APPEALS

INTRODUCTION
 • Every decree is appealable unless restricted by specific laws.
• Not all orders are automatically appealable.
• Order 43 Rule 1 provides an extensive list of orders that can
be appealed as a matter of right.

APPEALS • To appeal an order not listed in Order 43 Rule 1, you must

seek the court's permission.
• A decree is extracted from a judgment.
• Orders result from interim applications.
• Orders can be appealed.
 • Amendments of pleadings are appealable as of right.
• Judgments in default are appealable.
• Under the Kenya Defence Forces Act, decisions can be
appealed to the High Court.

APPEALS • Previously, the High Court was the final court for petitions, but
now appeals can be taken to the Court of Appeal.
• An application for leave to appeal should first be made to the
court that issued the order.
• This application can be made through a Chamber Summons
or orally in court at the time the order is issued.
 • Appeals generally follow a hierarchy.
 An appeal from the subordinate Courts

• Appeals from the Resident Magistrate’s Court go to the High

Court.

APPEALS • Appeals from the High Court go to the Court of Appeal.

• Appeals from the Court of Appeal go to the Supreme Court.
• Appeals from subordinate courts are usually heard by one
High Court judge.
• In special cases, the Chief Justice can direct that an appeal
be heard by two or more judges.
 • The Chief Justice can give such directions before the hearing
or at any time before the judgment is delivered.
• If two judges disagree on an appeal, the decision follows the
majority opinion.
• According to Section 69 and Order 42 Rule 30, an appeal
heard by multiple judges is decided based on the majority

APPEALS opinion.
• If two judges have a divided opinion, the appeal should be
reheard.
• To avoid this, an uneven number of judges is usually
assigned to the bench.
• A decision that fails to address key legal issues is
problematic.
  Allegations of substantial errors or defects in procedure are
also considered

 HOW ARE APPEALS FILED?

• Appeals from the High Court are filed by lodging a

APPEALS memorandum of appeal.

• The memorandum is formatted similarly to pleadings.
• Grounds for appeal are listed in separate, consecutively
numbered paragraphs.
• Each ground should clearly state the reasons for objecting to
the court's decision
 • It is crucial to comprehensively outline your grounds, as you
cannot submit on grounds not included in the memorandum.
• To submit on a new ground, you must seek the court's
permission.
• The court has discretionary powers and can deny your
APPEALS request to submit on a new ground.
• The format for preparing a memorandum of appeal is detailed
in Sections 65-69 and Order 42.
• Sections 65-69 outline the substantive law regarding first
appeals.
 • Order 42 specifies the procedural aspects.
• The term "appeal" refers to a higher court's judicial
examination of a lower court's decision.

APPEALS • The term "memorandum of appeal" refers to the document

listing the grounds for the appeal.
• For an appeal to be validly presented, specific requirements
must be met:
 1. It must be in the form of a memorandum setting forth the
grounds on which one objects to the decree.
2. It must be in the format and present as a record of Appeal.
3. It must be signed by the Appellant or their Agent.
4. It must be presented to the Court or to such officer as appointed

APPEALS 5.
by the court.
The Memorandum must be accompanied by a certified copy of
the decree.
6. It must be accompanied by a certified copy of the judgment
unless the court dispenses with it.
 7. Where the Appeal is against a money decree the Appellant must
deposit the decretal amount or furnish the security if required by
APPEALS the court.
 HOW TO PREPARE A
MEMORANDUM OF APPEAL

A BREAKDOWN
  A Memorandum of Appeal should be prepared by carefully considering
the following:-
 1. The Pleadings;
 2. The Issues – issues substantially in issue
 3. The Findings thereon;
HOW TO PREPARE A
 4. The Judgment and the decree and also the record of proceeding
MEMORANDUM
in court. (the judge erred and misdirected himself in issues raised before
OF APPEAL him)
 You can only appeal on one issue. Suppose the court finds you negligent
and thus liable. You can appeal on the ground of damages and say for
instance that the judge erred in assigning the quantum of damages.
PRESENTATION  The Appeal must be presented within a prescribed time. If the
limitation period for filing an Appeal has expired, you can apply for
OF THE an extension of time to file the appeal.

