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B R N 11 CIVIL LITIGATION 1 — Transcript

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0:02is against judgment.
0:04We spoke about the remedies against uh
0:07judgment.
0:09Okay.
0:14So,
0:16so we went through judgment first. We
0:18went through the extraction of a decree
0:20and then we went through uh we went
0:23through the remedies against judgment.
0:25And we said at this point of course we
0:28have two parties and who are the
0:30parties? The parties are number one uh
0:34the defendant and the plaintiff who are
0:36then transisting to become uh to become
0:40uh the decree holder and the judgment
0:44the judgment uh a data.
0:48Now I said uh that the most important
0:50thing that you need to do at that moment
0:52uh the most important thing that you
0:54need to do at that moment is to really
0:55know who the parties are. Who are the
0:57parties in that question? Once you
0:59understand who the parties are then you
1:02are able to identify the remedies of
1:05those parties.
1:07Are we together?
1:30All right. So, so, so like I was
1:33mentioning, you need to really
1:35understand who your client is and who
1:38the parties are at that moment.
1:41uh so that you are able to know the
1:42remedies. It is important for you to
1:44know the remedies by the way guys. It is
1:47very very important for you to know the
1:48remedies guys. Um and that is where I
1:52want us to begin. So let's take
1:54questions again. I'm going to ask again
1:56questions.
2:26All right, let's start with Sami.
2:31So, thank you for that opportunity. My
2:33question is about a judgment data who
2:36decides to pay in installments.
2:41Uh
2:43how does the court determine uh the
2:45amount of installments that should be
2:47paid? Because somebody could say that if
2:49if
2:51you pay 1 million
2:52>> you're the one who decides and then you
2:54apply for leave to be allowed to pay
2:57like that.
3:02>> Okay. Thank you. I just wanted to know
3:04like uh if the court has some
3:06restitution that maybe someone wants to
3:08pay 1 million and pay only 1,000 per
3:11month and another one wants to pay
3:12100,000 a month. But of course the court
3:15will uh the court will
3:18decide
3:20uh the court will decide at that point
3:23whether to allow uh the process to
3:25proceed with the pay. I mean for you to
3:28allow to be you cannot suggest 1,000 per
3:30month. Of course it must be reasonable
3:32if you given leave. Of course you must
3:33convince the court.
3:37>> Okay that's what I wanted to determine.
3:39Thank you. All
3:42right.
3:50Any other question?
3:59>> I have a question.
4:08>> Proceed. Yes. Yes.
4:11Okay, thank you. So my name is just a
4:14clarification. I'm seeking a
4:16clarification on on decree. So uh uh
4:21during our class when you are teaching
4:22us about decrees, you told us that any
4:24party
4:26uh can can apply or rather can write can
4:31draft the decree. So uh my question is
4:35uh on the caption where we are when
4:38doing the or rather when drafting the
4:40decree on the part where we are doing
4:42the caption are we going to write
4:45plaintiff and defendant or or decree
4:47holder and judge judgment data owing to
4:50the fact that uh the the plaintiff is
4:54not always the decree holder.
5:00I didn't capture your question very
5:01well.
5:04>> Okay. Mine uh it's a clarification on
5:07decrees. So uh during our class when you
5:10you were teaching us about decrees you
5:14you you mentioned that um anyone any
5:18party to assu can can draft a decree.
5:23This then means that the plaintiff is
5:26not the automatic and the only party
5:29that can draft the decree. So my
5:32question is on the part where we are
5:34doing the option while drafting this
5:37decree should we say or rather should we
5:40indicate plaintiff and defendant or
5:42should we have decree holder? Why
5:45>> why you why you having plaintiff and
5:47defendant? What did we say? We drafted a
5:50decree in this class. What did we say?
5:53you you told us that uh it's supposed to
5:56be a decree holder and the judgment uh
6:00data
6:05>> but
6:08>> now my or rather my my my
6:12question stems from the fact that um the
6:17plaintiff is not always the the the
6:21decree decree holder the judgment hold
6:24the or rather the defendant could also
6:27be could also draft the decree. So
6:32>> yes.
6:35>> Mhm.
6:38>> Yes. So that was my I I needed
6:41clarification on that whether the
6:44>> I'm not getting I'm not getting the
6:45question. What is the We drafted a
6:47decree. How did you capture the parties?
6:51>> [clears throat]
6:52>> decree holder and judgment data.
6:56>> Okay. And your question is
6:59>> And my question is owing to the fact
7:02that the plaintiff is not the automatic
7:06party that drafts the decree. Why are we
7:10then indicating the decree holder
7:13instead of plenty of defendants? Because
7:15it's not always that the plaintiff is
7:17>> Who is the decree holder? Who the decree
7:19holder?
7:23H
7:25>> yes.
7:26>> Who is the decree holder?
7:29>> The person
7:31um who won the case and therefore has
7:34the right to execute
7:37the decree.
7:38>> Okay. And the judgment data
7:42>> the person who lost and therefore will
7:45be executed against.
7:47>> Uhhuh. So your question is what again?
7:50Because if you're drafting a decree, the
7:52decree should just indicate who won and
7:53who lost. So your question is so that I
7:57understand.
7:59>> Okay. So my my question was or rather is
8:04again
8:06why okay I think
8:12yeah I think I get it now only that I've
8:15seen I've seen. Okay. Yeah, I've seen
8:19some decrees where it's the plaintiff
8:21and defendant and some are is the they
8:24written rather they indicate decree hold
8:26and the judgment data. So I was getting
8:29a confusion between the two because any
8:32party can draft a decree. So yeah,
8:39>> you answered.
8:40>> Yes.
8:42>> All right.
8:45All right. So any last question.
9:14All right. So
9:16there is uh no question there is no
9:19question.
9:21So so I want us to go and talk about the
9:24execution of decrees.
9:27[clears throat]
9:27I want us to talk about execution of uh
9:30decrees.
9:32And uh if you remember from the last
9:34class uh we said that uh once you
9:37understand the remedies or the judgment
9:40data then you need to understand the
9:42remedies of the of the decree holder.
9:46So for you to understand how this works
9:49let's go back to judgment. Okay. So
9:51under judgment we have said that at this
9:54specific point in time judgment has been
9:57delivered.
9:59Okay, judgment has been delivered. And
10:03as judgment has been delivered uh after
10:06judgment has been delivered then we now
10:08have the judgment creditor and also we
10:11have the judgment the judgment data. The
10:15creditor is the person that has won the
10:17case and the judgment data is the person
10:19that has lost the case. Okay. But also I
10:23mentioned that sometimes there is no
10:25judgment data and there's no judgment
10:26creator. If that matter does not favor
10:29anyone or
10:32is not against anyone.
10:34So some judgments can benefit both
10:36parties. Are we together? Now I have
10:40said that once judgment has been
10:42delivered you need to understand that
10:44there there are two parties. The first
10:46party is called the judgment data the lo
10:49the loser and then we have the judgment
10:51creditor the person that has won the
10:54case. Now at that moment you need to
10:56understand who your client is. Now the
10:58next thing after that is that the person
11:01that has won the case will proceed and
11:03extract a decree. that person and I've
11:07said this person can be a defendant,
11:09they can be a plaintiff. They can be a
11:11defendant or they can be a plaintiff.
11:13Then proceed and extract the decree. And
11:15we talked about the extraction of a
11:17decree and we're coming back to that.
11:18And we say that once you extract the
11:21decree, then you become the decree
11:24holder, but the judgment data remains as
11:27the judgment data. You become the decree
11:30holder and the judgment data remains the
11:33judgment data.
11:36Are we together? Now at that point the
11:40next thing are the remedies of parties.
11:42Now the interest of the decree holder is
11:46to get
11:48whatever the decree said they supposed
11:50to get.
