CIVIL PROCEDURE LAW 1 and 2

This course outline is an advanced one and is designed to impart to law

students the practice and modalities of prosecution or defending a civil action
from time one thinks to go to court through the final judgment.

The course is intended to enable students understand general ideas and

practice of civil litigation and remedies available at law to aggrieved persons. Civil
procedure rules are there to guide the parties in their endeavors to solve their
civil disputes. The objective of the course is to know how to draft specific
proceedings, understand various jurisdictions of courts- which court deals with
what matters, their remedies, Application of major statues.

It is expected that at the end of the course, a student will have been well
versed with the facts of civil litigation, and that looking at the rigours of civil
litigations in general, its is trite that going to court should be a matter of resolving
of last resort. Possibilities of solving dispute out of court should be fully explored
before an individual decides to institute his own case in a court of law.

This approach minimizes costs, saves on time, and reduces the stress and
anxiety that an individual experiences during court actions. You should however
observe that this list is meant to serve as a general guide. New cases, articles,
journal books, and other materials bearing on the course should be added by
students through own initiatives. It has also included recent unreported cases.
However students should be aware that this is not self sufficient as such they may
consult as many cases as possible. The same should apply to text books.

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NB: CURRENTLY THERE ARE NEW CHANGES IN CIVIL PROCEDURE.ITS PREQUISTE
THAT STUDENTS SHOULD BE AWARE OF THE NEW CIVIL PROCEDURE RULES OF
2010 PROMULGATED VIDE GAZETTE NOTICE SUPPLEMENT NO.65 OF SEPTEMBER
10, 2010.THIS RULES SHOULD BE READ TOGETHER WITH THE CIVIL PROCEDURE
ACT, CAP 21 OF THE LAWS OF KENYA.

WEEK 1-civil procedure 1

1. Introduction : the role of the court in civil litigation in changing modes of

production
2. PARTIES TO A SUIT
 Same parties
 Parties in representative suit
 Plaintiffs/defendants
 Same title/same subject matter
3. Place of suit
4. PLEADINGS
 Principles of pleadings, plead facts not law, material facts, facts and law
 The plaint general rules of drawing plaints, contents
 Written statement of defence, General rules of drawing up a defence,
counter claim and set off.
 Reply to defence
 Written statement of defence and counter claim
 Amendment general rules regarding amendments procedure before
applying leave.

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  Striking out of pleadings,scandoluos,frivolous,vexatious,abuse of
process of court

4. FRAME & INSTITUTION OF SUITS

 Cause of action
 Actual institution of suit
 Documents to accompany suit
 Courts of competent jurisdiction

5. ISSUE AND SERVICE OF SUMMONS

 Issuing of summons- who should issue summons

 Rules relating to service of summons, who should sere summons
 Modes of service
 Substituted service and the effects thereon
 Service of foreigners
 Examination of serving officer

6. ORIGINATING SUMMONS, NOTICE OF MOTIONS

7. INTER PLEADER PROCEEDINGS, CHAMBER SUMMONS, RULES REGARDING

DRAWING OF AN AFFIDAVIT INTERIM AND INTERLOCUTORY ORDERS

9. JUDGMENT AND DECREE

 Types of judgments
 Judgment to be signed
 Contents of judgment
 Contents of decree
 At what stage should judgment be delivered

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10. Attachment and Execution of decree

 Transfer of decree for execution

 Different modes of execution
 Attachment of property
 Sale of property
 Attachments of debts

11. Appeals

12. Judicial review

13. Taxation of Bills of Costs

REFERENCES

MULLA,D.F. Code of Civil Procedure 1908,Vol.1

Richard Kuloba Judicial Hints on Civil Procedure Act

Bullen and Leake

Clermont, Why comparative civil Procedure?

Jacob, The Civil Law and Common Law Traditions.

Statutes

The Constitution of Kenya

The Civil Procedure Act CAP 21 Laws of Kenya

Civil Procedure Rules 2010

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Limitations of Actions Act 22

Government Proceedings Act

The Magistrates Court Act

The judicature Act

CIVIL PROCEDURE 2 LECTURE NOTES

JUDGEMENT

Judgment is a decision obtained in an action either dismissing or allowing a

claim or appeal and making known the respective rights of the parties.

Judgment should have two objectives:

 Dispose of issue in the case- courts must decide that justice in the case
 Also be a forum for an exposition of-
1. It must take time to discuss the applicable legal provision
2. It must discuss consider an analysis of judicial authorities on
the subject.
3. Must consider other authorizes like academic work e.g. articles
overall contribution of judgment should contribute the
expansion of the law on particular subject.
4. Common case law is used to develop the law
Judgment is addressed under order 21 of the civil procedure, in some
circumstances it is not necessary for the court to hear the case before

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pronouncing judgment as in section 25 of the civil procedure Act where such
circumstances have been outlined:

The court, after the case has been heard, shall pronounce judgment, and
on such judgment a decree shall follow:

Provided that it shall not be necessary for the court to hear the case before
pronouncing judgment –
(i) where the plaint is drawn claiming a liquidated demand, and either -
(a) the defendant has not entered such appearance as may be prescribed;
or
(b) the defendant, having entered such appearance, has failed to file a
defence within the time prescribed; or
(ii) in such cases as may be prescribed under section 81 (2)(f).

Procedure for obtaining judgment is addressed in order 21 Rule 2 of the civil

procedure Act.

Judgment should be pronounced in open court

Order 21 rule 1 states that in suits where a hearing is necessary, the court,
after that case has been heard shall pronounce judgment in open court, either at
once or within sixty days from the conclusion of the trial notice which shall be
given to the parties or their advocates.

What if judgment is not given within the required sixty days- then in such
circumstances? The judge shall record reasons thereof copy which shall be
forwarded to the chief justice and shall fix a date for judgment.

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 The Acts under order 21 rule 2 grants another judge power to pronounce
judgment written by judge. A judgment pronounced by the judge who wrote it
shall be dated and signed by him in open court at the time of pronouncing it. 1In
circumstances where judgment is written by one judge and pronounced by
another judge, such shall be dated and countersigned by him in open court at
the time of pronouncing it.

What does a judgment consist of? [Order 21, rule 4.] gives a description of the
Contents of judgments as:-

 Judgments in defended suits shall contain a concise statement of the case,

 Must state the points for determination,
 Must state the decision thereon, and
 must state the reasons for such decision.
 State whether the remedies have been granted or not

 Furthermore [Order 21, rule 5.] of the Civil Procedure rules 2010 states
that Courts should state its decision on each issue such as:-In suits in
which issues have been framed,
 the court shall state its finding or decision,
 with the reasons therefore,
 upon each separate issue.

1
order 21 rule 3 (1)

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 Where judgment results 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. 2

DECREE
What is a decree?
What is a Decree? According to the civil Procedure Rules, CAP 21 of the Laws of
Kenya, A decree has been defined as a:-

A formal expression of an adjudication which so far 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 may be either preliminary or final: it includes
the striking out of a plaint and the determination of any question within section 34
or section 91, but does not include-

a) Any adjudication from which an appeal lies an appeal from an order, or

b) Any order for dismissal for default.

Provided that, for the purposes of the appeal , decree includes judgment and a
judgment shall be appealable not withstanding that 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.

A decree is a formal expression of the judgment, In Kenyan courts

judgment and decree are similar, In judgments you will extract a decree a
summary of what the court awarded in the judgment. A decree should confirm

2
Order 21, rule 6

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with the judgment. The parties shall draft the decree and serve on the other
parties for approval within the 7 days.
If the person does not approve the other party shall serve a notice to the
high court. If the other party does not lodge a notice of disagreement the register
shall make a notice for appearance at the judge to be given direction
Order 21 rule 7, provides an outline of the particulars of a decree, it provides:
i) the decree should be in agreement with the judgment
ii) shall contain the number of the suit
iii) the names and description of the parties
iv) the particulars of the claim
v) the relief granted/ the other determination of the suit.

Order 7Sub rule (2) further provides that the:-

 The decree shall state whom incurred suits are to be paid
 out of what property incurred suits are to paid or -
 what proportions that costs incurred in the suit are to be paid

Preparation and dating of decrees

 A decree shall bear the date of the day judgment was delivered-
order21 rule8(1)
 Any party in a suit may prepare a draft decree…… and submit it for
approval to other party to the suit--------------------who shall
approve-------amend it------reject it---------- if draft approved by both

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 parties-------submit to register------------if satisfied drawn in
accordance to judgment------sign and seal decree------3
 Any disproval should be received within seven days of delivery to the
other party. If no disproval 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.4
 Where there is disagreement on the draft decree, any of the parties
may file decree and mark it “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 to the parties5

 However the court has power to approve a draft decree at the time
of pronunciation of the judgment6 circumstances such as: - 9. (1)
Where the amount of costs has been—
(a) agreed upon between the parties;
(b) fixed by the judge or magistrate before the decree is drawn;
(c) certified by the registrar under section 68A of the Advocates
(Remuneration) Order; or
(d) taxed by the court,

3
order 21 rule 8 sub rule2.
4
Order 21 rule 8 sub rule 3
5
Order 21 rule8 sub rule 4
6
(order 21 rule 8 (7)

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 the amount of costs may be stated in the decree or order.7

[Order 21, rule 10.]

Decree for recovery of immovable property

 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.

[Order 21, rule 11.] Decree for delivery of movable property

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.

Decree may direct payment by installments.

Order 22 rule 12. (1) 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
installments, with or without interest, notwithstanding anything contained in the
contract under which the money is payable.

7
Order 21 rule 9(1)

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EXECUTING OF DECREES

What is a Decree? According to the civil Procedure Rules, CAP 21 of the Laws
of Kenya, A decree has been defined as a:-

A formal expression of an adjudication which so far 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 may be either preliminary or final: it includes
the striking out of a plaint and the determination of any question within section 34
or section 91, but does not include-

c) Any adjudication from which an appeal lies an appeal from an order, or

d) Any order for dismissal for default.

Provided that, for the purposes of the appeal , decree includes judgment and a
judgment shall be appealable not withstanding that 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.

