REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 46 OF 2019
JOSHUA O. OGALO………..……………………………………….……..…….….CLAIMANT/RESPONDENT
VERSUS
KENYA NATIONAL UNION OF TEACHERS (KNUT)……….………..…1 ST
RESPONDENT/RESPONDENT
KENYA NATIONAL UNION OF TEACHERS (KNUT)
KISUMU EAST BRANCH ………………………………….………..…….2ND RESPONDENT/RESPONDENT
KENYA COMMERCIAL BANK LIMITED
(MOI AVENUE BRANCH …………………….…………………………………1ST GARNISHEE/APPLICANT
KISUMU TEACHERS SAVINGS AND CREDIT CO-OPERATIVE SOCIETY
(KISUMU BRANCH) …………………………………………………………2ND GARNISHEE/RESPONDENT

CERTIFICATE OF URGENCY
I, FAUSTINE OSEWE, an Advocate of the High Court of Kenya of P. O. BOX 1883-40100, KISUMU, do
certify that the attached application is extremely urgent for the following reasons:
i. The urgency of the instant application is that this Honourable Court has delivered its ruling dated
27th November 2020, issuing a Garnishee Order Absolute and directing the 1 st
Garnishee/Applicant to pay the sum of Kshs. 1,141,003.05 together with costs from account no.
1107635463 held by the 1st Garnishee/Applicant.
ii. There is an error apparent on the face of the record as the Honourable Court at paragraph 3 of the
ruling stated that the 1st Garnishee/Applicant had not responded to the garnishee application, yet
the 1st Garnishee/Applicant had indeed responded to the same through its replying affidavit dated
17th June 2020 stating the correct bank account and that the sum of money available was only
Kshs. 88,816.16, and in fact, the Claimant also filed a supplementary affidavit as well
acknowledging the correct bank details issued by the 1 st Garnishee. Had the Honourable Court
reviewed these two affidavits, it is highly unlikely that the court would have issued a Garnishee
Order Absolute for the sum of Kshs. 1,141,003.05 together with costs, which amount is so huge
compared to the Kshs. 88,816.16 that is being currently held by the 1st Garnishee.
iii. That unless and order for stay of execution of the Garnishee Order Absolute is issued, the 1 st
Garnishee shall suffer irreparable loss and may not be able to recover the sum of Kshs.
1,141,003.05 together with costs from the Claimant, who has no known or disclosed assets, or any
known abode, from which the 1st Garnishee/Applicant can recover the monies being executed
for, with the obvious outcome that sums being executed for, will be bound to be irretrievably
gone by the time the instant application is heard, and determined in favour of the 1 st
Garnishee/Applicant, thus rendering the instant application for review nugatory and of mere
academic success.
iv. It is therefore imperative that this application is placed before this Honorable Court forthwith for
immediate relief, to preserve the status quo while pending the determination of the instant
application.

DATED AT KISUMU THIS…………………DAY OF………..……………………..2020

_______________________________________
OWITI, OTIENO & RAGOT ADVOCATES
ADVOCATES FOR THE 1ST GARNISHEE/APPLICANT
DRAWN AND FILED BY:
OWITI OTIENO & RAGOT & ADVOCATES
4TH FLOOR, AL IMRAN PLAZA
OGINGA ODINGA STREET
P. O. BOX 3051/1883

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KISUMU
TO BE SERVED UPON:
RAKORO & CO. ADVOCATES,
NATURE HOUSE, 1ST FLOOR, ROOM 324,
TOM MBOYA STREET,
P. O. BOX 9225-00200, NAIROBI.
rakoro67@gmail.com

SMS ADVOCATES LLP,

I&M BANK HOUSE, LEFT WING, 7TH FLOOR,
2ND NGONG AVENUE,
P. O. BOX 37330-00100,
NAIROBI.