11:51Okay. For instance, if the judgment said
11:55that the defendant is to pay or the
11:57judgment data is to pay 1 million
12:00shillings to the judgment creditor or
12:03the decree holder, then the interest of
12:06the decree holder is to get that 1,000
12:08sorry 1 million shillings and therefore
12:11they will proceed and execute.
12:14they will proceed and execute their
12:16decree against against the uh sorry the
12:21judgment data.
12:23Now the interest of the judgment data
12:26the person that has lost are the
12:28remedies of or the remedies against
12:31judgment and decrease. Now as a person
12:34that has lost okay as a person that has
12:38lost the case then you are going to
12:40proceed. You shall proceed and do what?
12:44You shall proceed
12:46and challenge the judgment and also
12:49challenge challenge uh the decree. And
12:53how do you do that? The first one we
12:54said was a scale of execution. The
12:56second one we said was the question to
12:59do with
13:00uh payment and installments. And the
13:02third one we said in this instance we
13:04might have an objective proceeding.
13:07There are two more which is the question
13:08of appeal and review but we are going to
13:11come back to that because that also
13:12applies universally to even the decree
13:15holder. So the judgment data will
13:18proceed and get remedies against that
13:21judgment or against the decree and we
13:24discussed that in the last two classes.
13:27Okay. Now today I want us to look at the
13:31interest of the decree holder. When you
13:34have the decree then the next thing is
13:36to ex sorry is to execute the decree.
13:40The next thing in line is to execute the
13:43decree. You are going to execute the
13:45decree. So execution of the decree is
13:48you realizing
13:50um or forcefully getting whatever you're
13:52supposed to get
13:55that is execution of decrees that is
13:57provided for under order 20 order 22. So
14:00that is what is going to form our class
14:02today. Uh so by the end of the class we
14:05are supposed to understand what is
14:07execution which I've already explained.
14:09Uh we also need to understand the
14:12question of extraction of decrees which
14:14I've already explained in two classes
14:15before. We'll understand the question of
14:18or the procedure of execution and also
14:22we shall understand the modes of
14:24execution.
14:26all together. Once we're done with the
14:28modes of execution, we shall proceed. Of
14:31course, after seeing a few questions in
14:32the past papers, we shall proceed and we
14:35shall proceed and go to review and
14:37appeals, which is the last nail on the
14:41civil procedure. Are we together? Now,
14:44let us start on execution. Unless
14:46somebody's having a question, something
14:48that is not very clear, I want us to
14:51start uh on execution.
15:02There's no question. So now
15:05in terms of execution, I've said the
15:07process of you realizing the judgment,
15:10the process of you realizing the decree
15:13is what we call execution.
15:16That is what we call execute. Execution.
15:19So execution is a process by which you
15:21realize the judgment or you realize the
15:24decree.
15:28Are we together?
15:35>> Yes, we are.
15:36>> Yes, we are.
15:48>> All right. So, so if you have to sell
15:51their property to get your money, that
15:53is execution. If you want to take them
15:56to civil jail, that is execution.
16:00Are we together? Now the next thing is
16:02the question of extraction of a decree
16:04which I've always said and the reason
16:06why I keep insisting on this is anytime
16:09you are talking about decrees and
16:11execution of decrees the first thing you
16:13must be very sure before even turning
16:16anything down is to ensure that there's
16:19a decree. Now if the decree is not
16:21mentioned to be present then you have to
16:23go and execute the decree. And very
16:25quickly I want somebody to take us
16:27through the process of extraction of a
16:28decree.
16:36I'm going to take us through the process
16:37of extraction of a decree because that
16:39is what we're going to execute.
17:03guys. You guys are very funny.
17:09The process of extraction of decrease.
17:18Maybe I'm muted. Am I?
17:36>> Okay. Salom.
17:42>> Okay. Thank you. So um uh the extraction
17:46of decrees it starts from or rather it's
17:49provided for under order 21 rule 8 and
17:52it starts with any party to assute uh
17:56drafting uh a decree after they have
17:59drafted the decree they then send it to
18:02the other party. So if it's if it was
18:05the if it was the defendant who drafted
18:08then they'll serve it to the plaintiff
18:10and vice versa. So after they have
18:13served it to the other party, the other
18:15party will then confirm whether the
18:18contents of the uh of the decree are in
18:20conformity with the judgment. And if
18:24they agree to the contents of the
18:26decree, then the decree will be sent to
18:29the to the court registra
18:33uh to the relevant court registra and
18:35then now the court registra will sign
18:38and seal the decree. However, in the
18:42event that the other party does not
18:44agree to the contents of the decree,
18:46what then happens is that the decree is
18:50um first of all the decree. The other
18:52party can suggest any amendments and
18:54then send it back to the person who
18:56drafted the decree and make amendments
18:58and then it can be sent to the
19:00>> Hey,
19:03these amendments
19:06start fresh.
19:09Okay, let me proceed.
19:11>> What do you mean? Uh uh the person can
19:15make amendments.
19:18>> Uh-huh. Proceed.
19:20>> Okay. So if the other party is
19:22disagreeing to the contents of the
19:24decree, what then happens is that the
19:26decree is marked for settlement down
19:28there. The decree will be marked for
19:30settlement and then it will be taken to
19:32the to the court registra. And now the
19:34court registra will look at its content
19:37and and place it before the judge and
19:39list it for settlement. Then the judge
19:42will look at the decree and confirm
19:45whether it's in line with the judgment.
19:48And then the judge will also uh make a
19:51ruling either agreeing to the either
19:55agreeing with the decree or not agree
19:58with the decree. Yes.
20:02Okay.
20:05All right. So we already have a decree.
20:08We already have a decree. Uh we already
20:11have a decree.
20:14Okay. Now if we have a decree the next
20:16thing is to go and execute the decree.
20:20The next thing is to go and execute. So
20:22don't don't forget the process of
20:23extraction of a decree. Okay. Don't
20:26forget the process of extraction of a
20:29decree.
20:34Are you together? I keep mentioning this
20:36thing lightly and some of you think uh
20:39it's a joke. You will get questions to
20:41this extent and you need to answer them
20:44very clearly.
20:49Are we together? So I'm assuming that at
20:52this point we all understand the process
20:54of extraction of a decree. And if you
20:56don't understand this process, it is
20:58time for you to ask questions. If you
21:01don't understand uh it is time for you
21:03to ask questions.
21:06Are we together?
21:08Any question?
21:55No question
21:58guys. Um let me explain some few things
22:01before we go.
22:03Uh let me uh explain some few things
22:05before we go and uh those few things are
22:08as follows. Okay.
22:11When the examiner is setting a question
22:12on extraction of decrees or execution of
22:15decrees, it is expected of you to
22:19understand the process
22:21of extracting the decree. Now, sometimes
22:24the examiner is only interested in the
22:27extraction of the decree, nothing else.
22:31Are we together?
22:36>> Yes.
22:38Yes, we are.
22:41All right.
22:45All right. So, let's go and talk about
22:47the question or uh the modes of
22:50execution or the procedure of execution.
22:53So, we're going to start with the modes.
22:54I'm going to highlight the modes and
22:56then um we are going to talk about uh
23:00we're going to talk about uh the exact
23:03process. I'm trying to bring up my
23:05screen. Let me bring up my screen.
23:32I know it's a rough but we we'll get
23:35that we'll get there. Now let's get to
23:38the the most I'm just going to highlight
23:40them very fast and then we can go
23:41through them one by one. So the first
23:42one is the question of delivery up of
23:45property and this property is any
23:49movable property. Delivery up of movable
23:53property that is the first one. The
23:55second one is the question of
23:57attachment. Okay, attachment. So when it
24:00comes to attachment, there are various
24:02forms of attachment. You can execute
24:05through attachment and there are various
24:06forms of forms of attachment. The first
24:09one is attachment and sale of movable
24:13property. Attachment and sale of movable
24:17property. The second one is attachment
24:20and sale of immovable property.