APPEAL  Read the Appellate Jurisdiction Act (Court of Appeal Rules)

 • An appeal does not automatically stay execution of the
decree.
• Even after an appeal is lodged and parties are served, the
decree holder can proceed with execution.
STAY OF • The judgment debtor can apply for a stay of execution if an
appeal is intended or already filed.
EXECUTION • If no appeal has been filed but is intended, the stay of
execution application should be made to the court that issued
the order or decree.
• If an appeal has already been filed, the stay of execution
application should be made to the appellate court.
WHEN IS AN  For the purposes of a stay of execution an appeal is deemed to
APPEAL have been filed as soon as the notice of appeal is filed.
 Under rule 13 thereof it is now the duty of the appellant to cause
DEEMED TO the appeal to be listed for direction on notice.
HAVE BEEN  • Rule 13 now provides for the filing of written submissions where
a party does not intend to appear at the hearing.
FILED?
  Read Kenya Breweries Limited v Kiambu General Transport
Agency Limited [2000] Eklr
 It is made by way of Notice of Motion under Order 42 Rule 6 and Section 3A
of the Civil Procedure Act. (Looks like a notice of motion).
 The court looks at certain conditions before granting a stay of
APPLICATION execution. The following conditions must be satisfied before the court can
grant a stay.
FOR STAY OF 
EXECUTION  1. That the Application has been made without unreasonable delay.
 2. That substantial loss will result to the Applicant unless such order is
made.
 3. Security for due performance of the decree has been given by the
Applicant.
 • Section 79B of the Civil Procedure Act grants the court the
power to summarily reject an appeal.
• The court first reviews the record of appeal and can reject it if
there are no sufficient grounds to interfere with the decree.
HOW COURTS • If the court does not reject the appeal, it proceeds to a
hearing.
DEAL WITH • Admission of an appeal does not prevent a default judgment;
the court can dismiss or allow the appeal for default if you do
APPEAL not appear.
• Unlike in the High Court, you do not need to appear in person
for the hearing.
• If the appellant does not wish to appear but wants the appeal
to proceed, they must file a written declaration stating this.
 • In such cases, the appellant must file two copies of their
written arguments: one for the respondent and one for the
court file.
HOW COURTS • The respondent can also file their response in writing.
DEAL WITH • If the appellant appears but the respondent does not, the
court will make an ex parte decision.
APPEAL • You can apply to set aside an ex parte judgment.
• To set aside an ex parte judgment, you must show sufficient
cause for not appearing.
PROCEDURE • The appellant has the right to begin the proceedings.
AT THE • After hearing the appellant, the court can dismiss the appeal
without calling the respondent if it finds the appeal lacks
HEARING OF substance.
• The Court of Appeal can also add parties or allow
AN APPEAL amendments.
  Upon hearing the Appeal the Appellate Court may exercise the
following powers:

