EXECUTION OF DECREES

1 DEFINITION
Execution is the act of completing or carrying into effect a judgment, compelling the
judgment debtor to do or to pay what has been adjudged. Execution therefore has the
function of enforcing the judgment by a successful party against the unsuccessful
party as a way of achieving the fruits of his success. A successful litigant in civil
proceedings is unable in law to enjoy fruits of any judgment in his/her favour if he/she does
not extract or draw a decree.

In the case of RUBO KIMNGETICH ARAP CHERUIYOT –VS- PETER KIPROP

ROTICH (2006) e KLR the court made the following observation

“It is a decree as a legal instrument which is executable and not the judgment itself. It
is my view that in a suit what is executable is the “decree” of the court. I have carefully
perused the court record and find that no decree has ever been drawn, approved and
signed by the court through the Deputy Registrar or otherwise. It is trite law that no
execution of any decree can take place without such a decree “

2 PARTIES TO EXECUTION
The parties to the main suit who now become Decree Holder as the winning party and
Judgment Debtor as the losing party. It is trite law that judgment cannot be enforced
against a person who was not a party to the suit; however, a person can be liable and
execution can be conducted against him if he was a surety to the judgment debtor hence
execution being conducted against him up to that extent of his obligation.

A Decree Holder can pass on his rights in the decree as of right onto another person
who can execute the decree like his own.

However, no execution or attachment or process in the nature thereof shall be issued out of
any court for enforcing payment by the Government of any money or costs, and no person
shall be individually liable under any order for the payment by the Government or any
Government department, or any officer of the Government as such, of any money or costs.
3 PROCEDURE FOR EXECUTION
The decree holder shall apply to the court which passed the decree: have it executed. If
payment or adjustment has not been made out of court or the decree remains unsatisfied
and the decree holder desires to execute it, he shall apply to the court which passed the
decree or to that which it has been transferred to execute (Order 22 of the Civil Procedure
Rules, 2010).

An application for execution should be made in writing but where a decree is for the
payment of money, and the judgment- debtor is within the precincts of the court, the court
may on the oral application of the decree-holder, order immediate execution of such decree
by arresting the judgment-debtor prior to the preparation of a warrant, if he is within the
precincts of the court. (Order, 22 rule 7). It is the duty of the court to peruse an application
for execution of a decree carefully and to be satisfied that it has been properly drawn before
filing it and must contain in tabular form the following particulars.

Contents of the Application

The successful party wishing to achieve the fruits of his judgment shall make an application
to court by notice of motion on how he should be helped by the court to execute his decree
or court orders and herein state in tabular form the following particulars:

a) The number of the suit.

b) The name of the parties.
c) The date of the decree.
d) Whether any appeal has been preferred from the decree.
e) Whether any and, if any, what payment or other adjustment of the matter in
controversy has been made between the parties subsequent to the decree.
f) Whether any subsequent applications have been made for the execution of the
decree, dates of such applications and their results.
g) Amount with interest, if any, due upon the decree or other relief granted thereby
together with particulars of any cross-decree if passed before or after the date of the
decree sought to be executed.
h) Amount of costs, if any, awarded.
i) Name of the person against whom execution of the decree is sought
 j) Mode in which the assistance of the court is required whether-
i. By the delivery of any property specifically decreed.
ii. By the attachment and sale or by the sale without attachment of any
property.
iii. By the arrest and detention in prison of any person.
iv. By the appointment of a receiver.
v. Otherwise as the nature of the relief granted may require.

Figure 1. Copy of application for execution of decree

THE REPUBLIC OF KENYA

IN THE HIGH COURT OP KENYA AT NAIROBI

CIVIL SUIT NO. 88 OF 2015

ANN KARIBU……………………………………………………………APPLICANT

GITHERI COCHEN……………………………………………………RESPONDENT

APPLICATION FOR EXECUTION OF DECREE.

ORDER 22, RULE 6

We, Kanini & Co. Advocates, advocates for the decree holder hereby apply for execution
of the decree herein below set forth.

Number of suit Civil Suit No. 88 of 2014

Date of decree 3 February 2014

Whether appeal preferred from decree NONE

Payment or adjustment made, if any Nil

Previous application, if any, with date/result None

Amount with interest due upon the decree

Or other relief granted thereby together with

Particulars of any cross-decree Costs awarded in decree KShs. 5 million

Amount as awarded in the decree KShs. 4 million

Against whom to be executed Githeri

Mode in which the assistance of the court is required by way of attachment and sale

The judgment debtor’s (Githeri) 5 storey Commercial Building along Moi Avenue

Plot L.R. No. *******Nairobi

Dated 27 October 2015

……………………………………………….

Kanini & Co. Advocates (counsel for the plaintiff)

However, a decree holder can make an oral application at the time of passing of the decree
for immediate execution where the decree is for the payment of money for the arrest of the
judgment debtor prior to the preparation of a warrant.

Limitation of time
Like any other proceedings the execution proceedings can also be limited by the law
once they are initiated after 12 years from the date on which judgment was
pronounced. The court of appeal dealt with this issue in the case M’IKIARA
M’RINKANYA AND ANOTHER –VS- GILBERT KABEERE M’MBIJIWE where it made the following
observations;

“……………as regard recovery of judgment debts, the construction of Section 4

(4) of the Act by local courts barring recovery after 12 years, is as shown in “
LOWSLEY V FORBES” , consistent with construction given by English
Courts to Section 2 (4) of the Limitations Act 1939 and its predecessors for
over 100 years that a judgment debt becomes statute barred after 12 years”.