So who are the parties involved in a decree? The parties to a decree are known
as the decree holder and the judgment debtor. According to the Civil Procedure
Act CAP 21 of the Laws of Kenya, a decree holder is defined as:-Any person in
whose favour a decree has been passed or an order capable of execution has been
made, and includes the assignee of such decree or order.

So therefore, in simple words, when courts of law pass a decree, any

person in whose favor a decree has been passed or an order capable of execution
has been made is known as the decree holder. Whereas a person ordered to pay a
sum imposed by a court order is known the judgment debtor. In other words the
person who a decree has not been passed in his favor is acknowledged as the
judgment t debtor.

Which court can execute a decree? According to section 30 of the civil procedure
a decree can be executed either by the court which passed it or by the court to
which it is sent for execution.

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 In circumstances where a court of law, opts to transfer the decree for
execution to another court of Law, Section 31 of Cap 21 of the Laws of Kenya,
Clearly stipulates that certain conditions must be fulfilled.

 If the person against whom the decree is passed actually and

voluntarily resides or works carries, within the local limits of the
jurisdiction of that other court;
 if such 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;
 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
 If the 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.

(2.) The court which passed a decree may of its own motion send it for execution
to any court of inferior but competent jurisdiction.

 However, it is worth noting that the High Court has no power of a

subordinate court to itself for the purposes of execution, See: Section 18
of CAP 21, Laws of Kenya.

18. (1) On the application of any of the parties and after notice to the parties
and after hearing such of them as desire to be heard, or of its own motion without
such notice, the High Court may at any stage -
(a) transfer any suit, appeal or other proceeding pending before it for trial or
disposal to any court subordinate to it and competent to try or dispose of
the same; or
(b) Withdraw any suit or other proceeding pending in any court subordinate to it,
and thereafter –

(i) Try or dispose of the same; or

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(ii) Transfer the same for trial or disposal to any court subordinate to it and
competent to try or dispose of the same; or

(iii) Retransfer the same for trial or disposal to the court from which it was
withdrawn.

SEE THE FOLLOWING CASE WITH REGARDS TO THE HIGH COURT:Barth,AG CJ,in
Nasur,Mowji AND Co v Saleh Mohammed Vali Dharsey And Co,[1911-1912] 4
KLR 122,at 123,124 (September,1912).

Where a court transfers a decree to be executed in another court, is the power

of the court receiving the decree to execute limited? Section 33 empowers
courts to execute decree that have been passed to them. Provides them power to
such an extent that any person disobeying the decree shall be punishable by the
court in the same manner as it had passed the decree. This Section states:-

33. (1). 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.
(2). 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

When transferring of decree to another court, what documents shall the courts
transferring the decree send to the other court which will execute the decree?

 Order 22, rule 4, of Cap 21 of the Laws of Kenya states that -

Procedure where court desires that its own decree shall be executed
by another court,. the court will send
A. Copy of the decree.
B. Certificate setting forth that satisfaction of the decree has not been
obtained by the court which passed the decree.
C. A copy for any order for the execution of the decree.

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  Where a court receives a decree for execution in this case, WHERE COURT
A TRANSFERS TO COURT B A DECREE TO BE EXECUTED THEN COURT B
SHALL FILE COPIES OF THE DECREE WITHOUT PROOF.
[Order 22, rule 5.] The court to which a decree is so sent shall cause such
copies and certificates to be filed, without any further proof of the decree or
order for execution, or of the copies thereof, unless the court, for any special
reasons to be recorded under the hand of the judge, requires such proof.

What are the questions to be determined by court when executing of court

decrees?

34. (1) 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. - Section 34(1) refers to question relating to execution,
discharge and satisfaction of the decree.

(2) The court may, subject to any objection as to limitation or jurisdiction, treat a
proceeding under this section as a suit, or a suit as a proceeding, and may, if
necessary, order payment of any additional court fees.
(3) Where a question arises as to whether any person is or is not the
representative of a party, such question shall, for the purposes of this section, be
determined by the court
How does the Judgment Holder apply to the court for execution?

 The decree holder shall apply to the court which passed the decree, or
the court where decree is transferred, using Form No. 14 of Appendix
A: order22 rule 6.
The

However an application for execution of a decree shall be either oral or in

written, whereas an oral application is acceptable in court 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, if he is within the confines of the

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court. Nevertheless, an+y other application of executing shall be instituted shall
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.

When the application for execution is in a written form, the party applying
for execution will be required to produce a certified copy of the decree.
Furthermore, the decree will have to be signed by the applicant or his advocate or
representative acquainted by the courts.
The particulars of the decree shall consist of-
(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, and, if any, what payment or other adjustment of the matter in
controversy has been made between the parties subsequent to the decree;
(f) 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;
(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—
(i) By the delivery of any property specifically decreed;
(ii) By the attachment and sale, or by the sale without attachment, of any
property;
(iii) By the arrest and detention in prison of any person;
(iv) By the appointment of a receiver;
(v) Otherwise, as the nature of the relief granted may require.

Process of execution

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 Every process shall bear the date and the day on which it is issued, and
shall be signed by the judge or an officer of the court, sealed and delivered to the
officer entrusted with execution.8
An officer entrusted with the execution process shall endorse the day and
manner in which he executed. In circumstances he fails to execute he shall state
the reason for delay, and return process to court backing up his reasons. The
court has the power to examine the officer’s inability and summon witnesses and
examine witnesses to such inability and record the result. 9
Where a decree is sent for execution, and the judgment debtor wants to
appeal he can apply for stay of execution, until appeal is heard and determined by
the court of appeal or court of first instance.10In circumstances where the
judgment debtor property has been seized, the court that issued the execution
order may order a discharge or restitution of the property. 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. However this order does not
prevent the court, to take hold again of the judgments debtors’ property. 11

Modes of paying money under decree

Where a decree is drafted the judgment debtor is required to pay the

money stated in the decree to the court that will execute decree or the decree

8
Order 22, rule 20.] sub rule 1& 2
9
[Order 22, rule 21.] Endorsement on process
10
[Order 22, rule 22.] When court may stay execution.
11
[Order 22, rule 23.] Liability of judgment-debtor discharged.

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holder/or as per the order of the court.12where the judgment debtor pays to the
court the court will send a notice to the judgment holder/ or his advocate to
certify the payment made, where payment is made directly the decree holder, he
has to inform the court, to certify such payment, of which will be recorded by the
court.
The judgment debtor also can inform the court of payment made and he
will apply to the court to issue a notice to the judgment holder, the court will fix a
date so that the judgment holder show cause why the payment or adjustment
should not be recorded as certified.13
IMMOVABLE PROPERTY

Where attachment is being made for an immovable property belonging to

judgment debtor it shall consist of
(a) a 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
(b) a 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.14
. Where the decree is for an immovable property, such property shall be delivered
to the judgment holder or his representative or by the removal of the judgment
debtor or any other person who refuses to vacate the property. 15 Where a decree
12
[Order 22, rule 1.] Modes of paying money under decree
13
[Order 22, rule 2.] Payment out of court to decree-holder.
14
[Order 22, rule 9.] Application for attachment of immovable property to contain certain particulars
15
[Order 22, rule 29.] Decree for immovable property

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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. Where 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.
Where the immovable property is in the occupancy of a tenant or other
person, the court shall order delivery to be made by affixing a copy of the warrant
in some conspicuous place on the property and notifying the occupant in such
manner as may be suitable the substance of the decree in regard to the
property.16

What methods do the courts embrace in the execution of decrees?

The general power for a Court to order executions of a decree is given to
the court by section 38 of the Civil Procedure. Section 38 provides the an
assortment of methods of executing decrees and gives power to the court to use
any of them to enforce a decree, subject only to such conditions and limitations
as may be prescribed by the Civil Procedure Rules. Section 81 of the Act is the
section confers authority to the courts of Law make these rules. The decree-
holder can also select the appropriate means of executing his decree, subject to
the courts discretion. See JA MANDIA V RATTAN SINGH,(1968)EA 146 at 149,

16
[Order 22, rule 30.] Decree for delivery of immovable property when in occupancy of tenant.

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Michael Olouch v Kanvanjit s sehmi Resident Magistrates court at Nairobi, civil
case number 149 of 1978.
Section 38 of the Civil Procedure Rules States that:-

38. Subject to such conditions and limitations as may be prescribed, the court may,
on the application of the decree-holder, order execution of the decree—
(a) by delivery of the property specifically decreed;
(b) by attachment and sale, or by sale without attachment, of any property;
(c) by attachment of debts;
(d) by arrest and detention in prison of any person;
(e) by appointing a receiver; or
(f) in such other manner as the nature of the relief granted may require:
Provided that 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, the
court, for reasons to be recorded in writing, is satisfied that
(a) that the judgment-debtor, 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; or
(b) that the judgment-debtor has, or has had since the date of the decree, the
means to pay the amount of the decree, or some substantial part thereof, and
refuses or neglects, or has refused or neglected, to pay the same, but in

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calculating such means there shall be left out of account any property which, by or
under any law, or custom having the force of law, for the time being in force, is
exempt from attachment in execution of the decree; or
(c) that the decree is for a sum for which the judgment-debtor was bound in a
fiduciary capacity to account

1. COMBINATION OF DIFFERENT METHODS OF EXECUTION

 Order 22 rules 26 provides that a decree for payment of money can
be executed by arresting the judgment debtor or the attachment of
the judgment debtor’s property. Moreover, this rule allows the
judgment holder to proceed against the judgment debtor or the
judgment debtor’s property at the same time.
 Where a decree is for payment of money, courts allow an oral
application of the decree holder, during the period of passing the
decree such may cause the judgment debtor to be arrested if he is
within the court limits.
 [Order 22, rule 17.] 17. The court may, in its discretion, refuse
execution at the same time against the person and property of the
judgment-debtor. 18. (1) where an application for execution is made
—
(a) More than one year after the date of the decree;
(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.
 No notice will be issued to if after the elapse of one year if upon a
previous application for execution against the same person the
court has ordered execution to issue against him:
 No notice is required to be served on a judgment debtor before
execution is issued against him.
 No such notice shall be necessary on any application for the
attachment of salary or allowance which is caused solely by
reason of the judgment-debtor having changed his employment
since a previous order for attachment.

