Sikuku v Kenya National Trading Corporation (KNTC)

and performance of the rice purchase programme and are not benecially available to KNTC for settlement of the decretal sum. 9. In the alternative, the sum of Kshs.5,848,836 credited by the National Police Service/Administration Police Service on 13th July 2026 the Kenya Railways Corporation credits of Kshs.87,973 and 109,967.00, and all other sums proved to be proceeds of rice sales be excluded from attachment and released solely for settlement of rice farmers and related rice programme obligations. 10. The Petitioner/Decree-Holder be directed to pursue execution only against funds and assets benecially belonging to the Respondent and not against monies held for identiable 3rd parties. 11. The court be pleased to grant such further or other orders as may be necessary as may be necessary to protect the interests of the rice farmers and preserve the subject matter pending determination of the Respondent’s appeal. 12. Costs of this application be in the cause. 2. The application is based on the grounds set out on its face and the Applicant’s Supporting Adavit sworn by the Managing Director on 30th July 2026 who deponed that vide Judgment delivered on 30th June 2025, the Judgment creditor commenced Garnishee proceedings to recover Kshs.8,681,751 and Respondent judgment Debtor had challenged the Judgment in civil Appeal (Application) No. E649 of 2025 and sought stay of execution. 3. The aant deponed that vide its ruling dated 30th July 2026 the court permitted recovery and/or remittance of the decretal sum from the Judgment Debtor’s bank accounts including ABSA Bank Kenya PLC Account No. 2046xxxxxx Lunga Lunga Road Branch. 4. Signicantly, the aant deponed that while the court had a complete documentary trial of the funds held in the Judgment Debtor’s Bank Account at the Co-operative Bank of Kenya Ltd, it did not have similar benet of the funds in ABSA Bank Kenya PLC Account No. 2046xxxxxx, also rice funds traceable to rice supplied and purchased under the Respondent’s rice trading programme. 5. That Account No. 2046xxxxxx was expressly styled as KNTC Rice Trading Account as per the Bank Statement for the period 1st June 2026 to 30th July 2026 with a closing balance of Kshs.6,149,510.00. that the National Police Service/Administration Police Service credited the Account with the sum of Kshs.5848836 following the supply of rice by the respondent as per the invoices on record. 6. The aant further deponed that the monies in the account was traceable proceeds of rice sold by the KNTC and thus held for a specic purpose and attaching the funds would divert the same from the designated purpose and the rice farmers had not been heard. 7. That the materials placed before the court was not fully available and was not specically interrogated when the orders were made and if the funds were released to the Decree-Holder, recovery may be dicult and rice farmers claims would remain unpaid, and the application was made without unreasonable delay. 8. By a Replying Adavit sworn by the Decree-Holder on 1st August 2026 in opposition to the application, the Decree-Holder deponed that the instant application was an afterthought and had not met the threshold of Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2487/eng@2026-09-22 2

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9. The aant deponed that the applicant was intent on closing holes in its case and have a second bite and had no new and important matter/evidence and had not shown that the information relied upon was not within its knowledge. That the evidence relied upon did not establish that the funds in the account belong to any 3rd party other than the Judgment Debtor and the Bank statement produced lacked authentication and thus inadmissible and the application was frivolous and vexatious. 1st Garnishee’s Response 10. Mr. Simon Mwangi, 1st Garnishee’s Legal Ocer deponed that the Judgment debtor had two accounts with the 1st Garnishee Account numbers 0701xxxxxx and 2046098318 and as at 5th August 2026 Account Number 2046xxxxxx had a balance of Kshs.6,149,126. Applicant’s Submissions 11. As to whether the monies in the 2nd Garnishee’s Account number 0113xxxxxxxxxx and its sister account constituted a debt “due or accruing due” from the 2nd Garnishee to the Judgment Debtor capable of attachment under Order 23 of the Civil procedure Rules, 2010, counsel relied on the sentiments of the Court of Appeal in Barclays Bank of Kenya Ltd v Kepha Nyabera & 191 others & another (2013) eKLR on the Judgment Debtor’s right to monies held by the Garnishee to urge that the account in question had been nominated by the Respondent/Applicant as the account into which the National Treasury’s rice farmers grant was to be paid and the grant was paid into the account. 12. Reliance was further placed on the decision in Kennedy Wainaina Nganga v County Government of Nairobi: Co-operative Bank of Kenya Ltd (Garnishee) (2019) eKLR for the proposition that a Garnishee may be holding funds in a duciary capacity where the funds are shown to be designated for another specic purpose, to urge that the public money earmarked for a dened purpose was qualitatively dierent from an ordinary debt. 13. According to counsel, the rice farming co-operative and self-help groups had not opportunity to be heard. 14. Counsel urged that the rice farmers had not been heard citing the decisions in Cecilio Murango Mwenda t/a Muranga Mwenda & Co Advocates v Isiolo County Government & Consolidated Bank of Kenya Ltd (Garnishee) (2017) eKLR. 15. Finally, counsel submitted on what she referred to as unresolved question over the decretal sum, which was not pleaded in the instant application. 16. In the instant motion the applicant is seeking the variation, review or setting aside of the orders issued on 30th July 2026 and a stay of execution of the same and all consequential orders. Consequently, the only issue for determination is whether the instant application is merited. 17. Under Section 16 of the Employment and Labour Relations Court Act. 18. The court shall have power to review its judgment awards, orders or decrees in accordance with the rules. 19. Similarly, under Rule 74 of the Employment and Labour Relations Court (Procedure) Rules: I. A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed may within reasonable time, apply for a review of the judgment or ruling - https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2487/eng@2026-09-22 3