Hence stated that an action may not be brought upon a judgment after the end of twelve
years from the date on which the judgment was delivered, or where the judgment or a
subsequent order directs any payment of money or the delivery of any property to be made
at a certain date or at recurring periods, the date of the default in making the payment or
delivery in question, and no arrears of interest in respect of a judgment debt may be
recovered after the expiration of six years from the date on which the interest became due.
In James Maina Kinya v Gerald Kwendaka [2018] eKLR the Kemei J observed as
follows:

It would appear from the record that the Plaintiff and the Defendant entered into a
memorandum of agreement dated 30/5/83 to sell the suit property to the Plaintiff at
the sum of Kshs. 70,000/=. It is the Plaintiff’s case that on completion of the
purchase price he was put into possession of the suit property in 1983. That
thereafter on refusal of the Defendant to transfer the suit property to him, he filed
suit against the defendant in 1988 seeking specific performance. This is the
contractual aspect of a time claim by the Plaintiff against the Defendant. The matter
was then referred to the Town Planning Markets and Housing Committee of the
Murang’a County Council (then) for arbitration. From the record the committee
on hearing both parties resolved the matter in favour of the Plaintiff. On the 7/5/96
the High Court delivered judgement in the following terms;

a. That the Deputy Registrar of this Court is hereby authorized to execute all
applications, transfers and any other documents in place of the Defendant which
shall be necessary to transfer the plot number LOC.20/KAMBIRWA/1577/14 to the
Plaintiff.

b. The Plaintiff shall have the costs of this application against the Defendant.

The said judgement remained unexecuted for over 12 years and by 2008 it expired
by dint of section 4(4) of Limitation of Actions Act which states as follows;

“An action may not be brought upon a judgment after the end of twelve years from
the date on which the judgment was delivered, or (where the judgment or a
subsequent Order directs any payment of money or the delivery of any property to
be made at a certain date or at recurring periods) the date of the default in making
the payment or delivery in question, and no arrears of interest in respect of a
judgment debt may be recovered after the expiration of six years from the date on
which the interest became due.” [emphasis mine].

The question that begs an interpretation is whether or not the proviso above
governs judgements as well as execution of the same. My reading of the above is
 that the provision covers both execution of judgment and during all these periods
the Plaintiff continued in uninterrupted occupation.

4 PROPERTIES CAPABLE OF BEING ATTACHED

While conducting an execution there are properties which can be attached and those not to
be attached. Properties that can be executed include land, movable property like cars,
houses, agricultural produce, attachment of negotiable instrument ,attachment of property
in custody of court, attachment of salary or allowance, attachment of share, partnership
property, decrees giving rise to cross- decrees in separate suits for the payment of two sums
of money passed between the same parties and capable of execution at the same time by
such court and if the sums are equal satisfaction shall be entered upon both decrees and if
the two sums are unequal, execution may be taken out only by the holder of the decree for
the larger sum and for so much only as remains after deducting the smaller sum and
satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as
satisfaction on the decree for the smaller sum. The decision of Kasango J in the case of
Fidelity Commercial Bank Ltd v Agritools Ltd & 3 others resonates very well on the effect
of unregistered hire purchase agreement on a vehicle claimed to be subject of such
unregistered Hire Purchase Agreement. The learned Judge concluded that in law the
vehicle subject of unregistered hire purchase agreement belonged to hirer judgment-debtor
and is therefore liable to execution.

PROPERTY NOT LIABLE TO ATTACHMENT

The property of a judgment debtor in a chattel which he has bailed under a hire or hire
purchase agreement, or agreed to sell under a conditional sale agreement, and of which he
is not entitled to the possession, cannot be seized under an execution. However, if the
judgment debtor is the bailee, his interest in the chattel may be seized and sold if the chattel
is in his possession and the interest is saleable.

The necessary wearing apparel, tools of trade and implements of a person necessary for the
performance of his trade or profession, books of accounts, stipends and gratuities allowed
to pensioners of the government or payable out of service family pension fund, two thirds
of the salary of public officers.
Properties held by the judgment debtor in trust of other people shall not be eligible for
attachment and or properties he has legally sold off to third parties prior to the case or
during its substance.

5 PROCEDURE BEFORE EXECUTION

The decree holder for the payment of money may apply to the court for orders that:

a) The judgment debtor;

b) any authorized officer of a corporation,
c) Any other person,
be orally examined as to whether any or what debts are owing to the judgment debtor and
whether he has any and what properties or means of satisfying the decree and court may
order for the attendance and examination of such judgment debtor or other person and for
the production of any books or documents.

The Decree Holder has a duty in his application to state what properties of the judgment
debtor he ought to attach and proof therein of the judgment debtor’s ownership and if the
subject matter is land the court may require the applicant to produce a certified extract from
the register of such office, specifying the persons registered as proprietors of, or as
possessing any transferable interest in the land or its revenue or as liable to pay revenue for
the land and the shares of the registered proprietors. The same shall be transferred to the
Decree Holder even if the judgment debtor refuses to deliver up the titles the Registrar will
cancel out his titles upon the Judgment Debtor registering a copy of the prohibitory order
or inhibition against the title to the property in the names of the Decree Holder.638Viz vie
other modes of execution.

EXECUTION BY ATTACHMENT

Properties to the judgment debtor may be taken in execution by seizure and attachment.
The decree holder shall attach by actual seizure and the attaching officer shall keep the
property in his own custody or in the custody of one of his subordinates and shall be
responsible for the actual custody.
The principle of seizure is that only such things as could be sold might be taken into
possession, that is, corporeal goods not things such as documents, certificates conferring
title to property or bank notes. The court bailiff is duty bound to seize all those properties
as much as possible to satisfy the decree holder’s debt with interest and costs of the
execution. Seizure of anything more may render him liable to the judgment debtor for an
excessive execution.

Execution by attachment will be carried out between the time of sunrise and sunset, and
attachment may be:

i. by actual seizure,
ii. by notice or
iii. constructive attachment,
iv. by caveat or
v. freezing orders that prevents the judgment debtor from dealing with the property.

SALE
This is a process of execution which is followed keenly by both the judgment debtor and
decree holder because it realizes the fruits of the judgment to the decree holder and where
there are any profits the proceeds revert back to the judgment debtor.

According to section 48 of the Civil Procedure Act

Where immovable property is sold in execution of a decree and the sale has become
absolute, the property shall be deemed to have vested in the purchaser from the
time when the property is sold and not from the time when the sale becomes
absolute.