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 REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 46 OF 2019
JOSHUA O. OGALO………..……………………………………….……..…….….CLAIMANT/RESPONDENT
VERSUS
KENYA NATIONAL UNION OF TEACHERS (KNUT)……….………..…1 ST
RESPONDENT/RESPONDENT
KENYA NATIONAL UNION OF TEACHERS (KNUT)
KISUMU EAST BRANCH ………………………………….………..…….2ND RESPONDENT/RESPONDENT
KENYA COMMERCIAL BANK LIMITED
(MOI AVENUE BRANCH …………………….…………………………………1ST GARNISHEE/APPLICANT
KISUMU TEACHERS SAVINGS AND CREDIT CO-OPERATIVE SOCIETY
(KISUMU BRANCH) …………………………………………………………2ND GARNISHEE/RESPONDENT
NOTICE OF MOTION
(Under the Provisions of Order 45 Rule 1(1)(a) & (b), Rule 2(2) of the Civil Procedure Rules,
Sections 1A,1B, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya)

TAKE NOTICE that this Honourable Court shall be moved on the ………day of …………..……… 2020
at 9.00 O’clock in the forenoon or so soon thereafter as may be possible on the hearing of an application
by Counsel for the 1st Garnishee/Applicant for ORDERS : -

1. THAT this Honourable Court be pleased to certify this application as urgent and dispense
with service of the same in the first instance, to save the instant application from being
rendered nugatory.
2. THAT this Honorable court be pleased to issue an order for stay of execution of the Garnishee
Order Absolute delivered on 27th November 2020, pending the inter partes hearing and
determination of this application.
3. THAT this Honorable court be pleased to review, vary and/or set aside the Garnishee Order
Absolute issued on 27th November 2020 directing the 1st Garnishee/Applicant to pay the sum of
Kshs. 1,141,003.05 and in its place, the court be pleased to grant a Garnishee Order Absolute
requiring the 1st Garnishee/Applicant to pay the Claimant the sum of Kshs. 88,816.16 subject to
deduction of the 1st Garnishee/Applicant’s costs of the garnishee proceedings, from the said sum.
4. THAT the costs of this application be provided for.

WHICH APPLICATION is supported by the annexed affidavit of JOSEPH OMOLO KUNGU and on the
grounds:

a) The Claimant herein filed a garnishee application dated 05 th June 2020, seeking the attachment of
the sum of Kshs. 1,141,003.05 together with costs from account no. 1107635463 held by the 1 st
Garnishee/Applicant’s Moi Avenue Branch on behalf of Kenya National Union of Teachers, for
payment to the Claimant’s account No. 0100323625500, held at Standard Bank Limited, Kisumu
Branch.
b) The 1st Garnishee/Applicant responded to the said application through its replying affidavit dated
17th June 2020, sworn by Joseph Omolo Kungu, and filed in court on 18 th June 2020, where the 1st
Garnishee/Applicant gave the correct bank details as being account number 1107635462, and not
account no. 1107635463, as well as the sum of money held on behalf of the 1 st Respondent, being
Kshs. 88,816.16 as at 11th June 2020.
c) The said replying affidavit was duly served upon all parties including the Claimant herein, who
responded by filing a supplementary affidavit, drawn in the names of Joshua O. Ogalo, where he
deponed that indeed, the correct account number was 1107635462, and not account no.
1107635463, just as had been stated by the 1st Garnishee/Applicant.

