JUDGMENT AND DECREE (ORDER 21)

1. INTRODUCTION

 After hearing is completed, the Court will pronounce judgment. Rules 1 to 5 of Order 21
deals with judgment and Rules 6 to 19 deals with Decrees.

 A judgment is the final part of a Court case. A valid judgment resolves all the contested
issues and terminates a lawsuit.

 The Civil Procedure Rules however allow appeals only from final judgments.

 A judgment also signifies the end of the Court's jurisdiction in a case.

 Once a judgement has been read, the court becomes functus officio.

 A party that receives a judgment on the merits is barred from relitigating the same issue
by the Doctrine of Res judicata.

 When writing a judgment, it is important that the Judge/Magistrate ensures that:

a) There are no irregularities;

b) It should not be vague and certain points should not be left to inference;

c) It must be made of points raised in the pleadings in the cause of trial; and

d) It must record all points raised by all parties

If more than one Judge is deciding a case, the judgment may be delivered unanimously or it
may be divided into a number of majority,1 concurring,2 plurality,3 and dissenting opinions.4

Only the opinion of the ‘majority judgment’ is considered to have precedent-setting weight
for future cases as it represents the views of the majority of the Court.

1
Majority opinion: The opinion of more than half of the Judges deciding a case.
2
Concurring opinion: The opinion of a single Judge or Judges that agrees with the final outcome of the majority
opinion but disagrees in whole or in part with the reasoning
3
Plurality opinion: The opinions of different Judges of the Court when a majority judgment is not obtained. An
example of a plurality opinion is a Court of three Judges each rendering a different concurring decision,
agreeing on a final outcome but disagreeing on the reasons justifying that final outcome, see, James F. Spriggs II
& David R. Stras, Explaining Plurality Decisions 99 (The Georgetown L. J. 515 at 517, 2011).
4
Dissenting opinion: The opinion of a single Judge or Judges that rejects the conclusions of the majority
decision in whole or in part, and explains the reasons for rejecting the majority decision.
2. MEANING OF THE TERM ‘JUDGMENT’ AND ‘DECREE’:

 The term "judgment" has not been defined under Section 2 of the Civil Procedure Act,
Cap 21 but, it generally means a statement given by a Judge on the grounds of a decree
or order.

 In other words, a judgment is the reasoning given by the Judge as to why the decree was
given.

 A judgment explains the legal reasoning that formed the basis for the decree, along with
the case law cited, arguments given by counsel, and the conclusions reached from the
same.

 A judgment can also be referred to as a decision by a Court or other tribunal that resolves
a controversy and determines the rights and obligations of the parties.

 The term “decree” as defined under Section 2 of the Civil Procedure Act, Cap 21, means
the formal expression of an adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to all or any of the matters
in controversy in the suit and;

 it may be either ‘Preliminary’ or ‘Final’; it includes:

i. The striking out of a plaint and,

ii. The determination of any question within Sections 34,5 or section 91,6 but does not
include:

a. Any adjudication from which an appeal lies as an appeal from an order;

or

b. Any order of dismissal for default:

5
Section 34, the Civil Procedure Act, Cap 21: Questions to be determined by Court executing decree: All
questions arising between the parties to the suit in which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the
decree and not by a separate suit
6
Section 91, the Civil Procedure Act, Cap 21: Application for restitution: Where and in so far as a decree is
varied or reversed, the Court of first
instance shall, on the application of the party entitled to any benefit by way of restitution or otherwise, cause
such restitution to be made as will, so far as may be, place the parties in the position they would have occupied
but for such decree or such part thereof as has been varied or reversed; and for this purpose the Court may make
any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and
mesne profits, which are properly consequential on such variation or reversal.
 Provided that, for the purposes of appeal, “decree” includes judgment, and a judgment
shall be appealable notwithstanding the fact that a formal decree in pursuance of such
judgment may not have been drawn up or may not be capable of being drawn up.

Explanation

 A decree is ‘Preliminary’ when further proceedings have to be taken before the suit can
be completely disposed of.

 It is ‘Final’ when such adjudication completely disposes of the suit.

 It may be ‘Partly Preliminary and Partly Final.’

3. ESSENTIAL ELEMENTS FROM THE ABOVE DEFINITION:

3.1 There must be a suit

Decree can only be given in relation to a suit. A ‘suit’ means all civil proceedings commenced
in any manner prescribed.

In Hansraj case,7 the Privy Council also defined the term suit as

"a civil proceeding instituted by the presentation of a plaint."

3.2 There must be adjudication

Adjudication means judicial determination of the matter in dispute. In other words, the Court
must have applied its mind on the facts of the case to resolve the matter in dispute.

For example

 Dismissing a suit because of mere default in appearance of the plaintiff is not a decree.

 But dismissing a suit on merits of the case would be a decree.

3.3 Rights of the parties

The adjudication must be about any or all of the matters in controversy in the suit.

 The word ‘right’ means ‘substantive rights’ and not merely ‘procedural rights’.

7
Hansraj v. Dehradun Mussoorie Tramways Co. Ltd., AIR 1933 PC
For example

An order refusing leave to sue in forma pauperis8 (i.e., an order rejecting the application of a
poor plaintiff to waive Court costs) is not a decree because it does not determine the right of
the party in regards to the matters alleged in the suit.

3.4 Conclusive determination

The determination of the right must be conclusive. This means that the Court will not
entertain any argument to change the decision.

For example

 Out of several properties in issue in a suit, the Court may make a conclusive
determination about the ownership of a particular property.

 Such a conclusive determination would be a decree even though it does not dispose off
the suit completely.

3.5 Formal expression

 To be a decree, the Court must formally express its decision in the manner provided by
law. Hence, all requirements of form must be complied with.

 Thus, a mere comment of the Judge cannot be a decree.

3.5.1 Examples of decisions which are Decrees

i. Dismissal of appeal as time barred;

ii. Dismissal of a suit or appeal for want of evidence or proof;

iii. Order holding appeal to be not maintainable.

3.5.2 Examples of decisions which are not Decrees

i. Dismissal of appeal for default;

ii. Order of remand;

iii. Order granting interim relief

8
In forma pauperis is a Latin term meaning "in the manner of a pauper". It’s a phrase that indicates the
permission given by a Court to an indigent to initiate a legal action without having to pay for Court fees or costs
due to his or her lack of financial resources
4. TYPES OF JUDGMENTS

4.1 Summary Judgment

 It is an accelerated judgment that does not require a trial and in which the Court's
interpretation of the pleadings forms the basis of the judgment.9

 Any party may make a motion for a summary judgment on a claim, counterclaim, or
cross-claim when s/he believes that there is no genuine issue of material fact and that
s/he is entitled to prevail as a matter of law.

 Thus, for a summary judgment, the Court will consider "the contents of the pleadings,
the motions, and additional evidence adduced by the parties to determine whether there
is a genuine issue of material fact rather than one of law."10

4.2 Judgment notwithstanding a verdict

It is a judgment in favor of one party despite a verdict in favor of the opposing litigant.

A Court may enter a judgment notwithstanding the verdict, thereby overruling the jury verdict,
if the Court believes there was insufficient evidence to justify the jury's decision.

4.3 Consent or agreed judgment

 It is a final decision that is entered on agreement of the litigants.