Under this section, the title to immovable property sold in execution of a decree, where
the sale has become absolute, vests in the purchaser from the time when the property
is sold and not from the time when the sale becomes absolute. If the sale is otherwise
is otherwise in order and the property is purchased by a stranger, the sale must be confirmed
even if the decree is reversed on appeal after the sale and before its confirmation.
In the case of private sale of immovable property, property vests in the purchaser at
the point of execution of the deed because such sales are voluntary. The case of a court
sale is different in the sense that property does not vest in the purchaser immediately
on sale.

The reason for this is because the sale does not become absolute until sometime
after the sale during which period the sale is liable to be set aside at the instance of
the judgment-debtor on any of the grounds such as irregularity in advertising or
conducting the sale etc. Such applications must normally be within 30 days failure to
which the sale is confirmed by the court and it is upon such confirmation that the
sale becomes absolute.

It is when the sale becomes absolute and a certificate of sale issued that the
property vests in the purchaser. In practice, though, the property does not vest in the
purchaser until the sale has become absolute, when it becomes absolute it is deemed as
having become absolute from the time when it was sold so that vesting of property is
backdated to the date of sale and where profit was lost, the purchaser becomes entitled
to sue for profits from the date of the purchase.

According to section 49(1) No suit shall be maintained against any person claiming
title under a purchase certified by the court in such manner as may be prescribed
on the ground that the purchase was made on behalf of the plaintiff or on behalf of
someone through whom the plaintiff claims.

This section bars the institution of any suit against the certified purchaser on the
ground that the purchase was made on behalf of the plaintiff. This implies that it is
only in suits against the certified purchaser as defendant that such purchaser can be
deemed to be the real purchaser and the plaintiff barred. Where on the other hand, the
real owner is actually and honestly in possession and a suit is brought by the certified
purchaser as plaintiff against the real owner for possession, rents or profits of the
property of which the plaintiff is the certified purchaser, the real owner may resist the
suit on the ground that the certified owner was merely a front.
The argument would be that since the section only bars suits against the certified
purchaser as defendant, a suit by such purchaser as plaintiff for a declaration that he
purchased such property on his own behalf and not as a front for another is not barred
under this section.

2) Nothing in this section shall bar a suit to obtaina declaration dhat the name of any
purchaser certified as aforesaid was inserted in the certiheate raudlently or witlhout dhe
consent of the real purchaser, or interfere with the right of a thinl peFOn to proeed
against that property, though ostensibly sold to the cerified purchaser, on the ground thar
it is liable to satisfya claim of such third person againmt the real owner
This section does not bar a suit claiming that the name ofa certified purchaser was
inserted in the certificate fraudulently or without the consent of the real purchaser
Similarly this section does not bar a third party from proceeding against the property
on the grounds that the property is liable to satisty a claim by such third party agains
the real owner.
Distribution of Assets
50(1) Where assets are held by any court and more persons than one have before the
receipt of such assets by such court lodged applications in court for the execution of
decrees for the payment of money issued against the same judgment-debtor and have not
obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be
distributed amongst such decree-holders in accordance with the priorities of the lodging
of their several applications:
Provided that, where any property is sold subject to a mortgage or charge, the mortgagee
or encumbrance shall not be entitled to share in any surplus arising from the sale
(2) Every application for execution ofa decree shall, at the time of lodgement, be
endorsed by the court, or by a duly authorized officer of the court, with a note of the
day upon which and the hour at which such lodgement has been effected,
The purpose of this section is to provide a convenient remedy for the expeditious
execution of money decrees held against the same judgment-debtor by adjusting the
claims of rival decree-holders without the necessity of separate proceedings. Under
this section all judgment-debtors who apply to the court prior to receipt of sale
proceeds by the court are entitled to share rateably
There are two objectives that are satisfied by this section. The first is to prevent
unnecessary multiplicity of execution proceedings, to obviate, in a case where there
are many decree-holders, each competent to execute his decree by attachment and
sale in a particular property, the necessity of each and everyone separately attaching
and separately selling that property. The second is to secure an equitable administration
of the property by placing all the decree-holders on the same footing, and making
the property rateably divisible among them instead of allowing one to exclude all the
others merely because he happened to be the first who had attached and sold the
property.
To entitle a decree-holder to participate in the assets of a judgment-debtor, the
following conditions must be present:
The decree-holder claiming to share in the rateable distribution should have applied
a)
for execution of his decree to the appropriate court. A decree-holder will not be
entitled to rateable distribution if he has not applied for execution of his money
decree before the receipt of assets.
b)
Such application should have been made prior to the receipt of the assets by the
court. This means that the application for execution must be subsisting and pending.

assets of which a rateable distribution is sought must be assets held by the courc.
Tlhis section contemplates the court receiving certain assets and then proceeding
a hold them.A rght to rateable distribution is accordingly conditional upon there
being assets in the hands of the court, so that where for example a decree-holder,
who attaches the property of a judgment-debtor in execution of his decree, purchases
the same by private treaty With the latter in satisfaction of his decree before the sale
af the property by the court, there are no assets held by the court.
The attaching creditor as well as the decree-holder claiming to participate in the
d)
aNsets should be holders of decrees for the payment of money. It is only holders of
decrees for paymernt ot money that are entitled to a rateable distribution under this
Nection
Such decrees should have been obtained against the same judgment-debtor. The
e)
rovisions of this section do not apply unless the judgment-debtor is the same so
that where the holder of a decree against two or more persons applies for a rateable
distribution of the assets realized from property belonging to one of such persons,
the application is one for the execution of the decree against the same judgment-
debtor.
Resistance to Execution
gLWhere the court is satisfied that the holder of a decree for the possession of immovable
nroperty, or that the purchaser ot immovable property sold in execution of a decree, has
heen resisted or obstructed in obtaining possession of the property by the judgment-
debtor or some other person on his behalf, and that such resistance or obstruction was
without any just cause, the court may, at the instance of the decree-holder or purchaser,
arder the judgment-debtor or such other person to be detained in prison for a term
which may possession ot the property.
When executing a decree the court must be able to enforce should it meet resistance.
This section prescribes the avenues available to a court where the holder of a decree
for possession of immovable property or the purchaser of immovable property sold
in execution has been obstructed or resisted by the judgment-debtor or some other
person on his behalf.
Where this happens, the court may, on the motion of the decree-holder or
purchaser order the person resisting or obstructing to be jailed for up to thirty days.
The court may further issue a court order directing that the decree-holder or purchaseer
be put in possession of the property.
The court in both instances must be satisfied that the holder of the decree or the
purchaser has been resisted without just cause. The converse of this is that the person
resisting may be allowed to show just cause for his resistance to the execution.