POWERS OF  1. It can opt to determine the case finally

 2. Remand the case
THE  3. Frame issues and refer them for retrial

APPELLATE  4. Take additional evidence or require such evidence to be taken

 5. Order a new trial
COURT
 The court will take various options depending on the grounds raised in
the Appeal. The Appeal Court will confine you to points.
 • The court can finally determine the case if the evidence on
POWERS OF record is sufficient for the Appellate Court to pronounce
judgment.
THE • This is the most common option for the Court of Appeal, as
APPELLATE they can understand the problem and determine the case
from the record.
COURT • If the record of appeal is insufficient to pronounce judgment or
determine the appeal, the court may opt to remand the case.
  The general rule is that the court should as far as possible dispose the
POWER TO REMAND THE case or an Appeal using the Evidence on Record and should not be
CASE remanded for fresh evidence except in rare cases. Remanded basically
means to send back.
 • If the trial court disposes of the case on a preliminary point without
hearing and recording evidence on other issues, the appellate court
may remand the case.
• If the Appellate Court disagrees with the trial court, it can set aside
WHEN CAN the judgment and decree, and remand the case for re-hearing and
determination.
THE COURT OF • The Appellate Court may specify which issues should be tried in the
remanded case.
APPEAL • By passing an order of remand, the Appellate Court directs the
lower court to reopen and retry the case.
REMAND A
• Upon remand, the trial court will readmit the suit under its original
CASE? number and proceed as directed by the Court of Appeal.
• The power to remand is exercised as per the rules.
• For cases disposed on a preliminary point, the above procedures
apply.
 WHEN CAN
THE COURT OF  What is a preliminary Point? A point can be said to be preliminary
if it is such that the decision thereon in a particular way is sufficient
APPEAL to dispose of the whole suit without the necessity of a decision on
the other points of the case. A preliminary point may be one of
REMAND A fact or of law. But the decision thereon must have avoided the
CASE? necessity for a full hearing of the suit.
  Section 80 of the Civil Procedure Act Cap 21 allows anyone who
feels wronged by a decree or order to seek a review if:
 a) An appeal is permitted but has not been filed, or b) An appeal is
not permitted by the Act.
 They can apply for a review to the court that issued the decree or
order, which can then make an appropriate decision.
REVIEW  Order 45 Rule 1 of the Civil Procedure Rules, 2010 states that
anyone who feels wronged by a decree or order, where an appeal
is allowed but not filed, or where an appeal is not allowed, can
request a review. This can be done if there is new evidence that
couldn't be discovered earlier despite due diligence, if there is a
clear mistake on the record, or for any other valid reason. The
application for review must be made without unnecessary delay to
the court that issued the decree or order.
  In the case of Republic v Public Procurement
Administrative Review Board & 2 others [2018] eKLR it
was held:-
 “ Section 80 gives the power of review and Order 45 sets
out the rules. The rules restrict the grounds for review.
The rules lay down the jurisdiction and scope of review
limiting it to the following grounds; (a) discovery of new
REVIEW and important matter or evidence which after the
exercise of due diligence, was not within the knowledge
of the applicant or could not be produced by him at the
time when the decree was passed or the order made or;
(b) on account of some mistake or error apparent on the
face of the record, or (c) for any other sufficient reason
and whatever the ground there is a requirement that the
application has to be made without un reasonable delay.”
  In Pancras T. Swai v Kenya Breweries Limited [2014]
eKLR the Court of Appeal held:-
 “Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil
Procedure Rules) gave the trial Court discretionary
power to allow review on the three limps therein stated or
REVIEW “for any sufficient reason.”… As repeatedly pointed out
in various decisions of this Court, the words, “for any
sufficient reason” must be viewed in the context firstly of
Section 80 of the Civil Procedure Act, Cap 21, which
confers an unfettered right to apply for review and
secondly on the current jurisprudential thinking that the
words need not be analogous with the other grounds
specified in the order.”
  In the Pancras T Swai case, the Court of Appeal referenced
and endorsed the Sarder Mohamed v. Charan Singh Nand
REVIEW Sing and Another (1959) EA 793 case. Where the High Court
had determined that Section 80 of the Civil Procedure Act
grants the Court full discretion to make any order it deems
appropriate on review. It noted that the absence of limiting
words in the section was intentional.
  In Shanzu Investments Limited v. Commissioner for
Lands (Civil Appeal No. 100 of 1993) the Court of appeal
upheld its earlier decision in Wangechi Kimata & Another
Vs. Charan Singh (C.A. No. 80 of 1985) (unreported) where
it was held:-
 “Any other sufficient reason need not be analogous with
REVIEW the other grounds set out in the rule because such
restriction would be a clog on the unfettered right given
to the Court by Section 80 of the Civil Procedure Act; and
that the other grounds set out in the rule did not in
themselves form a genus or class of things which the
third general head could be said to be analogous.”
  Under Rule I of Order 45 – Review is available where an
appeal not yet preferred or is not allowed.
 The grounds for reviewed are:-

1. Discovery of new or important matter or evidence not
within party’s knowledge despite due diligence.
2. Mistake or error on face of record.
3. Other sufficient reason
 An application for review is to be made only before the judge
REVIEW who passed decree or made the order unless not available.