 It is examined and evaluated by the Court, and, if sanctioned by the Court, is ordered to
be recorded as a binding judgment.

 Consent judgments are generally rendered in domestic relations cases after the husband
and wife agree to a property and support settlement in a divorce

4.4 Declaratory judgment- not binding

 It is a judgment that determines the rights and liabilities of the parties without enforcing a
judgment or otherwise requiring the parties to do anything.11

9
Black’s Law Dictionary 1664, 10th ed., 2014
10
Ibid.
11
Ibid.
 A declaratory judgment may be useful where the parties have different views about
their rights and duties or are wishing to clarify them without seeking any other remedy.

 It has been suggested, at least in the United States, that a declaratory judgment is a
"milder" form of an ‘Injunction Order’ because it clarifies the parties' rights without
actually directing the parties to do anything.12

 Though a declaratory judgment is not binding, it is expected that the parties will act in
accordance with what the Court determines in its judgment.

4.5 Interlocutory judgment

 It is an intermediate or interim judgment providing a temporary decision on an issue that

requires timely action.13

 Interlocutory orders are not final and may either not be subject to appeal or may follow a
different appeal procedure than other kinds of judgments.14

4.6 Reserved Judgment

 It is a judgment that is not given immediately after the conclusion of the hearing or trial.

 A reserved judgment may be released days, weeks, or even months after the hearing.

4.7 Vacated Judgment

 It is a judgment of an Appellate Court whereby the judgment under review is set aside
and a new trial is ordered.15

 A vacated judgment is rendered where the original judgment failed to make an order in
accordance with the law and a new trial is ordered to ensure a just outcome.

4.8 Default judgment

 It results from the named defendant's failure to appear in Court, or to plead at an

appropriate time, or from one party's failure to take appropriate procedural steps.

12
Samuel L. Bray, The Myth of the Mild Declaratory Judgment 63, (Duke L. J. 1091 at 1093, 2014)
13
Black’s Law Dictionary 971, 10th ed., 2014
14
Capital Gains Income Streams Corporation v. Merrill Lynch Canada Inc., [2007] OJ No 2606 at para 32
(Can.).
15
Black’s Law Dictionary 971, 10th ed., 2014.
 Before a default judgment is entered, the defendant must be properly served with notice
of the pending action.

 The failure to appear or answer is considered an admission of the truth of the opposing
party's pleading, which forms the basis for a default judgment.

 In case of ‘default judgment’, the plaintiff has to show that the judgment was regular and
that service of summons was proper.

 In Southern Credit Banking Corporation v. Jonah Stephen Nganga,16 the Court referred to
a ruling in Fidelity Commercial Bank Limited v. Owen Amos Ndungu & Another,17 and
drew a distinction between regular and irregular judgments and it was of the view that

“where service of summons to enter appearance has been served and judgment
passed, the said judgment is regular.

However,

“where service is not effected and judgment is passed, then such subsequent
judgment is irregular”

4.9 Deficiency judgment

 It involves a creditor and a debtor.

 Upon a debtor's failure to pay his or her obligations, a deficiency judgment is rendered in
favor of the creditor for the difference between the amount of the indebtedness and the
sum derived from a judicial sale of the debtor's property held in order to repay the debt.

4.10 Personal judgment

 It is a judgment imposing personal liability on a defendant.

4.11 Foreign judgment

 It means the judgment of a foreign Court (Section 2, the Civil Procedure Act, Cap 21).

 Conditions for recognizing and enforcing a judgment of a Court of another country may
be established by Treaty or follow General Principles of International Law.

 Under such Principles, a Court of one State can enforce a foreign judgment if:
16
(2006) eKLR
17
HCCC No. 241 of 1998.
 i. The judgment is final between the parties;

ii. The Court that granted the judgment was competent to do so and had
jurisdiction over the parties;

iii. Regular proceedings were followed that allowed the losing party a chance to be
heard;

iv. No fraud was worked upon the first Court; and

v. Enforcement will not violate the public policy of the enforcing State.

5. KINDS OF DECREES

5.1 Preliminary decree

 It is where an adjudication decides the rights of the parties with regard to all or any of the
matters in controversy in the suit but does not completely dispose of the suit.

 It is generally passed when the Court needs to adjudicate upon some matters before
proceeding to adjudicate upon the rest.

In Shankar v. Chandrakant,18 the Supreme Court stated that a preliminary decree is one
which declares the rights and liabilities of the parties leaving the actual result to be worked
out in further proceedings.

The Civil Procedure Act, Cap 21 provides for passing a preliminary decree in several suits
such as:

a) Suit for possession and mesne profits;19

b) Administration suit20;

c) Suits for pre-emption21;

18
Shankar v. Chandrakant, 1995 SCC (3) 413.
19
S.2, the Civil Procedure Act, Cap 21: “Mesne profits”, in relation to property, means that profit which the
person in wrongful possession of such property actually received or might with ordinary diligence have received
therefrom, together with interest on such profits, but does not include profits due to improvements made by the
person in wrongful possession
20
Order 21, Rule 14, the Civil Procedure Rules, 2010. In English practice, it is a suit brought in chancery, by
anyone interested, for administration of a deceased's estate, when there is doubt as to its solvency
21
A “pre-emption right” is a contractual right to acquire certain property newly coming into existence before it
can be offered to any other person or entity
 d) Dissolution of partnership suits22;

e) Suit for account between principal and agent,23

f) Suits relating to mortgage.

5.2 Final decree

 It is when the decree disposes off the suit completely, so far as the Court passing it is
concerned.

 Thus, a final decree settles all the issues and controversies in the suit.

5.3 Partly preliminary and partly final decree

 When a decree resolves some issues but leaves the rest open for further decision, such a
decree is partly final and party preliminary.

For example

In a suit for possession of immovable property with mesne profits, where the Court decrees
possession of the property and directs an enquiry into the mesne profits, the former part of the
decree is Final but the latter part is Preliminary.

5.4 Deemed decree

 The word ‘deemed’ usually implies a fiction whereby a thing is assumed to be something
that it is ordinarily not.

 Certain orders and determinations are deemed to be decrees under the Act.

For example

 The rejection of a plaint and the determination of questions under Section 91 (Restitution)
are deemed decrees24.

22
Ibid, Order 21, Rule 16,
23
Absolute Decree is a decree which is complete by itself and it becomes of full effect at once
24
Civil Procedure Cap 22 laws of Kenya, it states about the application for restitution under section 91(1)
Where and in so far as a decree is varied or reversed, the court of first instance shall, on the application of the
party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far
as may be, place the parties in the position they would have occupied but for such decree or such part thereof as
has been varied or reversed; and for this purpose the court may make any orders, including orders for the refund
of costs and for the payment of interest, damages, compensation and mesne profits, which are properly
consequential on such variation or reversal. (2) No suit shall be instituted for the purpose of obtaining any
restitution or other relief which could be obtained by application under subsection(1)
 5.5 Ex parte Decree

Under Order 12, Rule 2, if the defendant fails to appear before the Court in spite of a proper
service of summons, the Court may proceed ex-parte and may pass a decree in favor of the
plaintiff.

This is called an ‘ex-parte decree’.

In the case of Hochest Company v. V. S. Chemical Company, Supreme Court explained

that an ex parte decree is such decree in which defendant did not appear before Court and the
case is heard in the absence of the defendant from the very beginning.