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  Notice shall not be issued if the court considers that the issue of
such notice would cause unreasonable delay or would defeat the
ends of justice.

DELIVERY OF ANY PROPERTY SPECIFICALLY DECREED

Order 22 rule 27 provides that: where a decree is for any specific movable
property, it may be executed by the seizure “if practicable, of the movable and
the delivery thereof to the party to whom it has been adjudged or by the
detention in prison of the judgment debtor, or by the attachment of his property
or both.”
27. (1) where the decree is for any specific movable or for any share in a specific
movable, it may be executed by
 The seizure of the movable property
 Its delivery thereof to the party to the judgment holder, or to such person
as he appoints to receive delivery on his behalf,
 by the detention in prison of the judgment-debtor,
 by the attachment of judgment property,
 Or by both, detention and attachment.

Where an application is made for property not in the judgment debtor’s

possession, seizure and delivery is not allowed, in such instance the decree holder
shall annex to his application an inventory of the property to be attached, such
will contain an accurate description of the property.17

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.
In other words an alternative remedy is included in a decree where property is
incapable of being delivered; a specified sum of money equivalent to the value of
the property incapable of being delivered will be specified
17
[Order22, rule 8.]

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Where the defendant is not in possession of the property claimed the court
considers it property the court is empowered to pass a decree for the value of
such property; but where the court considers restoration of the property, the
decree should also state.

The court cannot issue a commission to ascertain the value of the property, the
amount of money to be paid as an alternative if delivery cannot be had. Such that
a compensation sum is fixed only if delivery of the movable property has failed to
be achieved, therefore courts cannot straight away fix the amount of
compensation after delivery has failed, it will only do this when every attempt of
delivery has proved futile.
Furthermore, giving of the alternative remedy does not give the decree holder
any option of refusing to take delivery of the property and instead insist upon the
money portion of the decree; nor can he execute his decree without having
recourse to the procedure prescribed under order 22 rules 27.CASE : R KULOBA
RM in Michael Olouch v Karanjit S Seamy, Resident Magistrates Court at
Nairobi, Civil Case Number 149 of 1978.

Where attachment of property has been made six months ago, and the judgment
debtor has refused to heed the decree, yet the decree holder has applied to have
the attached property sold, such property may be sold and proceeds paid to the
judgment holder.) 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
six 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. 18
ATTACHMENT

Section 44 of the Civil Procedure Rules, provides that all property belonging to the
judgment debtor, including property over which or over the profits of 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:
18
[Order 22, rule 27.] Decree for specific movable property

23
Provided that the following shall not be liable to attachment or sale-
i) The necessary wearing apparel, cooking vessels, beds and bedding
of the judgment debtor and his wife and children, and those
personal ornaments from which, in accordance with religious
usage, a woman cannot be parted;
ii) The tools and implements of a person necessary for the
performance of his trade or profession;
iii) Where the judgment debtor is an agriculturalist-
a) The first ten thousand in value of his livestock, if any
b) The first five thousand shillings 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) The first one thousand shillings in value of agricultural
produce necessary to enable him earn his livelihood;

iv) Books of account

v) A right to sue in damages
vi) A right of personal service
vii) Stipends and gratuities allowed to pensioners of the government,
or payable out of a service family pension fund notified in the
gazette by the prime minister, and political pension ;
viii) Two thirds of the salary of a public officer or other person in
employment
ix) A contingent or possible right or interest, including an expectancy
of succession by survivorship.
x) A right of future maintance
xi) Any fund or allowance declared by law to be exempt from
attachment and sale in execution of a decree
1. Nothing in this section shall affect the provisions of the Armed Forces Act or
of any similar law for the time being in force.

Attachment of salary of employee in execution of decree

Section 44(1) of the civil procedure rules enables the attachment in execution of a
decree of salary accrued or to become due order 22 rule 42 provides that the

24
such salary or allowance may be payable to the court as a whole or in installments
or to the judgment holder. Once court has ordered the attachment of the salary
this must be obeyed, thus the order is binding to the judgment debtor whether he
is within the court’s jurisdiction or not.
Attachment in execution of implements of husbandry and agriculture
Section 44 states that if the judgment debtor is an agriculturalist then first ten
thousand in value of his livestock and he first five thousand shillings 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 shall not be attached.
Furthermore, implements not exceeding the value five thousand shillings cannot
be attached. See Voi Posho Mill v Kenya Sisal Estate, (1962) EA 647

In this case the judgment debtor made an application under section 34(1) and
section 44 (1)(iii) of the civil procedure Act, that certain items that had been seized
should be released form attachment in execution of a decree as they did not
exceed the specified sum in value liable for attachment.

Section 45 seizure of property in dwelling house

No person in executing any process under this Act directing or authorizing seizure
of movable property shall enter any dwelling house after sun set and before
sunrise.

No outer door of the house shall be broken open unless such a dwelling house is
in the occupancy of the judgment debtor and refuses to pave way of access

Where a room is in accompany of a woman who according to custom, notice is

required to be given for her to withdraw within reasonable time of the purposes
of seizing the property.

Section 46 property attached in execution of a decree of several courts

25
 1. Where a property attached not in custody of any courts is
under attachment in the execution of decrees of more
courts than one, the court which shall receive and realize
such property and shall determine any claim thereto and
any objection to the attachment thereof shall be the court
of the highest grade or, where there is no difference in
grade between such courts, the court under whose decree
the property was first attached.
2. Nothing in this section shall invalidate any proceedings
taken by a court executing one of such decrees.

This section elaborates that where property is under attachment in execution of a

decree in several courts, the court that shall determine any claim or objection
with regards to the property shall be the one with the highest position, however
in circumstances where the property is under attachment in execution of decree
in courts with similar grade then the court which property was first attached will
be considered.

Section 47 of the civil procedure rules, provides that in circumstances where

attachment is made, any private transfer or delivery of property attached or any
interest and payment to the judgment debtor of any debt, dividend or other
moneys contrary to such attachments, shall be void as against all claims
enforceable under the attachment.

See Mepa Vershi And Brothers v Popatal Hemraj 1929-1930

SALE OF PROPERTY IN SATISFACTION OF A DECREE

Any court executing a decree may order property to be sold, in order to satisfy

the decree and the proceeds paid to the decree holder.19Such sale may be

19
Order22 rule 55

26
conducted by a public officer or by a person appointed by the court and the sale

shall be done by public auction.20

Where any property is being sold by public auction in execution of a decree, the

court shall give a public notice and advertisement of the intended sale as the

court may direct.21

Public notice shall be given after the decree holder has been sent of a notice to

the decree holder and judgment debtor, and the public notice shall state the time

and place of sale and should state the:

(a) The property to be sold;

b) Any encumbrance to which the property is liable;

(c) The amount for the recovery of which the sale is ordered; and

(d) Every other thing which the court considers material for a purchaser to know

in order to judge the nature and value of the property:

No sale shall be made without the consent in writing of the judgment debtor, take

place until after the expiration of at least thirty days in the case of immovable

property, and of at least fifteen days in the case of movable property, calculated
20
[Order 22, rule 56.] Sale, by whom conducted and how made.
21

27
from the date on which the copy of the public notice has been affixed in the

precincts of the court of the judge ordering the sale.22

The court may adjourn a sale any day or the officer may adjourn a sale and record

his reasons thereof for the adjournment.23 Where a sale is being made within the

court confines, such adjournment of sale shall not be made without leave of the

court.24Where adjournment has been made fresh public notice has to be given-

where a court adjourns a sale or officer adjourns sale.25

Sale shall be stopped, if the debt and cost including cost of sale are paid to the

office conducting the sale or if they have been paid into the court which ordered

the sale.26Where a re-sale is done sale by reason of the purchaser’s default and all

expenses attending such resale, shall be certified to the court by the officer or

other person holding the sale, and shall, at the instance of either the decree-

holder or the judgment-debtor, be recoverable from the defaulting purchaser

22
[Order 22, rule 58.]Time of sale
23
[Order 22, rule 59.] Adjournment or stoppage of sale.
24
[Order 22, rule 59.] Adjournment or stoppage of sale.
25
[Order 22, rule 59.] sub rule 2 Adjournment or stoppage of sale.
26
[Order 22, rule 59.] sub rule 3 Adjournment or stoppage of sale.

28
under the provisions relating to the execution of a decree for the payment of

money.27

Decree-holder not to bid for or buy property without permission 28 Decree-holder

is not allowed to bid for or buy property without permission of the court. 29The

decree holder may purchase the property and the amount due on the decree be

set off against the other,30this is subject to section 50.

Where a judgment holder purchases the property, the court may set aside the

sale on the application of the judgment debtor or any other person whose

interest will be affected by the sale, and any deficiency of price which may

happen on the resale shall be paid by the decree holder.31

An officer authorized with the power of performing the sale is not allowed to bid

directly or indirectly either for the property or any interest in the property sold 32

Where the property going to be sold is a negotiable instrument or share in a

corporation, such sell shall be done through a broker instead of public auction. 33

27
[Order 22, rule 60.] Defaulting purchaser answerable for loss on re-sale
28
Order 22, rule 61
29
Order 22, rule 61.
30
Order 22 rule 61 sub rule 2
31
Order 22 rule 61 subrule 3
32
[Order 22, rule 62.] Restriction on bidding or purchase by officers
33
[Order 22, rule 63.] Negotiable instruments and shares in corporations.

29
Where sale is done in a public auction the price shall be paid at the time of the

sale or at the time stipulated by the officer.34The officer shall grant receipt to the

purchaser and he shall be deemed the owner of the property. 35

Where sale is being carried out no irregularity in publishing or conducting the sale

of movable property shall vitiate shall the sale, any person who is aggrieved as a

result of the sale can institute a suit for compensation.36

Where property sold is a movable property which has been seized, it shall be

delivered to the purchaser.37

Where property is sold is a movable property and a third party is in possession of

the property, not the judgment debtor, notice will be availed to the third party to

deliver the property to the purchaser.38

Where the property sold is a share in a company, the delivery 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. 39 Execution of a

34
[Order 22, rule 64.]Sales by public auction
35
Order 22 rule 64 sub rule 2
36
[Order 22, rule 65.] Irregularity not to vitiate sale, but any person injured may sue
37
[Order 22, rule 66.] Delivery of movable property, debts and shares.
38
Order 22 rule 66 subrule 2
39
Order 22 rule 66 subrule 3.

