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ELRCPartially AllowedELRC Judicial Review No. E027 of 2023

Nelson Othoo v Kenya Union of Water and Sewerage Employees & Co-operative Bank of Kenya Limited (Garnishee)

Employment and Labour Relations Court of Kenya
1 October 2026
2,086 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed banks can be ordered to pay out whatever is in a debtor's account, even if it covers only part of the judgment debt.

What this practically means

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Executive summary

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The claimant held a decree of Kshs. 6,146,564.49 against the Kenya Union of Water and Sewerage Employees, arising from a consent decree recorded on 11th April 2024 for salary arrears and continuous benefits. The decree remained unsatisfied, and the claimant applied by notice of motion dated 3rd August 2026 for a garnishee order nisi against the union's account at Co-operative Bank of Kenya, Buru Buru Branch, seeking that the order be made absolute, plus oral examination of the union's national officials and costs. The court issued an ex parte garnishee nisi on 3rd August 2026. The garnishee's affidavits (by Jackson Oire and Joseph Shiundu) disclosed that the account held only Kshs. 1,334.88 as at 6th August 2026, later Kshs. 449,119.88, and sought Kshs. 15,000 garnishee costs. The judgment debtor did not dispute the decree or its non-satisfaction, but contended that a garnishee order absolute cannot issue for part performance of a decree. The court rejected that contention, holding that Order 23 rule 1 and Appendix A Form 18 of the Civil Procedure Rules expressly contemplate a garnishee order absolute where the garnishee holds less than the judgment debt, and followed the High Court's decision in Copitex Knitwear Mills Ltd. It held that garnishee proceedings are an execution process, that an order absolute attaches whatever credit balance exists up to the decree amount, and that it does not discharge the judgment debtor from the balance. The nisi order was made absolute for the available funds, less Kshs. 15,000 garnishee costs, with a similar sum awarded to the self-represented applicant and added to the decree.

Questions the Court framed

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

  1. 1.Whether a Garnishee Order Absolute can issue where the funds held by the garnishee are less than the total judgment debt
  2. 2.Whether the funds held in the garnished account are available for attachment
  3. 3.What orders on costs of the garnishee proceedings should issue

Key legal issues

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01

Whether garnishee absolute can issue for part performance of the decree

Holding

Yes. Order 23 rule 1 and Appendix A Form 18 of the Civil Procedure Rules contemplate a garnishee order absolute where the garnishee owes less than the judgment debt; holding otherwise would be absurd.

Reasoning

The court extracted the key words of Order 23 rule 1 and noted Form 18 expressly provides for a Garnishee Order (Absolute) where the garnishee owes less than the judgment debt. It found it absurd to deny the order merely because the balance was insufficient, and was persuaded by the High Court decision in Copitex Knitwear Mills Ltd where an order absolute followed on a partial balance.

p. 6
02

Extent of a bank garnishee's liability under an order absolute

Holding

A bank garnishee is liable only for what it actually owes the judgment debtor at the time of attachment; funds released satisfy the decree only to the extent recovered.

Reasoning

The court held that a garnishee absolute attaches whatever credit balance exists at the time the order is served or made final, up to the decree total plus costs and interest. Where the balance is less than the debt, the bank pays over the available sum towards partial satisfaction, and the judgment debtor remains liable for the balance.

p. 7

Legal principles established

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  • A Garnishee Order Absolute may issue where the garnishee holds less than the judgment debt; it attaches whatever credit balance exists up to the decree amount, and does not discharge the judgment debtor from paying the balance
  • Garnishee proceedings are an execution process available to a decree-holder until the decree is satisfied

Court orders

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  1. 1.The Garnishee Order Nisi of 3rd August 2026 made Absolute
  2. 2.The garnishee, after deducting Kshs. 15,000 for its costs, to forthwith pay to the decree-holder from all monies held in account no. 01120201219200 at the Buruburu branch towards satisfaction of the debt of Kshs. 6,146,564.49, and in default thereof execution may issue
  3. 3.Kshs. 15,000, the costs of the decree-holder in the application, added to the amount of the decree and retained out of the money recovered under the order, in priority to the amount of the decree

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 23 of the Civil Procedure Rules (garnishee proceedings in execution of a decree issued by this Court)

Relief refused

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Garnishee Order Absolute for the full decretal sum of Kshs. 6,146,564.49

The garnishee held only Kshs. 449,119.88; the order absolute attaches only the available balance towards partial satisfaction

p. 7

Summons for oral examination of the respondent's national principals (Elijah Otieno Awach, Jared Nyawanda, John Randa Adie)

Not granted in the final orders; the court found non-satisfaction of the decree undisputed and proceeded to the garnishee order

p. 4

Costs

Kshs. 15,000 awarded to the garnishee as garnishee costs, deductible from the attached funds; the self-represented applicant awarded a similar amount of Kshs. 15,000, added to the decree and retained out of the money recovered in priority to the decree.

Quotable passages

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

It is ordered that the garnishee (after deducting therefrom Kshs. 15,000 for its costs of this application) do forthwith pay to the decree-holder/applicant, from all monies held by the judgment debtor with the garnishee bank in account no. 01120201219200, held at the Buruburu branch, towards satisfaction of the debt of Kshs. 6,146,564.49, and that, in default thereof, execution may issue for the same.
p. 7Final orders - garnishee absolute for available funds
I find that Garnishee proceedings are an execution process; they are just one of the many forms available to the applicant until the decree is satisfied.
p. 7Nature of garnishee proceedings
The funds released under a Garnishee Absolute satisfy the decree only to the extent of the amount recovered. The order does not discharge the judgment debtor from paying the remaining balance.
p. 7Effect of partial garnishee absolute
The court finds it would be absurd to hold that, since the amount is insufficient to settle the entire debt, the order of garnishee absolute cannot issue on the available funds.
p. 5Rejection of judgment debtor's contention

Issues in the judgment

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minor

Decree inconsistently described as a judgment and a consent decree

minor

Copitex chronology internally contradictory - order absolute dated before the ruling

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, "Nelson Othoo v Kenya Union of Water and Sewerage Employees & Co-operative Bank of Kenya Limited (Garnishee)", Case Analysis (2026). ELRC Judicial Review No. E027 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2711/eng@2026-10-01

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