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 d) The Honourable Court delivered its ruling on the garnishee application on 27 th November 2020
and in its ruling, stated that the 1 st Garnishee/Applicant had not replied to the garnishee
application dated 05th June 2020. The Honourable Court proceeded to issue a Garnishee Order
Absolute directing the 1st Garnishee/Applicant to pay the sum of Kshs. 1,141,003.05 together
with costs.
e) Indeed, there is an error apparent on the face of the record as the Honourable Court did not take
cognizance of the contents of the 1 st Garnishee/Applicant’s Replying Affidavit dated 17 th June
2020, where the 1st Garnishee/Applicant gave the correct bank details as being account number
1107635462 and not account no. 1107635463 and that the money available held on behalf of the 1 st
Respondent, was Kshs. 88,816.16 as at 11th June 2020. The Honourable Court also seemingly was
not aware of the Claimant’s supplementary affidavit and its contents thereon, which affidavit
acknowledged the correct bank account details as issued by the 1 st Garnishee. Had the
Honourable Court reviewed these two affidavits, it is highly unlikely that the court would have
issued a Garnishee Order Absolute for the sum of Kshs. 1,141,003.05 together with costs, which
amount is so huge compared to the Kshs. 88,816.16 that is being currently held by the 1 st
Garnishee.
f) The Garnishee Order Absolute issued by the Honourable Court, is therefore to the detriment of
the 1st Garnishee/Applicant, and unless an order for stay of execution of the Garnishee Order
Absolute is hereby issued, the 1st Garnishee/Applicant is likely to suffer irreparable harm as the 1 st
Garnishee/Applicant will be forced to pay the sum of Kshs. 1,141,003.05 together with costs,
which is beyond the amount it holds on behalf of the 1st respondent, being Kshs. 88,816.16.
g) Unless and order for stay of execution of the Garnishee Order Absolute is issued and execution
proceeds, the 1st Garnishee shall suffer irreparable loss and may not be able to recover the sum of
Kshs. 1,141,003.05 together with costs from the Claimant, who has no known or disclosed assets,
or any known abode, from which the 1st Garnishee/Applicant can recover the monies being
executed for, with the obvious outcome that sums being executed for, will be bound to be
irretrievably gone by the time the instant application is heard, and determined in favour of the 1 st
Garnishee/Applicant, thus rendering the instant application nugatory and a mere academic
success.
h) This Honourable Court should therefore review, vary and/or set aside the Garnishee Order
Absolute issued on 27th November 2020 and in its place, the court be pleased to grant a Garnishee
Order Absolute requiring the 1st Garnishee/Applicant to pay the Claimant the sum of Kshs.
88,816.16 subject to deduction of the 1st Garnishee/Applicant’s costs of the garnishee proceedings,
from the said sum.
i) It is in the interest of justice that the orders sought herein are granted.
j) This application has been made without any unreasonable delay and ought to be allowed in the
interest of equity and justice.

DATED AT KISUMU THIS…………………DAY OF………..……………………..2020

_______________________________________
OWITI, OTIENO & RAGOT ADVOCATES
ADVOCATES FOR THE 1ST GARNISHEE/APPLICANT
DRAWN AND FILED BY:
OWITI OTIENO & RAGOT & ADVOCATES
4TH FLOOR, AL IMRAN PLAZA
OGINGA ODINGA STREET
P. O. BOX 3051/1883
KISUMU
TO BE SERVED UPON:
RAKORO & CO. ADVOCATES,

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NATURE HOUSE, 1ST FLOOR, ROOM 324, TOM MBOYA STREET,
P. O. BOX 9225-00200, NAIROBI.
rakoro67@gmail.com

SMS ADVOCATES LLP,

I&M BANK HOUSE, LEFT WING, 7TH FLOOR,
2ND NGONG AVENUE,
P. O. BOX 37330-00100,
NAIROBI.

NOTE: If any party served does not appear at the time and place above mentioned, such orders
will be made and proceedings taken as the court may deem just and expedient.

