proposed interested party will serve no useful purpose other than to further delay and obstruct the cause of justice
23.It was the Respondent’s submission that the Interlocutory Judgement should in the interest of justice and fairness be set aside and the Defendant be allowed to file his defence. This is in line with the Defendant's Constitutional Right to fair hearing as well as the provisions of Order 10 Rule 11 of the Civil Procedure Rules which permits this Court to grant such orders.
24.The Defendant had made his intention of filing a defence clear early enough and explained the reason for his delay in filing the same to court being that there were some crucial documents which he was waiting to be sent to him from the DRC. The documents were eventually sent to and received by the Defendant on 7th December 2021. The Defendant without delay drafted his defence and then filed this Application seeking to be allowed to file the same out of time. He annexed the said defence to his Application. This therefore clearly shows that the defendant was desirous of defending the suit but for the delay experienced while waiting for his documents.
25.One of the said crucial documents was a stay order from the foreign Court of Appeal where the Defendant had filed the appeal with regards to the matter subject of this suit. It is our humble submission that a court cannot enforce a judgement which has been stayed either by the court that pronounced it or by a court to which the decision has been appealed to. It is trite that the effect of a stay of execution order is to suspend the enforcement of such a judgement pending the outcome of the appeal.
Issues for Determination
26.After carefully considering the three Applications, the responses and the written submissions. The following issues are for consideration;a)Whether the interlocutory judgment should be set aside, the garnishee proceedings stayed and the Defendant granted leave to file a defence?b)Whether Garnishee order nisi should be made absolute?c)Whether the Court should enjoin the interested party to the proceedings?
Whether the interlocutory judgment should be set aside, garnishee proceedings stayed and the defendant granted leave to file a defence;
27.Section 9 of the Civil Procedure Act provides that:
28.Further, Section 10(1) of the Foreign Judgments (Reciprocal Enforcement) Act, provides that:
29.It was the Respondent’s case that the Interlocutory Judgement should in the interest of justice and fairness be set aside and the Defendant be allowed to file his defence and that the reason for his delay in filing the same to court being that there were some crucial documents which he was waiting to be sent to him from the DRC. The documents were eventually sent to and received by the Defendant on 7th December 2021.
30.The Respondent had filed a Notice of Motion dated 10th February 2020 seeking the following orders;
31.This Court vide the Ruling dated 12th March 2021 dismissed the said Application and stated;
32.It is this Court’s finding that the Judgment Debtor’s Application herein has elements of res judicata as the prayers sought herein are the same as prayers sought in the Notice of Motion dated 10th February 2020 and the matter is between the same parties. The said Application was heard and determined by a competent court as stated herein above and the prayers dismissed.
33.Be as it may, the suit herein was filed on 19th December 2019 and the judgment was entered on 12th November 2021 which was well over two years. This is clearly an inordinate delay on the part of the Defendant.
34.The Court finds that the reasons advanced by the Applicant for failure to file the defence herein has no merit
Whether the Court should enjoin the interested party to the proceedings?
36.In the Supreme Court of Kenya decision, Communication Commission of Kenya & 4 Others v. Royal Media Services Limited & 7 Others  eKLR, it was held: -
37.The Supreme Court held further that a party could be joined for reasons that:
38.This Court held in the case of East African Development Bank v Dari Limited & 5 others  eKLR, that the mandate of this court, under the Act is limited to the enforcement of foreign judgments emanating from designated countries and does not extend to reviewing, interrogating or analysing the procedures of those foreign courts or the substance of parties’ disputes.
39.Going by the above finding of the Court, it is this Court’s view that enjoining the interested party to the proceedings falls within the original court’s jurisdiction and will be better presented and determined therein.
Whether Garnishee order nisi should be made absolute?
40.On 22nd January 2020 the Court made temporary Garnishee orders against the Account of the Defendant domiciled at Bank of Africa Kenya Ltd pursuant to Section 9 of the Foreign Judgments (Reciprocal Enforcement) Act which provides that;(1)1) At the time of, or at any time subsequent to, making an application for registration under section 5, the applicant may apply ex parte to the High Court for an order that all debts, obligations and liabilities due or accruing due to the judgment debtor from any person named in the application (in this section referred to as “the garnishee”) be attached.(2)The High Court upon an application under subsection (1) may, upon the production of such further evidence as it may require and if it deems it proper, order the garnishee to pay the judgment creditor the amount of the debts, liabilities or obligations due or accruing due to the judgment debtor from the garnishee or so much thereof as is sufficient to satisfy the registered judgment and the costs of the proceedings pursuant to this section.(3)Subject to this section, the rules of court with respect to the attachment of debts due to judgment debtors shall apply to proceedings pursuant to this section.
41.Order 23, Rule 1 of the Civil Procedure Rules on attachment of debts provides; that: -
42.The stage that follows is for the order nisi to be made absolute. The 1st Garnishee through its Replying Affidavit dated 1st December 2021 stated that the balances due on the said accounts as at the date indicated, being the sum of USD 54, 325.00. Further, the garnishee stated that it willing to comply with any directives issued by the Court subject to the Judgment Debtor meeting any related costs including the transaction costs and the costs of this garnishee proceedings.
43.The 2nd Garnishee through its Replying Affidavit dated 6th December 2021 stated that the account held by the Garnishee on behalf of the Judgment Debtor had as at 6th December, 2021 the sum of Kshs. -2.15 USD which amount is insufficient to satisfy the decretal amount as prayed in the Decree Holders Application. Therefore, the Garnishee was discharged as a Garnishee from the proceedings of this suit.
44.The 1st Garnishee herein confirmed willingness to comply with this court’s order in accordance with the provisions of Order 23 Rule 4 of the Civil Procedure Rules.
45.It follows therefore that the Garnishee Order Nisi made is hereby made absolute. Execution be and is hereby issued against the 1st Garnishee directing it to pay the amounts in Bank Account Number xxxx towards the satisfaction of the decree and costs of these Garnishee proceedings.
Findings and Determination
46.From the afore-going reasons this court makes the following findings and determinations that;(i)This court finds the application to set aside the interlocutory judgment and stay of garnishee proceedings has all the elements of res judicata’;thus making the application incompetent and it is hereby struck out;(ii)This court finds the application for grant of leave to file a defence to be devoid of merit and it is hereby dismissed.(iii)This court lacks the jurisdiction to enjoin the interested party to these proceedings; the application is found to be incompetent and it is hereby struck out;(iv)The application for the 1st garnishee order nisito be made absolute is found to have merit and it is hereby allowed;(v)The garnishee order nisi against Bank of Africa Kenya Limited-Nairobi Branch (1st Garnishee) be and is hereby made absolute; all monies deposited, lying and being held in deposit in Bank Account Number xxxx to the credit of the Judgment Debtor/Respondent in the account of Crosslink Services be paid to the Decree/Holder in satisfaction of the Decree and costs of these Garnishee proceedings;Orders Accordingly