5.6 Decree nisi

 The term nisi, is a latin word which means "unless”.

 It is a Court order that does not have any force unless a particular condition is met.

 Once the condition is met, the ruling becomes “Absolute Decree”25 and is binding.26

6. DIFFERENCE BETWEEN JUDGMENT AND DECREE

S/NO JUDGEMENT DECREE

1 It is a statement given by a Judge on the grounds of a decree or It is a formal expression of an

order. adjudication which, so far as regards the
Court expressing it, conclusively
A judgment is the reasoning given by the Judge as to why the
determines the rights of the parties with
decree was given. A judgment explains the legal reasoning that
regard to all or
formed the basis for the decree, along with the case law cited,
arguments given by counsel, and the conclusions reached from any of the matters in controversy in the
the same. suit.

2 Judgment is a stage prior to the passing of a decree. After the pronouncement of the
judgment, way for the decree is to be left
wide open.

25
bsolute Decree is a decree which is complete by itself and it becomes of full effect at once
26
Garner Bryan A., A Dictionary of Modern Legal Usage 253, (2001). See also, Jackson J. ed, Rayden's Law
and Practice in Divorce and Family Matters 568, 11th Ed. (London: Butterworths, 1971); Martin E. & Law J.,
A Dictionary of Law, 6th Ed., (Oxford: University Press, 2006); “Decree Nisi”,
https://en.wikipedia.org/wiki/Decree_nisi, [accessed on 15th June 2015].
3 Judgment has not been defined under Section 2 of the Civil It is defined under Section 2 of the Civil
Procedure Act, Cap 21. Procedure Act, Cap 21.

4 Every judgment contains the decree, amongst other things. Does not

[Decree (may not) does not contain

judmeent]

5 It is not the last portion of the judgement Decree is usually the last portion of the
judgment

6 It is with reasoning Decree independently is without

reasoning

7 Statement is necessary in a judgment No need of a statement in a decree

8 Judgment does not need to be in line with Decree Decree has to be in line with the
judgment and it should present the
correct interpretation of the judgment.

7. PROVISIONS UNDER THE CIVIL PROCEDURE RULES

7.1 Judgment, when pronounced

Order 21, Rule 1, in suits where a hearing is necessary, the Court after the case has been
heard, shall pronounce judgment in an open Court, either at once or within 60 days from the
conclusion of the trial notice of which shall be given to the parties or their advocates provided
that where judgment is not given within 60 days, the Judge shall record reasons thereof copy
of which shall be forwarded to the Chief Justice and shall immediately fix a date for
judgment.
7.1.1 Critical analysis- judgement must be given within reasonable time

It may be noted that pronouncement of judgment either at once or within 60 days from the
conclusion of the trial is a long time provided under Order 21, Rule 1.

 In this regard, the observation of the Supreme Court in R. C. Sharma case27 is worth
noting: ( held to be given within reasonable time)

“… we think that an unreasonable delay between hearing of arguments and delivery of a

judgment, unless explained by exceptional or extraordinary circumstances, is highly
undesirable … what is more important is [that] the litigants must have complete confidence in
the results of litigation. This confidence tends to be shaken if there is excessive delay
between hearing of arguments and delivery of judgments. Justice, as we have often observed,
must not only be done but must manifestly appear to be done”.

 Equally, it is important to note the observations of the Supreme Court in Anil Rai case28
where the judgment was pronounced after two years:

“… the later years have shown slackness on the part of a few Judges of the superior Courts …
with the result that the records remain consigned to hibernation. Judges themselves normally
forget the details of the facts and niceties of the legal points advanced. Sometimes the interval
is so long that the judges forget even the fact that such a case is pending with them expecting
judicial verdict. This confidence tends to be shaken if there is excessive delay between
hearing of arguments and delivery of judgments.

Further was held that -A long delay in delivering the judgment [not only] gives rise to
unnecessary speculation in the minds of parties to a case [but also shakes the confidence of
the people in the judicial system].

Similarly, it was held that the excessive delay is not only against the provisions of law but
in fact infringes the right of personal liberty guaranteed by … the Constitution … . Any
procedure or course of action which does not ensure a reasonable quick adjudication … [is]
unjust. Justice should not only be done but should also appear to have been done. Similarly,
whereas justice delayed is justice denied, justice withheld is even worse than that.

27
R. C. Sharma v. Union of India, 1976 AIR 2037: 1976 SCR 580.
28
Anil Rai v. State of Bihar, (2001) SC 367: Appeal (Crl.) 389 of 1998
Under Order 21, Rule 1, if it is not possible to pronounce the judgment at once, it should be
declared within 60 days from the day of conclusion of the trial, and in case some extreme
situation arises then, there is also a provision to extend this declaration of pronouncement
after recording reasons and a copy thereof forwarded to the Chief Justice of Kenya. After
such forwarding, the Judge must immediately fix a date for judgment.

Thus, this Rule gives a Judge discretionary power of fixing the date for the pronouncement of
judgment. Even if the wordings used are that the Judge must fix the date immediately for the
judgment, there is an apprehension that such pronouncement may further be delayed.

7.2 Power to pronounce judgment written by another Judge

Order 21, Rule 2 provides that

 “a Judge may pronounce a judgment written and signed but not pronounced by his
predecessor.”

7.3 Judgment to be signed

Order 21, Rule 3 provides that:

 A judgment pronounced by the Judge who wrote it shall be dated and signed by him in an
open Court at the time of pronouncing it. Similarly, a judgment pronounced by a Judge
other than the Judge by whom it was written shall be dated and countersigned by him in
an open Court at the time of pronouncing it.

 A judgment once signed cannot afterwards be altered or added to save as provided by

Section 99 of the Act or on review.

 Section 99 provides that clerical or arithmetical mistakes in judgments, decrees or orders,

or errors arising therein from any accidental slip or omission, may at any time be
corrected by the Court either of its own motion or on the application of any of the parties.

7.4 Contents of judgment

Order 21, Rule 4 provides that judgments in defended suits shall contain a:

i. Concise statement of the case;

ii. Points for determination;

iii. Decision thereon;

 iv. Reasons for such decision.

v. It must be in writing;

vi. It must specifically indicate the parties for and against whom it is given;

vii. Monetary judgments must be definite, specified with certainty and expressed in
both words and figures;

viii. It must be dated and docketed with the Court administrator's office. Most Courts
now record their judgments electronically and maintain computer docketing and
index information

7.5 Court to state its decision on each issue

Order 21, Rule 5 provides that in suits in which issues have been framed, the Court shall state
its finding or decision, with the reasons therefor, upon each separate issue.

7.6 Judgment affecting registered title to land

Order 21, Rule 6 provides that where there is a prayer for a judgment the grant of which
would result in some alteration to the title of land registered under any written law
concerning the registration of title to land,

 A certified copy of the title shall be produced to the Court before any such judgment is
delivered.

7.7 Contents of decree

Order 21, Rule 7 provides that the decree shall agree with the judgment; it shall contain the:

i. Number of the suit;

ii. Names and descriptions of the parties;

iii. Particulars of the claim;

iv. Relief granted or other determination of the suit, and

v. It shall state by whom or out of what property or in what proportion the costs
incurred in the suit are to be paid: The court may direct that the costs payable to
one party by the other shall be set-off against any sum which is admitted or
found to be due from the former to the latter.
 vi. Date of the day on which it was delivered.

vii. Decree for recovery of immovable property shall contain a description of such
property sufficient to identify the same

viii. Decree for delivery of movable property, it shall state the amount of money to
be paid as an alternative if delivery cannot be made.