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 REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 46 OF 2019
JOSHUA O. OGALO………..……………………………………….……..…….….CLAIMANT/RESPONDENT
VERSUS
KENYA NATIONAL UNION OF TEACHERS (KNUT)…….………..…1ST RESPONDENT/RESPONDENT
KENYA NATIONAL UNION OF TEACHERS (KNUT)
KISUMU EAST BRANCH ………………………………….………..…….2ND RESPONDENT/RESPONDENT
KENYA COMMERCIAL BANK LIMITED
(MOI AVENUE BRANCH …………………….…………………………………1ST GARNISHEE/APPLICANT
KISUMU TEACHERS SAVINGS AND CREDIT CO-OPERATIVE SOCIETY
(KISUMU BRANCH) …………………………………………………………2ND GARNISHEE/RESPONDENT
SUPPORTING AFFIDAVIT
I, JOSEPH OMOLO KUNGU, a resident of Nairobi County, do hereby make oath and state as follows:
1. THAT I work as a Manager-Corporate Services, Government and Institutional Banking
Department at KCB Bank Limited, Moi Avenue Branch, which is the 1 st Garnishee/Applicant
herein. I am the Principal Officer in charge of building and managing a rapport with corporate
clients, strengthening the Bank’s brand in the corporate arena and ensuring legal compliance with
court directives. Being conversant with matters relating to garnishee proceedings, and being also
conversant with all the issues arising herein, I am competent and have full authority to swear this
Affidavit on behalf of the 1st Garnishee/Applicant, Kenya Commercial Bank Limited.
2. That the Claimant herein filed a garnishee application dated 05 th June 2020, seeking the
attachment of the sum of Kshs. 1,141,003.05 together with costs from account no. 1107635463
held by the 1st Garnishee/Applicant’s Moi Avenue Branch on behalf of Kenya National Union of
Teachers, for payment to the Claimant’s account No. 0100323625500, held at Standard Bank
Limited, Kisumu Branch.
(See already on the court’s record, a copy of the Claimant’s Garnishee application dated 05 th June 2020
filed under Certificate of Urgency, the Notice of Motion, the Supporting Affidavit and the annextures
thereto, as well as the Garnishee Order Nisi issued on 08th June 2020 by Hon. Justice Nduma).
3. That the 1st Garnishee/Applicant appointed the firm of M/S Owiti, Otieno & Ragot Advocates to
act for it, and subsequently responded to the garnishee application through its replying affidavit
dated 17th June 2020, sworn by Joseph Omolo Kungu, and filed in court on 18 th June 2020, where
the 1st Garnishee/Applicant gave the correct bank details as being account number 1107635462 and
not account no. 1107635463. The 1st Garnishee/Applicant also stated that the money held on behalf
of the 1st Respondent, was Kshs. 88,816.16 as at 11th June 2020. The 1st Garnishee/Applicant duly
stated that it was willing and ready to comply with any orders issued by the court, subject to
payment of the 1st Garnishee/Applicant’s costs of the garnishee proceedings of Kshs. 20,000
(Kenya Shillings Twenty Thousand only).
(Exhibited hereto and marked as JOK-1 is a bundle of the of the Notice of Appointment of Advocates
dated 12th June 2020 and filed in court on 15 th June 2020 and the accompanying payment receipt issued by
the court accountant, a copy of the Replying Affidavit dated 17 th June 2020 sworn by Joseph Omolo Kungu
filed on 18th June 2020 together with the annextures thereon being bank statement for account number
1107635462 showing that the balance as at 11 th June 2020 was Kshs. 88,816.16 as well as the
accompanying receipt for payment issued by the court accountant. The Replying Affidavit was duly served
on all parties as can be evidenced by the stamp impressions thereon.)
4. That the replying affidavit was duly served upon all parties, as is evidenced by the stamps marked
thereon by the parties, including the Claimant herein, who responded by filing a supplementary
affidavit dated 29th June 2020, in the names of Joshua O. Ogalo, where he deponed that indeed,
there was an error in the bank account number and agreed with the contents of the 1 st Garnishee’s
Replying Affidavit that the correct account number was 1107635462, and not account no.
1107635463.