30
negotiable instrument or share in a company, in execution of this the judge may

make endorsement as necessary to transfer such instrument or share 40. For

example execution or endorsement A.B. by C.D. judge of the court of (or as the

case may be) in suit No. of 20 by E.F. against A.B41the court will appoint in writing

some person to receive dividend and any interest until transfer is done. 42

The court can make a vesting order in any movable property belonging to the

judgment debtor and vest ownership to the purchaser.43

The courts can order sale of the judgment debtors immovable property in

execution of a decree44, where a person purchases the property, the purchaser

pays a deposit of 25% of the purchase price, if he can’t raise the amount the

property is re-sold.45 Where the purchaser is a decree holder entitled to set off

the amount the court will not follow this rule.46

The full amount of money is payable by the purchaser once property is delivered

to transfer the property, or the purchase price will be paid into court if the court

states47. Where a purchaser defaults on payment when property is delivered to

40
Order 22 rule 66 subrule 4
41
Order 22 rule 66 subrule 5
42
Order 22 rule 66 subrule 6
43
[Order 22, rule 67.] Vesting order in case of other property
44
[Order 22, rule 68.] Sale of immovable property.
45
[Order 22, rule 69.] Deposit by purchaser and resale on default.
46
That is the 25% deposit.
47
[Order 22, rule 70.] 1 and 2

31
him, the purchaser shall his. In default of payment upon delivery, the deposit be

used in paying the expenses of the sale, be parted with and allocated towards

satisfaction of the decree, and the property shall be re-sold, and the defaulting

purchaser shall part with all claim to the property or to any part of the sum for

which it may subsequently be sold.48

A public notice shall be issued where a re-sale of an immovable property is done,

where there is default of payment.49

Where a co- sharer of an undivided immovable property, bids with other persons

the same amount the bid preference will be given to the co-sharer. 50

Where a property is sold in execution of a decree and a person claims having

interest in the property or having title to the property before it was sold will be

required to pay the purchaser 10% of the purchase money and to the decree

holder the sum the amount specified in the public notification sale or the

remaining amount required to satisfy the decree.51

A sale may be set aside by the court on

48
[Order 22, rule 71.] Procedure in default of payment.
49
Order 22 rule 72
50
[Order 22, rule 73.] Bid of co-sharer to have preference
51
[Order 22, rule 74.] Application to set aside sale on deposit

32
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.52 The purchaser at any such sale in execution of a decree may apply to the

court to set aside the sale on the ground that the judgment debtor had no

saleable interest in the property sold.53

Where no application is made under rule 74, rule 75 or rule 76, or where such
application is made and disallowed, the court shall make an order confirming the
sale, and thereupon the sale shall become absolute in so far as the interest of the
judgment-debtor in the property sold is concerned54. Where a sale of immovable
property is set aside under rule75, the purchaser shall be entitled to an order for
payment of his purchase-money, with or without interest as the court may direct,
against any person to whom it has been paid.55 Where a sale of immovable
property has become absolute, the court shall grant a certificate specifying the

52
[Order 22, rule 75.]Application to set aside sale on ground of irregularity or fraud
53
[Order 22, rule 76.] Application by purchaser to set aside sale on ground of judgment-debtor having no
saleable interest
54
[Order 22, rule 77.] Sale, when to become absolute or be set aside.
55
[Order 22, rule 78.] Return of purchase money in certain cases.

33
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.56
Where an immovable property is occupied by the judgment debtor, yet a
certificate has been provided to the purchaser of the property, the courts shall
vacate any one in possession of the property.57if the property is rented out the
court shall fix in a conspicuous place the copy of certificate of sale and this will
notify the tenant that the property has been transferred to the purchaser. 58
In situation where a judgment holder or a purchaser is obstructed to obtain
possession of the property, he shall make an application to the court of such
obstruction or resistance59, and then the court shall fix a date to investigate the
matter and shall summon the resisting party to appear before it and answer the
case.60 Where the court is satisfied that the obstruction was occasioned without
just the judgment holder will be put in possession of the property and if the
person summoned is still resisting he shall be detained in prison for not more
than thirty days.61 Where the obstruction is out of good faith the court shall make
order that it deems just.62Such person (not the judgment debtor) may institute a
suit to establish the right which he claims to the present possession of the
property; but, subject to the result of such suit, if any, the order shall be final.

56
[Order 22, rule 79.] Certificate to purchaser
57
[Order 22, rule 80.] Delivery of property in occupancy of the judgment-debtor
58
[Order 22, rule 81.] Delivery of property in occupancy of tenant
59
[Order 22, rule 82.] Resistance or obstruction to possession of immovable property sub rule 1 and 2
60
IBID
61
[Order 22, rule 83.] Resistance or obstruction by judgment-debtor
62
[Order 22, rule 84.] Resistance or obstruction by bona fide claimant

34
Where immovable property is sold in execution of a decree and such sale has
become absolute, the property shall be deemed to have vested in the purchaser
from the time when property is sold and not the time when the sale becomes
absolute.63

OBJECTION PROCEEDINGS

Where judgment has been entered against the judgment debtor and a decree has
been issued and a decree holder has applied for execution and property has been
attached, there is provision for objection to the attachment, the grounds are
usually that the property does not belong to the judgment debtor but to a third
party, usually the commonest objections are made by the spouses. Once you
lodge objection proceedings, you are automatically granted a stay.

[Order 22, rule 51.] Objection to attachment

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.

63
Section 48 of the civil procedure rules

35
 (2) 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.
(3) Such notice of objection and application shall be served within seven
days from the date of filing on all the parties.

Any person claiming to have legal equitable interest in any property attached in
execution of a decree may at any time give notice of his objection to attachment
of the property. So the notice shall state the nature of the claim and this shall be
served seven days from the date of filing.

Once notice is received by the court the court orders for stay automatically and
immediately. But such shall not exceed 14 days.

[Order 22, rule 52.] Stay of execution.

Upon receipt of a valid notice and application as provided under rule 51, the court
may order a stay of the execution for not more than fourteen days and shall call
upon the attaching creditor by notice in writing to intimate to the court and to all
the parties in writing within seven days whether he proposes to proceed with the
attachment and execution there under wholly or in part.
Where there is a family property or a body corporate and the judgment
debtor is the director, the company has a right to object the attachment that the
property belongs to the company.

Salmon v Salmon- principle the property belongs to the company, the property
can therefore not be attached. It is made easier for the company to object on its
own through another advocate to avoid a conflict of interest. The court will call
36
upon the decree holder upon receipt of notice, order stay of execution, prepare a
notice which goes to decree holder requiring decree holder to indicate whether
he still wishes to proceed with attachment then the decree holder should
communicate to court if he wishes to proceed. If the decree states that he does
not wish to proceed with execution, the court will order that the attachment may
be raised and make orders as to costs as it may deem fit. The question of costs is
on whom bears the cost since there is a third company i.e. the company, the
court must then make an order as to costs. If it appears to have been wrongful
attachment, the costs payable to objector are to be paid by decree holder.

Where a decree holder wishes to continue with execution and attachment, the
court will issue notice to objector to take out notice to establish his claims within
14 days. This is by way of chamber summons establishing a suit in which the
decree has been issued for execution, the application should establish claim by
the objector. It is served on decree holder and any other party the court may
direct to believe but the court can also direct that it may be served on the
judgment debtor. If the objector fails to file proceedings within time allowed by
the court, then the objection will deemed to have weak and attachment and
execution will proceed.

If the objector files the application and the objector has evidence to adduce to
the effect that decree holder is not entitled to order for lifting attachment, they
may be allowed to file affidavits, if the court feels that there are matters in the
affidavit that ought to be proved it will order oral evidence to be adduced before
making a final order. If the objection is rejected, the decree holder will be allowed
to proceed with attachment and execution. If the objector is proved the court will

37
order release of the property to the objector and make an order as to costs. The
costs of the objector must be provided for where the objector has succeeded.

GARNISHEE PROCEEEDINGS
APPLICABLE LAW
The law governing garnishee proceedings are found in Order 23 of the Civil
Procedure Rules. The courts have jurisdiction to make orders of attachment or
garnishee orders.

Garnishee proceedings

There is an execution there is attachment and the debts being attached belongs
to the judgment debtor but is the hands of a third party. One can apply against 3 rd
party and the procedure is what is called garnishee proceedings.

What is a garnishee order?

Garnishes order -- This is an order granted by the court commanding a person
(garnishee) who is a debtor of a judgment debtor not to pay over the amount of
the debt which is owing to the judgment debtor, but to paid to the person
(judgment holder) who has secured final orders against judgment debtor; the
object of the same being to prevent the judgment debtor from obtaining the
money and applying it to his own use instead of paying the same to his creditors.
Who is a garnishee?
The person against whom the order is made is called the garnishee, so a
garnishee is the person indebted to the judgment-debtor and is within the
jurisdiction, the garnishee order attaches all debts other than the salary or

38
allowance belonging to the judgment-debtor to satisfy the decree and the costs of
the garnishee proceedings.
The garnishee shall appear before the court to show cause why he should not pay
the decree holder the debt due from him to the judgment-debtor or so much
thereof as may be sufficient to satisfy the decree together with the costs.

What is the garnishee procedure?

The procedure is first of all to obtain a garnishee order nisi, which will be granted
ex parte upon a good prime facie case being made out, and when this order has
been served, the debtor of the judgment debtor is restrained from paying over
the amount of the debt, or dealing with the money owing in any way.
Afterwards, when the order nisi is made absolute, the judgment debtor is entitled
to receive the amount of debt owing, however this order shall not be granted if
the debtor can show good cause why it should not be made.
What is garnishee order nisi?

