GARNISHEE PROCEEDINGS

Question 1

What is a garnishee proceeding?

Answer 1

a process by means of which a decree holder is enabled to reach money due to the judgment debtor,
which is in the hands of a third person
This is a convenient method of executing against a judgment debtor since the money is intercepted on its way to them before it comes into their possession
* The third person in whose hands the money is which is sought to be attached is called the garnishee, the requisite proceeds are known as garnishment and the necessary order is called a garnishee order

Question 2

When is a Garnishee instituted?

Answer 2

• The proceedings are instituted by a person who has obtained a judgment or order for recovery of payment of money or by an assignee of judgment debt or by representatives of a deceased decree holder who have been parties to the action in which judgment or order in question has been given or made
• The test as to whether debt is attachable is whether it is owing by garnishee and it is the type of debt which the judgment debtor can enforce against
• Such debt must be in existence at the date when the attachment becomes operative, something that the law recognizes as a debt and not something that may or may not become a debt
• Thus, when the existence of a debt depends upon the performance of a condition, there is no attachable debt until the condition has been duly performed
• Where an existing debt is payable by future installments, the garnishee order may be made to become operative as and when each installment becomes due
• Money in hands of a bank is always attachable by garnishee and the bank has to show cause why order nisi should not be made absolute by claiming a lien over the money in its possession
• Until the garnishee admits their indebtedness to the judgment debtor, the garnishee order nisi cannot be meaningfully made absolute

Question 3

What is the procedure for making a Garnishee application?

Answer 3

• The application for a garnishee order is made ex parte with a supporting affidavit which must state:
  a. The name and address of the judgment debtor;
  b. Identify the judgment to be enforced, giving the amount remaining unpaid;
  c. State to the best of information or belief of deponent, the garnishee is within the jurisdiction and is indebted to the JD;
  d. If the garnishee is a deposit taking institution having more than one place of business, give the name and address
  of the branch at which JD’s account is believed to be held and the number of the said account; and
  e. If all or part of this information is not known to deponent, the fact that it is unknown is to be stated
• The order upon application may be made either before or after the oral examination of the JD
• The Order granted may be that such debts owing to the Judgment Debtor are to be attached to answer the decree,including costs of garnishee proceedings
• That order or a subsequent order can order the garnishee to appear before court to show cause why they should not pay
  to the Decree Holder the debt due from them to the Judgment Debtor (Order 23, Rule 1(1), CPR) * 7 days before hearing of application, order nisi shall be served upon garnishee and Judgment Debtor (Order 23, Rule 1(2)) * Order nisi is as under Form No. 16 Appendix A

Question 4

How is an application for MANDAMUS MADE?

Answer 4

• An application should be made promptly and in any event within 3 months from the date when the grounds of the application first arose
• Before making the application for mandamus, the applicant shall seek leave of the court
• This application shall be by way of an ex parte chamber summons application, stating the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on
• When leave has been granted to apply for an order of mandamus, the application shall be made within 21 days by notice of motion to the High Court
• There shall be at least 8 clear days between the service of the notice of motion and the day named therein for the hearing
• The notice shall be served on all persons directly affected, including the Attorney General and the Accounting Officer
• An affidavit of service will be necessary to show notification of concerned parties
• In case an order of mandamus is granted and such officer is still obstinate, court can invoke contempt of court proceedings,
  or issue a Notice to Show Cause why the respondent should not be committed to a civil prison for non-compliance with order of mandamus (Republic v Permanent Secretary Office Of The President Ministry Of Internal Security & another exparte Nassir Mwandihi)

Question 5

What are the five orders that can not be instituted against GOVERNMENT?

Answer 5

(1) Order 14, Rule 4 – Impounding of documents;
(2) Order 22 – Execution of decrees and orders;
(3) Order 23 – Attachment of debts; None of these orders may be issued against the
(4) Order 40 – Injunctions; and Government in civil proceedings
(5) Order 41 – Appointment of a Receiver

Question 6

What is the procedure for enforcing a judgement against government?

Answer 6

• When seeking to enforce a judgment, the decree holder is to make an application for a Certificate of Satisfaction Orderunder Section 21, Government Proceedings Act (which relates to satisfaction of orders against the Government)
  o The Certificate stated that you obtained a judgment, you tried to seek compensation for that judgment from the Government, but you have been unable to do so
  o Essentially, your Certificate of Satisfaction Order is your decree as against the Government
  o It is the decree holder which drafts this Certificate, but it is the Registrar who stamps it and seals it to confirm it as an order of the court
  o When you take the Certificate to the Registrar, you must take the order of the court/judgment with it
• Such application shall be made to a Registrar or, in the case of a subordinate court, to the court
• Any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicant shall be made to the court, and may be made ex parte without a summons – Such certificate shall be
  in one of Form No’s 22 and 23, Appendix A* The copy of Certificate of Satisfaction Order accompanied by the judgment is served by the decree holder on the
  Accounting Officer, after endorsement by theAttorney General
• The certificate has to state the amount payable plus interest thereon
• The decree holder could obtain payment by the Attorney General writing to the proper accounting officer instructing them to effect payment
• Where the official refuses to pay, the decree holder can apply for an order of mandamus
• The High Court through this order which is directed to the public officer in question requiring the officer to do that for which they are under a public duty to do