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Wafubwa v Yes Savings & Credit Coop Society Limited; NCBA Bank (Garnishee) (Tribunal Case 158 of 2019) [2023] KECPT 440 (KLR) (Employment and Labour) (4 May 2023) (Ruling)
Neutral citation:
[2023] KECPT 440 (KLR)
Republic of Kenya
Tribunal Case 158 of 2019
BM Kimemia, Chair, B Sawe & P. Gichuki, Members
May 4, 2023
Between
Sospeter Wafubwa
Claimant
and
Yes Savings & Credit Coop Society Limited
Respondent
and
NCBA Bank
Garnishee
Ruling
1.We have perused the Application dated August 2, 2022. Order Nisi was issued on 17.8.2022.There is a Replying Affidavit deponed on September 5, 2022 by the Secretary of the Respondent Alfred Polo.Supplementary Affidavit of the Claimant deponed on September 8, 2022.Judgment was entered on July 17, 2022 for Kshs 1,305,448/=. We note that this matter is for a claim of refund of the Claimant’s deposits.
2.We note the Certificate of Urgency dated February 14, 2023 seeking reinstatement of Garnishee Order Nisi as per the Application dated August 2, 2022, and the Order issued on 16.3.2023.
3.We note the Respondent’s Replying Affidavit deponed on May 2, 2023, which basically reiterates the contents of the Replying Affidavit deponed on September 5, 2022.
4.The parties were duly served with the Application dated August 2, 2023, which is the subject of determination. The Respondent’s Replying Affidavit alleges that the money held by the Garnishee Bank belongs to the members hence it would be wrong for the Claimant to be paid using the said money.
5.We note that this is a Garnishee Application in which the Claimant seeks for the satisfaction of the decretal sum by the Garnishee Bank which has confirmed vide the Replying Affidavit deponed on April 3, 2023 that they hold money on behalf of the Respondent. The Claimant is a member of the Respondent and saved his money with the Respondent. He seeks to have his money refunded and there is a judgment on record.
6.The requirements of Garnishee proceeding is that the Garnishee should be holding monies on behalf of the Respondent and the same is attached to satisfy the decretal sum.
7.The Garnishee Bank herein showed cause that it was holding monies Kshs 1,433,100/90 in Account Number 6627670011 on behalf of the Respondent.
8.That the Garnishee is not opposed to satisfy the decretal sum, however, the said monies cannot satisfy the whole decretal sum of Kshs1,982,212/20.In Ngaywa Ngigi & Kibet versus Invesco Insurance Company & DTB(Garnishee)[2020]eKLR it was held that the proceedings of Garnishee are between the Judgment Creditor and Garnishee hence the Judgment Debtor has no locus to apply to seek to dismiss the Garnishee order since the Judgment Debtor is not a party to the Garnishee proceedings. The Judgment Debtor was all along aware of the order Nisi even when they filed an Appeal and had a stay in the matter and filed a Replying Affidavit dated September 5, 2022. The allegations of want of service therefore does not suffice.
9.We find that the Garnishee has confirmed that they hold funds on behalf of the Respondent which funds are not sufficient to fully satisfy this decree as per paragraph 7, and that a sum of Kshs 400,000/= is attached in CTC No 178/2020[paragraph 6].
10.We note that there is funds Kshs 1,033,100/90 [1,433,100/90 less 400,000/=] available for this claim. Order Nisi is hereby confirmed.
11.We assess costs of Garnishee at Kshs 15,000/=, to be paid plus the sums held to partially satisfy the decree herein that is, Kshs 1,018,100/90. For clarity purposes this will leave the decretal sum partially unsatisfied by Kshs 964,111/30. The Judgment Creditor may use alternative means to execute the said balance of Kshs 964,111/30. In interest of Justice in Rule 3 and 4 Cooperative Tribunal Practice and Procedure Rules .
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF MAY, 2023.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 4.5.2023HON. BEATRICE SAWE MEMBER SIGNED 4.5.2023HON. PHILIP GICHUKI MEMBER SIGNED 4.5.2023TRIBUNAL CLERK JEMIMAHMwangi Advocate for ClaimantMbuthia advocate for the RespondentNo appearance for GarnisheeHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 4.5.2023