24:23Attachment and sale of immovable
24:26property. The third one is attachment
24:29and sale of agricultural
24:32produce. Attachment and sale of
24:35agricultural produce. Are we moving
24:38together? Attachment and sale of
24:41agricultural produce. Are we together?
24:44The next one is attachment of salary.
24:47I've said when it comes to attachment
24:48there are so many things we can attach.
24:50So there's attachment of of salary. The
24:53next one is attachment of debt which we
24:55all call the Ganeshi the Ganeshi
24:58proceedings. So attachment of debt is
25:00what we all call the Ganeshi the Ganeshi
25:03proceedings. Are we
25:08So are we okay on attachment? So that is
25:10the attachment. Now let's go to the next
25:12one. The question of civil jail, arrest
25:16and detention. Civil jail. Now civil
25:19jail happens in the instance where you
25:20want to arrest the judgment data and put
25:23them to jail for failure to satisfy the
25:26decree. Failure to satisfy the decree.
25:29Are we together? After than that we have
25:31the appointment of receivers.
25:33Appointment of receivers. And then we
25:35have the execution against the
25:38government. Those are the only ways in
25:41which we can execute execute publicly.
25:45Any questions so far?
25:56>> You kindly repeat the last two.
26:03>> What did you do here? Let's start there.
26:05That's where we start from.
26:09>> I had receivership and government
26:14>> and what
26:17>> government?
26:19>> What has government done?
26:21I didn't mention receivership.
26:27>> Please repeat.
26:30You're not What is the first one I said?
26:32Mhm. Next. mention the ones that you
26:35you've had for the first one. Uhhuh.
26:39>> Question of deliver of movable property,
26:44attachment which can take various forms.
26:47Attachment and sale of movable property,
26:50immovable property, agricultural
26:53produce, salary and attachment of debt.
26:56>> What is what is salary? What when you
26:58say salary? I mention those things in
27:00full.
27:01>> Sorry. Attachment of salary. Okay. A
27:05question of deliverer for movable
27:07property. Attachment and sale of movable
27:11property. Attachment and sale of movable
27:14property. Attachment and sale of
27:17agricultural produce. Attachment of
27:20salary. Attachment of debt. Then we have
27:24civil jail.
27:26um you arrest and detain the judgment
27:29data for failure to um failure to
27:32satisfy the decree.
27:35>> All right.
27:37And then
27:39>> now the last two
27:41>> is appointment of receivers.
27:44>> Mhm.
27:45>> And then execution against the
27:47government which is an entire procedure.
27:49We shall discuss that.
27:51>> Okay. Thank you.
27:52>> All right. So the question is how do you
27:55execute? Now judgment has been made.
27:58Okay, judgment has been made against
28:00somebody. Okay, your client has a decree
28:03in their favor. What is the procedure
28:06they need to follow to realize the
28:08judgment? Okay, the first one is the
28:11apply application. They will apply for
28:15execution. Now even though you have a
28:17decree, you cannot just walk into
28:19somebody's house and text something. No,
28:21you can't. Okay, you cannot walk into
28:24somebody's house and take and take
28:26something. Are we together? You have to
28:29you have to do what? You have to apply
28:34for execution.
28:40I don't know.
28:42So, you apply for execution. Now, how do
28:44you apply for execution? How do you
28:47apply for execution?
28:49All
29:03right, there we are. Now you can see my
29:07screen. You can see my screen. So
29:09application for execution is done in a
29:12prescribed form and that is form 14 of
29:14appendix A. Nobody will ask you to draft
29:16this form. that you need to know that it
29:19is a standard form. It is called form 14
29:22of appendix A. Now form 13 of appendix A
29:25is a default judgment. Form 14 is
29:27application sorry application for
29:30default sorry uh uh execution against
29:34judgment. So if you want to apply for
29:36execution except in the instance where
29:39you are executing against the government
29:42or you have the question to do with uh
29:45to do with Ghy proceedings, you're going
29:47to make that application in the standard
29:49or in the prescribed form which is
29:51form4. So the first thing is you make an
29:54application in the requisite form. make
29:56an application in the requite form and
29:59in that application you are going to be
30:02you're going to be asking
30:04the court for the specific mode of
30:08execution. Are you together? So when you
30:10make this application there are few
30:12things you need to mention in this
30:13application. Okay. The first one is just
30:15the details of the case. The case uh the
30:17number of the suit the suit number the
30:19name of the parties the date of the
30:21decree uh whether somebody has appealed
30:23or not. uh if payment has been made or
30:27any installment has been done. Uh the
30:30the decal amount how much was awarded
30:32and cost if cost was awarded how much
30:34was cost and then who do you want to
30:37execute against and then lastly you must
30:40indicate under 10 the mode of execution.
30:44So it is you to decide how you want to
30:47execute your decree. Okay? It is you to
30:50decide how you want to execute your
30:52decree. Are we together? We are
30:56together. So, let me edit this form.
31:00So, let's call this person
31:04ABC.
31:06Sorry,
31:08A B C.
31:10And let's have that there.
31:13So, our
31:15decree holder is ABC.
31:20So let's have
31:23uh that
31:26and then our judgment data let's call
31:28that person XY Z just for understanding
31:35X
31:36Y Z
31:42Y it.
31:53Okay, you can see that very clearly. And
31:56then when we are making an application
31:58for execution, I've said just indicate
32:00the case uh the case details, the date
32:02of the is a standard form. Nobody will
32:04ask you to draft this form. It has never
32:06been drafted. It is a standard form.
32:07Just fill it out. you indicate the
32:09details how much is supposed to be paid
32:11if there's an amount to be paid or if a
32:13property to be delivered and all that.
32:16So my attention or my focus would be
32:18here 9 and 10 that is what we are going
32:20to be talking about. So the person we
32:24are going to execute against is XY Z
32:27okay X Y Z and then the mode of
32:32execution is this one here which I want
32:34us to proceed and and talk about. So
32:37let's start from the first one which is
32:39the question of uh attachment and sale.
32:42Now when you are applying okay when you
32:46are applying for execution of a decree
32:49you must indicate the mode of execution
32:52that you want. It is you to decide how
32:54you want to execute your decree. Guys am
32:57I moving too fast? Do you feel like I'm
32:59moving too fast?
33:04>> Nope.
33:05Any
33:21Sure.
33:37I feel like I'm leaving somebody behind.
33:38Any question on this form or the mode of
33:40application?
34:18All right.
34:24All right.
34:38Let me just edit something. Just one
34:40second.
35:12All right. Now there we go. Now
35:15attachment and sale of movable property.
35:19That is the first one. Now you must pray
35:22for the two things. You cannot pray for
35:24attachment only because if you attach
35:26and you can't sell, how will that help
35:28you? If you attach and you can't sell,
35:31how will that how will that help you?
35:33That will not help you. Okay. If you
35:37attach and you can't sell, how will that
35:40help you? That will not help you. So
35:42therefore, it means you must pray for
35:45attachment and sale. Attachment and
35:49sale. Attachment and sale. So that you
35:52sell and you get your money. If you pray
35:54for attachment only, you can only get
35:56attachment only. You cannot sell. So you
35:59pray for attachment and sale. Now when
36:02do you attach and sell? Now if you have
36:05seen that they sorry the government data
36:08has movable properties, they have a car,
36:11they have a laptop, they have um a
36:13machine, they have a tractor, whatever
36:16they have, they have an asset that is
36:17movable, then you can go to court and
36:20ask the court to give you an order of
36:24attachment and sale of that specific
36:27property. And again, you cannot execute
36:30a decree if you've not done your
36:32homework. You must know which asset they
36:35have specifically. Are we together? You
36:37must know which asset they have
36:39specific. So let's assume that this
36:41judgment data in our case XY Z has a
36:44motor vehicle. So we are going to pray
36:46for attachment.