 If more than one judge made the decision in question and
there is no agreement order will not issues if there were only
two Judges. If more than two the majority decision will prevail

 Under Rule 6 a review order cannot itself be reviewed.

  In the case of Said v Maitha & Another (2008) 2 KLR (EP),
the Court of Appeal stated as follows in the relevant part in
keeping with rule 1 of Order 44 (now Order 45 Rule 1)
 “The right of review given by section 80 of the Civil Procedure
Act (Cap 21) and Order 44 rule (1) (b) of the Civil Procedure Rules
required the learned Judge to consider a review application where
an appeal lies, but as in this case, no appeal has been filed, and it
was wrong for him to refuse to do so.”

 In the case of China Road Bridge Corporation (Kenya) V
DMK Construction Ltd 2004 2 EA 31, the Court of Appeal
REVIEW stated as follows:
 “In an application for review, an applicant has to show that
there has been discovery of a new and important matter or
evidence which, after the exercise of due diligence, was not within
his knowledge and could not be produced at the time the decree
was passed or on account of some mistake or error apparent on
the face of the record or any other sufficient reason, the
application ought to succeed.”

  In Eastern and Southern African Development Bank v African Green Fields Ltd
and Others 2002 EA page 377, Justice Ringera (as he then was) discussed the
circumstances under which a review order may be granted and held as follows:

 “An order cannot be reviewed because it is shown that the Judge decided the matter on
a foundation of incorrect procedure and/or that his decision revealed a misapprehension
of the law, or that he exercised his discretion wrongly in the case. Further it could not be
reviewed on the ground that other Judges of coordinate jurisdiction and even the Judge
REVIEW whose order is sought to be reviewed have subsequently arrived at different decisions on
the issue. National Bank of Kenya v Ndungu Njau [1996] KLR 469 (CAK) applied.
 The proper way to correct a judge’s alleged misapprehension of the procedure or the
substantive law or his alleged wrongful exercise of discretion is to appeal the decision
unless the error be apparent on the face of the record and therefore requires no elaborate
argument to expose”.
  In Benson Mbuchu Gichuki v Evans Kamende Munjua and
Two Others Nairobi Court of Appeal Civil Appeal No. 304 of
2006 which discussed a consent judgement the Court of Appeal stated
in the relevant part that the law with respect to review was that:
 ” the applicant was required to demonstrate to the Superior Court
either that he had discovered a new and important matter which after
exercise of due diligence was not within his knowledge or which he
could not produce, when he, together with the respondents, drafted
and signed a handwritten consent that they handed over to the learned
judge for endorsement and to be made a judgement of the court or
that there was a mistake or error on the face of the record i.e. that
there was a mistake or error in the consent judgement that they
REVIEW drafted and handed over to the learned Judge or that the learned
Judge made a mistake or an error in reducing the same consent
judgement they drafted when the learned judge endorsed it and made
it a judgement of the court or show any other sufficient reason why the
consent judgement needed to be reviewed.” and further that “ Order
44 rule 1 is clear that an application for review should be made to the
court which passed the decree or made the order without unreasonable
delay”.

  Advocates have complained that judges are reluctant to
review their Rulings or Orders perhaps based on a
misapprehension of the review provisions. The Judges may
REVIEW view applications for review under Section 80 of the Act and
Order 45 of the rules as an indictment of themselves within
the judicial process and therefore the reluctance to review
themselves
  Courts have also had to grapple with the question of
jurisdiction to entertain review applications. In Kithoi v Kioko
1982 KLR 177), the Court of Appeal held that an appellate
judgement of the High Court under section 71A (2) of the Act
is final and therefore not subject to review. However, in
Haamzaali v Sulemanji 1985 KLR the said court held that a
decision of the High Court under section 79 B of the Act
rejecting an appeal from a subordinate court summarily is
REVIEW subject to review. In Odongo v Savings and Loan 1987
KLR 1479, the Court of Appeal held that the High Court has
no jurisdiction to review its appellate decisions under the Rent
Restriction Act because these decisions were final and that the
finality of an appeal cannot be set at nought by review. In
Earnest Mwai v Hashid 1995 KLR 2523 the Court of
Appeal affirmed that it had no power to review its own
decisions.
  These are provided for in Part III of the Act and Order 22 of
the Rules which has 86 rules.