Note that unlike perishables and commodities whose storage and preservation expense can
easily exceed their value, no sale hereunder shall without the consent in writing of the
judgment debtor take place until after the expiration of at least thirty days in the case of
immovable property calculated from the date on which the copy of the public notice. Sales
in execution of a decree shall be conducted by an officer of the court or by such other
person as the court may appoint on its behalf and shall be made by public auction.

The auctioneer shall cause a public notice and advertisement of any property to be sold by
public auction in execution of a decree, the notice shall describe accurately the property to
be sold, any encumbrance to which the property is liable, amount for the recovery of which
the sale is ordered, anything which the court considers material to be known to the
purchaser.

Figure 2. Copy of Notice by advertisement of sale

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 88 OF 2014

FAST TRACK

ANN KARIBU…………………………………………………………… PLAINTIFF

VERSUS

GITHERI COCHEN………………………………………………………DEFENDANT

NOTICE OF ADVERTISEMENT OF SALE

(HOUSE ON LAND TITLE NO. KAREN/NAIROBI/90)

By order of the High Court and pursuant to a judgment by justice J.P for KShs. 90 Million
Hey bailiffs and auctioneers of P.O. Box 4-0320 Langata, will sell the above property by
public auction at Pangani on 31 October, 2014 at 9 O’clock.

…………………………………..

PUMWANI & Co. ADVOCATES

ADVOCATES FOR THE DECREE HOLDER

 Payment of Purchase Money
The purchase price shall be paid upon the delivery to the purchaser of an executed
conveyance or transfer of the property and the money will be paid into court unless the
court orders otherwise.

When movable property is sold by public auction the price of each lot shall be paid at the
time of sale, or as soon after as the officer or other person holding the sale directs and in
default payment shall forthwith be re-sold. In the case of Russel Company Limited v
Commercial Bank of Africa, It was held that the defendant cannot lay claim to the property
as its interests were extinguished at the fall of the hammer and cannot therefore prevent the
transfer of the property. He submitted that section 99 of the Land Act recognized the
plaintiff as the legal owner of the suit property and that the equity of redemption was lost
at the fall of the hammer.

In Mbuthia v Jimba Credit Finance Corporation and another, the Court of Appeal held
that by virtue of the security being registered under the RLA the equity of redemption was
lost at the fall of the hammer at auction sale. This is because at the fall of the hammer the
highest bidder is declared the purchaser and a binding contract of sale is concluded. In this
case the equitable and beneficial interest in the charged property passed to the purchaser at
the fall of the hammer and is declared a purchaser at the auction and a valid contract
concluded.

CERTIFICATE OF PURCHASE
The court shall grant a certificate specifying the immovable property sold and the name of
the person who at the time of sale is declared to be the purchaser and such certificate shall
bear the date and the day on which the sale became absolute.

6 OBJECTION TO ATTACHMENT
Order 22 rule 51(1) of the Civil Procedure Rules provides as follows;

Any person claiming to be entitled to or to have a legal or equitable interest in the

whole or part of any property attached in execution of a decree may at any time
prior to payment out of the proceeds of sale of such property give notice in writing
to the court and to all parties to the decree-holder, of his objection to the
attachment of such property.
Order 22 Rule 52 of the Civil Procedure Rules. The same provides as follows:-

“Upon receipt of a valid notice and application as provided under rule 51, the court
may order a stay of the execution for not more than fourteen days and shall call
upon the attaching creditor by notice in writing to intimate to the court and to all
the parties in writing within seven days whether he proposes to proceed with the
attachment and execution thereunder wholly or in part.”

Order 22 Rule 53 of the Civil Procedure Rules states that:-

“Should the attaching creditor in pursuance of a notice issued under rule 52 either
fail to reply to the court and the objector within the period prescribed by the notice
or intimate in writing to the court and the objector within the period prescribed by
such notice that he does not propose to proceed with the execution of the
attachment of the whole or of a portion of the property subject to the attachment,
the court shall make an order raising the attachment as to the whole or a portion
of the property subject to the attachment in accordance with the intimation
received from the attaching creditor and shall make such order as to costs as it
shall deem fit.”

Further Order 22 Rule 54 of the Civil Procedure Rules stipulates that:-

“If the attaching creditor proposes to proceed with the attachment pursuant to rule
52, the intimation shall be accompanied by a replying affidavit and the court shall
proceed to hear the application expeditiously.”

However, any person claiming to be entitled to have legal or equitable interest in the whole
or part of any property attached in execution of a decree may at any time prior to payment
out of the proceeds of sale of such property give notice in writing to the court and all the
parties and the decree holder of his objection to the attachment of such property. The notice
shall be accompanied by:

i. an application
ii. supported by affidavit and
iii. served within seven days from the date of filing on all the parties

setting out in brief the nature of the claim which such person objects or makes to the whole
or portion of the property attached.
If court is satisfied with the application and objector proceedings shall order for a stay of
execution for not more than fourteen days and shall call upon the attaching creditor by
notice in writing to intimate to the court and all parties in seven days whether he proposes
to proceed with the attachment and execution there under wholly or partly.

In the case of Akiba Bank Ltd v Jetha and Sons Ltd quoted by Mutava, J in Naran Hirani
T/A Classico Builders v Maina Mwangi and Everlyn Wanjiku Karanja Waweru, J held
that for an objector to succeed in his objection he must exhibit evidence of his legal or
equitable interest in the whole or part of any property attached in execution of decree hence
Odunga, J in Dubai Bank (K) Ltd v Come-Cons Africa Ltd and Impak Holdings Co Ltd.
stated as follows:

Although the law is that in the objection proceedings the court does not and cannot
make a finding as to the ownership of the property the subject of the objection
proceedings but simply decide whether or not the objector has interest legal or
equitable in the attached property it is equally true that the onus of proof in
objection proceedings is on the objector to establish ownership.