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a. if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; b. on account of some mistake or error apparent on the face of the record; c. if the judgment or ruling requires clarication; or d. for any other sucient reason. 20. On the timing of the instant application, it is clear that the application was led within reasonable time as it was led on the date the ruling/order being challenged was delivered and/or issued. 21. It is trite that what constitutes reasonable time is a question of fact dependent on the circumstances of each case. 22. Puzzlingly, while the grounds upon which the instant application are explicit that the applicant was seeking a review of the ruling on the basis of Rule 74 (1) (a) of the Employment and Labour Relations Court (Procedure) Rules, 2024, the applicant’s Supporting Adavit suggests that the application is based on the provisions of Rule 74 (1) (c) of the Rules. 23. The applicant’s case is simply that it is furnishing the court with details/in-formation the court did not have on 30th July 2026 and which was not specically interrogated prior to the orders granted on 30th July 2026. 24. Strangely, the unauthenticated Bank statement on record clearly shows that the sum of Kshs.5,648,836.00 was credited to the applicants Account No. 2046xxxxxx on 13th July 2026 more than two (2) weeks before the ruling dated. Relatedly, the sum of Kshs.87,973.60 was credited into the Account on 25th June 2026. 25. Similarly, copies of the attendant invoice provided by the applicant are dated 29th April 2026 10th, June 2026 and 7th February 2026. All these documents were in existence prior to the Ruling of 30th July 2026 but were not produced in court. 26. More signicantly, in her Supporting Adavit sworn on 30th July 2026, Lucy Anangwe Mugadukha deponed that prior to the delivery of the Ruling on 30th July 2026, “The court did not have the benet of the complete documentary trial showing the funds held in ABSA Bank Kenya PLC, Account No. 2046xxxxxx were also rice funds…” 27. Clearly, this was an unequivocal admission that the applicant had the information at its disposal but failed, refused or neglected to avail it which signicantly undermines the instant application. 28. The applicant’s admission on the failure to avail relevant and material evidence in support of its earlier application is analogous to litigating in instalments as well as failure to discharge the burden of proof in the earlier application which the 1st Garnishee was privy to. 29. The provisions of Section 107,108 and 109 of the Evidence Act are clear on the applicant’s burden of proof. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2487/eng@2026-09-22 4

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30. On litigating in instalments, the court is guided by the rendition of Bosire JA in Ramesh Shah v Kenbox Industries Ltd Civil Application No. 232 of 2007 cited with approval in Omulele Tolo Advocates v Mount Holdings Ltd (2018) KECA 311 (KRL) thus; The applicant by bringing this application is in eect approaching the courts by trial-anderror method and is litigating by instalment, both which are unacceptable and amount to abuse of the court process of the court. It is quite, clear to me that this application was brought to debly the conclusion of the dispute between the parties…” 31. See also M’iburi & another v Attorney General & 3 others (2025) KECA 1008 (KLR) 32. Flowing from the foregoing, it is discernible that the Applicants application dated 30th July 2026 is devoid of merit and it is accordingly dismissed. 33. Parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 22ND SEPTEMBER, 2026. DR. JACOB GAKERI JUDGE ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2487/eng@2026-09-22 5

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