N.B: In the lower Courts, a decree is drawn by the Deputy Registrar while in the High Court
the parties themselves draw up the decree and take it back to Court to be sealed.

7.9 Preparation and dating of decrees and orders

Order 21, Rule 8 provides that a decree shall bear the date of the day on which the judgment
was delivered. Any party in a suit in the High Court may prepare a draft decree and submit it
for the approval of the other parties to the suit, who shall approve it with or without
amendment, or reject it, without undue delay; and if the draft is approved by the parties, it
shall be submitted to the Registrar who, if satisfied that it is drawn up in accordance with the
judgment, shall sign and seal the decree accordingly. If no approval of or disagreement with
the draft decree is received within seven days after delivery thereof to the other parties, the
Registrar, on receipt of notice in writing to that effect, if satisfied that the draft decree is
drawn up in accordance with the judgment, shall sign and seal the decree accordingly. On any
disagreement with the draft decree any party may file the draft decree marked as “for
settlement” and the Registrar shall thereupon list the same in chambers before the Judge who
heard the case or, if he is not available, before any other Judge, and shall give notice thereof
to the parties.

7.10 Costs

Order 21, Rule 9 provides that

 where the amount of costs has been agreed between the parties; or fixed by the Judge or
Magistrate before the decree is drawn; certified by the Registrar under Section 68A of the
Advocates (Remuneration) Order; or taxed by the Court,

 Then the amount of costs may be stated in the decree or order.

 In all other cases, and where the costs have not in fact been stated in the decree or order,
after the amount of the costs has been taxed or otherwise ascertained, it shall be stated in
 a separate certificate to be signed by the taxing officer,29 or, in a Subordinate Court, by
the Magistrate.

7.11 Decree for recovery of immovable property

Order 21, Rule 10 provides that where the subject-matter of the suit is immovable property,
the decree shall contain a description of such property sufficient to identify the same, and,
where such property can be identified by boundaries or by numbers in a Government record
or survey, the decree shall specify such boundaries or numbers.

7.12 Decree for delivery of movable property

Order 21, Rule 11 provides that where the suit is in respect of

movable property, and the decree is for the delivery of such property, the decree shall also
state the amount of money to be paid as an alternative if delivery cannot be had.

7.13 Decree may direct payment by instalments

Order 21, Rule 12 provides that where and in so far as a decree is for the payment of money,
the Court may for any sufficient reason at the time of passing the decree order that payment
of the amount decreed shall be postponed or shall be made by instalments, with or without
interest, notwithstanding anything contained in the contract under which the money is
payable.

7.14 Decree for possession and mesne profits

Order 21, Rule 13 provides that where a suit is for the recovery of possession of immovable
property and for rent or mesne profits, the Court may pass a decree for the possession of the
property, rent or mesne profits which have accrued on the property during a period prior to
the institution of the suit or directing an inquiry as to such rent or mesne profits.

7.15 Decree in administration suit

Order 21, Rule 14 provides that where a suit is for an account in respect of any property or
for its due administration under the decree of the Court, the Court shall, before passing the
final decree, pass a preliminary decree ordering such accounts and inquiries to be taken and
made, and giving such other directions as it thinks fit. In the administration by the court of

29
Taxing officer” means a taxing officer qualified under paragraph 10 of the Advocates (Remuneration) Order.
the property of any deceased person, if such property proves to be insufficient for the
payment in full of his debts and liabilities, the same rules shall be observed as to the
respective rights of secured and unsecured creditors, and as to debts and liabilities provable,
and as to the valuation of annuities and future and contingent liabilities, respectively, as may
be in force for the time being with respect to the estates of persons adjudged or declared
insolvent; and all persons, who in any such case would be entitled to be paid out of such
property, may come in under the preliminary decree, and make such claims against the same
as they may respectively be entitled to by virtue of the Act.

7.16 Decree in suit for dissolution of partnership

Order 21, Rule 15 provides that where a suit is for the dissolution of a partnership, or the
taking of partnership accounts, the Court, before passing a final decree, may pass a
preliminary decree, declaring the proportionate shares of the parties, fixing the day on which
the partnership shall stand dissolved, or be deemed to have been dissolved, and directing such
accounts to be taken, and other acts to be done, as it thinks fit.

7.17 Decree in suit for account between principal and agent

Order 21, Rule 16 provides that in a suit for an account of pecuniary transactions between a
principal and an agent, and in any other suit not herein before provided for, where it is
necessary, in order to ascertain the amount of money due to or from any party, that an account
should be taken, the Court shall, before passing its final decree, pass a preliminary decree
directing such accounts to be taken as it thinks fit.

7.18 Special directions as to Accounts

Order 21, Rule 17 provides that the Court may, either by the decree directing an account to be
taken or by any subsequent order, give special directions with regard to the mode in which
the account is to be taken or vouched, and in particular may direct that in taking the account
the books of account in which the accounts in question have been kept shall be taken as
prima facie evidence of the truth of the matter therein contained with liberty to the parties
interested to take such objection thereto as they may be advised.

7.19 Decree in suit for partition of Property or separate possession of a Share

Order 21, Rule 18 provides that where a Court passes a decree for the partition of property or
for the separate possession of a share therein, the Court may, if the partition or separation
cannot be conveniently made without further inquiry, pass a preliminary decree declaring the
rights of the parties interested in the property and giving such further directions as may be
required.

7.20 Decree where set-off is allowed

Order 21, Rule 19 provides that where the defendant has been allowed a set-off against the
claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what
amount is due to the defendant, and shall be for the recovery of any sum which appears to be
due to either party.

7.21 Certified copies of judgment and decree to be furnished

Order 21, Rule 20 provides that

 the Registrar, or in the case of a Subordinate Court, the Presiding Magistrate shall upon
written request made by the parties or any of them, and upon payment of requisite fees,
furnish certified copies of the judgment and decree.

EXECUTION OF DECREES AND ORDERS (ORDER 22)

1. Introduction

 Execution here refers to the enforcement of decrees and orders by the process of the
Court so as to enable the decree-holder to realize the fruits of a decree passed.

 In Judhistir Jena case,55 it was held that the fundamental consideration is that where the
decree has been obtained by a party, s/he should not be deprived of the fruits of that
decree except for good reasons to be recorded.

 There must be formal application from the decree-holder for execution and as such the
Court cannot execute a decree on its own motion.

 Execution of decrees and orders is a procedure which is perhaps provided under Part III
of the Civil Procedure Act, Cap 21 and Order 22 of the Civil Procedure Rules, 2010.
2. Parties involved in a decree

Generally, the parties to a decree are referred to as the ‘decree-holder’ 56 and the ‘judgment
debtor.’57

In Rajimpex case, 58 it was held that execution cannot be issued against a non-party to the
suit.

3. Who may apply for execution

a) Decree-holders;

c) Legal representative of the decree-holder;

b) The person claiming under the decree-holder

d) The transferee of the decree-holder.