 Under Rule 1 of Order 22 if a decree or order is for payment
of money the judgment debtor may avoid execution by paying
EXECUTION the same as follows:-

PROCEEDINGS  a) Into the court whose duty it is to execute the decree;

 b) To the Decree Holder; or

 c) Otherwise as the court directs.

  If the money is paid into court the court shall send notice of
payment of the same to the Decree Holder or his advocates. if
the same is paid directly to the Decree Holder the Decree
Holder will cause the same to be certified as paid by the court.
The Judgment Debtor may also inform the court of the
payment upon which the court will issue a notice to the Decree
Holder to show cause on the day fixed by the court why the
payment should not be recorded as certified and if the Decree
Holder fails to show cause the court shall record the same
accordingly.
EXECUTION 
PROCEEDINGS  If the judgement debtor fails to satisfy the decree as above
the Decree Holder is entitled to apply for execution of the
same.

 If what is to be used to satisfy a decree is immovable
property falling within the jurisdiction of two or more courts,
any of the courts may attach and sell the property.

  Where a court desires that its decree be executed by another court it
shall send a copy of the decree, a certificate indicating that the decree has
not been satisfied within its jurisdiction or the extent to which the same
has been satisfied if it has been satisfied in part and a copy of the order
EXECUTION for the execution of the decree and if no such order has been made, a
PROCEEDINGS certificate to that effect. This is to be accompanied with the order
sending the Decree for execution by the other court in form No.4 of
Appendix F to the Act.
  Under Rule 6 of Order 22 the Decree Holder is required to
apply for an Order of execution to the court which passed the
decree or to a court where the decree has been sent by such
court execution.

 If judgment was in default of Appearance or Defence an
order of execution will not issue unless not less than ten days
notice of entry of judgment has been given to the Defendant
either at his address for service or served on him personally
EXECUTION and a copy of such notice is required to be filed with the first
PROCEEDINGS application for execution.

 Under Rule 7 (1) of Order 22 if the decree is for payment of
money the court may on the oral application of the Decree
Holder at the time of passing of the decree order immediate
execution by the arrest of the Judgment Debtor if he is within
the precincts of the court.

  Except as provided under Rule 7(1) all applications for execution of a
decree shall be in writing signed by the Applicant or his advocate or by
some other person who is fully acquainted with the facts of the case to
EXECUTION the satisfaction of the court. The application shall be in table form as per
PROCEEDINGS Form No.14 of Appendix A to the Act containing the particulars provided in
Order 22 Rule 7 (2) as follows:
 a) The number of the suit;
b)
c) The names of the parties;
d)
e) The date of the decree;
f) Whether any appeal has been preferred from the decree;
g) Whether any, and, if any, what payment or other
adjustment of the matter in controversy has been made
EXECUTION between the parties subsequently to the decree;
PROCEEDINGS h) Whether any, and if any, what previous applications have
been made for the execution of the decree, the dates of
such applications and their results;
i) 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:
i. By the delivery of any property specifically decreed;
EXECUTION
ii. By the attachment and sale, or by the sale without
PROCEEDINGS attachment of any property;

iii. By the arrest and detention in prison of any person;

iv. By the appointment of a receiver; and

v. Otherwise, as the nature of the relief granted may require.

