Mwaura v Directline Asurance Company Limited & another (Commercial Case E002 of 2025) [2026] SCC 32 (KLR)

B. Determination 4. I have considered the averments in the application and the replying afidavit. I have taken keen consideration of the averments in the replying afidavit. 5. What I gather from paragraph 8 of the replying afidavit is that garnishee order absolutes totalling to Kshs.9,379,896.96 that date to as late as March 2026 have so far been paid leaving a closing balance as at 20/4/2025 of Kshs.731,558.00/=. 6. Further that there are other Nisis that are yet to be made absolute and that are pending adjudication worth Kshs.26,143,551.57/= and a table thereof has been availed. 7. I have further perused the various orders attached to the replying afidavit and I am satisfied that they are order nisis and absolutes issued by other courts within the republic of Kenya attaching the various sums and from the calculation, it is clear that no more amount of money can be paid out of the account in question held by the garnishee. 8. Having arrived at such a conclusion based on the evidence on record especially by the garnishee herein the issue is whether this court can still proceed and make the order Nisi earlier issued as absolute. 9. The applicable law in this regard is Order 23 of the Civil Procedure Rules,2010 as well as Section 44 of the Civil Procedure Act. From the reading of these laws, these proceedings are inherently inquisitorial in a bid to find if there are funds enough to be attached and paid. It is thus the 1st and singular duty of the decree holder to demonstrate that there is a debt and that the garnishee as sued has in his possession funds that it holds on behalf of the respondent. One this is demonstrated which the claimant/applicant did, the burden then shifts to the garnishee. 10. The garnishee in discharging its burden has filed the comprehensive afidavit and attached annextures explaining insuficiency of funds hence the inability to pay what the claimant wants from it. This therefore means that as we speak there are no funds to realize the decretal sum. The efiect of the Nisis in place as I understand them is that they were not issued by this court and this court cannot therefore in issuing the absolute purport to direct that those nisis that have efiectively attached the funds be paid to the claimant. This would amount to reviewing the orders of those courts some of whom are superior to this court. This would lead to an absurdity. 11. In the case of Kinyanjui Njuguna & Co. Advocates v Invesco Assurance; Diamond Trust Bank Kenya Ltd & Another (Garnishee) (2019) eKLR the court held as follows; “ A garnishee order nisi is an order preserving funds awaiting the process leading to the issuance of a garnishee order absolute. It is therefore not true that the garnishee order nisi from the other courts should be overlooked by this court because of the present application before this court. The decree holders in the other cases have the same rights as the Applicant herein in terms of their claims against the Respondent irrespective of where the claims were filed.” 12. In the end and fiowing from the above I do find and hold that in as much as garnishee proceedings are a mechanism of execution, the same cannot lawfully rearrange lawful and earlier order Nisis already in place. The proceedings were meant to assist a decree holder be paid when the respondent becomes deliberately evasive in settling claims when he has the resources to do so. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/32/eng@2026-05-15 2

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13. I further find and hold that on a balance of probabilities the garnishee has discharged its burden in proving that there are prior legal obligations to it by virtue of the nisis which are already overdrawn and as such there are no suficient funds to pay the decretal sum in question. C. Conclusion And Disposition. 14. 15. In conclusion therefore, the orders that can issue are as follows; a. The application to make the garnishee order Nisi absolute is not merited and is consequently declined and dismissed. b. The garnishee order nisi earlier issued is hereby discharged. c. There shall be no orders as to costs in this matter. Orders accordingly. DATED, DELIVERED AND SIGNED AT LAMU LAW COURTS THIS 15th DAY OF May 2026. F.M. MULAMA ADJUDICATOR/RM In the presence of: Court Assistant:- Vivian Wambui. Ms. Murimi for the Decree holder/Applicant. Mr Shah H/B for Ojong’a for the garnishee. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/32/eng@2026-05-15 3

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