A garnishee order “nisi” is issued first by the court, which means that this order
will become final on a particular date unless set aside or invalidated by certain
specified contingencies. This order operates in such a way that debtor of the
judgment debtor is restrained from paying over the amount of the debt, or
dealing with the money owing in any way. Actually it acts as a freeze on the
debtor (garnishee), preventing him to deal with the judgment debtors debt in any
way

39
 What is a garnishee order absolute?

This is an order made after the garnishee nisi, this a final order made by the court
which entitles the judgment holder to receive to be paid by the garnishee the
debt he owes the judgment debtor, this order is made when the garnishee does
not object to the order nisi.

Upon an exparte application by the decree holder supported by an affidavit

stating that the decree is still unsatisfied and to what extent and showing that
another person is indebted to the judgment debtor and is within jurisdiction of
the court, the court may issue an order nisi that all debts owing from the 3 rd party
to the judgment debtor shall be attached to answer the decree. Such third party
to whom the order is issued is called the garnishee and the proceeding s
garnishee proceedings.

Instead of ordering attachment of the debt the court may order the garnishee to
show cause why he should not pay the decree holder the debt due to him from
the judgment debtor. Alternatively instead of the order nisi the court may choose
may require to show cause why the property should not be attached in
satisfaction of the decree, the order must be served on garnishee 7 days before
the date of hearing. If the garnishee does not appear of hearing of order nisis, the
court may order that the decree be levied against the property or to be served on
garnishee personally.

For the purposes of garnishee proceedings a credit in a deposit in a bank or

building society can be attached notwithstanding that the following apply to the
account

40
 1. Notice required before money is withdrawn
2. That a person application must be made before any money is withdrawn
3. A deposit book must be produced before any money is withdrawn
4. A receipt for money deposited in the account must be produced before any
money is with drawn

Whatever the conditions, once the order issued, then it will bind the bank or
financial institution irrespective of what institution may have set for operation of
the account.

What Happens when garnishee is served notice

 Thus the garnishee on service of such notice is required to attach all the
debts due by him to the judgment debtor for payment to the judgment
holder as directed by the court.

 That the garnishee shall appear before the court to show cause why he
should not pay to the decree holder the debt due from him to the
judgment-debtor or so much thereof as may be sufficient to satisfy the
decree together with the costs aforesaid.64
 On hearing the concerned parties the court issues garnishee order or set
aside the earlier order i.e. garnishee order “nisi”.
 By issuing garnishee order absolute the garnishee is ordered to pay the
debt due or accruing in satisfaction or part satisfaction or part satisfaction
of the judgment debt.
 On receipt of garnishee order “nisi” it should be carefully examined which
account(s) of the customer(judgment debtor) has/have been attached and
64
Order 23, rule1.]Order for the attachment of debts

41
 up to what extent? The amount earn\marked should being the same name
or names of the judgment debtor as per garnishee order. The funds marked
should be those, which are repayable on demand including those term
deposits, for which notice for payments has been received before receipt of
the order.

COMMENCEMENT PROCEDURE
i) An application for a garnishee order nisi is commenced by way of an ex
parte application supported by an affidavit.
 Upon the exparte application of a decree holder65
 before or after an oral examination of the judgment debtor, and upon
affidavit by the decree-holder or his advocate, stating that a decree has
been issued and that it is still unsatisfied and to what amount, and that
another person is indebted to the judgment-debtor and is within the
jurisdiction, order that all debts
 Salary or any allowance coming within the provisions of Order 22, rule 42
owing from such order cannot be attached.
 debts to judgment debtor shall be attached
 costs will cover the decree together with the costs of the garnishee
proceedings; and by the same or any subsequent order it may be ordered
The applicant will have to lodge:

65
Order 23, rule1.]Order for the attachment of debts

42
(a) Ex parte application supported by an affidavit as a verification of what the
applicant has stated
This application prays that a return date be given for all interested parties to
attend before the court.
- praying that in the meantime, all debts due or accruing due from the garnishee
to the judgment debtor be attached.
- That the sum attached be limited to certain fixed amount .This particular sum
usually consists of:
. Amount of the judgment
. Post judgment interest
. Costs of the garnishee application itself
- The judgment still remains unsatisfied to the extent of kshs
- stating that to the best of the information or belief of the deponent, XYZ
the garnishee is within the jurisdiction and is indebted to the judgment
debtor. The sources of information or the grounds of belief should then be
stated.
PROCEDURE IMMEDIATELY AFTER THE ORDER NISI HAS BEEN
GRANTED
Once the order nisi has been granted, a return date for the hearing of the
garnishee order absolute application will be stated in the order. If there is more
than one garnishee, a separate order should be prepared for each garnishee. Each
order should be individually tailored with only the name of one particular
garnishee on the order.

SERVICE OF THE ORDER NISI

43
i) On the Garnishee
 The garnishee order nisi is served 7 days before the hearing 66 Service shall be
made to the judgment debtor’s place of address or his advocate or his
residential place.67

 The order nisi must then be served on the garnishee personally. This must
be done at least seven days before the return date. The service of this
order is crucial as it is from the time of service that the garnishee’s hands
are bound. It acts as an injunction and ‘freezes the sum… until the order is
made absolute or is discharged.

On the hearing date the following are the possible situations:

i) The Garnishee is absent
An order absolute will be ordered by the courts, an order absolute has
serious consequences for the garnishee; the judgment creditor must
satisfy the court that the order had been served on the garnishee
personally.
Only after the court is certain that the garnishee had adequate notice of the
proceedings and yet failed to turn up can an order absolute be made in favour of
the judgment creditor.

ii) The Garnishee does not Dispute the Order Nisi

66
[Order 23, rule1.]Order for the attachment of debts Sub rule 2
67
[Order 23, rule1.]Order for the attachment of debts sub rule 3

44
In such a case, the garnishee may attend the hearing and inform the court that
they are holding kshs…….. a debt owed to the judgment debtor and that they
have no objection to an order absolute being made for that sum. If the court is
satisfied that the garnishee is not disputing the sum, then an order absolute will
be made.
Alternatively, if there is no money held by the garnishee, the judgment creditor
must attend and ask for the order nisi to be discharged.
 If the garnishee does not dispute the debt, fails to appear on the hearing
date. Courts the courts will make a garnishee order absolute –see form 17 or
1868
iii) The Garnishee Objects to the Order Absolute
 If the garnishee disputes liability the courts may try the garnishee to
determine his indebtness.69
In this situation, the court can summarily decide the issue. If there is an issue of
fact, the court has the discretion to order that the issue be sent for trial
The court will provide all necessary directions for the trial including setting out the
issues to be tried.
iv) Claims of Third Persons
The onus is on the garnishee to inform the court of any claim or lien over the
moneys which is known to him.
 If there is any such claim by a third person over the debt sought to be
garnished, the court can order that the person attends court and dispose of
the issue summarily, or deal with it in a similar way for cases where the
garnishee objects to the order absolute being made. If the debt sought to be
68
[Order 23, rule 4.]Execution against garnishee
69
[Order 23, rule 5.]Trial of liability of garnishee

45
 attached belongs to some third person, or that any third person has a lien or
charge upon it, the court may order such third person to appear, and state
the nature and particulars of his claim upon such debt.70
 The court will order the third party to appear to determine any issue and any
bar claim of such third party or make an order it deems fit 71
 If the third party fails to appear in court the court may order execution for
levy the amount due from the garnishee, together with the costs of the
garnishee proceedings72
 Where payment is made the garnishee or judgment debtor is discharged
from any amount levied upon him73

GARNISHEE WITHIN JURISDICTION

A judgment creditor may commence garnishee proceedings against a judgment
debtor only if:
i) The garnishee is within jurisdiction;
ii) There is a debt due or accruing due to the judgment debtor from the garnishee;
and there is no other reason at law why the attachment of the debt should not be
allowed.
70
Order 23, rule 7.]Trial of claim of third person
71
[Order 23, rule 7.]Trial of claim of third person
72
[Order 23, rule 7.]Trial of claim of third person
73
[Order 23, rule 8.]Payment by or execution on the garnishee is a valid discharge.

46
If the garnishee is not within the jurisdiction, no garnishee order is possible.
Even where the garnishee is within the jurisdiction, the court will not garnish a
debt if the debt is recoverable only outside the jurisdiction and there is a risk that
the garnishee may have to pay the debt twice.
AFTER THE ORDER ABSOLUTE IS GIVEN
Upon receipt the order absolute, the garnishee should release the moneys he is
holding to the judgment creditor. The garnishee is then discharged completely
from his obligation to the judgment debtor, to the extent of the amount paid to
the judgment creditor pursuant to the order of court.

Interpleader proceedings

An Interpleader application is a process whereby a court is asked to determine

the rights or interests in relation to property.

Example A delivers his vehicle to a garage for storage B claims it is his, C the
garage owner says he does not know him. This brings about a conflict of interest

Interpleader proceedings are issued by way of originating summons and are

provided for under order 34 rules 1. Application for Interpleader proceedings are
made by way of originating summons unless there is a suit pending in which case
it can be made by chamber summons

Interpleader proceedings are instituted by a party who has in their control a

subject matter being claimed by two parties or more and it is intended to protect
the person in whose control the subject matter is form legal action by either
claimant.

47
In order for one to be able to make an application for Interpleader proceedings,
one has to demonstrate to the court that:

I. That that have no interest in the subject matter for costs and charges
II. That there is no collusion between the applicant and any claimants
III. That the applicant is willing to and ready to dispose of the subject matter
as the court may direct.

The applicant instituting the proceedings must establish to the court

1. That he holds a sum of money in which he claims no interest except for

charges and costs
2. That two or more persons claim adversely to one another that sum of
money
3. That there is no collusion between the applicant and any of the claimants
4. That the applicant is willing to pay the money in to the court or to dispose
of it as the court may direct

Before the courts grant an application for Interpleader proceedings the above
conditions must be satisfied.

There are two or more persons claiming the same debt or sum of money from
another person who claims no interest therein save for any charges or costs.