  When execution involves the attachment and sale of movable
property owned by the Judgment Debtor but not in their possession,
the Decree Holder must include an inventory with the execution
application. This inventory should provide a reasonably accurate
description, such as the registration number and make for a motor
vehicle.
EXECUTION
PROCEEDINGS  For execution by attachment and sale of the Judgment Debtor's
immovable property, the execution application must include a
description sufficient to identify the property and specify the
Judgment Debtor’s share or interest. If the property is registered land,
the Decree Holder must attach a certified extract of the Title from the
Registrar.
  If a decree is issued in favor of multiple persons jointly, any one of
them can execute it for the benefit of all. The court will issue
orders as necessary to protect the interests of those not joined in
the application.
EXECUTION
PROCEEDINGS
 A decree can be transferred to a third party, who will have the
same right to execute the decree as the original Decree Holder.
  Where there are cross-decrees in separate suits for the payment
of two sums of money execution shall only be allowed by the
holder of the decree of the larger sum and only to the extent of
the amount that remains after deducting the smaller sum. If two
decrees are of equal sums satisfaction for both shall be entered
upon the decrees.

 Under Rule 18 of Order 22 if the application for execution is
made;

 a) More than one year after the date of the decree; or
EXECUTION 
PROCEEDINGS  b) Against the legal representative of a party to the decree;
or

 c) For attachment of salary or allowance of any person
under rule 43;
 The court executing the decree shall before making the Order
of Execution issue a notice to the person against whom
execution is applied requiring him to show cause why the
decree should not be executed against him.

  However the court has power under Rule 20 to dispense with the notice
for reasons to be recorded if it considers that issue of such notice would
cause unreasonable delay or would defeat the ends of justice.

 See the case of Utegi Technical Enterprises (T) Ltd & Another Vs.
NBC Ltd 2004 2EA 344 where it was held as follows-in dismissing an
application seeking (1) stay of execution of a decree (2) rescinding of a
garnishee order (3) review on the grounds that no notice had issued
under the equivalent of Rule 18 (1) and (4) the application for execution
contained mathematical errors and the affidavit in support of the
application contained falsehoods.

EXECUTION  “1. Under XXI, rule 20(2), the court may dispense with notice where
the decree was more than twelve months old and although Order
PROCEEDINGS XXI, Rule 20(2) required reasons for dispensing with the notice to be
recorded the court had acted on the Respondent’s letter which
stipulated that a further delay may lead to depletion of an otherwise
liquid account.”

 “2. The error in computing of interest was rectifiable and did not go
to the root of the order.”

 “3. On alleged falsity of the Respondent’s affidavit, the under
statement of the purchase price by T.Shs. 500,000 did not go to the
root of the application to warrant dismissal of the application.”
  See also the case of Keshra Vishra t/a Alpesh Enterprises
VS. Reuben Musyoki Muli t/a Konza Merchants Mombasa
HCCC No. 232 of 2001.
 Where the provisio to Rule 18 (1) to the effect that no notice
shall be necessary if the application for execution is made within
one year from the date of the last order made in a previous
application for execution against the party against whom the
execution is applied for was used to dispense with the requirement
for notice.
 In the case of Govindi Popattal Madhavji & Another Vs.
Nasser Alibhai & Another 1960 EA 167 it was held that the
EXECUTION discretion to dispense with notice before issuing a warrant of
attachment is vested in the court and the Deputy Registrar in
PROCEEDINGS assuming such jurisdiction and granting a warrant of attachment
without notice based on an application for execution filed more
than a year after the date of the decree had acted ultra vires and
his order was therefore a nullity.
 Where notice is issued to show cause why the decree should not
be executed against a person and the person does not show cause
to the satisfaction of the court why the decree should not be
executed the court shall order execution of the decree.
 • Once the court confirms that all execution requirements are met, it
will issue the execution process under Rule 20 of Order 22. This
process will include the date of issuance and be signed by the
judge or a designated officer, typically the Registrar in higher
courts and a magistrate in lower courts. It must also be sealed
with the court's seal and then handed to the officer responsible for
execution.
• The officer executing the process must note the date and manner
of execution on the document before returning it to the court. If the
EXECUTION execution is delayed beyond the specified date, the officer must
PROCEEDINGS explain the delay. If the process is not executed, the officer must
provide the reason for non-execution.
• According to Rule 22 of Order 22, the court can stay the execution
of a decree for sufficient cause. If an order for stay is made after
the Judgment Debtor's property has been seized or the Judgment
Debtor has been jailed, the court will order the property's return or
the debtor's release. Before granting a stay of execution, the court
usually requires the Judgment Debtor to provide security.
 OBJECTION
PROCEEDINGS
 • If a party executing a decree attaches property that does not
belong to the Judgment Debtor, for instance, because it was found
on the Judgment Debtor's premises, the actual owner can object.
Under Rule 51, the property owner must give written notice to the
court and the Decree Holder, accompanied by an application
supported by an affidavit detailing their claim.
• Upon receiving this notice, the court will stay the execution
OBJECTION proceedings and ask the Decree Holder to state in writing whether
PROCEEDINGS they intend to continue with the attachment and execution, either
in whole or in part. If the Decree Holder does not respond within
the given time frame or indicates they do not intend to proceed
with the execution of the whole or part of the property, the court
will order the attachment to be lifted. If the Decree Holder decides
to continue with the execution, they must submit a replying
affidavit.
  See the ruling in National Bank of Kenya as Plaintiff/ Judgment
Creditor Vs. Innovation Advertising Limited & 2 Others as Defendants/
Judgment Debtors AND Apolonia Njeri Githaiga as Objector Milimani
HCCC No 79 of 2003 in which the objector had filed objection proceedings
under Rule 56 and 57 of the then Order XXI claiming legal and equitable
ownership of a motor vehicle. The court granted her the following orders
after satisfying itself that the vehicle was hers:-

