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ELRCDismissedNotice of Motion dated 8th November 2024 (garnishee application in pending petition)· [2025] KEELRC 23 (KLR)

Kenya Medical Practictioners, & Dentists’ (KMPDU) v Moi University & another; Cabinet Secretary, Ministry of Labour & Social Protection (Interested Party); National Bank of Kenya (Garnishee) (Petition E191 of 2021) [2025] KEELRC 23 (KLR)

Employment and Labour Relations Court
16 January 2025
HWHellen Wasilwa
4,465 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Employment Court stopped KMPDU from garnishing Kshs. 53.5 million from Moi University because no formal court decree had been extracted yet.

What this practically means

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Executive summary

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The Petitioner, through its advocate Henry Kurauka, sought garnishee orders nisi and absolute to attach Kshs. 53,550,000 from Moi University's account at the National Bank of Kenya, Eldoret Branch, pursuant to a return-to-work formula dated 11th February 2022 that was approved by Hon. Lady Justice Ngibuini Mwaure on 26th July 2024, with leave to execute if the decretal sum was not settled within 60 days. The Petitioner asserted the sum remained outstanding and that the Respondents' non-compliance constituted contempt of court, invoking Articles 10, 159 and 259 of the Constitution and Order 23 of the Civil Procedure Rules. The 1st Respondent, Moi University, filed a preliminary objection contending the Court lacked jurisdiction because no decree existed, the claimed amounts were indeterminate and contested, and SRC and Ministry of Education advice excluded the two doctors and three pharmaceutical technologists from the enhanced allowances. Prof. Simeon Mining and Joshua Koech swore affidavits detailing the funding constraints and the paralysis caused by the garnishment. The Court, HELLEN WASILWA J, held that its jurisdiction could not be faulted as it was seized of the underlying petition and had previously allowed execution on default. However, applying Order 23 rule 1(1), it found that garnishee proceedings must flow from a decree which had not been extracted, rendering execution premature and contempt proceedings unavailable. The preliminary objection was allowed, the decree nisi was set aside, and costs were awarded in the petition.

Key legal issues

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01

Jurisdiction over the garnishee application

Holding

The Court's jurisdiction is not faulted because it is seized of the underlying petition and previously allowed execution in case of non-payment.

Reasoning

The Applicant argued the Court had jurisdiction under Order 23 and the Civil Procedure Act. The Respondents objected that the Court lacked jurisdiction since the substantive petition was undetermined. The Court held that it has been seized of the matter all along and its ruling of 26 July 2024 reaffirmed the return-to-work formula and allowed execution upon default, so its jurisdiction could not be questioned. However, the presence of jurisdiction did not cure the absence of a decree.

p. 8
02

Requirement of a decree for garnishee proceedings

Holding

Order 23 rule 1(1) requires a decree; since none has been extracted, the garnishee application is premature and the decree nisi is set aside.

Reasoning

The Court examined Order 23 rule 1(1), which contemplates a decree-holder applying on affidavit stating that a decree has been issued and is unsatisfied. It found the rule clear that garnishee proceedings flow from a decree of the court which has not been extracted. Consequently, execution is premature, contempt cannot follow, the preliminary objection is merited, and the decree nisi is set aside with costs in the petition.

p. 8

Legal principles established

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  • Garnishee proceedings under Order 23 rule 1(1) of the Civil Procedure Rules must flow from a decree of the court which has been issued and remains unsatisfied; without a decree, execution is premature and contempt proceedings cannot follow.

Court orders

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  1. 1.The Preliminary Objection dated 25th November 2024 is allowed
  2. 2.The decree nisi is set aside
  3. 3.Costs in the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3(1), 10, 47, 48, 50, 50(1), 75, 159, 159(2)(d), 201(c) and (d), 206, 230, 230(4), 230(4)(b), 232, 259, 43
  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure Rules, 2010Order 23 (including Order 23 Rule 1(1)), Order 22 rule 42, Order 51
  • Public Finance Management Act

Cases cited (9)

  • Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation
    [2021] eKLR
  • Teachers Service Commission v Kenya National Union of Teachers & 2 others
    (2013) eKLR
  • Econet Wireless Ltd v Minister for Information & Communication of Kenya
    (2005) eKLR
  • Mukisa Biscuits Manufacturing Co. Limited v West End Distributors Limited
    (1966) EA 696
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Mengich t/a Mengich & Co Advocates & Another v Joseph Mabwai & 10 Others
    [2018] eKLR
  • Salaries and Remuneration Commission v National Hospital Insurance Fund Management Board & 2 Others
    (Civil Appeal 156 of 2016) [2024] KECA 419 (KLR) (26 April 2024)
  • Teachers Service Commission (TSC) v Kenya Union of Teachers (KNUT) & 3 Others
    [2015] eKLR
  • Republic v Public Procurement Complaints, Review and Appeals Board & Another Ex Parte Kenya Airports Authority
    [2005] 1 KLR 628
Jurisdiction invoked
Order 23 and Order 51 of the Civil Procedure Rules, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; jurisdiction affirmed as the court seized of the underlying petition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Medical Practictioners, & Dentists’ (KMPDU) v Moi University & another; Cabinet Secretary, Ministry of Labour & Social Protection (Interested Party); National Bank of Kenya (Garnishee) (Petition E191 of 2021) [2025] KEELRC 23 (KLR)", Case Analysis (2025). Notice of Motion dated 8th November 2024 (garnishee application in pending petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/23/eng@2025-01-16

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