Enforcing Judgments in Kenya: Execution Options After Winning in Court

Enforcing judgments in Kenya is a separate stage from winning the case. A decree that is not executed has no commercial value, so the judgment creditor needs to know which tools the Civil Procedure Act and the Civil Procedure Rules provide, and which fit the debtor’s assets. This guide walks through the main routes, interest on the decree, foreign judgments, and the special position of the Government.

Enforcing judgments in Kenya: start with the debtor’s assets

Order 22, rule 35 of the Civil Procedure Rules lets a decree-holder apply for an order that the judgment debtor, an officer of a corporate debtor, or any other person be orally examined on what debts are owed to the debtor and what property or means the debtor has to satisfy the decree. The answers guide the choice of execution method, so this is usually the first practical step where assets are unknown.

Modes of execution under section 38

The statute gives several tools for enforcing judgments in Kenya, and they can be used in combination.

Section 38 of the Civil Procedure Act sets out the court’s powers on the decree-holder’s application. The court may order execution by delivery of property specifically decreed, by attachment and sale (or sale without attachment) of any property, by attachment of debts, by arrest and detention in prison, or by appointing a receiver. Section 44 states that all property belonging to the judgment debtor is liable to attachment and sale, including property the debtor holds through another person on the debtor’s behalf. The same section lists items that are exempt, such as the necessary wearing apparel, cooking vessels and bedding of the debtor and the debtor’s family.

Attachment and sale of property

The most common route against a trading debtor is attachment and sale of movable property, and Order 22 of the Civil Procedure Rules governs the procedure. The decree-holder applies for a warrant, the court’s agent attaches goods, and the goods are then sold to satisfy the decree and costs. Each step must follow the Rules. A defective attachment can be set aside, and an attachment or sale carried out outside the Rules can expose the creditor to a claim. Section 47 makes any private alienation of property after attachment void, which protects the creditor once the attachment is in place.

Garnishee proceedings: attaching debts and bank accounts

Order 23 of the Civil Procedure Rules deals with attachment of debts. Under rule 1, a court may, on the ex parte application of a decree-holder, order that debts owed to the judgment debtor by a third party (the garnishee) be attached to satisfy the decree. Rule 2 covers the attachment of deposits, and rule 3 deals with the effect of a garnishee order. In practice, this is the main route to a debtor’s bank balance or trade receivables, and you need to identify the correct bank and branch or the correct paying customer. The oral examination described above is often how that information is found.

Arrest and detention

Section 38(d) permits arrest and detention in prison as a mode of execution, and section 40 provides that a judgment debtor may be arrested in execution at any hour on any day and brought before the court as soon as practicable. This is a coercive remedy that courts approach carefully, and the Act regulates subsistence allowances, detention and release (sections 41 to 43). It is not a substitute for tracing and attaching assets.

Interest on the decree

Section 26(1) of the Civil Procedure Act allows the court to order interest at a rate it considers reasonable on the principal sum from the date of suit to the date of decree, with further interest on the aggregate sum from the date of the decree to the date of payment. If the decree is silent on further interest, section 26(2) deems the court to have ordered interest at 6 per cent per annum. A creditor who wants a higher rate should ask the court to specify it in the decree itself, rather than rely on the default.

Enforcing foreign judgments in Kenya

The Foreign Judgments (Reciprocal Enforcement) Act provides for registration of judgments given in designated courts. Under section 5, the judgment creditor applies to the High Court to register the judgment within six years of its date, or of the last judgment in any appeal. A registered judgment can be set aside on the grounds in section 10, and section 9 deals with garnishee orders on registered judgments. A judgment from a court that is not covered by the Act cannot use this route, and the usual alternative is to sue in Kenya on the foreign judgment as a debt. Take advice early on which route applies, because the six-year window is strict.

Enforcing against the Government and county governments

Section 21 of the Government Proceedings Act changes the process when the judgment debtor is the Government. After 21 days from the order, or after costs are taxed, the proper officer of the court issues a certificate containing the particulars of the order, and payment follows on that certificate. Section 21(4) provides that, save as the section allows, no execution or attachment or process in the nature thereof can be issued to enforce payment by the Government, and section 21(5) applies the section with the necessary modifications to county governments. The practical result is that a creditor of a public body waits on the payment process rather than sending out a warrant of attachment.

Counting the cost of enforcing judgments in Kenya

Enforcement spends money: court fees, the cost of the officers who carry out attachment, and legal fees. A decree is worth only what can be recovered from the debtor’s identifiable assets, so assess the asset position before and after judgment. If the debtor is a company with no attachable assets but with unpaid debts of its own, a statutory demand under the Insolvency Act can add pressure, which we cover in a separate guide.

Frequently asked questions

This article is general information on Kenyan law as at its publication date, not legal advice. Reading it does not create an advocate and client relationship.