See Chatabhai M. Patel and another, High Court Civil Case Number 544 of 1957 (Lewis)
on 8 December 1958 HCU (1958) 743.

6.1.1 The burden of proof in objection proceedings

The core of objection proceedings, the objector must adduce evidence to show that at the
date of the attachment there was a legal or equitable interest in the property(s) attached.
For this purpose, he may raise an objection on the ground, inter alia, that he has some
beneficial interest in the property. A beneficial interest is as much an interest within the
meaning of the Rules as a legal interest in the property attached. So, a mortgagor can bring
an objection on the ground that his interest in the property, viz, the equity of redemption
cannot be attached and sold in execution of a decree against the mortgagee. See Precast
Portal Structures versus Kenya Pencil Company Ltd & 2 others [1993] eKLR;

The burden is on the objector to prove and establish his right to have the attached
property released from the attachment. On the evidential material before the Court,
a release from attachment may be made if the Court is satisfied.
 (1) that the property was not, when attached, held by the judgment-debtor for
himself, or by some other person in trust for the judgment-debtor; or

(2) that the objector holds that property on his own account.

The Court takes into account the grounds of objections raised, and the contentions of the
respective parties to the objection proceedings. Any special features evident in the
proceedings which throw light on the controversy must be regarded.

ARREST AND DETENTION

Any person who is a judgment debtor can be called upon to show cause why he should not
be imprisoned for failure to pay his debt per the decree. If the person on appearing before
court fails to convince court about his failure to satisfy the decree he can be remanded to
prison at the expense of the Decree Holder for a period not exceeding 6 months and/or until
satisfaction of the decree.

In National Bank Limited v Linus Kuria Ndung’u Milimani Justice Lesiit considered the
application of Order 22, rule 35 now rule 34(b) of the Civil Procedure Rules, 2010. The
learned Judge observed that,

“The rules are very clear concerning the issues that the court should consider and be
satisfied before making the order for committal to civil jail. First to be adhered to is the
requirement that the reason for which informed the Deputy Registrar to decide the way he
did must be recorded in writing………………………. the Deputy Registrar must be
satisfied: That the judgment debtor has, since the date of the decree, the means to pay the
amount of the decree and some substantial part thereof; And refuses or neglects or
neglected to pay the same …….”

The court also considered the issue of the burden of proof. Justice Lesiit held that, “The
burden of proof at the Notice to Show Cause lies with the decree holder at all times. It is
the duty and evidential burden of the decree-holder to prove that the judgment debtor as or
has had the means to satisfy the decree and further that the judgment debtor has refused or
neglected to pay.”
In Elijah Momanyi p/a Anassi Momanyi and Company Advocates v Bartera Maiyo he
stated, “In my view, execution by way of arrest and committal to civil jail must be done as
the last resort after all other options have been exhausted. The deprival of an individual’s
liberty is not a matter to be treated lightly or in haste. The protection of the right to liberty
in my view is the most sacred of the fundamental rights and freedoms of the individual. It
should not be taken away easily and particularly in matters relating to commercial
transactions and civil litigation. The circumstances justifying such action are equally
established and certain facts and conditions must be shown to exist before an order for
committal to civil jail is made on the basis of failure to satisfy a property decree. Strictly,
committal here is not intended to be punishment but a process through which a debtor can
be compelled to pay his debt after all the other usual methods have failed. The execution
lacked all due process.”

6.2.1 EXECUTION AGAINST GOVERNMENT

“Where in any civil proceedings by or against the Government, or in proceedings in
connection with any arbitration in which the Government is a party, any order (including
an order for costs) made by any court in favour of any person against the Government, or
against a Government department, or against an officer of the Government as such, the
proper officer of the court shall, on an application in that behalf made by or on behalf of
that person at any time after the expiration of twenty-one days from the date of the order
or, in case the order provides for the payment of costs and the costs require to be taxed, at
any time after the costs have been taxed, whichever is the later, issue to that person a
certificate in the prescribed form containing particulars of the order:

Provided that, if the court so directs, a separate certificate shall be issued with respect to
the costs (if any) ordered to be paid to the applicant.

In High Court Judicial Review Miscellaneous Application No. 44 of 2012 between the
Republic v the Attorney General and another ex parte James Alfred Koroso, I expressed
myself as follows:………………… in the present case the ex parte applicant has no
other option of realising the fruits of his judgment since he is barred from executing against
the Government. Apart from mandamus, he has no option of ensuring that the judgment
that he has been awarded is realised.

In Kisya Investments Ltd v Attorney General and another the Court grappled with the
issue of execution of decrees against the Government and concluded that it is imperative
that the Government satisfies court orders otherwise the burden of paying interest will
continue to weigh heavily on the taxpayer.

In Republic v County Secretary Migori County & another Ex parte Linet Magambo
[2020] Eklr the court made the following observations:

Execution of decrees against the Government is not undertaken as in the ordinary civil
cases but must be in accordance with Provisions of the Government Proceedings Act.
Though the Government Proceedings Act does not specifically recognize Counties as
Governments, it is now conceded that Kenya has two levels of governments at the National
level and County Governments level. This was aptly put by J. Odunga in Republic =vs=
AG and another exparte Stephen Wanyee Roki (2016) eKLR when he considered the
applicability of the Government Proceedings Act. He said at paragraph 20-21;-

“Although the provisions of the Government Proceedings Act do no expressly refer

to County Governments, Section 7 of the Sixth Scheduled to the Constitution
(Transitional and Consequential Provisions) provides that; All law in force
immediately before the effective date continues in force and shall be construed with
alteration, adaptation, qualification and exceptions necessary to bring it into
conformity with this Constitution. It follows that the provisions of the Government
Proceedings Act, a legal instrument enacted before the effective date must construed
with the alterations, adaptations, qualifications and exceptions necessary to bring it
into conformity with the Constitution. One such construction would be the reality
that the Government is now at two levels and Article 189 (1) (a) of the Constitution
requires that the Constitutional status and institutions of Government at both the
National and County levels be respected. In my view, such respect cannot be achieved
unless both levels of Government are treated equally and one such area would be with
respect to execution proceedings.”
Guided by the above decision, the Government Proceedings Act does apply to execution
of decrees against the County Government. The office of the County Secretary is
established under Section 44 (1) of the County Government Act which provides as
follows;-

“Section 44 (1) of the County Government Acts 2012, There is established for each
county the office of the County Secretary who shall be secretary to the County
Executive Committee.

