Execution of Court Decrees and Orders

• Execution is the process of enforcing a court

decree and order.
• A party in whose favour judgment has been
given is called a Decree Holder.
• The Party against whom judgment is to be
executed is called a Judgment Debtor.
• Execution is done pursuant to Order 22 of the
Civil Procedure Rules 2010
Execution of Court Decrees and Orders
• A Decree holder may apply to the Court to
execute a decree against the Judgment debtor
orally or by way of an application- See Order
22 R. 6.
• Oral applications can be made for execution of
money decree.
• Written applications are made where the
mode of execution is for attachment of
movable or immovable property or
attachment of debts.
 Modes of Execution
• There are various modes of execution such as
– Attachment of movable property
– Attachment of immovable property
– Attachment of money or Salary
– Arrest and detention of the judgment debtor
 Attachment of movable property-
O. 22 R. 27
• This is done where there is a decree for
attachment of movable property in the
possession of the Judgment Debtor or his agent.
• Where the decree is for a specific movable
property execution can be done by
– Seizure of the property or
– Delivery of the Property to the decree holder or
– Arrest and detention of the judgment debtor
Note- Where Judgment Debtor does not obeyed the
Court decree up to 6 months, the Decree holder
can apply to sell the attached property and obtain
proceeds thereto.
 Attachment of immovable property-
O. 22 R. 10
• Attachment of immovable property depend on
the nature of the property
– Attachment of agricultural produce-Attachment is
made by attaching the field where the property grows
or attaching the storage place or where the judgment
debtor resides or works
– For a share dividend in a company- Attachment is
made by way of a prohibitory order against the
person against who it is registered
– For a piece of Land- Attachment is made by way of a
prohibitory order registered against the title or the
land can be sold and proceeds be given to the
judgment debtor
 Attachment of money O.22 R.26

• A decree for payment of money can be done

by
– Arrest and detention of the judgment debtor.
– To enforce the arrest and detention of the
judgment debtor, the Court will need to be
satisfied that
• The judgment debtor has been given an opportunity
to show cause why he should not be arrested and
committed to civil jail up to 6 months. See section 40
of the Civil Procedure Act
• The judgment debtor has refused to pay the money-
debt
 Attachment of Salary- O.22 R.42
• Attachment of salary is effected by a third
party- employer of judgment debtor.
• Where the order is not complied with, the
judgment debtor has to show cause why the
attachment of salary should not be done.
 Settlements out of Court
• This happens when the Defendant settles the
Plaintiff´s claim before the suit proceeds to
hearing.
• This mode is encouraged under Art. 159 of
Constitution.
• Where parties agree to settle the matter out of
Court, they can file a consent in court and the
said consent is adopted as an order of court
• Once compliance is met, the Plaintiff withdraws
the suit.
 Default Judgment
• Default judgment arises in liquidated claims where
the Defendant does not enter appearance or enters
appearance but fails to file a Defence, Judgment in
Default can be entered against the Defendant.
• For the Plaintiff to be entitled to judgment in
default orders, they have to make an application
for judgment in default to be entered against the
Defendant.
• The Court may want to be satisfied that the
Defendant was served and an affidavit of service
has been duly filed.
 Summary judgments
• Provided for under Order 25 of the CPR
• This arises in a case where the Defendant files a
defence but it does not raise triable issues
• The test for summary judgment – the Defence
raises no triable issues to be interrogated by the
Court.
• The Plaintiff or Plaintiff´s counsel can apply for
Summary Judgment.
• See the case of Misort Africa Limited vs. Principal
Secretary National Treasury & Planning and
Another (2020) e KLR
Dismissal for Want of Prosecution
• Cases can be dismissed where the Plaintiff fails
to prosecute the case and the case remains
dormant.
• The Defendant or his counsel can apply that
the suit be dismissed for want of prosecution.
 Stay of action –O. 42 R. 6
• This is where a party applies to the Court for
the proceedings/stay of further proceedings of
the case to be stopped.
• Before the Court issues the stay, it has to be
satisfied that the applicants stands to suffer
substantial loss of the order for stay is not
issued.
– See MWK vs. JDK (2020) e KLR
 Abatement of suits
• Abatement is pre/mature ending of a suit
before it is heard.
• Abatement of suit is provided under Order 24
of the Civil Procedure Rules
• Abatement of suits arises in cases of :
– Death of a party or
– Bankruptcy of a party
 Death or Bankruptcy of a party

• A suit can abate where a sole party or surviving

party dies or is adjudged bankrupt.
• Unless a personal representative of bankrupt
party applies to continue with the suit or
• An administrator/executor of the deceased
applies to continue the suit, the suit shall abate.
• Application by an administrator/executor of the
estate of the estate of the deceased to revive the
suit should be done without inordinate delay.
– Read the Court of Appeal judgment in the case of
Rebecca Mijide Mungole & Another vs. KPLC &
Another (2017) eKLR