A judgment is not money in the account. Until it is enforced, a commercial litigant holds a document rather than a payment, and Kenyan law provides several routes for converting one into the other.
What is execution against property?
The most familiar route. The decree holder applies for warrants, and the court’s executive officer attaches and, where the debt remains unpaid, sells the judgment debtor’s movable property; immovable property can be attached in appropriate cases under the procedures in the Civil Procedure Act (Cap 21). Attachment of movables typically begins with a proclamation identifying the goods to be auctioned, and the costs of execution are recoverable within the decree.
How do garnishee proceedings work?
Where a third party owes the judgment debtor money, most often a bank holding the debtor’s account, garnishee proceedings attach that debt directly. The court first grants an order nisi requiring the garnishee to show cause why the funds should not be paid to the decree holder; if no sufficient cause is shown, the order is made absolute and the money is released. Third parties who claim the funds themselves may come forward, which is one reason account details should be verified before filing.
How long do you have to enforce a judgment?
Enforcement is subject to limitation periods under the Limitation of Actions Act, so delay carries legal risk as well as practical risk. Assets move, and tracing them later is harder. Where a debtor will not pay voluntarily, the court can also be asked to examine the judgment debtor about their assets, and interest on the decretal sum generally continues to run, both reasons to act early rather than wait for cooperation. Where the assets are unknown, the court’s disclosure processes can help locate them before the right route is chosen.
Enforcement is procedural, but it is unforgiving of mistakes: the wrong route, or a premature application, costs months. Our banking and securities practice advises creditors on enforcement strategy, and our practice areas page sets out the wider litigation work. The governing statutes are published by Kenya Law (kenyalaw.org).
For guidance on your specific situation, contact CS Advocates LLP, call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.