Section 44 (3) provides for the function of the County Secretary as follows;

a) Be the head of the county public service;

b) Be responsible for arranging the business, and keeping the minutes, of the county
executive committee subject to the directions of executive committee;

c) Convey the decision of the county executive committee to the appropriate persons
or authorities; and

d) Perform any other functions as directed by the county executive committee.”

Section 45 of the County Government Act establishes the office of the County officer
of Finance which provides as follows;

“ (1) the Governor shall-

a) Nominate qualified and experienced county chief officers from among persons
competitively sourced and recommended by the County Public Service Board; and

b) With the approval of the county assembly, appoint county chief officers;

(2) The office of a county chief officer shall be an office in the county public service;

(3) A county chief officer shall be responsible to the respective county executive
committee member for the administration of a county department as provided under
section 46;

(4) The county chief officer shall be the authorized officer in respect of the exercise of
the delegated power.”
The Respondents are in charge of the operations of the Public service and the treasury
respectively.

The function of the two officers were considered by J. Nyamweya in Republic =vs=
County Secretary Nairobi City County and 3 others ex parte Koceyo Advocate (2020)
eKLR. The judge stated this ;-

“Section 44 of the County Government Act in this respect establishes the office of the
County Secretary who is secretary to the County Executive Committee, and is
answerable for the operations of the County Executive, and whose functions include
being head of the county public service, Section 103 of the functions include being
head of the county public service. Section 103 of the Public Finance Management Act
No. 18 of 2012 also establishes the County Treasury responsible for finance and fiscal
matters. Under Section 103 (3) of the Act, the County Executive Committee Member
for Finance is the head of Treasury, and is thus the responsible for finance matters in
the County.

This Court therefore finds that arising for these provisions, the 1 st, 2nd and
3rd Respondents are jointly responsible for the satisfaction of Court orders and
decrees on payment of money owed by the Nairobi City County by virtue of their roles
and functions. In addition, the decretal sum due from the Respondents in the
present applications has not been disputed, and the Applicant in this respect annexed
copies of the judgments and decrees awarded in the various cases that are the subject
of this application. The Applicant also annexed copies of the Certificates of Costs
issued in its favour, after taxation of its Bills of Costs in the various suits.”

As held in the above cited case, the respondents are properly sued as they deal with
satisfaction of court decrees on behalf of the County Government.

It is settled law that before an order of mandamus is issued, an applicant must abide by the
procedure in Section 21 of Government Proceedings Act and Order 29 Civil Procedure
Rules. Section 21 of the Government Proceedings Act provides:-

“(1)Where in any civil proceedings by or against the Government, or in proceedings in

connection with any arbitration in which the Government is a party, any order
(including an order for costs) is made by any court in favour of any person against the
Government as such, the proper officer of the court shall, on an application in that
behalf made by or on behalf of that person at any time after the expiration of twenty-
one days from the date of the order or, in case the order provides for the payment of costs
and the costs require to be taxed, at any time after the costs have been taxed, whichever
is the later, issue to that person a certificate in the prescribed form containing particulars
of the order:

Provided that, if the court so directs, a separate certificate shall be issued with respect to
the costs (if any) ordered to be paid to the applicant.

(2) A copy of any certificate issued under this section may be served by the person in
whose favour the order is made upon the Attorney – General.

(3) If the order provides for the payment of any money by way of damages or otherwise,
or of any costs, the certificate shall state the amount so payable, and the Accounting
Officer for the Government department concerned shall, subject as hereinafter provided,
pay to the person entitled or to his advocate the amount appearing by the certificate to
be due to him together with interest, if any, lawfully due thereon:

Provided that the court by which any such order as aforesaid is made or any court to
which an appeal against the order lies may direct that, pending an appeal or otherwise,
payment of the whole of any amount so payable, or any part thereof, shall be suspended,
and if the certificate has not been issued may order any such direction to be
inserted therein.

(4) Save as aforesaid, no execution or attachment or process in the nature thereof shall
be issued out of any such court for enforcing payment by the Government of any such
money or costs as aforesaid, and no person shall be individually liable under any order
for the payment by the Government, or any Government department, or any officer of
the Government as such, of any money or costs.”