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 (Exhibited hereto and marked as JOK-2 is a copy of the supplementary affidavit dated 29 th June 2020
sworn by Joshua Ogalo.)
5. That the Honourable Court however, delivered its ruling on the garnishee application on 27 th
November 2020 and in its ruling, stated that the 1 st Garnishee/Applicant had not replied to the
garnishee application dated 05th June 2020, yet the 1st Garnishee/Applicant had responded to the
same through its replying affidavit dated 17 th June 2020, sworn by Joseph Omolo Kungu, and
filed in court on 18th June 2020, which replying affidavit was responded to by the Claimant
through his supplementary affidavit, acknowledging the correct account number was 1107635462,
and not account no. 1107635463, as furnished by the 1st Garnishee/Applicant.
(Exhibited hereto and marked as JOK-3 is a copy of the ruling dated 27th November 2020.)
6. That the Honourable Court proceeded to issue a Garnishee Order Absolute directing the 1 st
Garnishee/Applicant to pay the sum of Kshs. 1,141,003.05 together with costs.
7. That indeed, there is an error apparent on the face of the record as the Honourable Court did not
take into consideration the contents of the 1 st Garnishee/Applicant’s Replying Affidavit dated 17 th
June 2020, where the 1st Garnishee/Applicant gave the correct bank details as being account
number 1107635462 and not account no. 1107635463, and that the sum of money held on behalf
of the 1st Respondent, was Kshs. 88,816.16 as at 11th June 2020. The Honourable Court also
seemingly was not aware of the Claimant’s supplementary affidavit and its contents thereon,
which affidavit acknowledged the correct bank account details, as had been furnished by the 1 st
Garnishee/Applicant. Had the Honourable Court reviewed these two affidavits, it is highly
unlikely that the court would have issued a Garnishee Order Absolute for the sum of Kshs.
1,141,003.05 together with costs, which amount is so huge compared to the Kshs. 88,816.16 that is
being currently held by the 1st Garnishee.
8. That the Garnishee Order Absolute issued by the Honourable Court, is therefore to the detriment
of the 1st Garnishee/Applicant, and unless an order for stay of execution of the Garnishee Order
Absolute is hereby issued, the 1st Garnishee/Applicant is likely to suffer irreparable harm as the 1 st
Garnishee/Applicant will be forced to pay the sum of Kshs. 1,141,003.05 together with costs,
which is beyond the amount it holds on behalf of the 1st respondent, being Kshs. 88,816.16.
9. That it should not be a duty of the 1st Garnishee/Applicant to settle a debt of the 1 st Respondent,
beyond what the 1st Garnishee/Applicant holds to the 1st Respondent’s credit, which in this case is
Kshs. 88,816.16.
10. That unless and order for stay of execution of the Garnishee Order Absolute is issued, the 1 st
Garnishee shall suffer irreparable loss and may not be able to recover the sum of Kshs.
1,141,003.05 together with costs from the Claimant, who has no known or disclosed assets, or any
known abode, from which the 1st Garnishee/Applicant can recover the monies being executed for,
with the obvious outcome that sums being executed for, will be bound to be irretrievably gone by
the time the instant application is heard, and determined in favour of the 1 st Garnishee/Applicant,
thus rendering the appeal nugatory and of mere academic success.
11. That also, this Honourable Court should review its ruling and vary the Garnishee Order Absolute
to allow the 1st Garnishee/Applicant to pay the sum of Kshs. 88,816.16 that it
holds on behalf of the 1 st respondent, subject to payment of the 1 st Garnishee’s costs of this
garnishee proceedings.
12. That I therefore swear this affidavit in support of this application and it is in the interest of justice
that this application is allowed.
13. That what is deposed to herein is true to the best of my knowledge and belief, save for
information sources of which have been disclosed.

SWORN AT KISUMU }
By the said JOSEPH OMOLO KUNGU }
This …………..day of ………………..……..2020 } _________________________
} DEPONENT

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 }
BEFORE ME
COMMISSIONER FOR OATHS }

DRAWN AND FILED BY:

OWITI OTIENO & RAGOT & ADVOCATES
4TH FLOOR, AL IMRAN PLAZA
OGINGA ODINGA STREET
P. O. BOX 3051/1883
KISUMU

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