Application for execution

There must be formal application for execution, the court cannot execute a decree on its own motion.  ORDER 22 Rule 6 – a decree holder must apply for execution, there must be prompting by the decree holder.if the decree holder desires to execute, he must apply for execution either to the court that passed the decree or the court to which the decree is sent for execution. If the judgment debtor had entered appearance but failed to file a defence and a judgment in default is obtained then the court will not issue an execution order unless the judgment debtor is given at least 7 days notice of the fact that judgment has been entered against them.

In the case where the decree is for money payment the court may upon the oral application of the decree holder at the time of passing the decree they can ask for immediate execution by arresting the judgment debtor, especially if they are within the court precincts. Otherwise every application for the execution of a decree should be made in writing signed by the applicant or his advocate stating that they require an execution order.

Under rule 18 – in certain cases before the execution can proceed, rule 18 requires that notice must be given to the JD to show cause why one should not proceed with execution,   where the decree is attached to the salary of the JD there must be notice to the JD to show cause why the decree should not be executed against him or her.  Notice to show cause why one should not be committed to civil jail is another instance when notice must be issued to show cause Rule 31
Section 40 – arrest and detention – there is no provision that one must show cause but in reality one must issue notice to show cause unless the JD is within the precincts and an oral application can be made.

Why should notice to show cause be issued and when

1.    Change of circumstances
2.    Where the JD is declared bankrupt, then circumstances change, the capacity of the JD changes and a decree cannot be executed.
3.    Where the JD dies or not in existence in the case of a company.
4.    Is in receivership

The circumstances dictate that one must issue notice to show cause.

Where the notice to show cause is issued against the representatives of the JD.   One must issue notice to establish who the personal representative is and where the personal representative is not there.  Where the decree is for the attachment of the salary of the JD, notice must be issued since the JD could have been sacked or has quit.   The notice is to establish whether the JD is still in employment.

When its attachment on salary the attachment is for a third of the salary and not all of it.

The discretion to dispense with notice to show cause is vested with the court itself and therefore the registrar has no power to dispense with the notice.  Where there is requirement that notice to show cause and no notice is given, then any orders which the court may make in the absence of the JD are a nullity.  Madhaji v Alibhai [1960] EA 167

Order 22 Rule 13 – requires that the court satisfies itself that all the requirements are complied with.  If not complied with the court may reject the application.  If the JD is served with notice to show cause and fails to appear in court as required or appears but fails to show cause why decree should not be executed, then the court will order for the execution.

Rule 22 – provides for situations where the court to which the decree has been sent upon sufficient cause being shown stays execution to allow the JD to appeal to the court which passed the decree to set it aside or to go on appeal to an appellate court for a stay of execution.  Rule 22 deals with situations where the JD wishes to apply for a stay of execution.

The proper application for stay of execution should be made under Order 42 Rule 6 –

One can proceed under Rule 7(2)– which gives one the authority to invoke the court of appeal.  One must first apply to the High Court under Rule 6 of Order 42 – one does this when the stay has been rejected, one can go straight to court of appeal under 7(2) to invoke the court of appeal original jurisdiction to grant the stay.    The second attempt to the court of appeal should be under Order 42  rule 6(1) which is an appeal but going under rule 7(2) is when one has not appealed the order in the high court but is going straight to the Court of Appeal.

The conditions which are likely to be imposed by both courts are the same.  The reasoning of the court is that when there is an appeal it is not the work of the court to prejudge but to preserver the status quo until the appeal is heard.  They don’t want to punish any party by prejudging issues.  If the applicant is willing to provide security so that the rights of the holder are not prejudiced, the court will issue a stay.

Case law on stay of execution
Rosegrens v Safe Deposit

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 it is dispossessing its done by a court bailiff.

Order 22 Rule 14 deals with Cross-Decrees
Each party has a decree against the other.  Only where the following conditions exist
1.            The same court receives applications for executions of the cross decrees
2.            Each decree is for payment of money
3.            Both decrees are capable of execution at the same time and by the same court.
4.            The parties have filed the suit in the same capacity of character in the same cases.

If those conditions are satisfied, then the court must record that they are satisfied and that the sums are equal.  If the sums are not equal, then the one with the larger sum will be allowed to executed but only in the difference between the two sums.

What should the application contain?

1.      the number of the suit

2.      the names of the parties

3.      the date of the decree

4.      it should indicate whether an appeal has been filed
5.      whether payment or other adjustments have been subsequently made in court.

6.      whether any previous has been made subsequent to the decree, the amount of interest due decrease the amount of cost of any  the name of the person against the execution is fought

The mode in which the assistance of the court is required

There are several modes of assistance depending on the nature of the case, such as attaching property, civil jail.

Read the case of Heco Ubersee Handel v Marx Pharmaceutical Ltd, Court of Appeal No. 4 of 1999. The case concerns whether, if you make a claim in foreign currency should the execution be in foreign currency or Kenya shillings?

Read the case of R v the Managing Director of Kenya Posts & Telecommunication.


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