 (1) That the attachment effected by M/s Gallant Auctioneers in
respect of the motor vehicle Registration No. KAL 223X Mitsubishi
OBJECTION 
Pajero is hereby set aside.

PROCEEDINGS  (2) That the motor vehicle Registration No KAL 223X be released to
Apolonia Njeri Githaiga.


 (3) That the costs of the chamber summons dated 9th March 2006
which are hereby assessed at Kshs 10,000 are awarded to the
objector, Apolonia Njeri Githaiga as against the Decree
Holder/Plaintiff which costs shall be paid within 14 days from today’s
date and in the absence of such payment the objector may proceed
to execute for them.
 • Rule 7 of Order 22 allows for action against either the person or the
property of the Judgment Debtor for a money decree. This rule
permits simultaneous execution by both property attachment and
arrest of the Judgment Debtor, subject to the court's discretion. The
court may permit an arrest even if there are enough properties
METHODS available for attachment.
• Rule 27 states that if a decree involves specific movable property or a
OF share in such property, it can be executed by seizing the movable
EXECUTION property or share (if feasible) and delivering it to the party for whom
the execution is intended. Execution can also be done by detaining
the Judgment Debtor in prison, attaching their property, or both.
• Seizure and delivery of property are not allowed if the property is not
in the Judgment Debtor's possession. Under Rule 11 of Order 21, if a
suit involves movable property and the decree orders its delivery, the
decree must also specify an alternative amount of money to be paid
if delivery cannot be accomplished.
  Under Rule 28 of Order 22, if a party subject to a decree for specific performance of
a contract or an injunction has had the opportunity to comply but willfully failed to
do so, the decree can be enforced by detaining the party in prison, attaching their
property, or both. If the party is a corporation, the decree can be enforced by
attaching the corporation's property.
 If the Judgment Debtor's property is attached and the attachment remains in force
METHODS for six months without compliance with the decree, the Decree Holder can apply to
have the attached property sold. The proceeds from the sale will be used to pay the
OF Decree Holder an amount determined by the court, with any remaining balance
paid to the Judgment Debtor upon their application.

EXECUTION
 If the Judgment Debtor complies with the decree and pays all execution costs, or if
six months pass without an application to sell the attached property or if such an
application is denied, the attachment will cease.
  Rule 30 states that if a decree requires the delivery of immovable property,
possession must be delivered to the Decree Holder or their appointed
representative. Any person bound by the decree who refuses to vacate the
property will be removed. If the property is occupied by a tenant or other
person entitled to occupy it who is not bound by the decree, a copy of the
Warrant of Attachment must be posted in a conspicuous place on the
property, and the occupant must be notified of the decree in an appropriate