37:04of
37:07motor vehicle
37:09KBC
37:11126
37:13L
37:15posttop.
37:17So it means you need an order. Okay.
37:21allowing you to sell KDC X sorry KDC 125
37:26L which is the motor vehicle or which is
37:29the movable property belonging to to the
37:32judgment data. So in terms of the
37:34process you really advise this person
37:36that number one you extract the decree.
37:39Number two, you will make an application
37:41for execution of a decree in the
37:44prescribed form. And then number three,
37:46you will be of course requesting the
37:49court to grant you or to give you orders
37:51of orders of attachment and sale of the
37:55movable property. And then the next one
37:58is that once you make the application,
38:00the court will give you an order and
38:03that order is called a warrant of
38:05attachment. The court will issue
38:07warrants of attachment.
38:20Are we together?
38:27>> Yes, we are.
38:33>> Any question?
38:53Okay. So, we're going to have some
38:54questions.
39:21All right. Let me assume that there's no
39:23question.
39:25So assume there is no question. So in
39:29that instance we are complete on the
39:31process of the process of uh applying.
39:35So we have said you extract the decree.
39:37You already have the decree. The next
39:38one, you make an application uh for
39:41execution in the prescribed form asking
39:43for orders of attachment and sale of the
39:46movable property which is KBZ KBC 125
39:50which is a motor vehicle belong to a
39:52judgment data. The court will issue
39:54warrants of attachment. Now if it is a
39:57movable property normally you get
39:59warrants of warrants of attachment. If
40:02it is a movable property, you will get
40:05warrants of wars of attachment.
40:08Are you together? You will get wars of
40:11attachment. And then if it is immovable,
40:15you will get a prohibitory order.
40:18I hope that makes sense.
40:37I'm speaking to somebody.
40:41We all together of saying
40:43>> yes we are
40:44>> warrants of attachment is movable
40:47movable warrants of attachment a movable
40:50property like land a prohibitory order
40:54ringitari what is your question
40:58>> thank you let me hope I'm not confusing
41:01[snorts] uh with what you we have on the
41:04screen
41:05let's take I had I had applied an
41:08interloatoral application for attachment
41:11of this particular motor vehicle and
41:13that was granted
41:15and now fast forward the judgment has
41:18been entered. It means now I have to do
41:21another executor sorry extraction. What
41:24do
41:24>> you mean judgment has been entered? What
41:26judgment are we talking about here?
41:28>> Sorry. Uh let's uh going back to the
41:32interlocator. Yeah. Maybe it's a suit
41:35where this particular vehicle was uh was
41:38in contest and I applied for
41:41interlocator application for its
41:43attachment and that was granted pending
41:46judgment.
41:48>> Mhm. So fast forward
41:51the matter has been heard
41:54and uh judgment entered in my favor that
41:59this vehicle now either needs to maybe
42:02be given to me in my favor that is. So
42:06at that point it was interlocally
42:07pending judgment. Now the judgment is
42:09here the vehicle is mine. So it means
42:11now we have to do this uh application
42:15now for or how does that sorry shape out
42:18now at the final judgment sorry
42:20>> application there there's something I'm
42:22losing there the last
42:24you've been told to take the vehicle
42:25right
42:27>> yes so the let's assume was a matter
42:30whereby
42:32this vehicle KBC was in contest
42:35>> Mhm. and I feared Jackson would sell it.
42:40So I made an interlocal application for
42:42it attachment pending
42:45judgement.
42:47>> Fast forward the court now has decided
42:50this vehicle rightfully belongs maybe to
42:52Dorin.
42:54>> Mhm.
42:55>> So how does now that shape out at this
42:58point where we are at now in execution
43:01>> delivery? So you will not sell it. You
43:04will now it will be delivered. I'll talk
43:06about delivery or maybe I should have
43:08started with delivery. Uh but because we
43:12already talk about attachment, let's
43:14finish attachment and then we can talk
43:15about delivery.
43:18>> So thank you.
43:19>> Now I say that if it is movable property
43:24it starts from all of them. You will
43:26start from the decree. Get the decree
43:29extract the decree. Apply for execution
43:31in the prescribed form. are praying for
43:34the orders, the relevant orders that is
43:35an order of attachment and sale of that
43:38movable property. The court will issue a
43:41warrant of attachment and then after
43:44warrant of attachment has been issued
43:45and of course this warrants of
43:46attachment are made to auctioneers then
43:49the auctioneers will issue a notice. If
43:52it is movable property then the notice
43:55is usually 15 days. Okay, movable
43:59properties the notice is within 15 days.
44:01So within 15 days you'll get a notice
44:03from the auctioneer telling you that you
44:05need to pay that decrypted amount or
44:08they will proceed and sell.
44:11Are we together? They will proceed and
44:13sell. What are they selling? They are
44:16selling that specific item which they
44:19have proclaimed.
44:21They have attached it. You've been
44:23served with warrants of attachment. So
44:25they shall proceed and sell through
44:29public auction after the lapse of 15
44:32days. That is the process of
44:35execution of a decree in the instance
44:37where you want an order for sale and
44:40assessment and sale of movable property.
44:45Are we together?
45:06Guys, tell me together.
45:08>> Yes.
45:10>> All right. Good. Now
45:14that having been said, let us go through
45:17the process of attachment and sale of
45:22immovable. Now if it is immovable, what
45:25is the process? The process is the same.
45:27Extract the decree. Once you have the
45:29decree, you make an application for
45:34execution in the prescribed form. Okay.
45:38Praying for what orders? orders of
45:40attachment and sale of immovable
45:42property that it must be a specific
45:44property. So for instance in our case
45:46we'll be paying for attachment and sale.
45:48Look at my screen. Attachment and sale
45:50of land reference number
46:04one. that broke
46:07that.
46:09So you are praying for an an order of
46:12attachment or sale of immovable
46:14property. But it must be specific. You
46:16can't say immovable property. You have
46:18to tell us which immovable property this
46:21this is. Okay. Attachment and sale of
46:25land reference number that stroke that.
46:28Are we together? That is good. And then
46:31the court will proceed and issue. The
46:34court will proceed and issue what we
46:36call
46:38prohibitory orders.
46:40Okay. The court will issue a prohibitory
46:42order. This prohibitory order is like
46:45inhibition.
46:46Okay. It will be registered against the
46:50title of the property at the land
46:51register. So once you get the
46:53prohibitory order, you serve it upon the
46:55land register. The land register shall
46:58proceed and register against the title
47:01of the property. So that means the
47:03property has been attached. So how do
47:06you attach a movable property? Warrants
47:09of attachment. How do you attach an
47:12immovable property? A prohibitory order
47:15together. So once you get the
47:17prohibitory order, you serve it upon the
47:19land registra. The land registar shall
47:22proceed and register that against the
47:24title of the property. It means once it
47:26is registered you cannot sell, transfer
47:30or even lease that property and then of
47:35course you proceed and appoint the
47:36auctioneers. The auctioneers in case of
47:39immovable they will be issuing 15 sorry
47:4330 days notice. So if it is land or
47:46anything that is immovable then it is 30
47:50days notice. After 30 days notice, the
47:53property shall be sold by public
47:56auction.
47:58Are we guys together on that process?
48:10We are together.
48:15>> Yes, we are.
48:16>> Yes.