JUDICIAL REVIEW

Defining Judicial Review

Judicial review is a form of court proceeding in which the High Court reviews the
lawfulness of a decision or action made by a public body or inferior tribunals. In

48
general terms judicial review may be appropriate where: the challenge is based
on an allegation that the public body or an inferior tribunal has taken an unlawful
decision or action, and there is no adequate alternative remedy.
Judicial review does not involve the High court in deciding whether the public
body or tribunal has made the correct ‘decision, but whether the correct legal
basis has been used in reaching it.
Nevertheless, judicial review is the High Court Procedure for challenging
administrative actions. Judicial review is a legal procedure, allowing individuals or
groups to challenge in court the way that public bodies make decisions.
The main grounds of review are that the decision maker has acted outside the
scope of its statutory powers, that the decision was made using an unfair
procedure, or that the decision was an unreasonable one.
In the case of R v HM the Queen in Council, ex parte Vijayatunga, Mr
Justice Simon Brown observed that “judicial review is the exercise of the court's
inherent power at common law to determine whether action is lawful or not; in a
word to uphold the rule of law.”
In the case of Council of Civil Service Unions v Minister for the Civil Service [1985]
AC 374, Lord Diplock observed that: The subject matter of every judicial review is
a decision made by some person or body of persons whom I shall call the ‘decision
maker’ or else a refusal by him to make a decision.

Judicial review is governed by the Law Reforms Act cap 26 Laws of Kenya and The
civil Procedure Rules order 53 elaborates

49
Judicial review must be used where you are seeking:
• A mandatory order an order requiring the public body to do something known
as an order of mandamus
• A prohibiting order an order preventing the public body from doing something
and known as an order of prohibition
• A quashing order, an order quashing the public body’s decision known as an
order of certiorari.
The High Court has supervisory jurisdiction over subordinate courts, tribunals or
other bodies charged with the performance of public duties and acts.

Judicial review refers to the examination of the manner in which decision has
been made or of an act which has been done by a public body. In chief constable
north water police v Evans (1982),

It was stated that the purpose of judicial review are

I. To prevent excessive exercise of powers by administrative bodies and
officials
II. To ensure that an individual is given fair treatment by administrative,
judicial and quasi judicial bodies
III. To provide a remedy to those aggrieved as a result of excessive
exercise of power by administrative bodies.
Judicial review is the means by which judges scrutinize the functions
of public bodies an intervenes as to quash , prevent require and or
clarify any unlawful, reasonable and or unfair use of their powers.

Grounds for Judicial Review

50
There are various grounds upon which an aggrieved person may
petition the court for judicial review they include cases where:-
I. A body acts ultra vires
II. There is error of law
III. There is error of fact
IV. There is abuse of power, irrelevance, lack of notice
V. There is bias, unfair hearing, procedural flaw, irrationality and
bad faith
VI. There is a breach of the principles of natural justice

In the case of lord Diplock in council of civil service unions v

minister of civil service( 1985) AC 374, condensed the grounds
into three broad categories namely:-
I. Illegality
Illegality is a ground for judicial review the decision
maker must understand correctly the law that regulates
his decision-making power and must give effect to it. It
was held in this case that illegality becomes a ground for
judicial review when a decision maker fails to
understand and give effect to law that regulates his
decision making power. For instance, if a decision maker
takes into account as a relevant factor something that it
should not properly take into account in deciding
whether or not to exercise the power, then the decision

51
 that body makes may be revoked. That is failing to take
into considerations important relevant matters in
making a decision will render the decision void. Some of
the grounds that fall under this category include
a) Errors of law
b) Jurisdiction errors
c) Errors of fact, unreasonsableness and
d) Ultravires

ERROR OF LAW

The result of an error of law is that the decision made in error and all the acts
done in error of the law are invalidated upon judicial review.

R V NORTHUMBERLAND COMPENSATION APPEALS TRIBUNAL EXPARTE

SHAW(1952) 1 KB 388

In this case a former employee of an administrative body claimed compensation

on termination of his employment under the applicable regulations the tribunal
was required to assess compensation payable by aggregating two periods of
employment i.e the law was saying in computing compensation the tribunal
would have to aggregate two periods of employment. In its decision the tribunal
stated that of the two periods of employment, they would take into account only
the second period. Upon application for judicial review the decision of the
tribunal was quashed because of an error of law had been committed. The court
found that this amounted to an error on the face of the record and the decision

52
was quashed. The court issued an order certiorari. The main remedy where there
is an error of law or an error on the face of the record is certiorari.

Kenneth Matiba V Attorney General High Court MISC. Civil App No. 790 1993

In this case the court considered a decision made by the rules committee of the
high court regarding applications for leave to apply for judicial review. The rules
committee of the high court is empowered to make rules for judicial review and
these rules must be in conformity with enabling statute which is the law reforms
act cap 26 by legal notice no.164 of 1992, the committee purported to amend
order 53 of the civil procedure rules by doing away with the requirement of leave
as a conditions precedent to applying for judicial review. In doing so, they failed
to adhere to section 8 and 9 of the law reform Act which is the enabling statute.
The court rules that the act of the rules committee was null and void to the extent
that it was not in conformity with the enabling statute.

Irrationality

Lord Diplock observed that:

By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury
unreasonableness’ […] it applies to a decision which is so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who had
his mind to the question to be decided could have arrived at it. Whether a
decision falls within this category is a question that judges by their training and
experience should be well equipped to answer, or else there would be something
badly wrong with our judicial system.
Under this head if the a decision making body or an administrative body acts
irrationally, whatever that body does irrationally or whatever decision it makes
53
irrationally can be invalidated upon judicial review. Irrationally means conduct
beyond the range of responses reasonably open to an administrative body. In
determining whether a particular act or decision is irrational, a reviewing court
will consider whether the public body has done something which a reasonable
body with the same function and confronted with the same circumstances would
do. This is an objective test.

In R V Ealing London Borough Council ex parte Times Newspaper LTD (1986) 85

LGR 316

There was a clear abuse of power prompted by an irrelevant consideration where

some local authorities refused to provide certain newspapers in their libraries.
Their reason for the ban was that there were politically hostile to the newspapers’
proprietors, who had dismissed many of their workers when they went on strike.
The ulterior political object of the local authorities was irrelevant to their
statutory duty to provide a comprehensive and efficient library service.

R V Secretary of State for Environment exparte Fielder Estates (Canvey Limited,

(1989) 57 p & CR 424

Is a case that illustrates behavior that has been deemed irrational? After a
planning application to build houses close to canvey island had been refused, a
public inquiry was set up which was expected to last for three days. One of the
objectors was to give evidence on the second day but when it arrived to do so,
the inspector had already closed the inquiry. The parties complained and a
second inquiry was set up. However, no notice of this was issued to the parties.
The court held that failure to act with procedural fairness amounts to irrationality.

54
PROCEDURAL IMPRORIETY

Procedural impropriety encompasses two aspects

a) Procedural ultra vires

This describes the situation where an administrative body fails to follow
prescribed procedure .It also includes instances where an error occurs in
following the prescribed procedure. If a body has done something that
amounts to procedural ultra-vires, the court will be prepared to apply the
doctrine of ultra- vires to invalidate the action. The effect of finding that an
act or decision is a declaration by the court that act or decision is null and
void

A relevant authority is White and Collins v Minister of Health (1939) 2 KB

838 Where a housing authority was granted power under the housing Act
of 1939 to acquire land compulsory for housing provided that such land did
not form part of any park, garden or pleasure ground. The housing
authority went a head and acquired land or purported to acquire land that
was a park. After they acquired this land, they sought and obtained
confirmation of their acquisition form the minister of health, the one
responsible for giving confirmation of such services. The parties brought a
suit seeking to have the purchase order invalidated on the grounds that the
order to purchase this land was ultravires. The purchase itself was also ultra
vires because the land was a park and there was a statutory restriction on
the purchase of any land that that was a park. The court quashed the order
for purchase as well as the purchase declaring it null and void.

55
 b) Common rules of natural justice
c) Whereas we do have procedure prescribed in statutes, there are also
matters of procedure that are not in the statutes but that are applicable
under common law. This is where we find the procedural requirements that
fall under principles of natural justice. The principles of natural justice are a
set of uncodified common law rules offering procedural safe guards and
that have been developed over time by jurisprudence to ensure that
decision-makers act according to the basic standards of fairness.

The rules of natural justice are

a) Nemo judex in causa sua- which means that no one should be a judge in his
own cause,must be free from bias
b) Audi alteram Partem- which means that no person should be condemned
unheard. That is a person should not be denied an opportunity to be heard.

These two principles have been broken down into a number of principles or rules
which include

a) The right to be heard- one should be given an opportunity to be heard

b) Prior notice; notice should be served to the relevant party. And should
contain any cause of action against him 0r allegation see David Oloo V
Attorney General (Civil Appeal No.152 of 1989), the courts held that prior
notice must be served to the necessary party and such must contain
sufficient detail to enable the person concerned to know the substance of
any change, allegations or action to be taken against him.
In Fairmount Investments Limited v Secretary of State for the
Environment, (1976) 2 ALL ER 865
56
 No notice was given to the owner of a building of an intended order of
compulsory purchase of land. It was held by the court that the order was in
breach of the principles of natural justice.
C) Giving reasons
Justice must be seen to be done and done in a rational basis. Even though
there is no mandatory rule to give reasons for a decision, it necessary to
give reasons in order to show that a body has acted lawfully. In Radfield
vMinister of Agriculture (1968) DC 997 It was held that the absence of
express reasons could lead to interference that the minister had no
legitimate reasons for his decision.
In R V Civil Service Appeal Board,Ex parte Cunningham, (1991)4 ALL ER
310
It was held that although there was no statutory duty to give reasons, there
was a common law requirement of natural justice to outline sufficient
reasons to indicate whether the decision had been lawful.

c. Bias
While actual bias is rare, the court will also be seeking to examine whether there
has been an appearance of bias. The case of Magill v Porter [2001] UKHL 67 (in
which Lord Hope observed that: “The question is whether the fair minded
observer, having considered the facts, would conclude that there was a real
possibility that the tribunal was biased”) provides a good example of the test that
will be used.
d. Failure to conduct a consultation properly
Where a consultation exercise is undertaken by a public body, it must be
conducted properly. In the case of R v North and East Devon Health Authority,

