Dave revision (11-12)
Objection proceedings under the Law/Order 22
Can you stop execution?
You can stop execution by Objection proceedings under Order 22 rule 50 . Where property is attached the
attachment may be objected to through objection proceedings. Any person who is entitled to have any legal or
equitable interest in the property to be attached may at any time before sale or paying out of the proceedings of the
sale object in writing to the court.
Where judgment has been entered against a JD 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 JD but to a third party, usually the commonest of objections are made by the
spouses.
Order 22 Rule 51
Any person claiming to have legal interest in any property attached in execution of a decree may at any time give
notice of his objection to attachment of the property. Briefly set the nature of claim, how one relates to the property.
Stay of execution is no longer automatic on the lodging of the notice and to expedite objection proceedings the
notice must be lodged together with application and supporting affidavit which must be served within seven days on
all the parties. The court on receipt of the notice and application is empowered to order stay but not for more than 14
days. The attaching creditor is to be notified to intimate whether he intends to proceed within 7 days. If he intends to
proceed the intimation is likewise to be accompanied by a replying affidavit and the application is to be dealt with
expeditiously. These provisions are meant to expedite the objection proceedings and to prevent abuse of the process
of court normally associated with the said proceedings.
Where there is a family property, or a body corporate and the JD is a director, the company has a right to object to
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 conflict of interest. The court will call 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 still 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 who bears the costs 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 the decree holder wishes to continue with execution and attachment, the court will issue notice to objector
directing objector to take out notice to establish his claim within 10 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
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 JD. If the objector fails to file proceedings within time allowed by the court, then
the objection will deemed to have been 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 the attachment and execution. If the
objection is proved the court will 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.
Another situation is where property of the Judgment Debtor is in the hands of the 3rd party.
Lodging a notice of appeal in the Court of Appeal does not automatically stop (stay) the execution of the judgement
of the High Court.
The Court of Appeal in Civil Appeal (Application) No.E131 of 2021, The Public Service Commission & 72 Others v
Okiya Omtatah & 4 Others considered an application to stay the execution of orders issued by the High Court
in Okiya Omtatah & Another v The Public Service Commission & 73 Others; Law Society of Kenya &
Another (interested parties) 2021 eKLR that:
Declared unconstitutional the office of Chief Administrative Secretary as currently constituted.
Cabinet Secretaries who served during the first term of H.E. President Kenyatta must be vetted by the National
Assembly before serving during his second term.
Any serving Principal Secretary who was not either shortlisted, interviewed, recommended for nomination by the
Public Service Commission to the President or approved by the National
Assembly is in office in contravention of the Constitution and the law.
The court ruled that for an application of stay of execution to succeed, an appellant must demonstrate that the
intended appeal is arguable and will be rendered nugatory (redundant) if the stay is not granted. In other words, the
intended appeal:
Must not be frivolous; and
Must raise at least one bona fide (i.e. genuine) issue that can be argued before the court.
Whether an appeal will be rendered nugatory if a stay is not granted depends on if:
what is sought to be stayed is reversible;
any damage to the aggrieved party can be reasonably compensated by damages; or
it is in the public interest to grant a stay
Introduction
1. The hierarchy of courts in Kenya is in the following order from top to the bottom:-
a) The Supreme Court
b) The Court of Appeal
c) The High Court
d) Magistrate’s Courts
2. There is also the Kadhi’s Court and special tribunals. A litigant is at liberty to appeal to courts in that hierarchy
up to the very top if they are not satisfied by the decisions in the lower courts. Of course there is a criteria for
appeals to be admitted from the Court of Appeal to the Supreme Court. This criteria is beyond the scope of this
article.
3. As one appeals the decisions of lower courts to a higher one they may need to seek for stay of execution of the
order or decrees of the lower courts pending appeal. Applications for such orders may be lodged either at the court
where the appeal is emanating from or the higher court. This article highlights the law in such applications.
Highlights on the Law Governing Orders for Stay of Execution Pending Appeals in Kenya
The Principles
4. The principles for granting stay of execution are provided for under Order 42 rule 6 (1) of the Civil
Procedure Rules as follows:
“No appeal or a second appeal shall operate as a stay of execution or proceedings under a decree or order
appealed from except in so far as the Court appealed from may order, but the Court appealed from may for
sufficient cause order stay of execution of such decree or order and whether the application for such stay shall
have been granted or refused by the Court appealed from, the Court to which such appeal is preferred, shall be at
liberty, on an application being made, to consider such application and to make such orders thereon as may to it
seem just, any person aggrieved by an order of stay made by the Court from whose decision the appeal is
preferred may apply to the appellate Court to have the orders set aside.”