48:17I can't uh
48:30any questions? Some of you are not
48:31asking questions, but I know this is a
48:33time where you get a lot of questions.
48:35So, please ask
49:10All right, no question. So let us
49:13proceed. Now before we move, uh let us
49:15talk about delivery app of property. Now
49:20that is also another mode of execution.
49:23Delivery app of property. Now in this
49:25instance, we're not attaching anything.
49:27We are delivering a property. So for
49:29instance like the case Dorin is saying
49:31if the property in dispute was a motor
49:34vehicle okay a motor vehicle KDX or
49:39whatever registration number and
49:41judgment has been delivered and the
49:42court has said the defendant to bring
49:45that motor vehicle or to give the motor
49:48vehicle to the plaintiff. Now if the
49:50defendant has refused we shall extract
49:53the decree. Once we extract the decree
49:56we shall make an application for
49:57execution. in the prescribed form as you
50:00can see on your screen. And then under
50:03the under number 10, we are going to be
50:05talk about delivery app of
50:10sorry delivery
50:13app of
50:16motor vehicle
50:20A
50:22125 L delivery.
50:27Are you together? So it means in this
50:30instance we are simply getting an order
50:32to compel the defendant to bring that
50:36vehicle because that vehicle is what is
50:39in dispute. Now we can't attach it and
50:42sell it. Why are you selling your car?
50:43The court has already said it is yours.
50:46So it is delivered to you. So if it is
50:48something that is movable, you'll be
50:50praying for delivering up of that item.
50:59Yeah, sure. Thank you. That makes sense.
51:01Thank you.
51:06Any
51:11question.
51:53one where
52:00you please uh pick up that
52:07no explain to me what you've understood.
52:11trying to understand who whose property
52:16is being delivered. Is it
52:18>> any property
52:20>> on which is belonging to
52:23the judgment data
52:30decree holding
52:31>> any I've said any property that is in
52:33due that is movable
52:36it could be your car it could be the the
52:38defendant's car whichever car so long as
52:40the court has said go take that car then
52:42you can pray that that car be delivered
52:44to you if the defendant has refused to
52:46deliver
52:47So if you are you given a if it is a
52:50document the court has said produce the
52:53title deeds you will you will pray that
52:56those title deeds be delivered delivery
52:59up if it is uh let's say what
53:03a horse or a cow you will pray that
53:06those uh those cows be delivered to you
53:10whatever so long as it is a movable
53:11property and the decree has said that
53:14you take that specific property
53:17You can pray for you can pray for uh uh
53:20pray for
53:23uh delivery app.
53:40>> Uhhuh. Somewhere.
53:44>> Yeah. Thank you. when uh when uh when
53:47the property attached is land,
53:50do we have to sell it at the market
53:52value or there's a specific threshold
53:55that has to be met? Because uh just this
53:57week we had the case of Captain Kungu
54:00saying that this land is coffee estate
54:02valued at 3.5 billion was sold for only
54:0570 million and this is what has caused a
54:07lot of problems. But how would we
54:09proceed in this case?
54:11>> The rule is very clear. You have to
54:12value the property so that you sell it
54:14at a good price. It must be valued and
54:15you have to get the best price for it.
54:17So any person that is selling, we will
54:19have a duty to get the best price.
54:30>> Thank you. Good luck.
54:34>> All right. Any other question?
54:38So we are done with uh delivery app
54:42where I said that in certain instances
54:45remember there are two decrees. The
54:46first decree the court can say the
54:48plaintiff to be paid 1 million. Now if
54:51the court says that it is you to decide
54:53how you're going to get your your 1
54:55million. It is your duty to look for
54:58that 1 million. Are you together? It is
55:01your duty to look for that 1 million.
55:04If the court said you be paid 1 million
55:06and therefore you can pray for
55:08attachment and sale uh of immovable
55:11property, attachment and sale of movable
55:14property, attachment of salary,
55:15attachment of debt and all that.
55:17However, sometimes the court can say
55:19because you you could have gone to court
55:22because you wanted to get a laptop.
55:25There's a laptop that the defendant was
55:26not giving you in in his office. There's
55:30a laptop in his office that he wasn't
55:31giving you. So you went to court to get
55:33an order to get that laptop. So there's
55:36no payment of money here just to get
55:38laptop.
55:40Okay. Now the court will say that that
55:44laptop be surrendered or be delivered to
55:47uh be given to the plaintiff. Now if the
55:50plaintiff is not giving you sorry if the
55:52defendant is not bringing the laptop
55:54then you go and get a decree extract the
55:57decree and make an application for
56:00execution.
56:01And in that application, you're going to
56:03pray for a specific order of delivery
56:06app where you are asking the court to
56:09direct the defendant specifically to
56:12deliver that laptop to the plaintiff.
56:16That is what we are calling an order of
56:18delivery up of property. And of course
56:22that is the third mode of execution.
56:24Let's look to the next one that is
56:26attachment and sale of agricultural
56:29produce. attachment and sale of
56:32agricultural produce. You can attach an
56:34agricultural produce. If there's coffee
56:36in the field, if there's maze, beans,
56:39steel, sugar cane, onions, whatever
56:43agricultural produce that is on the
56:45field, you can attach it and these are
56:48treated as movable properties.
56:51So, what is the procedure of attachment
56:54and sale of agricultural produce? Very
56:57simple. the same thing. You will proceed
56:59and extract the decree. Once you extract
57:02the decree, you will make an application
57:05for execution in the prescribed form
57:08praying for an order of attachment and
57:10sale of agricultural produce which of
57:13course you have to mention maze growing
57:16on what parcel of land.
57:19Okay, if it is maze, you have to
57:20indicate what parcel of land is it
57:23growing on. Okay. And then the court
57:26will issue a warrants of attachment
57:28which of course will be attached.
57:31Once you get warrants of attachment,
57:33you'll go and pin them on the property
57:36where the maze is growing. And then once
57:39that maze is harvested, then you can now
57:43take them and sell. The moment you've
57:44attached them, you can patch a property
57:47that is already in the field. I mean
57:48while still on the field, while still
57:50growing. So the moment they are
57:52harvested, you need to get those bags of
57:54mace and go sell to get your money
57:57because that agricultural produce is
58:00attached. So let's look at how that
58:02order is framed. So look at the screen.
58:06So attachment and sale.
58:20and sale of let's say M
58:26uh
58:29rowing
58:31on LR
58:36121 box 001.
58:39Okay. So that means that that maze
58:42growing on that property is already
58:43attached. So you cannot harvest and run
58:47away with it. You must
58:49give it to the decree holder. That is
58:52what you're paying for. So the moment
58:53you make an application for this order,
58:55the court of course once the court is
58:57convinced that indeed this property
58:59belongs to the judgment data, then
59:04they'll proceed and give a warrant of
59:05attachment of course which are issued to
59:07the auctioneers. They will proceed and
59:09attach a copy of that order on the
59:12property somewhere on that farm. They
59:14will pin that order there. Once the prop
59:17once the crop is ready and harvested,
59:20then the judgment creditor the decree
59:22holder shall have access to the property
59:26sorry to the uh to the crops and sell to
59:29realize to realize uh uh their money. So
59:33that is attachment and sale of
59:36agricultural produce. Again 15 days. Now
59:40the next one is attachment and uh
59:42attachment of salary. Attachment of
59:45salary. Now attachment of salary will
59:47have something special. Now okay let's
59:50go to attachment of salary and talk
59:52about the rules of attaching salary. The
59:54rules of attaching salary. So the first
59:57one you will get a decree. Extract a
1:00:00decree the normal way. extract a decree.
1:00:03Once you extract a decree, then you
1:00:06shall proceed.