57
ex p Coughlan the Court of Appeal determined that: To be proper, consultation
must be undertaken at a time when proposals are still at a formative stage; it
must include sufficient reasons for particular proposals to allow those consulted
to give intelligent consideration and an intelligent response; adequate time must
be given for this purpose; and the product of consultation must be consciously
taken into account when the ultimate decision is taken.
d. Failure to give adequate reasons
PROCEDURAL STEPS TO BE TAKEN

Under section 8(1) of the Law Reforms Act, the high court of Kenya has
inherent power to issue the orders of certiorari and prohibition. The
application of judicial review must therefore be made to the High Court.
Apply exparte for the judge in chambers for leave to bring application by
way of chamber summons.
The first step is to apply to the high court for leave to apply for judicial
review. Application for leave if by way of chamber summons under the civil
procedure rules order 53.This application is made exparte. Sub section3
requires that notice be given for applications for leave the notice is to be
given to the registrar of the high court. The chamber summons contains the
following particulars:
a) A Statement setting out the name and description of the applicant
b) The relief sought
c) The orders sought
d) The grounds on which the orders are sought

58
The application must be accompanied by an affidavit verifying the facts relied
upon.

Time limitation is crucial. Order 53 provides for time limits within which a person
can apply for leave. The law is very strict where it comes to certiorari. A party has
to file the application for leave within six months of the date when the decision
was made/if an application is not filed within the 6 months time the court cannot
grant an extension. Time limitations not stipulated for mandamus or prohibition
but one is required to file the application within reasonable time.

Upon hearing the application the judge shall issue an order either denying or
granting the application. Where leave is granted, the grant of leave shall operate
as a stay of the proceedings where one is seeking to quash whatever decision has
been made. Stay will only apply in cases of certiorari and prohibition.

If leave is granted, the second step of the application will follow. The application
will be to the high court and shall be by way of a Notice of Motion. The Notice of
motion must be filed within 21 days of the grant of leave. It comprises of:

1. The notice of motion itself

2. A supporting affidavit and
3. The decision that you wish to quash

A day before we file the application, you must lodge to the registrar of the
high court notifying him of the application. The notice must be
accompanied by a statement and a copy of the affidavit. The affidavit must
be in the file on the day of the hearing.

59
 You shall serve the other parties within 7 days of the hearing date. After
service; you shall file an affidavit of service. On the hearing date, the
applicant has the right to begin, the other party then replies. Thereafter,
the applicant has a right to cross- examine if there is need to. After hearing
the case, the judge may then give judgment granting an order of certiorari
or prohibition.

INJUNCTIONS AND INTERLOCUTORY ORDERS

Dictionary Meaning of Injunctions

The word injunctions originates from the Latin word ‘Injuctio’ which was the legal

word given to a judicial order restraining a person from an act or compelling

redress to an injured party.

Brar, Ag.J in a ruling in Ex parte Mayfair Bakeries Ltd, H.C Misc C.C. No. 246 of

1981 defines an injunction as:

'a solemn and authoritative remedial judicial command of a court of equity,

generally acting in personam, couched in a formal order or decree directed

against a person named in it and requiring him to take positive steps to do or to

refrain from doing or persisting in the doing of an act or continuing a particular

omission, which is precisely spelled out in the order or decree."

60
  Nevertheless an injunction is a an equitable judicial remedy in an order or

decree requiring a named person to do, refrain from an act, stop an act or

omission strictly stated therein. What emerges from this is that as equitable

remedy, injunction is a discretionary remedy and, in addition a remedy that

can be granted by a court acting in personam. Equity acts in personam to

avoid making orders in vain!

 Thus injunction will not generally issue where it is requested to apply to the

whole world i.e. in rem. Same way, an injunction will not be granted where

another remedy, say damages, will suffice to compensate the injury of the

act sought to be restrained.

Main classifications of injunctions

Injunctions admit to two main classifications.

 Based on their permanence nature i.e. perpetual injunction and temporary

injunction

 Based on their innate nature i.e. prohibitory injunction and mandatory

injunction.

 There are other two injunctions, namely quia timet injunction and ex-parte

injunctions. They are special injunctions because, overall, they are merely

61
 mutations of the other established injunction for purposes of meeting a

special need.

Perpetual injunction

A perpetual injunction is a perpetual relief granted at final judgment on the merits

of the case. It serves to curtail future similar infringements similar to the one in

the current claim and therefore save the Plaintiff and the court the strain of

having to deal with every future infringement individually.

Temporary injunction

A temporary injunction on its part is provisional and mainly engendered in an

order of the court, usually pursuant to an application under Order 40 of the Civil

Procedure Rules. Essentially, it lasts for a defined time or occasion defined by the

order in contrast to the perpetual injunction. It is also called an interlocutory,

interim or preliminary injunction as it affords a relief preliminary to the final one

afforded by a judgment on merit.

Ex-parte injunction

62
Where the matter sought vide the injunction is urgent to wait service and hearing

to the opposite side before the same is arrested, an application for temporary

injunction seeking first that service in the first instance be done away with and the

matter is be heard urgently is usually the is what is made. In such an instance, the

court may make the order for injunction as sought without giving the other side

an opportunity to be heard. Such an injunction is what is called an ex parte

injunction. It usually lasts 14 days unless extended by the parties on consent e.g.

by adjourning inter parties hearing of the injunction application beyond the 14

days.

onset that injunctions can be temporary or perpetual depending when they are

sought and/or ordered. So that a prohibitory injunction may be issued in an

application for temporary injunction as it may be issued in the final judgment.

Same way, a mandatory injunction may be issued as a temporary order and also

as a relief in the final judgment.

Mandatory injunction

A mandatory injunction, is an order commanding the person against whom it is

issued to do a given act to remedy a condition or, at least, do his legal duty. For

example a mandatory injunction was issued was to compel the only commercial

63
electricity supplier in Kenya to resume supply of electricity to a client during the

currency of suit over distribution of electricity.

Prohibitory injunction

On the other hand, a prohibitory injunction is the original, more common and

most ancient of compared to mandatory injunction. The injunctive order seeks to

restrain the actions of the person named in the order from doing the stated

action. For instance, an injunction may be sought against a party to restrain it

from demolishing fixtures in suit land.

Quia timet injunction

A prohibitory injunction may also prohibit the continuation of a wrongful act or

even an anticipated one. In the latter case, it comes in the form a quia timet

injunction. Here, the harm sought to be prevented usually has not occurred but it

is anticipated and/or threatened. The injunctive order is thus sought to prevent

the future occurrence.

Introduction to and first condition of grant of Temporary injunctions

64
  The need to preserve the status quo in favour of a client during the tenancy

of a suit has ensured the proficiency and popularity of temporary

injunctions as one of the interlocutory orders afforded by the modern civil

procedure rules.

 Temporary injunctions come in handy in diverse situations not least in land

matters when the suit property has to be preserved either from transfer,

encroachment or even demolishing.

Definition of Temporary injunction

An injunction is classified as temporary as opposed to a permanent one. A

temporary injunction is basically a provisional order of the court made pursuant

to an application under Order 40 of the Civil Procedure Rules. Like all injunctions,

temporary injunctions are orders requiring a named person to do, refrain from an

act, stop an act or omission strictly stated therein.

Essentially, a temporary injunction lasts for a defined time or occasion defined by

the order in contrast to the perpetual injunction. It is also called an interlocutory,

interim or preliminary injunction as it affords a relief preliminary to the final one

afforded by a judgment on merit.

65
A temporary injunction is an equitable nature and it will be issued by the courts

discretion. In considering whether to grant the interlocutory injunction sought the

court will consider the following rules as laid down in Anielo GiELLA v CASSMAN

Brown CO & LTD

a. An application must show a prima facie case with a probability of success.

In determination whether or not a prima-facie case exists the court must

not only be satisfied that the claim is not frivolous or vexatious but there is

a serious question to try.

b. An applicant must show that unless the interlocutory injunction is granted,

he will suffer severe injury, which would not adequately be compensated

by an award of damages.

c. If the court is in doubt, it will decide an application on the balance of

convenience. The court will weigh a comparison of the irreparable losses

likey to be suffered by the plaintiff and the defendant.

The House of Lords in American Cynanid v Ethicon Ltd, departed form the

position held in Giella V cassman Brown.I t was held in this case that there is no

rule to the effect that unless a prima-facie case was established with a probability

66
of success, no injunction would be granted. The position taken in America

Cynamid case was held not to be applicable in Kenya situation by the Lenard

judge in Salim & OthersV Okong’o & Others. The judge held that

‘it is an established principle in East Africa that in an application for

interlocutory injunction, the applicant must demonstrate prima facie that it has a

case with probability of success, that unless an order of injunction is granted by

the court, the applicant may suffer loss or injury which cannot be compensated by

the award of damages and that in case of doubt the court should resolve disputes

on the balance of convenience.

In Giella Case. In Giella versus Cassman Brown, Spry, V.P stated as follows:

"First, an applicant must show a prima facie case with a probability of success.

Secondly, an interlocutory injunction will not normally be granted unless the

applicant might otherwise suffer irreparable injury, which would not be

adequately compensated by an award of damages. Thirdly, if the court is in

doubt, it will decide an application on the balance of convenience."

In interpreting the Rules, Richard Kuloba, J in his authoritative book: Principles Of

Injunction has stated them:

67
 " [T]he right formulation of [the principles] would be this, that among

other considerations a court takes into account in determining whether a

temporary injunction should be issued, first, whether there is a significant

likelihood that the applicant will prevail on the merits of the case at a full

trial. Second, the court will ordinarily consider whether there is a threat

of irreparable harm. Finally, there is the traditional consideration of

whether harm to the respondent would outweigh the need for temporary

relief. But there may be other matters, for example public interest,

involved."[Emphasis his]

In Kitur and Another versus Standard Chartered Bank & 2 Others [2002] I KLR

630 where the court stated that:

"the applicant must demonstrate prima facie case with a probability of

success, that unless an order of injunction is granted by the court the

applicant may suffer loss or injury which cannot be compensated by an

award by an award of damages and in case of doubt the court should

resolve the dispute on a balance of convenience."