4. Against whom is the execution done

a) Judgment-debtor, and

b) Legal representative of the judgment-debtor (who are only liable to the

extent of the property of the deceased).

5. Execution of Decrees and Orders:

Provisions Under the Civil Procedure Act and Rules

5.1 Court by which decree may be executed

Section 30 of the Civil Procedure Act, Cap 21 provides that a

decree may be executed either by:

a) The Court which passed it, or

b) The Court to which it is sent for execution.

5.2 Transfer of Decree

Section 31 of Civil Procedure Act, Cap 21 provides that

 the Court which passed a decree59 may, on the application of the decree-holder or its
own motion, send it for execution to another Court if the:
 i. Person against whom the decree is passed actually and voluntarily resides or
carries on business, or personally works for gain, within the local limits of the
jurisdiction of that other Court; or

ii. Person has no property within the local limits of the jurisdiction of the Court
which passed the decree sufficient to satisfy such decree and has property within
the local limits of the jurisdiction of such other Court; or

iii. If the decree directs the sale or delivery of immovable property situate outside
the local limits of the jurisdiction of the Court which has passed it; or

iv. Court which has passed the decree considers for any other reason, which it has
recorded in writing, that the decree should be executed by such other Court.

5.3 Application for execution by a decree-holder:

(apply to the court issued such decree or to the court where decree has been transferred
to)

Order 22, Rule 6 of the Civil Procedure Rules, 2010 provides that where a decree-holder
desires to execute it, s/he must first apply in Form No. 14 of Appendix A to the Court that
passed the decree or, if the decree has been sent to another Court for execution, then to such
Court or to the proper officer thereof. Exception: But, Rule 6 provides that where ‘Judgment
in default of appearance or defence’ has been entered against a defendant, no execution by
payment, attachment or eviction can be issued unless 10 days notice has been given to such
defendant personally, or sent at his/her address. A copy of such notice is required to be filed
together with the first application for execution.

Whether under Order 22, Rule 6 notice can be dispensed with? In the case Madhaji v.
Alibhai,30 it was held that where there is a requirement that notice to show cause must be
given and no notice is given, then any orders which the Court may make in the absence of the
judgment-debtor are a nullity.

See the Illustration bellow:

30
Madhaji v. Alibhai, (1960) EA 167.
Form 14

APPLICATION FOR EXECUTION OF DECREE

(ORDER 22, RULE 6)

In the Court …………………………………. I, DAVY SEEMA, decree-holder, hereby apply

for execution of the decree herein below set forth on 20th April 2017.

1. Name of the suit: Divorce Suit

Davy Seema …………………………………………..… Plaintiff

Njoroge Kamau ………………………………………… Defendant

2. Date of Decree: 20th April 2017

No: 2983/2017

3. Whether any appeal preferred from decree: None

4. Payment or Adjustment made, if any: None

5. Previous application, if any, with date and result: None

6. Amount with interest due upon the decree or other relief granted thereby together with
particulars of any cross-decree : None

7. Amount of costs, if any awarded against the defendant: Ksh.5 Million

8. Against whom it can be executed: Njoroge Kamau

I pray that the total amount of shillings Five Million together with interest on the principal
sum up to date of payment and the costs of taking out this execution be realized by
attachment and sale of defendant’s movable property as per annexed list and paid to me.

9. I DAVY SEEMA, declare that what is stated herein is true to the best of my knowledge
and belief.

(Signed)

DECREE-HOLDER
Dated the .......... day of ………. 2017.

5.4 Application for execution by joint decree-holders

(Any one of them can apply)

Order 22, Rule 11 provides that where a decree has been passed jointly in favour of more
than one person,

Any one may, unless the decree imposes any condition to the contrary, apply for the
execution of the whole decree for the benefit of them all, or where any of them has died, for
the benefit of the survivors and the legal representatives of the deceased.

5.5 Application for execution by Transferee of Decree

Order 22, Rule 12 lays down that

 Where a decree has been passed jointly in favour of two or more persons, the interest of
any decree-holder in the decree is transferred by a) assignment in writing, or b) by
operation of law,

 The transferee may apply for execution of the decree to the Court which passed it; and
the decree may be executed in the same manner and subject to the same conditions as if
the application were made by such decree-holder; provided that where the decree or such
interest has been transferred by assignment, notice of such application shall be given to
the transferor and the judgment-debtor, and the decree shall not be executed until the
Court has heard their objections, if any, to its execution.

5.6 Oral and written applications

(application can be oral or written)

 Oral only accepted during time of court giving the said decree

 But therafter must be in writing only

Order 22, Rule 7(1) lays down that where a decree is for the payment of money, the Court
may, on the ‘oral application’ of the decree-holder at the time of the passing of the decree,
order immediate execution thereof by the arrest of the judgment-debtor, prior to the
preparation of a warrant, if s/he is within the precincts of the Court.
Save as otherwise provided by Rule 7(1) every application for the execution of a decree must
be in writing, signed by the applicant or his advocate, or by some other person proved to the
satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a
tabular form the following particulars:

Contents of such application:

a) The number of the suit;

b) The names of the parties;

c) The date of the decree;

d) Whether any appeal has been preferred from the decree;

e) Whether any payment or other adjustment of the matter in controversy has been made
between the parties subsequent to the decree;

f) Whether previous applications have been made for the execution of the decree, the dates
of such applications, and their results;

g) The amount with interest, if any, due upon the decree, or other relief granted thereby,
together with particulars of any cross- decree, whether passed before or after the date of
the decree sought to be executed;

h) The amount of the costs, if any, awarded;

i) The name of the person against whom execution of the decree is sought; and

j) The mode in which the assistance of the Court is required, whether by the:

k) Delivery of any property specifically decreed;

l) Attachment and sale, or by the sale without attachment, of any property;

m) Arrest and detention in prison of any person;

n) Appointment of a receiver; or

o) Otherwise, as the nature of the relief granted may require.

5.7 Transferee of Decree

Section 36 of Civil Procedure Act, Cap 21 provides that every transferee of a decree shall
hold the same subject to the equities, if any, which the judgment-debtor might have enforced
against the original decree-holder.

5.8 Legal Representative

Section 37 of Civil Procedure Act, Cap 21 also provides that:

a) Where a judgment-debtor dies before the decree has been fully satisfied,

the holder of the decree may apply to the Court which passed it to execute the same against
the legal representative of such

deceased, or against any person who has intermeddled with the estate of such deceased;

b) Where the decree is executed against such legal representative, or against any person as
aforesaid, he shall be liable only to the extent of the property of the deceased which has come
to his hands and has not been duly disposed of; and, for the purpose of ascertaining such
liability, the Court executing the decree may, of its own motion or on the application of the
decree-holder, compel such legal representative to produce such accounts as it thinks fit;

c) Section 39 also provides that where a decree is passed against a party as the legal
representative of a deceased person, and the decree is for the payment of money out of the
property of the deceased, it may be executed by the attachment and sale of any such property.

 Result of execution proceedings to be certified:

Section 32 of Civil Procedure Act, Cap 21 in addition lays down that the Court to which a
decree is sent for execution shall certify to the Court which passed it the fact of such
execution, or where the former Court fails to execute the same the circumstances attending
such failure.