1:00:07Okay, you shall proceed and make an
1:00:10application for execution in the
1:00:14prescribed form and of course indicating
1:00:16the mode of execution as attachment of
1:00:20salary.
1:00:26Okay.
1:00:28So attachment of the judgment data
1:00:31salary payable by
1:00:35the TSC for instancement
1:00:44of
1:00:46sorry have to be very specific who is
1:00:49paying that salary. Okay.
1:01:00Hea the teacher service commission if
1:01:03they are teachers.
1:01:05Okay. So you have to indicate specific
1:01:08if you know the salary account you will
1:01:11indicate the account number there. Okay.
1:01:14So attachment of salary. Now once you
1:01:17get an order
1:01:19of course the court will issue an order
1:01:20of attaching or an order attaching that
1:01:22salary that same same order shall be uh
1:01:26shall be sent to the employer.
1:01:28Okay. Now what are the procedures that
1:01:31must be followed before attachment of
1:01:32salary? The first one the court must
1:01:34issue what we call a notice to show
1:01:37cause. When it comes to attachment of
1:01:39salary and an order of arrest and
1:01:42detention, the court must issue what we
1:01:44call a notice to show cause before this
1:01:48salary can be attached. The person whose
1:01:51salary is going to be attached must be
1:01:53first summoned.
1:01:56Okay. Must be first summoned.
1:02:03Are we together?
1:02:12We are together.
1:02:29All right.
1:02:32Perfect. So I was mentioning the
1:02:34question of attainment of salary. So
1:02:36anytime before you attach somebody's
1:02:37salary once you make an application
1:02:39forment of salary the court will issue
1:02:43notice to show cause inviting the
1:02:46judgment data to come and show cause to
1:02:48court why their salary should not be
1:02:51attached. The court must require that
1:02:55this person come to court and explain
1:02:58why their salary should not be attached.
1:03:01Now if they don't show sufficient course
1:03:04then their salary will be attached. The
1:03:06court will issue an order attaching
1:03:09attaching their salary. Now the second
1:03:11rule of attachment of salary is that you
1:03:13can only attach a third
1:03:17a third of the salary. Ladies ladies
1:03:19ladies at the back.
1:03:22What is the law saying?
1:03:25A third. [laughter]
1:03:27Okay.
1:03:38If somebody gives you the salary, if a
1:03:40gentleman gives you the salary, please
1:03:42just tell them I'm a law abiding
1:03:44citizen, I can only take up to a third.
1:03:48You're not allowed to take more than a
1:03:49third of somebody's salary. Even if that
1:03:51person is your husband, whether your
1:03:53boyfriend or whoever that person is,
1:03:56don't accept to take more than more than
1:03:59a third. Are you together? Some of you
1:04:01take even more than 3/4.
1:04:05You're criminals. Anyway, the law is
1:04:07very clear. You need to you need to
1:04:10attach only a third. Why is it a third?
1:04:12Because if you look at the constitution
1:04:15under article 25, there's something
1:04:17called the rights or the freedom against
1:04:21slavery.
1:04:22Slavery. Nobody should work for you the
1:04:25whole month and then at the end of the
1:04:27month you attach 50% of their salary.
1:04:30That is slavery which is very
1:04:32unconstitutional. Nobody should work at
1:04:34the end of the day and then you attach
1:04:3790 100% of their salary. that cannot
1:04:39work again because that is that is
1:04:42slavery. So you can only attach a card
1:04:44so that the three quarter that is
1:04:46remaining not sorry the two tab that is
1:04:49remaining they are able to also afford
1:04:51themselves a normal standard of standard
1:04:54of life.
1:04:56So you can only attach a card together.
1:04:59So attachment of salary is very simple.
1:05:01There are only two rules to that. The
1:05:03first one generally is you need to make
1:05:05an application. Once you make an
1:05:07application, then the court must issue a
1:05:09notice to show cost. After that, the
1:05:11court will only issue an order allowing
1:05:13you to attach up to a third of the
1:05:17salary. It doesn't matter whether they
1:05:19owe you a million shillings and uh they
1:05:22earning 50,000. You get a third of their
1:05:24salary and then until it gets to a
1:05:26million. So, you pray that they don't
1:05:28get fired. If they get fired, you lose
1:05:31that uh monthly payment as well. you
1:05:33have to go look for another way of uh
1:05:35executing. So that is attachment of
1:05:37salary is very simple. Get a decree make
1:05:40an application for execution in the same
1:05:42form.
1:05:43All right. Now let's go to the question
1:05:46of arrest and detention that is a civil
1:05:49jail uh civil jail. Uh this is uh very
1:05:53controversial. Some courts have
1:05:56pronounced themselves against orders of
1:05:58civil jail but orders of civil jail are
1:06:00still valley. Okay. Orders of civil jail
1:06:04are still very very valid. And this is
1:06:06an instance where somebody is committed
1:06:08to jail. Somebody is committed to jail
1:06:11because they are not able to settle the
1:06:13decal amount. They are not able to
1:06:16settle the decal amount. So you take
1:06:19them to civil jail. Now remember that
1:06:23when somebody is taken to civil jail,
1:06:25what's the first reason? The first
1:06:27reason usually is because you want to
1:06:30scare them into pain.
1:06:33You want to scare them into into pain.
1:06:37That's why you take them to civil jail.
1:06:39But some people don't care. Okay? Some
1:06:41people don't care. They will go to civil
1:06:43jail. I mean, they go to jail. They
1:06:45don't care. If you threat them in jail,
1:06:47they'll start walking towards towards
1:06:49jail. So, they will not be scared. They
1:06:52love being in prison.
1:06:54So that will not work on them. That is
1:06:57the second thing is that a person can
1:06:59only go to jail in a [clears throat]
1:07:01civil matter for a maximum of 6 month.
1:07:05It means they cannot go for a period
1:07:09more than more than 6 months. Are you
1:07:12together? So it is normally 6 months but
1:07:15not 6 months at once. Normally it will
1:07:17be uh 30 days uh sometimes 20 days. they
1:07:22come out they be told are you ready to
1:07:24pay now and all that. Number three is
1:07:27that when it is civil jail the decree
1:07:30holder will cater for the expenses
1:07:34in jail. Remember that even in criminal
1:07:38the government will cater for the
1:07:40expenses. Okay, every prisoner has a
1:07:43price. Okay, the expense of a prisoner
1:07:46normally last time I checked was 30
1:07:48shillings
1:07:50per day.
1:07:5230 shillings per day. That is enough uh
1:07:54for your accommodation. That is also
1:07:57enough for your food and enough for
1:08:00water. Yes, the cost of a prisoner is
1:08:03very is is not so much. And don't think
1:08:05that when you go to jail, it is free. It
1:08:07is not free. The government must pay for
1:08:09that. So your your your expenses, your
1:08:13daily expenses is 30 shillings. You
1:08:16know, very affordable. So if you're
1:08:18tired of staying in your house while
1:08:20you're paying a lot of rent, commit is
1:08:23wide open. Just 30 shillings every day
1:08:26and you live a very nice life. Okay? So
1:08:30if you're complaining about paying rent
1:08:32in your house, maybe you pay 100,000 or
1:08:3510,000, whichever, just remember that
1:08:38people are paying 30 shillings and that
1:08:40is inclusive of bills and and food,
1:08:44everything. So that is the cost of a
1:08:46prisoner. So if you take somebody to
1:08:48civil jail, you will pay for their food,
1:08:52their accommodation, their water,
1:08:54regardless of whether they're showering
1:08:56in prison or not, you'll still pay for
1:08:58that. So they'll do the math for you and
1:09:00then they will tell you that if this
1:09:02person is going to be in jail for 20
1:09:04days, the cost of a prison, I think
1:09:06right now because of inflation has gone
1:09:08up maybe to around 50 shillings, is not
1:09:09so much. A prisoner is very cheap, maybe
1:09:1250 shillings. they'll do the math for
1:09:14you and do 50 shillings times times this
1:09:18or if it's 100 shillings times this.