5. Order 42, rule 6 (2) states:
“No order for stay of execution shall be made under sub-rule (1) unless:-
a. The Court is satisfied that substantial loss may result to the applicant unless the order is made and that the
application has been made without unreasonable delay; and
b. Such security as the court orders for the due performance of such decree or order as may ultimately be binding
on him has been given by the applicant.”
6. In Pauline Yebei & Another v estate of Kiprotich Letting represented by Andrew Kipkoech Kiprono
[2017]eKLR the Court of Appeal affirmed its decision in Ishmael Kagunyi Thande Vs. Housing Finance
Kenya Ltd., Civil Appln No. Nai 157 Of 2006 (Unreported) where the court held as follows on the principles for
stay of execution:- “The jurisdiction of the Court under rule 5(2) (b) is not only original but also discretionary.
Two principles guide the court in exercise of that jurisdiction. These principles are well settled. For an applicant
to succeed he must not only show that his appeal or intended appeal is arguable, but also that unless the court
grants him an injunction or stay as the case may be, the success of that appeal will be rendered nugatory.”
7. In Hamisi Juma Mbaya v Amakecho Mbaya [2018]eKLR it was held:-
“The appellants need to satisfy the Court on the following conditions before they can be granted the stay orders:
1. Substantial loss may result to the applicant unless the order is made.
2. The application has been made without unreasonable delay, and
3. Such security as the Court orders for the due performance of the decree or order as may ultimately be
binding on the applicant has been given by the applicant.”
For money decree stay of execution is only considered in special circumstances
8. In the case of Ujagar Singh vs Runda Coffee Estates Limited [1966] EA 263 it was held:-
“It is not normal for a court to grant stay of execution in monetary decrees but where there are special features
such as the issue or the regularity of the judgment, the fact that the amount payable under the decree being
substantial and the fact that the plaintiff has no known assets within the jurisdiction from which the applicant
can recoup in the event the appeal is successful.”
The Respondent bears the burden to show capability to refund the amount in the decree if the appeal is
successful
9. In Bonface Kariuki Wahome v Peter Nziki Nyamai & another [2019] eKLR it was held:-
“In view of the foregoing, the evidential burden resides with the Respondents to prove that he is not a man of
straw as alleged. None of the two Respondents in the instant case has made any attempt to discharge this
burden. It is expected that a respondent would depone and show the means she has to refund the decretal sum. It
is enough for the applicant to depone that they are not able to refund. He cannot be expected to dig deep into the
financial standing of the respondents, which is for the respondent to produce and prove.
The law is that as stated by the Court of Appeal in National Industrial Credit Bank Limited -V- Aquinas Francis
Wasike and Another (UR) C.A. 238/2005, the evidential burden is on the respondent to prove that he is able to
refund. I am of the view that the Respondent has not discharged the burden to prove that she has resources to pay
back the decretal sum. The Respondents merely stated that they are capable of repaying the decretal amount that
the Court grants after hearing and determination of the Appeal if it exceeds the sum to be released to the
Respondents.”
Conclusion
10. Based on the foregoing an application for stay will be succession if:-
a) It is brought without unreasonable delay
b) Substantial loss will occur if the orders are not given
c) The applicant gives security for performance of the decree sought to be stayed.
11. Court will not order stay of execution for money decrees unless special circumstances are proved such as:-
a) The regularity of the impugned judgment is in issue
b) The decretal sum is colossal
c) The decree-holder is a man of straw
12. Where it is alleged that the decree-holder is a man of straw the burden is on him to prove that he is capable of
repaying the decretal sum if the appeal is successful. In all circumstances courts strive to do justice by balancing the
interests of the applicant and that of the successful litigant who should enjoy the fruits of his judgment.
Execution of Decrees and Orders (Order 22)
A. ATTACHMENT OF THE PROPERTY
The Civil Procedure Rules, 2010 (CPR) under its Order 22 Rules 36 to 50 provides for the procedures of
attachment of property, immovable and movable.
If the property to be attached is agricultural produce (Order 22 Rule 38 of the CPR) - a warrant of
attachment is affixed in the field where the said produce is growing, stored, or where the place of residence
of the Judgment Debtor.
