Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 192 of 2013

Kenya National Assurance Company (2001) Limited v Uchumi Insurance Brokers Limited

Court of Appeal
17 February 2017
3,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that a garnishee need not explain the decretal figure, and one judge cannot overturn a colleague's unappealed ruling.

What this practically means

#

Executive summary

#
The appellant, Kenya National Assurance Company (2001) Limited, appealed against a ruling of Nambuye, J., delivered on 20th May 2009, dismissing its application for review of the judge's earlier orders of 7th March 2008, by which the court had declined to discharge the appellant from obligations to Uchumi Insurance Brokers Limited or to release 78,750 KCB shares deposited in court as security. The underlying dispute arose from consolidated suits in which Githinji, J., awarded the respondent Kshs. 11,111,840.68 and the appellant Kshs. 4,224,746.50, with set-off; the appeal thereon was withdrawn upon a full and final settlement of Kshs. 7,197,964.30. The appellant claimed it had paid a further Kshs. 2,643,211.15 pursuant to a garnishee order in favour of Kenya Bureau of Standards in HCCC No. 1644 of 1987. The Court of Appeal identified the narrow issue as whether the appellant proved that payment. It held that Nambuye, J., misdirected herself in requiring the appellant, a mere garnishee, to explain how the garnishee figure had risen, since that onus lay on the judgment debtor; that she exceeded her jurisdiction by doubting Pall, J.'s unappealed ruling that the garnishee had paid in obedience to the court order, judges of concurrent jurisdiction being unable to sit in appeal over each other; and that payment was proved by documentary evidence beyond a receipt or affidavit. The court allowed the appeal, set aside the orders of 7th March 2008 and all consequential orders, ordered release of the shares, and directed each party to bear its own costs, noting the court may have contributed to the delay. The Insurance Act grounds on the Life Fund shares were not considered.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant furnished proof of payment of Kshs. 2,643,211.15 paid pursuant to a garnishee order in HCCC No. 1644 of 1987
  2. 2.Whether the learned Judge erred in requiring the appellant (a garnishee) to explain how the figure in the garnishee order rose from Kshs. 1,436,963.55 to Kshs. 2,643,211.15
  3. 3.Whether the learned Judge could doubt or revisit Pall, J.'s unappealed ruling that the garnishee order had been satisfied
  4. 4.Whether the appellant was entitled to review of the ruling of 7th March 2008 and release of the 78,750 KCB shares deposited as security

Key legal issues

#
01

Grounds for review under section 80 of the Civil Procedure Act and Order 45 rule 1

Holding

Review is available on discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, provided the application is lodged without unreasonable delay

Reasoning

The court restated the classic tripartite grounds for review and confirmed that the appellant had demonstrated an error apparent on the face of the record because Pall, J., had conclusively determined that the appellant had paid the amount in the garnishee order. The Court of Appeal held that on that material review should have been granted, and substituted an order allowing the review application.

p. 4
02

Onus of a garnishee to explain the decretal figure in the garnishee order

Holding

A garnishee has no onus to explain how the figure in the garnishee order was arrived at; the judgment debtor, who is a party to the suit and stands to benefit, has the locus to challenge the figures

Reasoning

The court defined a garnishee by reference to Black's Law Dictionary and reasoned that once served with a garnishee order, the garnishee is duty-bound to comply since it is indebted to the judgment debtor/decree-holder. The judgment debtor was party to the suit giving rise to the order and was better placed to challenge excessive figures. Requiring the garnishee to explain the increase misdirected the enquiry.

p. 5
03

Effect of an unappealed ruling of a judge of concurrent jurisdiction

Holding

A judge of concurrent jurisdiction cannot doubt, correct or sit on appeal against a colleague's unappealed ruling; doing so exceeds her jurisdiction

Reasoning

Pall, J., had expressly found that the garnishee had already paid in obedience to the court order, and no appeal lay against that finding. Nambuye, J., by demanding further proof of a payment Pall, J., had accepted, apparently sought to correct his ruling. The Court of Appeal held this was an error and an excess of jurisdiction, since judges of concurrent jurisdiction cannot review each other's decisions.

p. 6
04

Standard of proof of payment

Holding

Payment may be proved by documentary evidence beyond a receipt or affidavit of the payee; the appellant's letters, pay-in-slip, bank statement and confirmations demonstrated payment beyond peradventure

Reasoning

Although no receipt from Kenya Bureau of Standards nor its affidavit was filed, the appellant exhibited a cheque forwarding letter from the judgment creditor's advocates, a pay-in-slip, a bank statement showing credit, a letter from Kenya Bureau of Standards to the Deputy Registrar confirming receipt, and a later confirmation from the advocates. Together with Pall, J.'s ruling, this established payment and entitled the appellant to review.

p. 6

Legal principles established

#
  • A judge of concurrent jurisdiction cannot sit on appeal against, or demand further proof of matters conclusively determined in, a colleague's unappealed ruling
  • A garnishee bears no onus to explain how the figure in the garnishee order was computed; that challenge lies with the judgment debtor
  • Payment need not be proved exclusively by a receipt or affidavit of the payee; other documentary evidence may suffice

Court orders

#
  1. 1.The orders of Nambuye, J., made and issued on 7th March, 2008 as well as all consequential orders arising therefrom be and are hereby set aside
  2. 2.The 78,750 Kenya Commercial Bank shares deposited in court as security pursuant to the order of the High Court made and or issued on 12th March, 1995, be are hereby released to the appellant forthwith
  3. 3.Each party bears its own costs of the appeal and those of the High Court

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.A. No. 2148 of 1987
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (appeal against a ruling of the High Court); appeal proceeded ex-parte under Rule 102(2) of the Court Rules

Relief refused

#

Consideration of the legality of continued retention of the appellant's shares as security under sections 26, 45 and 46 of the Insurance Act

The court found no necessity to consider this third cluster of grounds given its view of the matter

p. 6

Costs

Each party bears its own costs of the appeal and those of the High Court, because the court may have contributed to the delay in bringing the dispute to a close

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The two learned Judges at the time of making those orders were of concurrent jurisdiction and Nambuye, J., could not sit on appeal against Pall, J's ruling.
p. 6Concurrent jurisdiction - no appellate review of a colleague's ruling
Our conclusion on this issue is that the appellant had no onus to explain how the figure in the garnishee proceedings rose from Kshs.1,436,963.55 to Kshs. 2,643,211.15
p. 5Garnishee's lack of onus to explain the decretal figure
However, we wonder whether a receipt is the only satisfactory means of demonstrating payment. We do not think so. Nor is an affidavit.
p. 5Modes of proving payment
1) The orders of Nambuye, J., made and issued on 7th March, 2008 as well as all consequential orders arising therefrom be and are hereby set aside.
p. 7Final orders - setting aside the High Court orders
2) The 78,750 Kenya Commercial Bank shares deposited in court as security pursuant to the order of the High Court made and or issued on 12th March, 1995, be are hereby released to the appellant forthwith.
p. 7Final orders - release of security shares
3) As the court may have contributed to the delay in bringing this dispute to a close, we order that each party bears its own costs of the appeal and those of the High Court.
p. 7Final orders - costs

Issues in the judgment

#
minor

Date discrepancy on the review application

minor

Inconsistent year for the garnishee suit

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya National Assurance Company (2001) Limited v Uchumi Insurance Brokers Limited", Case Analysis (2017). Civil Appeal No. 192 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/774/eng@2017-02-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.