1:09:22Okay? And then you pay.
1:09:26That is another rule. The fourth rule in
1:09:28terms of uh civil jail is that when you
1:09:31come out of civil jail, it doesn't mean
1:09:33that you don't owe anything. You
1:09:35actually owe more.
1:09:40per day.
1:09:44So when you come out of jail, the
1:09:46expenses that this decree holder I mean
1:09:49incurred to keep you in jail will be
1:09:52added as a top up to the decital amount
1:09:56that you are not able to pay. So it
1:09:58doesn't mean that when you go to jail we
1:10:00shall leave but no you will you will
1:10:03still pay unless the order was very
1:10:06specific that uh you go to jail or you
1:10:09pay
1:10:11I mean you pay or you go to jail. So if
1:10:14it is made as an alternative then of
1:10:16course you can uh you can lie but in
1:10:20most instances in all instances you will
1:10:23come back and still find that if you
1:10:25owed 1 million even after 6 months in
1:10:28jail you still owe 1 million you still
1:10:29have to pay for it but in this instance
1:10:31it is going to be more because your
1:10:34expenses in jail were catered by the
1:10:37decree the decree holder because the
1:10:40government doesn't really pay for for
1:10:41civil jail. It only pays for criminal
1:10:44matters.
1:10:46I hope that is clear.
1:11:09Yes.
1:11:12All right. So what is the process? Uh
1:11:16the process is you extract a decree. Uh
1:11:20once you extract a decree, you make an
1:11:21application for execution in the
1:11:23prescribed form. Then the court must
1:11:26issue a notice to show cause. The court
1:11:29will issue a notice to show just like
1:11:31attachment of attachment of salary. The
1:11:34court will issue that notice to show
1:11:36cause whereby the court will require the
1:11:39judgment data to come and show why they
1:11:42should not be committed to civil jail.
1:11:46Okay.
1:11:48Are you together?
1:11:55>> Yes, we are.
1:11:56>> Yes.
1:12:06Okay. So, an order of commit to civil
1:12:08jail or in the other instance you might
1:12:11say uh an order of arrest.
1:12:15So, arrest and detention
1:12:20of the judgment data. Arrest and
1:12:24detention of the judgment data. So, that
1:12:26is what you're praying for. And of
1:12:28course this only happens where the
1:12:29judgment data is a natural person. You
1:12:31cannot arrest a company. Okay? You
1:12:34cannot arrest a company unless you have
1:12:36a decree against the directors. So
1:12:38arrest and detention of the judgment
1:12:40data. So once you make that application,
1:12:42the court will issue a notice to show
1:12:44cost so that this person come and
1:12:45explain why they should not be committed
1:12:47to to civil jail. Okay. If they don't
1:12:50explain sufficiently or they don't pay
1:12:53the amount of money required of them to
1:12:55pay to satisfy the decree, then the
1:12:57court will issue an order of an out of
1:12:59civil j for a period of court for a
1:13:01period of time that the court may
1:13:02determine not exceeding of course six uh
1:13:066 months. Are you together? Not
1:13:09exceeding 6 months. And of course uh the
1:13:12other rules will of course apply when
1:13:14you come out of jail. You still owe the
1:13:16money unless you've paid it. You still
1:13:17owe the money. And uh chances are you're
1:13:20going to owe more because the expenses
1:13:24uh that uh the decree holder expended on
1:13:26you while you're in jail. You'll have to
1:13:28you'll have to cater for that as well.
1:13:31But of course remember that uh one
1:13:33provisor is that this is an order that
1:13:36the court will order sparingly. It is a
1:13:40last resort. Last last resort. Are you
1:13:43together?
1:13:52>> All right.
1:13:54So, let's talk about appointment of
1:13:56receivers. Appointment of receivers.
1:13:58Now, in the last class where we
1:14:00discussed um I remember we discussed um
1:14:04conveyancing, we talked about uh
1:14:06appointment of receivers. Now, you can
1:14:08also make an application for appointment
1:14:10of a receiver. You can always also make
1:14:12an application so that a receiver be
1:14:14appointed. So that a receiver be
1:14:17appointed
1:14:20together.
1:14:28But what did you say?
1:14:46All right. So in that class, if you
1:14:48remember, we say that receivers are like
1:14:51women. Okay. Receivers are like women.
1:14:56Receivers and women have one thing in
1:14:58common. They are supposed to be
1:15:01receiving something.
1:15:03No, women are happiest when they receive
1:15:07something.
1:15:09And we say it in that class and you
1:15:11agree that uh if you have a woman in
1:15:13your life, your mother, your girlfriend,
1:15:15your sister,
1:15:17uh your your female friends, make sure
1:15:21they're receiving something. Eh, that is
1:15:23the only time they'll be happy. So
1:15:26receivers are like that. They can never
1:15:30be appointed if they're not receiving
1:15:31anything. So you cannot appoint a
1:15:33receiver if there's nothing to be
1:15:35received. And this thing is money, not
1:15:37anything else. Money. Okay. So if the
1:15:41property in question is an income
1:15:44generating property, you will appoint a
1:15:47receiver to receive the income being
1:15:50generated by that property.
1:15:53For instance, if the decree holder,
1:15:56sorry, the judgment data had a block of
1:15:58apartments generating monthly income in
1:16:02terms of rent, you will appoint a
1:16:05receiver over that over the apartments
1:16:08so that the receiver can receive the
1:16:11rental income and wire that money to the
1:16:15decree holder for the satisfaction of
1:16:17the decree. That is the work of the
1:16:19receiver. So the property must be an
1:16:22income generating property. So what is
1:16:24the procedure? You extract the decree.
1:16:28Extraction of the decree. Now once you
1:16:31extract the decree then the court sorry
1:16:36you will make an application for
1:16:38execution of that decree in the
1:16:40prescribed form. Okay. Once you make
1:16:42that application and of course in that
1:16:45application you're going to pray for an
1:16:46order of appointment of receivers over
1:16:51the income.
1:16:54So let's have it there. Uh appointment
1:17:07receiver over the rental
1:17:16rental sorry
1:17:19rental income
1:17:22generated
1:17:25by.
1:17:26So you need to tell us what property. So
1:17:29we'll be given the property that is
1:17:30generating that income maybe Nairobi
1:17:39block
1:17:41six that could be the property
1:17:43generating an income. So it could be an
1:17:46apartment, it could be a land, it could
1:17:48be a matu, whatever it is, so long as it
1:17:51is income generating, then you appoint a
1:17:54receiver over the rental income
1:17:56generated by Nairobi block six for
1:17:59instance. That's an example. Then of
1:18:01course the court will issue an order
1:18:03appointing a receiver over that rental
1:18:05income and that money shall be wired to
1:18:09the account of the decree holder to
1:18:10satisfy the decree. So once the decree
1:18:13has been satisfied and the receiver has
1:18:16paid themsel then that order shall
1:18:19lapse.
1:18:21So we have talked about delivery up of
1:18:23property attachment and sale of movable
1:18:26property attachment and sale of
1:18:27immovable attachment and sale of
1:18:30agricultural produce attachment of
1:18:32salary arrows and detention and we talk
1:18:35about the question of appointment of
1:18:38receiver. The only two things remaining
1:18:40that we need to have a special class for
1:18:42uh Ghana proceedings which is now a
1:18:44different set of application and also
1:18:47the question of the question of
1:18:49execution against the government which
1:18:51is as per the government proceedings uh
1:18:54proceedings act. Okay. Now based off
1:18:57what we have discussed today any
1:19:00question
1:19:02as many as possible.
