GARNISHEE PROCEEDINGS/ATTACHMENT OF DEBTS
This is the process by means of which a judgment creditor is enabled to reach money due to the judgment debtor which is in the hands of a third person. The third person in whose hands the money from which is sought to be attached is called Garnishee and the necessary order is called the Garnishee order.
The Garnishee order changes the obligation, of the third party to pay the judgment debtor into an obligation to pay the judgment creditor directly.
When may garnishee proceedings be instituted?
They may be instituted by any person who has obtained a judgment or order for recovery or payment of money, by an assignee of a judgment debt or by representatives of the deceased judgment creditor who have been made parties to the action in which the judgment or order in question has been given or made.
It is important to note that only those debts owed by a third party to the judgment debtor can be attached under garnishee proceedings as was noted in the case of East African Airways V Lewis, in this case court held that only gratuity payable to an expatriate contract officer which was debt owing could be attached. It was also stated that it is not necessary that such debt is immediately payable
It is henceforth necessary to note that where an existing debt is payable by future instalments, the Garnishee order may be made to become operative on and when each instalment becomes due.
Similarly, money in hands of the Bank is attachable by Garnishee and the Bank has to show cause why the order nisi should not be made absolute by claiming a lien over the money in its possession.
Procedure
The Civil Procedure Rules SI 71-1 provide that Garnishee proceedings are commenced by way of application for an order for attachment of a debt which is made ex parte and served within 7 days onto the judgment debtor and the Garnishee. The application is made by Chamber Summons accompanied with a supporting affidavit of the decree holder or his/her advocate which must state the following;
The name and address of the Judgment debtor
Identify the judgment to be effected giving the amount remaining unpaid.
State to the best of information or belief of deponent is within jurisdiction and is indebted to the judgment debtor and address garnishee is a deposit taking institution having more than one place of business, give the name and address of the branch at which the judgment debtors account is believed to be held; the account number and if any information is not known to the deponent, it should be stated.
The order made by the court (order nisi) will be made against the third person and the court will order that all debts owing or accruing from the garnishee to the judgment debtor be attached. Accordingly court may make a subsequent order that the garnishee appears before the court to show cause why he or she should not pay the debt to the decree holder or so much of it as is sufficient to satisfy the claim.
In the event that a decree nisi is granted, it is served on the garnishee and judgment debtor unless otherwise ordered within seven days. Service on the judgment debtor may be made either at the address of service if given by the debtor, on his/her advocates, leaving the order at his/her usual residence or place of business or such other manner as the court may direct.
Effects of the order
It is important to note that there is no attachment of the debt until service of the order nisi has been done.
If the Garnishee Bonafide pays to the judgment debtor the amount of debt before service, the order nisi is then absolute. This is due to the fact that in such a circumstance there is no longer any debt to which it can attach.
The service of the order nisi creates an equitable charge and the garnishee cannot pay the debt to anybody without incurring the risk of having to pay it again.
Order Absolute
Court has the discretion whether the decree nisi should be made absolute. In exercising its discretion, it must take into account other creditors as far as they are known to court. And before an order nisi is made absolute, there must be a debt presenti.
In the event of a Garnishee order the judgment creditor is placed in the same position as an assignee of the judgment debtor and will make him subject to the equities, which exist against the debtor. The garnishee may also obtain execution if the money is not paid in accordance with the order absolute.
