When the court will order execution by detention

Recently, a decree holder made an application against one of our clients for execution by issue of warrant of arrest and committal to civil jail. The application was in respect of execution of a decree for a specified sum of money that our client, owing to lack of funds could not settle. We managed to save our client from detention. I hereby share the story for posterity and information.

 

Law on execution by detention in Kenya

The court's powers to enforce execution by way of detention where the decree is for payment of money is provided for in section 38 of the Civil Procedure Act. The law is clear that the orders shall not issue unless the court is satisfied of the following matters.

 

First, the judgment-debtor ought, in attempt to obstruct or delay the execution of decree, to be likely to abscond or leave the jurisdiction. For instance, in cases where there evidence of intention of the judgment-debtor to travel abroad for undisclosed mission, the court may be persuaded to enter execution by detention. But prove by the judgment debtor that the travel is important say for medical treatment and commitment to be back will be enough to counter such persuasion.

 

As an alternative to the above ground order for execution by detention will issue where the judgment-debtor has, after the institution of the suit dishonestly transferred, concealed or removed any part of his property. The same case applies where s/he has committed any other act of bad faith in relation to his property. Thus where the judgment debtor has purported to give gifts of his property to relations, execution by detention may be successfully sought.

 

Secondly, execution by detention may be ordered where the court is satisfied that the judgment-debtor has, especially since the date of decree, had the means to pay the amount of the decree or substantial part of it thereof and has refused or neglected to pay the same. The rationale here is that courts abhor frustration of realization of fruits of its judgment especially where such frustration is not as a result of genuine by inability.

 

Finally, order for execution by detention in civil jail will issue where the decree is for a sum for which judgment-debtor is bound in fiduciary capacity. Breach of trust is to be discouraged at all costs hence the detention for breach their fiduciary duties as a deterrent measure.

 

The condition were not satisfied against our client

Luckily, neither of the foregoing conditions had been satisfied against our client. The decree was for a debt amount and therefore not in relation to a fiduciary sum of money. The third condition, therefore, failed prima facie to be met at all.

 

On the first strand of the first condition i.e. on the likelihood of the judgment-debtor to abscond or leave the local limits of the jurisdiction, it was proved that there was no such likelihood. The client is permanently resident in Nairobi, together with his close-knit nuclear family and his extended family as well. It was established that he was born and bred in Nairobi and all his interests are located here. Incidentally, the does not have a significant attachment to any other Place in Kenya or around the word. In view of that, the court accepted the contention that there was not the remotest likelihood of the client absconding the jurisdiction.

 

Further, the client had and continued to consistently appear in court, both in person and through us (his advocates), whenever required by the court. The argument was then urged that, he (our client) had not so far given the court any reason to apprehend a likelihood of absconding the jurisdiction.

 

On the second strand of the first condition relating to dishonest transfer, concealment or removal of defendant's property, there was no evidence forthcoming from the decree holder. We submitted an inventory of the client's scanty properties before and after the judgment to support our contention that the client had not unduly interfered with the same.

 

In essence, our argument on this strand was that the client had not since the issue of the decree and/ or after institution of the suit dishonestly or otherwise, transferred, concealed or removed any part of his property from the jurisdiction of this court. Further, we contended that the client had also not at all committed any act of bad faith whatsoever in relation to his property. We submitted that the first condition thus stood unsatisfied as a result.

 

The client's failure to satisfy the decree was then attributed to his lack of wherewithal to pay. We argued that given the embarrassment accrued by the client to pay his debts both to himself and his family, had he the means, he would have been more than willing settle the decree. At least, if not for anything else, to avoid the predicament that was facing him. We thus argued that the client had failed to settle the decree for lack of monetary means.

 

It was a significant plank of our case against the application that the client was then unemployed and/or not engaged in any activity earning any regular and/or consistent income. This went to justify the inability to settle the judgment debt in full and/or at once. The client was willing to settle the amount of the decree in installments upon employment was then voiced. In addition, we expressed the view that our client was ready and willing to comply with any such terms and conditions, as the court deemed necessary to issue in securing and safeguarding the interests of the decree holder.

 

Lastly, we brought to the court's awareness the fact that the decree was pursuant to a summary judgment and that an appeal was already in top gear, the memorandum of appeal having already been filed. We then contended that the appeal was arguable on points of law and fact and had very high probability of success.  The execution, therefore, we argued, if it were undertaken by way of issue order for detention in civil jail as prayed, it will visit the greatest prejudice to our client's appeal and had the potential to render the same nugatory. Our reasoning was that the client, if detained will incur irreparable loss of personal liberty. In addition, we contended that he will be unable to steer the appeal from behind bars. We thus closing with the argument that the application for execution by detention smacked of intent to obstruct the course of justice by derailing the appeal.

 

Court's ruling

The court rewarded our submission and dismissed the application. The execution by detention against our client could not be allowed as there was, in the court's view, no sufficient cause in law and fact in view of our arguments, why our client should not be committed to civil jail in execution of the decree. Unfortunately, the matter was in subordinate court. There is thus no authority to show for winning the application.