68
The court of Appeal sitting in Mombassa in the recent case of Mrao Limited-v-

First American Bank of Kenya Ltd & 2 others [2003] KLR 125 applied the Giella

case and settled the law on conditions for interlocutory injunction with its

resultant holdings. Firstly, it held that the power of a court in an application for

interlocutory injunction is discretionary. Secondly, it held that the principles for

granting an interlocutory injunction are that:

1. the applicant must show a prima facie case with a probability of success;

2. an interlocutory injunction will not normally be granted unless the

applicant might otherwise suffer irreparable injury which cannot be

adequately compensated by award of damages;

3. If the court is in doubt, it will decide the case on the balance of

convenience.

The 1st condition: Prima facie case with a probability of success

 Generally, this condition of prima facie case with probability of success, the

court first considers the legal situation.

 In that regard, he reasons that the court here seeks to be satisfied that

there exist reasonable grounds for doubting the legality of the

69
 apprehended or continuing acts of the defendant, and that they constitute

a violation of the applicant's legal and equitable rights.

 The standard to be satisfied here has been expressed by the courts in

diverse ways such as that the applicant must show that there exists 'a case

to be tried' or 'triable issue' or a serious issue or question to be

investigated' or 'a real issue' or substantial grounds for apprehending

unlawful acts'. In the negative, the claim is not 'vexatious or frivolous'

and/or 'insubstantial or illusory'.

In Anil Shah versus Akiba bank Ltd, Azangalala J stating the condition for the

prove of prima facie case in grant of injunctions voiced the need for the court to

caution itself thus:

"I bear in mind that this is an interlocutory application and I should not

make definitive findings of fact or law in determining this first condition."

The issue in a claim for specific performance for breach of contract for sale of land

with regard for prove of prima facie case becomes: Has the plaintiff presented an

arguable case that the defendant's actions or omissions in the circumstances of

this case in breach of the contract with regard to completion of sale?

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In Nsubuga and Another versus Mutawe, Mustafa, J.A was of the view that

"As regards … probability of success, the applicant must not only show that it will

succeed but that he could succeed."

 Thus in the case, the Plaintiff failing to, inter alia, satisfy that standard, the

court of appeal of East Africa concluded that no interim injunction should

have been granted in the case at trial level. The Court of appeal in the Mrao

Limited case interpreted the condition as to prima facie case. It held:

"A prima facie case in a civil application includes but is not confined to a

"genuine and arguable case". It is a case which on the material presented to

court, a tribunal properly directing itself will conclude that there exists a right

which has apparently been infringed by the other party as to call for an

explanation or rebuttal from the latter."

The relevant general question with regard to the first condition is thus whether

the Plaintiff shown that it can not only probably succeed but can succeed in the

suit against the Defendants.

ORDER 40 OF THE CIVIL PROCEDURE

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  Temporary injunctions are addressed under order 40 of the civil procedure

rules-

 Temporary injunctions are issued where

(a) that any property in dispute in a suit is in danger of being wasted, damaged,

or alienated by any party to the suit, or wrongfully sold in execution of a decree;

or

(b) that the defendant threatens or intends to remove or dispose of his property

in circumstances affording reasonable probability that the plaintiff will or may be

obstructed or delayed in the execution of any decree that may be passed against

the defendant in the suit.

A party may apply for a temporary injunction before or after judgment, when the

suit has commenced. To restrain the defendant from committing the breach of

contract or injury complained of, or any injury of a like kind arising out of the

same contract or relating to the same property or right.

.An injunction is granted on an

 an inquiry as to damages,

 the duration of the injunction,

 Keeping an account, giving security or otherwise, as the court deems fit.

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In cases of disobedience, or of breach of any such terms, the court granting an

injunction may order the property of the person guilty of such disobedience or

breach to be attached, and may also order such person to be detained in prison

for a term not exceeding six months unless in the meantime the court directs his

release.

No attachment shall remain in force for more than one year,if the disobedience

or breach continues, the property attached may be sold, and out of the proceeds

the court may award such compensation as it thinks fit, and shall pay the balance

to the party.

 An application under this rule shall be made by notice of motion in the

same suit.

 Where the court is satisfied for reasons to be recorded that the object of

granting the injunction would be defeated by the delay, it may hear the

application ex parte.

 An ex parte injunction may be granted only once for not more than

fourteen days

 where the court grants an ex parte injunction the applicant shall within

three days from the date of issue of the order serve the order,

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 The application and pleading on the party sought to be restrained.

 In default of service of any of the documents specified under this rule, the

injunction shall automatically lapse.

 All applications under this order shall be heard within sixty days from the

date of filing unless the court for good reason extends the time.

 In all applications for injunction, the court shall, after interpartes hearing

deliver its ruling either at once or within thirty days of the conclusion of the

hearing with notice to the parties or their advocates;

 Where the ruling is not delivered within thirty days, the judge shall record

the reason therefore and immediately fix a date for ruling.

 Where a suit in respect of which an interlocutory injunction has been

granted is not determined within a period of twelve months from the

date of the grant, the injunction shall lapse unless for any sufficient

reason the court orders otherwise.

 Any order for an injunction may be discharged by the court on application

made thereto by any party dissatisfied with such order.

 An injunction directed to a corporation is binding not only on the

corporation itself but also on all members and officers of the corporation

whose personal action it seeks to restrain.

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  The court may, on the application of any party to a suit, order the sale, of

any movable property, being the subject-matter of such suit, which is

subject to speedy and natural decay, or which for other just and sufficient

cause it may be desirable to have sold at once.

MAREVA INJUNCTIONS

Earlier, in UK there was no jurisdiction to attach property of defendant before the

judgment was issued. The case of Lister v Stubbs (1890)45 Ch.D1 and Kaish v

Karageorgis(1975) WRL 1093 defendant could not be compelled to give security

before the case was heard and determined.

The case of Mareva Compania Naviera SA v International Bulkcarriers

introduced the Mareva Injunction (also as a freezing order or Mareva order), in

Commonwealth jurisdictions.

Mareva injunction is an injunction where a court issues an order which freezes

assets so that a defendant to an action cannot dissipate their assets from beyond

the jurisdiction of a court so as to frustrate a judgment.

 The purpose of a Mareva injunction is to protect the interests of the

plaintiff during the pendency of the suit and is granted to restrain the

defendant from disposing of assets within the jurisdiction until the trial

ends or judgment in the action for infringement is passed.

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  Mareva Injunction was designed to make it significantly more difficult for

debtors to put their assets outside the grasp of their creditors.

 Mareva Injunctions are now regularly used to prevent the defendant either

from removing assets from jurisdiction or from handling the assets within

the jurisdiction in a way, which would frustrate the plaintiff’s attempts to

enforce his rights.

ANTON PILLER ORDERS

 The development of this Order was in a sense which parties are in principle

required to reveal to the other party material in their possession which is

relevant to the case.

 It was perceived that, in some cases, defendants might choose to dispose of

such material rather than to reveal it.

 Anton Pillar K.G. v Manufacturing Processes Ltd [1976] Ch 55.

In Anton Pillar itself, the plaintiffs were foreign manufacturers who owned the

copyright in the design of a high frequency converter used to supply computers.

They learnt that the defendants, who were their English agents, were planning to

supply rival manufactures with information belonging to the plaintiffs, which

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would enable their rivals to produce a similar product. The plaintiffs wished to

restrain the defendants from infringing the copyright, using confidential

information or making copies of their machines but they were afraid that the

defendants, if notified, would take steps to destroy the documents or would send

them out of the jurisdiction so that there would be none in existence by the time

that the action reached the stage of discovery. The plaintiffs accordingly made an

ex parte application for an Order requiring the defendants to permit the plaintiffs

to enter the defendant’s premises in order to inspect, remove or make copies of

documents belonging to the plaintiffs.

 Where one applies for Anton piller the court must be convinced the case is

strong because the nature of the order is draconian.

Principles of Anton Piller orders

Application exparte supported by an affidavit

Court sits in camera

Anton Piller orders is provided for in the Copyright Act CAP 130 Laws of Kenya

Section 37. (1) If a person has prima facie evidence that his right has been

infringed by another party and he satisfies the court or competent authority that

prima facie-

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(a) he has a cause of action against another person which he intends to pursue;

(b) the other person has, in his possession documents infringing copies or other

things of whatsoever nature which constitute evidence of great importance in

substantiation of that cause of action; and

(c) there is the real and well-founded apprehension that the documents, infringing

copies or other things may be hidden, destroyed or rendered inaccessible before

discovery can be made in the usual way, the court or competent authority as the

case may be, may make such order as it considers necessary or appropriate to

secure the preservation of the documents, copies or things as evidence.

 There must be extremely strong prima-facie case on merit

 The defendants’ activities must cause serious potential or act of harm to

the plaintiff’s interest.

 There must be clear evidence that incriminating evidence are things in the

defendants’ possession and there is real possibility that such material may

be destroyed before any application inter-parties can be made.

 Anton pillar can be granted in Kenya in the Copyright Act CAP 12 of 2001

and Order 40 rule 10 of the Civil Procedure.

 In Kenya the Application is made by way of a chamber summons requesting

for the Anton Piller Order.

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 There should be secrecy, undertakings from counsel and client and the

advocate must personally give an undertaking,

 The courts may give directions as to how it must be executed for the

purpose of defending the defendant.

 In UK one has to serve an order to the solicitor, serve the defendant with a

written order, the solicitor has to oversee the exercise, there must be a

motion for the purpose of representation in court, there is a detailed

procedure to be followed in UK and other orders that are supposed to

accompany the Anton Piller, the order must be served and supervised by a

solicitor other than the one acting for plaintiff, order to be served on

weekend to give time to the defendant to seek legal advise, if it is a woman

living alone, the order must be executed in the presence of a responsible

officer of the corporation if it is a corporation the defendant given the right

to seek legal advise before complying with the order. A list of items must be

prepared before items are removed from the premises. All these are

auxiliary made by the court.

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