By Jerameel Kevins Owuor Odhiambo
The first step towards enforcing a judgment in Kenya is the extraction of a decree or order from the court that issued the judgment. A decree is a formal expression of the court’s final decision, especially in a suit. Under Section 2 of the Civil Procedure Act (Cap 21 Laws of Kenya), a decree is defined as 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.
The relevant provision for extraction is found under Order 21 Rule 7 of the Civil Procedure Rules, which requires that once a judgment has been pronounced, a formal decree shall be drawn up, signed, and sealed with the seal of the court. The decree must correctly reflect the terms of the judgment and is necessary before any form of execution can proceed.
Once the decree is extracted, the decree-holder (the winning party) may apply for execution under Order 22 of the Civil Procedure Rules. Execution is the legal process by which a decree is enforced or carried into effect. The application must be made to the court that passed the decree or, where applicable, to another competent court.
The law under Order 22 Rule 6 of the Civil Procedure Rules provides several modes of execution available to a decree-holder:
- Attachment and Sale of Movable Property
Under Order 22 Rule 38, a court may order the attachment and sale of the judgment-debtor’s movable property. The court bailiff (auctioneer) seizes movable property sufficient to satisfy the decree and, upon court authorization, sells it by public auction.
- Attachment and Sale of Immovable Property
Provided under Order 22 Rule 48, the decree-holder can also apply for the attachment of immovable property (such as land or buildings). The property must be identified, and a prohibitory order issued, followed by valuation and public sale under court supervision.
- Garnishee Proceeding
Regulated by Order 23 of the Civil Procedure Rules, garnishee proceedings are used to recover money owed to the judgment-debtor by a third party. The court may order a bank or another debtor of the judgment-debtor (the garnishee) to pay directly to the decree-holder.
- Committal to Civil JaiL
Under Section 38 of the Civil Procedure Act and Order 22 Rule 31, a judgment-debtor can be committed to civil jail for up to 6 months if the court is satisfied that they have means to pay but are willfully refusing to comply. However, imprisonment does not discharge the debt.
- Attachment of Salary or Wages
Where the judgment-debtor is a salaried employee, their salary may be attached under Order 22 Rule 49. The employer may be ordered to deduct specified amounts from the salary and remit them to the decree-holder.
- Appointment of a Receive
Under Order 22 Rule 56, the court may appoint a receiver to collect income or manage the property of the judgment-debtor until the debt is discharged. This is often used when property is already encumbered or complex in nature.
Where the judgment-debtor is a company or corporation, enforcement can be done through attachment of property, garnishee orders, or winding up proceedings under the Insolvency Act, 2015. Directors may not be personally liable unless they guaranteed the debt or were found to have committed fraud
If the decree is to be executed outside the jurisdiction of the court that issued it, Section 39 of the Civil Procedure Act allows for transfer of the decree to a court in another jurisdiction for execution.
Similarly, if the judgment is from a foreign court, enforcement must comply with the Foreign Judgments (Reciprocal Enforcement) Act (Cap 43). The foreign judgment must be registered before it can be executed locally.
A judgment-debtor may apply for a stay of execution under Order 42 Rule 6 if they intend to appeal. The court may grant the stay upon satisfaction that: the application is made without unreasonable delay; the applicant may suffer substantial loss if the stay is not granted; security is provided.
Pursuant to Section 4(4) of the Limitation of Actions Act (Cap 22), a decree may not be executed after the expiry of 12 years from the date it became enforceable unless extended by the court for good reason.
The enforcement of a judgment in Kenya is a structured legal process grounded in clear statutory provisions and judicial precedents. From extraction of a decree under Order 21, to the diverse modes of execution in Order 22, the Civil Procedure framework ensures the rights of successful litigants are not rendered nugatory. Nonetheless, procedural rigor and fairness safeguards ensure that judgment-debtors are not unduly prejudiced. As the courts often state, “A decree-holder must not be left without a remedy” a principle echoed in Kenya Women Microfinance Ltd v Martha Wambui Kimani[2013] eKLR, where the court emphasized the imperative to realize fruits of a judgment.
The Writer is a Legal Researcher and Lawyer
John Kamau 
Mt Kenya Times