For dividend or shares (Order 22 Rule 40 of the CPR) -a prohibitory order is issued against the shareholder
with the order barring any dealings with shares.
A movable property in possession of a 3rd party (Order 22 Rule 41 of the CPR) -a prohibitory order is
issued against the said 3rd Party
Immoveable property (Order 22 Rule 48 of the CPR) – a prohibitory order is registered against the
Judgment Debtor in whose name the property is registered or any party with an interest. And this involves a
prohibitory order against the title of the property
On Attachment of Salary (Order 22 Rule 42 of the CPR) – a notice to show cause is issued to the Judgment
Debtor and if no sufficient reasons are furnished, the court will make the said order on attaching a third of
the salary of the Judgment Debtor. (Considered that one saves a third of their salary).
B. SALE OF THE PROPERTY
Order 22 of the Civil Procedure Rules, 2010 provides the procedures on the sale of the property. The sale
can only by public sale and by a firm of auctioneer appointed by the court.
An advertisement is made by a public notice on the intended sale of the property and court directs the way
the sale will be conducted. The Decree holder makes the notices of sale and advertisement after notifying
the Judgment Debtor. The notice must state the date, time, place of sale, amount intended to be recovered
from the decree with the notice issued in lieu of 30 days before date of the sale for an immovable property
and 15 days for a movable property.
These time periods can be changed if the goods are perishable or subject to decay.
The court has a discretion to adjourn the sale to a specified date and an officer conducting any such same
may adjourn it giving reasons for such adjournments.
The Decree Holder is not allowed to participate at the auction unless with the permission of the court.
C. COMMITTAL TO CIVIL JAIL
Section 40 of the Civil Procedure Act provided for the procedures on arrest and detention of a Judgment
Debtor
An application for arrest and committing the Judgment Debtor to civil jail can be made through first issuing
a notice to show cause to the said Judgment Debtor on why they should not be committed to civil jail.
If the Judgement Debtor on appearing before court fails to convince the court about his failure to satisfy the
decree, he can be remanded to prison at the expense of the Decree Holder for a period not exceeding 6
months and/or satisfaction of the decree.
D. GARNISHEE PROCEEDINGS
Garnishment as defined under Bryan A. Garner‘s Black’s Law Dictionary 9 th Edition is a “judicial
proceeding in which a creditor (or potential creditor) asks the court to order a third party who is indebted
to or is bailee for the debtor to turn over to the creditor any of the debtor's property (such as wages or
bank accounts) held by that third party.”
A garnishee order is where a third party, usually a bank or employer, will be directed to pay funds owed to
the losing party directly to the winning party.
The Garnishee in simple terms is a third party who is indebted to the winning party. It is a requirement that
the Garnishee must be within the jurisdiction of the court in which the winning party has applied for this
mode of execution.
Garnishee proceedings in most cases are against a Bank or a lending institution which might be holding
some accounts or funds for the losing party. An order nisi is issued on a temporary basis until the garnishee
shows cause on why execution shouldn’t issue (Order 23 Rule 1 of the CPR).
Order 23 Rule 1 (2) of the Civil Procedure Rules, 2010 provides that a garnishee order must be served on
the Garnishee, 7 days before the date of hearing. If the Garnishee does not appear for hearing of the Order
nisi, the court may order that decree be levied against the property or to be served on Garnishee personally.
E. APPOINTMENT OF A RECEIVER
Under Order 22 Rule 7 (j) (iv) of the Civil Procedure Rules, 2010, the Court has the power to appoint a
receiver over the assets of the losing party to assist in collecting in the assets of the losing party where it
appears just and convenient to do so. Often, this type of order is a last resort but may be effective where the
assets are shares and a company has specific valuable assets or will issue a dividend on the shares.
F. DELIVERY OF THE PROPERTY AS PER THE DIRECTIONS IN THE DECREE/ORDER
This is provided for under Order 22 Rule 7 (j) (i) of the Civil Procedure Rules, 2010. The Decree/Order
will specify the manner of delivery of the property whether movable or immovable. The decree shall also
state the amount of money to be paid as an alternative if delivery cannot be made for a movable property as
opined in Order 21 Rule 11 of the Civil Procedure Rules, 2010.
A delivery on immovable property shall specify to be party taking possession or to whom it has been
adjudged or any person appointed to receive delivery on behalf of the adjudged
Study case-Sonia Kwamboka Rasugu v. Sandalwood Hotel & Resort T/A Paradise Beach Resort &Anor