 Powers of Court to enforce execution:

Section 38 of Civil Procedure Act, Cap 21 provides that the Court may, on the application of
the decree-holder, order execution of the decree by:

a) Delivery of any property specifically decreed;

b) Attachment and sale, or by sale without attachment, of any property;

c) Attachment of debts;
d) Arrest and detention in prison of any person;

e) Appointing a receiver; or

f) In such other manner as the nature of the relief granted may require.

However,

Where the decree is for the payment of money, execution by detention in prison shall not be
ordered unless, after giving the judgment-debtor an opportunity of showing cause why he
should not be committed to prison, and after the Court, for reasons to be recorded in writing,
is satisfied that the judgment-debtor:

a) Has, since the date of the decree, had the means to pay the amount of the decree, or some
substantial part thereof, and has refused to pay the same; or

b) With the object or effect of obstructing or delaying the execution of the decree:

i. is likely to abscond or leave the local limits of the jurisdiction of the Court; or

ii. Has after the institution of the suit in which the decree was passed, dishonestly
transferred, concealed or removed any part of his property, or committed any other act
of bad faith in relation to his property.

 Powers of Court in executing transferred decree:

Section 33 of Civil Procedure Act, Cap 21 further provides that the Court executing a decree
sent to it shall have the same powers in executing such decree as if it had been passed by
itself. Besides, all persons disobeying or obstructing the execution of the decree shall be
punishable by such Court in the same manner as if it had passed the decree; and its order in
executing such decree shall be subject to the same rules in respect of appeal as if the decree
had been passed by itself.

Whether the power of the Court receiving the decree to execute is limited? In Nasur Mowji &
Co. case,31 it was held that Section 33 of the Civil Procedure Act, Cap 21 empowers Courts to
execute a decree sent to it in the same powers in executing such decree as if it had been
passed by itself.

Besides, all persons disobeying or obstructing the execution of the decree shall be punishable
by such Court in the same manner as if it had passed the decree. In Kabwengure v. Charles

31
Nasur Mowji & Co. v. Saleh Mohammed Vali Dharsey & Co., 4 eKLR 122, pp. 123,124.
Kanjabi,32 it was held that all the questions relating execution including discharging the
execution decree have to be determined by the Court executing the decree and not by the
separate suit.

 Modes of paying money under decree: After the Court sends notice of payment to the
decree-holder and his/her advocate, Order 22, Rule 1 provides that all money payable under a
decree or order must be paid:

a) Into the Court whose duty it is to execute the decree; or

b) Direct to the decree-holder;

c) Otherwise as the Court which made the decree directs.

 Lands situated in more than one jurisdiction: Under Order 22, Rule 3,

where immovable property forms one estate or tenure33 situated within the local limits of the
jurisdiction of two or more Courts.

Any one of such Courts is empowered to attach and sell the entire estate or tenure.

 Execution of decrees by another Court: Under Order 22, Rule 4, if a Court desires that its
own order should be executed by another Court, then the issuing Court must send to the other
Court the following documents

a) A copy of the decree;

b) A certificate setting forth that satisfaction of the decree has not been obtained by
execution within the jurisdiction of the Court by which it was passed, or, where the
decree has been executed in part, the extent to which satisfaction has been obtained and
what part of the decree remains unexecuted; and

c) A copy of any order for the execution of the decree, or, if no such order has been made, a
certificate to that effect.

 Decree for specific movable property: Under Order 22, Rule 27 where the decree is for
any specific movable, or for any share in a specific movable, it may be executed by:

32
Kabwengure v. Charles Kanjabi, (1977) HCB 89
33
Tenure’ means the condition under which land or buildings are held or occupied.
i. The seizure, if practicable, of the movable or share, and by the delivery thereof to the
party to whom it has been adjudged, or to such person as he appoints to receive delivery
on his behalf, or

ii. Detention in prison of the judgment-debtor, or

iii. Attachment of his property, or

iv. Detention in prison of the judgment-debtor as well as attachment of his/her property.

Rule 27 (2) provides further that where any attachment has remained in force for 6 months, if
the judgment debtor has not obeyed the decree and the decree-holder has applied to have the
attached property sold, such property may be sold, and out of the proceeds the Court may
award to the decree-holder, in cases where any amount has been fixed by the decree to be
paid as an alternative to delivery of movable property, such amount and, in other cases, such
compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his
application. But, where the judgment-debtor has obeyed the decree and paid all costs of
executing the same which he is bound to pay, or where, at the end of 6 months from the date
of attachment, no application to have the property sold has been made, or, if made, has been
refused, the attachment shall cease.

 Decree for immovable property: Under Order 22, Rule 29 where:

a) A decree is for the delivery of any immovable property, possession thereof shall be
delivered to the party to whom it has been adjudged, or to such person as he may appoint
to receive delivery on his behalf, and, if necessary, by removing any person bound by the
decree who refuses to vacate the property;

b) A decree is for the joint possession of immovable property, such possession shall be
delivered by affixing a copy of the warrant in some conspicuous place on the property;

c) Possession of any building or enclosure is to be delivered, and the person in possession

being bound by the decree does not afford free access, the Court, through its officers,
may, after giving reasonable warning and facility to any woman not appearing in public
according to the customs of her community to withdraw, remove or open any lock or bolt
or break open any door or do any other act necessary for putting the decree-holder in
possession.
 Details of immovable property to be attached: Order 22, Rule 9 lays down that where an
application is made for the attachment of any immovable property belonging to a judgment-
debtor, it shall contain at the foot a:

i. Description of such property sufficient to identify the same, and, in case such property
can be identified by boundaries, or numbers in Government records or surveys, a
specification of such boundaries or numbers; and

ii. Specification of the judgment-debtor’s share or interest in such property to the best of the
belief of the applicant, and so far as he has been able to ascertain the same.

 Procedure on receiving an application for execution of decree: Order 22, Rule 13

provides that upon receiving an application for the execution of a decree,

 The Court shall ascertain whether all requirements have been complied with; if complied
with, the Court shall order execution of the decree according to the nature of the
application, and if all requirements have not been complied with, the Court is empowered
to reject the application, or may allow the defect to be remedied there and then or within
a time to be fixed by it.

Where an application is amended, it shall be signed and dated by a Judge or Registrar and it
shall be deemed to have been an application in accordance with law and presented on the date
when it was first presented.

 Execution in case of cross-claims under same decree: Order 22, Rule 15 states that where
application is made to a Court for the execution of a decree under which two parties are
entitled to recover sums of money from each other, then if the two sums are:

i. Equal, satisfaction for both shall be entered upon the decree; and
ii. Unequal, execution may be taken out only by the party entitled to the larger sum, and for
so much only as remains after deducting the smaller sum, and satisfaction of the smaller
sum shall be entered upon the decree.