1:19:17>> All right. So let's start from
1:19:22you're muted.
1:19:27What do you mean I'm muted? I'm not
1:19:28muted, am I?
1:19:36>> No, you're not.
1:19:38>> Yeah.
1:19:43>> Yeah. Thank you, Jack. Please allow me
1:19:46to ask this question to the end. Please.
1:19:48Please.
1:19:50This is with regard to the attachment of
1:19:53the agricultural produce.
1:20:00>> Can you hear me, Jon?
1:20:02>> Yes. I'm I'm letting you ask the
1:20:04question to the end.
1:20:08>> Yes. So now uh uh the decree holder
1:20:14>> uh let's let's take it the it was a
1:20:16pliff. Oh, okay. The decree the decree
1:20:19holder. Let's assume it was a plaintiff
1:20:22and the defendant passes on
1:20:27before the before the decree holder
1:20:33extracts the decree.
1:20:38So [snorts] now at that point
1:20:41the defend the and the um you have to
1:20:46apply for execution of to attack the the
1:20:48agricultural produce as we said.
1:20:51So now does that put the the exeutor of
1:20:54the defend of the defendant estate
1:20:58too not to go for those interim
1:21:02the limited grants for maybe um
1:21:04preservation of uh getting your question
1:21:08I'm not getting question I promise I
1:21:10will I will let you ask but I'm not
1:21:12getting I'm getting what you're asking
1:21:15>> yes so now there is the decree holder
1:21:20>> Mhm.
1:21:21And uh probably it was some agricultural
1:21:24produce which was in context or some
1:21:27land that had agricultural produce and
1:21:30they've won this case and they now need
1:21:34to attach and sell the agricultural
1:21:36produce.
1:21:39>> Mhm.
1:21:41>> And in this interim period
1:21:46the defendant dies.
1:21:49dies. What time? What? What is this
1:21:51thing you're calling interim period?
1:21:53>> The period between judgment and
1:21:56extraction of the when they extracting
1:21:58the the decree.
1:22:02>> So do do they die after the decree or
1:22:04before?
1:22:10>> After the decree. After the decree after
1:22:12the decree has been extracted.
1:22:16>> Okay. power. So now do as you said we
1:22:21the copy of that will be a fixed
1:22:25uh where the produce is growing.
1:22:30>> Mhm.
1:22:31>> So now does that mean
1:22:38who said who said you harvest crops?
1:22:41I'm um if if that was the the the
1:22:44produce in context
1:22:47>> we didn't say nobody's harvesting the
1:22:49did we say the decree holder will
1:22:50harvest we said you get the order and
1:22:52you put them on the property it is a
1:22:55property to harvest you don't harvest
1:22:56for him you will harvest once and
1:22:58harvest and
1:23:00>> ah so now that's the point where I was
1:23:02getting confused so fix that warrant on
1:23:05that sh
1:23:06so now it mean now because doring has
1:23:09passed on my executive now will have to
1:23:11apply for the limited grants
1:23:15to be able to administer to harvest and
1:23:18sell and now hand over the produce to
1:23:20the degree holder. Is that the position?
1:23:23That's why I
1:23:25>> That is that is pretty obvious. That is
1:23:27pretty obvious. When you get that order,
1:23:29you serve it upon the executive of the
1:23:30will. If there's a will, if there's
1:23:33already one or it upon the estate, the
1:23:36estate will be in charge of now
1:23:37harvesting and giving it to you because
1:23:38that is now their duty. who the same
1:23:41thing that the deceased person was
1:23:42supposed to do is what the deceased I
1:23:44mean the the deceased person's estate
1:23:46will do nothing changes
1:23:49>> ah so I was fearing you tell me we're in
1:23:51civil class and I'm talking about pro
1:23:53but thanks for that
1:23:55>> it's the same thing it's the same thing
1:23:57so you just make sure you serve the you
1:23:59serve the decree uh upon the the
1:24:03administrator of the estate or you serve
1:24:05it upon uh upon the uh executor if
1:24:09there's an exe
1:24:14All right.
1:24:16Any other question?
1:24:36Yes. Stila.
1:24:41So um uh when you are beginning the
1:24:44class you mentioned that in an exam
1:24:47question
1:24:49you can pro you cannot proceed to
1:24:51execute a decree without extracting it
1:24:55first.
1:24:57So I was hoping maybe when we were go
1:25:00when we going to be like going through
1:25:03the questions I would understand whether
1:25:06we are like literally extracting it in
1:25:10terms of drafting or we are extracting
1:25:13it in terms of the procedure like we the
1:25:17way we've said before we mentioned that
1:25:20we are going to be applying for
1:25:22execution
1:25:24we mentioned first we have to extract
1:25:26the decree. Thank you.
1:25:29>> I've said you have to extract the
1:25:30decree. The decree must be what I've
1:25:32said the decree must be there. The
1:25:34decree must be there. So if the decree
1:25:37is not there, you advise and I've given
1:25:39the procedure. Have I not given the
1:25:40procedure? This I've said in terms of
1:25:42the procedure, you first extract the
1:25:44decree. You make an application.
1:25:48Did I say that?
1:25:51>> Yes, you did.
1:25:53>> Uhhuh. So your question is
1:25:57if somebody if somebody asked you what
1:26:00is the procedure advise person X on the
1:26:04procedure the first thing extraction of
1:26:06a decree the next one make an
1:26:08application in that application you pray
1:26:10for so if I told to advise what will you
1:26:12do tell me answer that question for me
1:26:18>> um so if I'm told to advise the client
1:26:22And so first you extract the degree.
1:26:27Secondly
1:26:30you proceed to apply
1:26:33to the court using the prescribed form.
1:26:37Uh then you indicate the mode in which
1:26:39you intend to execute the decree.
1:26:44Then the court will um make an order
1:26:48which is a warrant of
1:26:53Warrant of attachment for immovable
1:26:56goods,
1:26:58immovable property and prohibitory order
1:27:02for
1:27:04immovable property and this will vary
1:27:07now depending on the mode of execution
1:27:10that you have chosen.
1:27:16>> Okay. So your question is your question
1:27:19answered?
1:27:23Yes, my question is answered. I thought
1:27:25like you you meant like we extracted
1:27:28literally we drafted. So
1:27:31>> what you been drafted? You only draft
1:27:33what you've been told. If you you only
1:27:35draft what you've been told. If you've
1:27:37been told to draft
1:27:40>> proceed and extract the decree, then you
1:27:42extract the draft. Prepare the draft
1:27:44decree.
1:27:47>> Okay. Well guided. Thank you.
1:27:50>> All right.
1:28:01I have a question.
1:28:30All right. Uh looks like there's no
1:28:32question another question.
1:28:36>> So are we together on that extraction? I
1:28:39mean so execution of decrees.
1:28:43So that we
1:28:45start on the question we shall start on
1:28:47the question of execution against the
1:28:49government as well as execution uh or
1:28:52attachment of attachment of uh debt that
1:28:55is the guardianship proceedings.
1:28:57Is it that we are all together
1:29:02the same page?
1:29:16All right. If that is the case, the
1:29:18class ends there. Uh I want us to
1:29:23uh proceed and uh John
1:29:26uh stop sharing my screen.
1:29:30I will end the recording
1:29:33but I'm expecting us to request for the
1:29:35recording in time. In the next class we
1:29:37talk we finish up on the applications
1:29:40both for Gani and uh the government and
1:29:44then we can um look at a few questions
1:29:47and then go to review and appeals. We
1:29:50almost done with Civ. So don't worry
1:29:53uh don't worry at all.
1:29:57So if there's no further question, I
1:30:00will see you

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