METHODS
manner.
• In an application to execute a decree by arresting and detaining the Judgment
OF Debtor in prison, the court may issue a notice for the Judgment Debtor to
appear on a specified date to explain why they should not be imprisoned

EXECUTION
instead of issuing an arrest warrant immediately. If the Judgment Debtor fails
to appear, the Decree Holder can request the court to issue an arrest warrant.
• The officer responsible for arresting the Judgment Debtor must bring them to
court as quickly as possible, unless the amount ordered to be paid, along with
interest and any costs, has already been settled.
• Before the Judgment Debtor is arrested, the Decree Holder must deposit a
sum of money with the court sufficient to cover the Judgment Debtor's
subsistence from the time of arrest until they are brought to court.
  Once the Judgment Debtor is arrested and committed to prison, the court
will set a monthly subsistence allowance for him, which the Decree Holder
must pay before the first day of each month. This allowance is considered
part of the suit's costs.
 If the Judgment Debtor appears in court in response to a Notice to Show
Cause or upon arrest and demonstrates sufficient cause, such as inability to
pay due to poverty, the court will deny the application for his arrest and
detention. If he has already been arrested, the court will order his release.
Before committing the Judgment Debtor to prison, the court must be
convinced that he is willfully refusing to satisfy the decree, is likely to
METHODS abscond, leave the court's jurisdiction, or is dishonestly transferring or hiding
his property.
OF  Under Rule 35, the Decree Holder can request the court to examine the
Judgment Debtor or any other person orally to determine if the Judgment
EXECUTION Debtor has any means to satisfy the decree and to produce any relevant
books or documents.
 According to Rule 37, if the property to be attached is movable (excluding
agricultural produce), the attachment will be by actual seizure, and the
attaching officer must keep the property in their custody and is responsible
for it. If the property is prone to quick decay or if the cost of keeping it
exceeds its value, the officer may sell it immediately. For attached livestock,
the court will arrange for their custody and maintenance as deemed
appropriate.
  Under Rule 38 if the property to be attached is agricultural produce the
attachment shall be by way of affixing a copy of the Warrant of
Attachment:
 i. Where such produce is growing crop, on the land in which such
produce is growing;
 ii. Where such produce has been cut and gathered, on the place
where it is deposited/stored.

 Another copy of the warrant of attachment shall be fixed on the outer
door or on some other conspicuous part of the place where the Judgment
METHODS Debtor resides or with the leave of the court where he does business.
After the warrant of attachment is so affixed the agricultural produce shall
be deemed to have passed into the possession of the court and the court
OF shall make such arrangement for the custody thereof as it deems
sufficient.
EXECUTION 
 If the attachment is of a share in a company or other property not in
the possession of the Judgment Debtor or other property for which
specific provision has not been made by the rules, the attachment shall be
made by a written order prohibiting:-
 i. In the case of shares, the person in whose name the shares may
be held from transferring the same or receiving any dividends
thereon;
 ii. In the case of other movable property, the person in possession
of the same from giving it to the Judgment Debtor.
 • When a judgment debtor co-owns movable property, notice
must be given to prohibit transfer or charging of their share.
• For salary or periodic allowances, the court can order a
portion to be withheld, often about a third, either in one
payment or by monthly installments.
METHODS • Property owned by a partnership cannot be attached unless
OF the decree is against the firm or all partners; the court may
charge the debtor's interest in the partnership's property and
EXECUTION profits.
• If the attachment is of a negotiable instrument not deposited
in court, it must be seized and brought to court.
• A decree itself is considered property that can be attached.
 • When the property to be attached is immovable, the
attachment is done by an order prohibiting the debtor from
transferring or charging the property, and others from
benefiting from any transfer or charge. The attachment is
completed upon registration of the Prohibitory Order against
METHODS the property's title, and a copy of the order must be affixed to
OF the property.
• The court, under rule 55, can order the sale of attached
EXECUTION property or a portion of it to satisfy the decree, with the
proceeds being paid to the entitled person. Before the sale,
there must be an advertisement as specified in form number
15.
 CIVIL
PROCEDURE
END

2024