 Decree for specific performance or for an injunction: Under Order 22, Rule 28 where:

a) Any party against whom a decree for the specific performance of a contract, or for an
injunction, has been passed, has had an opportunity of obeying the decree, and has
willfully failed to obey it; the decree may be enforced by his detention in prison, or by
the attachment of his property, or by both;
b) The party against whom a decree for specific performance or for an injunction has been
passed is a corporation the decree may be enforced by the attachment of the property of
the corporation;

c) Any attachment has remained in force for 6 months, if the judgment-debtor has not
obeyed the decree and the decree-holder has applied to have the attached property sold,
such property may be sold; and out of the proceeds the Court may award to the decree-
holder such compensation as it thinks fit, and shall pay the balance (if any) to the
judgment-debtor on his application;

d) The judgment-debtor has obeyed the decree and paid all costs of executing the same
which he is bound to pay, or where at the end of 6 months from the date of the
attachment, no application to have the property sold has been made, or, if made, has been
refused, the attachment shall cease;

e) A decree for the specific performance of a contract or for an injunction has not been
obeyed, the Court may direct that the act required to be done may be done so far as
practicable by the decree-holder, or some other person appointed by the Court, at the cost
of the judgment-debtor, and upon the act being done the expenses incurred may be
ascertained in such manner as the Court may direct and may be recovered as if they were
included in the decree.

 When a Court may stay execution: Order 22, Rule 22(1) provides that the Court to which
a decree has been sent for execution shall, upon sufficient cause being shown, stay the
execution of such decree for a reasonable time to enable the judgment-debtor to apply to the
Court by which the decree was passed, or to any Court having appellate jurisdiction in respect
of the decree or the execution thereof, for an order to stay the execution, or for any other
order relating to the decree or execution which might have been made by the Court of first
instance, or appellate Court if execution has been issued thereby, or if application for
execution has been made thereto.

Rule 22(2) provides that where the property or person of the judgmentdebtor has been seized
under an execution, the Court which issued the execution may order the restitution of such
property or the discharge of such person pending the results of the application.
Rule 22(3) however provides that before making an order to stay execution, or for the
restitution of property, or the discharge of the judgment-debtor, the Court may require such
security from, or impose such conditions upon, the judgment-debtor as it thinks fit.

In Rosengrens Ltd case,34 it was held that the officer of the Court who is authorised to
execute decrees is the one to whom the warrants issued by the Court are forwarded for
execution. Depending on the decree one wants to execute, they have to determine the proper
officer e.g., if dispossessing is done by a Court bailiff.35

 Property liable to attachment and sale in execution of a decree: Section 44 of Civil

Procedure Act, Cap 21 provides that all property belonging to a judgment-debtor, including
property over which he has a disposing power which he may exercise for his own benefit,
whether that property is held in his name or in the name of another but on his behalf, shall be
liable to attachment and sale in execution of a decree, except the following:

i. Necessary wearing apparel, cooking vessels, beds and bedding of the judgment-
debtor and of his wife and children, and those personal ornaments from which,
in accordance with religious usage, a woman cannot be parted;

ii. Tools and implements of a person necessary for the performance by him of his
trade or profession;

iii. Books of accounts;

iv. A right to sue in damages;

v. A right of personal service;

vi. Stipends and gratuities allowed to pensioners of the Government, or payable out
of a service family pension fund notified in the Gazette by the Minister, and
political pensions;

vii. Two thirds of the salary of public officer or other person in employment;

viii. A contingent or possible right or interest, including an expectancy of succession

by survivorship;

ix. A right of future maintenance;

34
Rosengrens Ltd v. Safe Deposit Centres Limited, (1984) 3 All E.R 198.
35
Bailiff’ is a sheriff’s officer who executes writs and processes and carries out distraints and arrests.
 x. Any fund or allowance declared by law to be exempt from attachment and sale
in execution of a decree;

xi. Where the judgment-debtor is an agriculturalist, the first:

a) Ksh.5000 in value of his livestock, if any; and

b) Ksh.5000 in value of all implements, tools, utensils, plant and machinery used in
connection with stock or dairy farming or in the production of crops or plants; and

c) Ksh.1000 in value of agricultural produce necessary to enable him to earn his livelihood;

See, Voi Posho Mill v. Kenya Sisal Estate,36 where it was held that there are specific items
listed in Section 44 of Civil Procedure Act, Cap 21 which are not liable to attachment and
sale in execution of a decree. The judgment-debtor had made an application under Sections
34(1) and 44 (1) (iii) of the Civil Procedure Act, 21 requesting the Court to release certain
items that had been seized from attachment in execution of a decree as they did not exceed
the specified sum in value liable for attachment.

 Attachment of share and other property not in possession of judgment-debtor: Order

22, Rule 40 provides that in the case of i) a share in the capital of a corporation; or ii) other
movable property not in the possession of the judgment-debtor, the attachment shall be made
by a written order prohibiting, in the case of the:

i. Share, the person in whose name the share may be standing from transferring the same or
receiving any dividend thereon; or

ii. Other movable property, the person in possession of the same from giving it over to the
judgment debtor.

A copy of such order shall be affixed on some conspicuous part of the precincts of the Court,
and another copy shall be sent, in the case of the share, to the proper officer of the
corporation, and, in the case of the other movable property, to the person in possession of the
same. If the person in possession of the movable property does not lay claim to such property,
the Court may make an order for actual seizure of the property as if it were in the possession
of the judgment-debtor.

36
Voi Posho Mill v. Kenya Sisal Estate, (1962) EA 647.
 Attachment of salary or allowance: Order 22, Rule 42 lays down that where the property
to be attached is any salary or periodical allowance payable to the judgment-debtor by any
person, the Court, (whether the judgment-debtor or the person by whom such salary or
allowance is payable is or is not within the local limits of the Court’s jurisdiction), may order
that the amount shall, subject to the provisions of Section 44 of the Act, be withheld from
such salary or allowance either in one payment or by monthly installments as the Court may
direct; and upon notice of the order to the person by whom such salary or allowance is
payable, such person shall withhold and remit to the Court or, if the Court by the order so
directs, to the advocate for the judgment-creditor, the amount due under the order or each or
any monthly installment, as the case may be.

 Objection to attachment: Under Order 22, Rule 51, any person claiming to be entitled to
or to have a legal or equitable interest in the whole of 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 the parties and to the decree-holder of
his objection to the attachment of such property. Such notice shall be accompanied by an
application supported by affidavit and shall set out in brief the nature of the claim which such
objector or person makes to the whole or portion of the property attached.

 Sale, by whom conducted and how made: Order 22, Rule 56 lays down that every sale in
execution of a decree shall be conducted by an officer of the Court, or by such other person as
the Court may appoint and shall be made by public auction in the manner prescribed. A Court
executing a decree may make orders relating to the payment of the charges for attaching the
property, or conducting the sale of the property, and for the enforcement of such payment.

 Notification of sale by public auction: Order 22, Rule 57 provides that where any
property is ordered to be sold by public auction in execution of a decree, the Court shall cause
public notice and advertisement of the intended sale to be given in such manner as the Court
may direct. Such public notice shall be drawn up after notice to the decree-holder and the
judgment-debtor, and shall state:

a) The time and place of sale;

b) The property to be sold;

c) Any encumbrance to which the property is liable;

d) The amount for the recovery of which the sale is ordered; and
e) Every other thing which the Court considers material for a purchaser to know in order to
judge the nature and value of the property.

 Decree-holder not to bid for or buy property without permission of Court: Under
Order 22, Rule 61, no holder of a decree in execution of which property is sold shall, without
the express permission of the Court, bid for or purchase the property. Where a decree-holder
purchases, by himself or through another person, without such permission, the Court may, on
the application of the judgment-debtor or any other person whose interests are affected by the
sale, by order, set aside the sale; and the costs of such application and order, and any
deficiency of price which may happen on the re-sale, and all expenses attending it, shall be
paid by the decree-holder.