The reason why this strict Procedure is followed was explained by the Court of Appeal in
Kisya Investments Ltd =vs= AG (2005) 1 KLR 74. The court said: -
“Order 28, rules 2(1)(a), (2) and (4) of the Civil Procedure Rules subject themselves
to the provisions of the Government Proceedings Act which include provisions
prohibiting execution against or attachment in respect of the Government. The said
Rules themselves expressly preclude such actions. In pursuance of the ends of justice,
the courts are bound to apply the law as it exists. Many a times such application may
indeed not attain that goal due to the effect of the said laws. On the question of abuse
of the process of the court, the application of any written law cannot amount to an
abuse of the process of the court however much its effect is harsh or even
undesirable…. History and rationale of Government’s immunity from execution
arises from the following:- Firstly, there has been a policy in respect of Parliamentary
control over revenue and this is threefold and is exercised in respect of (i). The raising
of revenue- (by taxation or borrowing); (ii). its expenditure; and (iii). The audit of
public accounts. The satisfaction of decrees or judgements is deemed to be an
expenditure by Parliament and as a result of this must be justified in law and provided
for in the Government’s expenditure. It is for this reason that section 32 of the
Government Proceedings Act provides that any expenditure incurred by or on behalf
of the Government by reason of this Act shall be defrayed out of the moneys provided
by Parliament. Parliamentary control over expenditure is based upon the principle
that all expenditure must rest upon legislative authority and no payment out of public
funds is legal unless it is authorized by statute, and any unauthorized payment may
be recovered. SEE HALSBURY’S LAWS OF ENGALAND 4TH EDN VOL. 11 PARA
970, 971 AND 1370. As a result of the foregoing, which was borrowed from the Crown
Proceedings Act, 1947 (section 37) of England, this is a warning that any payment by
Government must be covered by some appropriation. It is said that Parliament is very
jealous of its control over the expenditure and this is as it should be. No Ministry or
Department has any ready funds at all times to satisfy decrees or judgements. While
existence of claims and decrees may be known to the Ministries and Departments,
they have to notify the Ministry of Finance and Treasury of the same so that payment
is arranged for or provisions made in the Government expenditure. SEE AUCKLAND
HARBOUR BOARD VS. R (1924) AC 318, 326. The second situation, which arises
from the above, is that once a decree or judgement is obtained against the
Government, it would require some reasonable time to have it forwarded to the
ministry of Finance, Treasury, Comptroller and Auditor General etc. for scrutiny
and approvals for it to be paid from the Consolidated Fund. The Ministries and
Departments do not have their “own” funds to settle such decrees or payments and
considering the nature of the Government structure, procedures, red tape and large
number of claims, this could take a long time. If execution and/or attachment against
the Government were allowed, there is no doubt that the Government will not be able
to pay immediately upon passing of decrees and judgements and will be inundated
with executions and attachments of its assets day in, day out. Its buildings will be
attached and its plants and equipment will be attached, its furniture and office
equipment will be attached, its vehicles, aircraft, ship and boats will be attached.
There will be no end to the list of likely assets to be attached and auctioned by the
auctioneer’s hammer. No Government can possibly survive such an onslaught. The
Government and therefore the state operations will ground to a halt and paralysed
and soon the Government will not only be bankrupt but it’s Constitutional and
Statutory duties will not be capable of performance and this will lead to chaos,
anarchy and the breakdown of the Rule of Law. This is the rationale or the objective
of the Law that prohibits execution against and attachment of the Government assets
and property.”

In Permanent Secretary Office of the President, Ministry of Internal Security

&Another ex parte NASSIR MWANDIHI (2014) e KLR J Odunga observed that the
procedures in seeking an order of mandamus under Government Proceedings Act are
strictly complied with respect to issuance of certificate of costs and certificate of order
against the Government.

Justice Odunga echoed the Kisya Investments case (supra) that the elaborate procedure is
meant to give adequate notice to the Government to make arrangements to satisfy the
decree and that it is not meant to relieve the Government of its obligations to satisfy the
decrees and orders of the court.

In this case, I have earlier noted that in the further affidavit of the applicant, the decree and
the certificate of order were served on the respondents on the 13th January 2020, and an
affidavit regarding service was sworn by Aggrey Ongiri, the processer server. The
Respondents’ instructed counsel, one Odhiambo Oronga Advocate who filled notice of
appointment but never filed any reply to contest this application.

Whether an order of mandamus can lie; The scope of an order of mandamus was discussed
in the decision of Republic =vs= Kenya National Examination Counsel ex parte
Gathenji & Others, (1997) eKLR where it was held,

“The next issue we must deal is this ; what is the scope and efficacy of an order of
mandamus?

The order of mandamus is of a most extensive remedial nature, and is, in form, a
command issuing from High Court of Justice, directed to any person, corporation or
inferior tribunal, requiring him or them to do some particular thing therein specified
which appertains to his or their office and is in the nature of a public duty. Its purpose
is to remedy the defects of justice and accordingly it will issue, to the end that justice may
be done, in all cases where there is a specific legal right and no specific legal remedy for
enforcing that right; and it may issue in cases where, although there is an alternative
legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”

In the instant case the applicant has demonstrated that she has a judgment against the
County Government of Migori which the Respondents have failed to satisfy and it is only
fair that the Respondents be compelled to perform their duty and pay the applicant.

In view of my analysis above, I am satisfied that the applicant has made a case for the grant
of an order of mandamus and I hereby grant the same in terms of prayer (a) and (d) of the
notice of motion dated 10/2/2020.

GARNISHEE/ATTACHMENT OF DEBTS
Execution can be conducted against a third party indebted to the judgment debtor who can
be ordered to pay the debts to the decree holder. In J. K. Kibicho and Company Advocates
v lnoi Farmers Co-operative Society Limited it was held that the sum of KShs. 273,474
being the monies held by the Co-operative Bank of Kenya, Kerugoya Branch (hereinafter
called the Garnishee) in account number 342556 being the respondent’s monies be attached
to answer the Decree together with costs of these proceedings.

In Barclays Bank of Kenya Limited v Christant Mutisya Maingi, Johnson Ngotho Kioge
the Garnishee Bank did not appear to show cause as required. That means that the
applicant’s application dated 18 February 2008 is not challenged. I am satisfied that the
applicant has a decree against the defendants in this case which has not been satisfied.
There is no good cause shown why the amounts in the Garnishee Bank’s, City Hall Way
branch, Account No. 0013943001 should not be utilized to satisfy both the decree herein,
the costs and interests of the suit together with the costs of this application. It was held that
the amounts in the said account be attached and utilized to satisfy this Court’s decree,
annexed as “SG-3” to the supporting affidavit of Kennedy Ochieng, together with the
interest and costs of the suit and the costs of this application.

PROCEDURE
A decree holder makes an ex-parte application before or after an oral examination of the
judgment debtor in his affidavit stating that a decree has been issued but the same remains
unsatisfied and the amount to which it is not satisfied and will further state that another
person is indebted to the judgment debtor and is within the court’s jurisdiction hence
praying that all debts to the judgment debtor be attached to satisfy the decree and the
garnishee proceedings.

