BY SAM ALFAN.
A real estate company has moved to court to suspend plans to attach its bank accounts over a disputed debt.
Mark Properties limited wants the High Court garnishee proceedings filed in court by property development company, Globe Developers limited. The garnishee are Diamond Trust Bank and Guardian Bank.
In the application, the company through lawyer Andrew Wandabwa wants the court to set aside the garnishee order.
“It is prejudicial and unfair to the Judgement Debtor to have his application for stay to be heard alongside execution proceedings,” the company said through lawyer Wandabwa.
Lawyer Wadabwa added that garnishee proceedings are matters to be heard and determined by the Deputy Registrar sitting as the High Court.
He told Commercial Court Judge Jackline Mongare that the High Court Judge’s jurisdiction in garnishee proceedings is limited to hearing appeals preferred from decisions of the Deputy Registrar.
“The High Court Judge in issuing the decree which usurped the jurisdiction of the Deputy Registrar and the High Court Judge in issuing the decree mii denied the Judgement Debtor his constitutional right of appeal in respect of the Garnishee proceedings, which appeal would lie to the High Court,” lawyer Wadabwa submitted.
In the judgement the court allowed the application by the creditors seeking to enforce the arbitral award and an order for costs of the proceedings in the High Court.
However, the decree extracted by the judgement creditor purposely left out the order for cost. Diamond Trust Bank and Guardian Bank has been issued in execution, before the High Court has taxed the bill for the High Court proceedings, or on application allowed for the execution to take place before taxation.
“The Garnishee proceedings are proceeding with haste and are slated to be heard on the 11th of July 2023, by reason of which this Application is urgent and it ought to be dispensed with expeditiously,” the company argued.
Mark Properties ltd General Manager Imraan Kasmani faulted the judge for issuing the decree saying the judge usurped the jurisdiction of the Deputy Registrar.
“The High Court Judge in issuing the decree is denied the Judgement Debtor his constitutional right of appeal in respect of the Garnishee proceedings, which appeal would lie to the Judge that issued the Garnishee mist,” says the Imraan in his affidavit.
According to him, in the Judgement Creditors application dated 84 January 2023 seeking to enforce the Arbitral award, in prayer 4 of the said Application, the Judgement Creditor sought an Order for costs which the Court in its decision dated 28 April and delivered in court on the 2 of May 2023 allowed the said application including the order for costs of the Proceedings in the High Court.
In another application, the company says the intended appeal to the Court of Appeal raises substantial issues of law regarding the failure by the High Court to decide on issues touching on the Arbitral Tribunal’s failure to determine the dispute within its mandate as required under the Arbitration Act and the subject contract, thereby violating the public policy of Kenya.
These crucial issues in turn determine whether the arbitral award ought to have been set aside by the High Court or not since they raise significant and substantial points of law which fall squarely within the limits set out by the Supreme Court for matters which are appealable.
He added that these questions are of fundamental importance to the fair administration of justice and to maintain and uphold the public’s trust in the justice system.
Furthermore, there is a colossal amount at stake in this case, being Sh. 191,661,161.34 which was found payable to Globe Developers ltd by the applicant the Arbitral award, and it would therefore be in the interest of justice that this matter is dispensed with urgently to prevent irreparable harm being suffered by the company especially given that the Globe Developers is impecunious and under administration, by reason of which if the intended appeal is successful and execution has taken place, recovery will be impossible thereby causing substantial loss to the applicant herein.