 Restriction on bidding or purchase by officers: Order 22, rule 62 lays down that no
officer or other person having any duty to perform in connection with any sale shall, either
directly or indirectly bid for, acquire or attempt to acquire, any interest in the property sold.

 Delivery of movable property, debts and shares: Under Order 22, Rule 66 where the
property sold is:

i. Movable property of which actual seizure has been made, it shall be delivered to the
purchaser;

ii. Movable property in the possession of some person other than the judgment-debtor, the
delivery thereof to the purchaser shall be made by giving notice to the person in
possession ordering him to deliver possession of the property to the purchaser;

iii. A share in a company, the delivery thereof shall be made by a written order of the Court
prohibiting the person in whose name the share may be standing from making any
transfer of the share to any person except the purchaser, or receiving payment of any
dividend or interest thereon, and the manager, secretary or other proper officer of the
company from permitting any such transfer or making any such payment to any person
except the purchaser

 Delivery of property in occupancy of judgment-debtor: Order 22, Rule 80 lays down

that where the immovable property sold is in the occupancy of the judgment-debtor, or of
some person on his behalf, or of some person claiming under a title created by the judgment-
debtor subsequently to the attachment of such property, and a certificate in respect thereof has
been granted, the Court shall, on the application of the purchaser, order delivery to be made
by putting such purchaser, or any person whom he may appoint to receive delivery on his
behalf, in possession of the property, and, if need be, by removing any person who refuses to
vacate the same.

 Application to set aside sale on ground of irregularity or fraud: Under Order 22, Rule
75, where any immovable property has been sold in execution of a decree, the decree-holder,
or any person whose interests are affected by the sale, may apply to the Court to set aside the
sale on the ground of a material irregularity or fraud in publishing or conducting it: Provided
that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts
proved the Court is satisfied that the applicant has sustained substantial injury by reason of
such irregularity or fraud.

 Certificate to purchaser: Section 48 and Order 22, Rule 79 provides that where a sale of
immovable property has become absolute, the Court shall grant a certificate specifying the
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.

 Resistance or obstruction by judgment-debtor: Under Section 51 and Order 22, Rule

83, where the Court is satisfied that the resistance or obstruction was occasioned without
any just cause by the judgment debtor, or by some other person at his instigation, it shall
direct that the applicant be put into possession of the property, and, where the applicant is
still resisted or obstructed in obtaining possession, the Court may also, at the instance of
the applicant, order the judgment-debtor, or any person acting at his instigation, to be
detained in prison for a period not exceeding 30 days.

 Detention and release: Section 42 of the Civil Procedure Act, Cap 21 provides that every
person detained in prison in execution of a decree shall be so detained for a period not
exceeding:

i. 6 months, where the decree is for the payment of a sum of money exceeding Ksh.100;
and

ii. 6 weeks, in any other case.

However, such person can be released from such detention before the expiration of the said
period of 6 months or 6 weeks on the:
a) Amount mentioned in the warrant for his detention being paid to the officer in charge of
the prison; or

b) Decree against him being otherwise fully satisfied, if the Court so orders; or

c) Request of the person on whose application he has been so detained, if the Court so
orders; or

d) Omission of the person, on whose application he has been so detained, to pay subsistence
allowance;

e) Section 43: release on ground of serious illness, or on the grounds of the existence of any
infectious or contagious disease.

GARNISHEE PROCEEDINGS (Order 23)

1. INTRODUCTION:

 Attachment of debts is 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.

 To support a garnishee there must be a debt due or accruing due, it is not sufficient to show
a contingent liability.

 This is a convenient method of executing against a judgment debtor since the money is
intercepted on its way to them before it comes within 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 garnishee proceedings and the necessary
order is called a garnishee order.

 The garnishee order changes the obligation from paying a judgment debtor to paying the
decree holder.

2. GARNISHEE WHEN INSTITUTED:

 The proceedings are instituted by a person who has obtained a judgment or order for
recovery of payment of money: 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.

 The test: as to whether debt is attachable is:

i. Whether the garnishee actually owes the debt, and

ii. It is a type of debt which the judgment-debtor can enforce against the garnishee.

 Must be recognized in law: The debt must be in existence at the date when the attachment
becomes operative and it must be 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
whether order nisi37 should not be made absolute by claiming a lien over the money in its
possession. The banker’s claim in such cases would probably be more rightly referred to as
set off.

 Until the garnishee admits his indebtness to the judgment debtor: the garnishee order nisi
cannot be meaningfully made absolute.

 The existence and availability of funds: belonging to judgment debtor has to be

conclusively established as a condition precedent to making the order absolute

3. PROCEDURE UNDER ORDER 23:

 Application 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 judgment-debtor;

37
This is a Court order that does not have any force unless a particular condition is met.
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 judgment-debtor’s account is believed
to be held and the number of account, and

e) If all or part of this information is not known to deponent, the fact that it is not known.

 The order upon application may be made either or after the oral examination of the
judgment-debtor,

 Order may be that such debts owing to judgment-debtor be attached to answer the decree
including costs of garnishee proceedings.

 The order or a subsequent order can also order the garnishee to appear before Court to show
cause why he should not pay to the decree-holder the debt due from them to the judgment-
debtor.38

 Seven days before hearing of application, order nisi shall be served upon garnishee and
judgment-debtor.39 Order nisi is as under Form No. 16 Appendix A

4. EFFECT OF THE ORDER:

 From the date of service on the garnishee the order attaching any debt due or accruing due
from the garnishee to the debtor, or so much as is sufficient to satisfy the claim of the
judgment-debtor against the debtor, including costs, entered an order to show cause.

 Until service of order nisi, there is no attachment of the debt.

 If the garnishee bona fide pays to judgment-debtor the amount of debt before service, the
order nisi is absolute as there is no longer any debt to which it can attach.

 Where garnishee has paid judgment-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 dishonoured, the
attachment will operate.

 The service of 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.

38
Order 23, Rule 1(1), the Civil Procedure Rules, 2010.
39
Ibid, Rule 1(2),
 A garnishee order will place the decree-holder in the same position as an assignee of the
judgment-debtor and will make him subject to the equities, which exist against debtor.

 Garnishee may also obtain execution if the money is not paid in accordance with the order
absolute.

5. ORDER ABSOLUTE: The Court:

i. Has discretion as to whether order should be made absolute;

ii. Must have regard to the position of the other creditors so far as they are known by the
Court;

iii. Must be satisfied before it makes an order absolute that there is a debt in praesenti.

iv. Any payment made by the garnishee in compliance with an order absolute and any
execution levied against them in pursuance of the order is deemed to be a valid discharge
of the liability of the garnishee personally in the proceedings.

v. Cost awarded against garnishee where the proceedings are improperly defended are not
to be counted in the discharge of the liability of the garnishee.

vi. Payment by the garnishee made under the order absolute will discharge any obligation to
pay debt to debenture-holders under a floating charge that has not crystallized before
payment. However, were decree holder has not yet received payment under a garnishee
order absolute, a receiver appointed for debenture holder will obtain priority over the
garnishee order.

vii. Where the Court refuses to make the order absolute, it will direct order nisi to be
discharged.

h) A garnishee order may be set aside where there is a mistake of fact.