When the garnishee appears before court and does not dispute paying the decree-holder the
debt due from him to the judgment debtor and court shall order him pay off the debt to the
decree holder order execution against the person and goods of the garnishee to levy the
amount due from him or what may be sufficient to satisfy the decree together with the
garnishee proceedings and an order absolute shall issue. However, if the garnishee disputes
his liability the court that any issue or question necessary for determining his indebtedness
be tried and be determined in a manner in which a suit is tried.

“the Garnishee shall pay to the applicant the debt owed by the Garnishee to the
respondent sufficient to discharge the decree herein by monthly installments of
KShs. 1 million with effect from 15 July 2013 and of each succeeding month until
payment in full of the decree.
The procedure was well laid out in Halsbury’s Laws of England, Fourth Edition,
paragraphs 526/527/536 and 541 for the propositions that Garnishee proceedings are
proceedings where a third party holding funds or property on behalf of a judgment debtor
can be called upon to honour the claim of a Decree Holder over those funds or property;
(iii) such proceedings may be initiated at any time after obtaining judgment or order; (iv)
a Garnishee order can only issue in instances where there is something which the law
recognizes as a debt; (v) issuance of a notice to a Garnishee binds the funds in the hands
of the Garnishee; (vi) once Garnishee proceedings have been commenced, they are pending
proceedings and they cannot be restrained by prohibition or injunction; (vii) if the
Garnishee does not appear to challenge the Garnishee proceedings the court may order
execution against the Garnishee; (viii) Garnishee order nisi gives no rights to the Decree
Holder until it has been served on the Garnishee; (xi) service of the Garnishee order nisi
upon the Garnishee binds the funds in his hands with regard to any debt specified in the
order; (x) in instances where the Garnishee does not dispute the proceedings the Garnishee
order may be made absolute; (xi) if the Garnishee disputes the debt or alleges that the debt
or funds belong to some other third party and not the judgment debtor, the court may order
such third party or person to appear and state the nature, extent and particulars of his claim
upon such funds; (xii) upon the Garnishee order being made absolute, the Garnishee
becomes liable to pay to the Decree Holder the amount due from him to the judgment
debtor as much as may be sufficient to pay the judgment debt and the costs of the Garnishee
proceedings; (xiii) a Garnishee order absolute is in the nature of a final order and cannot
normally be discharged except either with the consent of the parties or set aside following
a determination inter partes by a court of law on the grounds that it ought not to have been
made.

6.4.1 ORDER ABSOLUTE

When the court is satisfied that the decree holder can recover from the garnishee it can
make an order absolute that there is a debt in praesenti.

In Maurice M. Munyao & 148 others (suing on their own behalf and on behalf of the other
members/beneficiaries of the Kenya Ports Authority Pension Scheme affected by the
averaging of the pensionable salary and freezing of the pensionable house allowance
pursuant to the Order made by Hon. Justice Maraga J. on 28 November 2007 Albert v
Chaurembo Mumha and 7 others (Sued on their own behalf and on behalf of their
predecessors and/or successors in title in their capacity as the Registered Trustees of the
Kenya Ports Authority Pension Scheme and 2 others the court further grants Garnishee
Order Absolute against the Garnishee to forthwith pay the claimants KShs.267,8

19,043.20 plus costs of this suit.

Figure 3. Copy of Order Absolute

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 88 OF 2014

FAST TRACK

BETWEEN

ANN KARIBU………………………………………………………DECREE-HOLDER

AND

GITHERI COCHEN…………………………………………JUDGMENT- DEBTOR

AND

CAPORO………………………………………………………………GARNISHEE

TO

GITHERI COCHEN…………………………………………JUDGMENT- DEBTOR

AND

CAPORO……………………………………………………………………GARNISHEE
Upon hearing Nani (Advocate for decree-holder) and upon reading the order nisi made
herein dated 31 November 2014 whereby it was ordered that all debts owing or accruing
due from the garnishee to the judgment-debtor should be attached to answer a decree
passed against the judgment-debtor in favour of the decree-holder in the High Court at
Nairobi on 21 August 2014 in the above-named suit for the sum of Shillings 1 million debt
and Shillings 130,000 costs (together with the costs of the garnishee proceedings) on which
decree the sum of Shillings 450,000 remained due and unpaid: and it appearing that the
garnishee is indebted to the judgment-debtor in the sum of Shillings 450,000.

It is ordered that the garnishee (after deducting therefrom Shillings 20,000 for his costs of
this application) do forthwith pay to the decree-holder Shillings 450,000 the debt due from
the garnishee to the judgment-debtor, and that in default thereof execution may issue for
the same:

And that the sum of Shillings 130,000 the cost of the decree- holder of this application be
added to the amount of the decree and be retained out of the money recovered by the
decree-holder under his order and priority to the amount of the decree.

Given under my hand and the seal of the court this 3 November 2014.

……………………………………………..

Judge.

The payment by a garnishee will be a valid discharge to the judgment debtor and the
proceedings will be filed and recovered in the suit in which the decree sought to be enforced
was obtained.

15.17 EFFECT OF THE ORDER

It is plain and unqualified obligation of every person against or in respect of whom an order
is made by a court of competent jurisdiction to obey it unless and until that order is
discharged. The uncompromising nature of this obligation is shown by the fact that it
extends even to cases where the person affected by an order believes it to be irregular or
even void. In the case of Econet Wireless Kenya Ltd v Minister for Information and
Communication of Kenya and anothet quoted an extract from the Court of Appeal ruling
in Refrigeration and Kitchen Utensils Ltd. v Gulabchand Popatlal Shah and another,
Civil Application No. 39 of 1990 as follows:

“It is essential for the maintenance of the rule of law and good order, that the
authority and dignity of our courts are upheld at all times. This court will not
condone deliberate disobedience of its orders, and will not shy away from its
responsibility to deal firmly with proved contemnors.”

Once an order absolute is made then the garnishee debt ought to be attached for execution
and it is not until service of the order nisi there is no attaching of any debt.

Where the garnishee has paid the debtor by cheque before the service of the order nisi he
is under no obligation to stop the cheque. If the cheque is stopped or dishonored the
attachment will operate.