Nelson Othoo v Kenya Union of Water and Sewerage Employees & Co-operative Bank of Kenya Limited (Garnishee)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a Garnishee Order Absolute can issue where the funds held by the garnishee are less than the total judgment debt
- 2.Whether the funds held in the garnished account are available for attachment
- 3.What orders on costs of the garnishee proceedings should issue
Key legal issues
#Whether garnishee absolute can issue for part performance of the decree
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.
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.
Extent of a bank garnishee's liability under an order absolute
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.
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.
Legal principles established
#- 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
#- 1.The Garnishee Order Nisi of 3rd August 2026 made Absolute
- 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.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
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
#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.
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.
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.
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.
Issues in the judgment
#Decree inconsistently described as a judgment and a consent decree
Copitex chronology internally contradictory - order absolute dated before the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.