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B R N 11 CIVIL LITIGATION 2 — Transcript

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0:02Please mute your microphones.
0:04I hope you had a good Saturday
0:07and I hope that uh
0:10uh you making progress in terms of your
0:13preparation.
0:15If you still think that you have a lot
0:17of time, yes, that's true. But the time
0:20is very limited.
0:22Yes, that is true. But the time is very
0:25limited. So you might want to use it
0:27very very sparingly. and also do as much
0:31as you can uh in as far as the revision
0:35is concerned. So don't be caught off
0:38guard uh don't be caught off guard when
0:41the exams are here and you're yet to uh
0:45prepare for the same. So do whatever you
0:48got to do and uh if you are a special
0:53and like we've said please make sure
0:55that uh you are doing everything
0:58possible within your time uh so that um
1:02your revision makes sense. Okay. So that
1:06the revision makes sense.
1:09All right. So we have spoken about so
1:12many things guys
1:14and uh we have gone through so much and
1:18my hope and prayer is that at least at
1:20this time at this moment as we speak now
1:24uh I do hope that we are on the same
1:27page uh in as far as so many things are
1:30concerned. Okay, first I hope that you
1:33understand the general procedure.
1:36I really do. I really do hope that you
1:39understand the general procedure.
1:41I also do hope that um you understand
1:44what um the process looks like in terms
1:48of the various actions we've discussed
1:49under each topic and if there's any
1:52person who's not understanding where we
1:54are uh please uh make a point to do
1:57that. Now in the previous class we went
2:01from order one all the way to order 20
2:05and what we discussed uh was the
2:08preparation of pleadings and the filing
2:10of pleadings together with any
2:12interlocutory application uh that might
2:15be brought uh within the suit together
2:17with any interlocatory application uh
2:20that might be brought within uh within
2:25uh uh the buildings. Okay. And then
2:28under order 21 we went through and
2:31talked about judgments. Uh we spoke
2:34about judgments. You remember under
2:36order 21 we talked about judgment. We
2:38also about decrees rulings and orders.
2:41And we said that this comes at a time
2:43when the court has already made a
2:45decision regarding the application that
2:47is a ruling or regarding the pleading
2:50that is the that is the judgment. And
2:53then we went to order 21 rule 8 where we
2:56spoke about the procedure of extracting
2:58a decree. We spoke about the decrees
3:02and how to extract a decree. But also we
3:05spoke about the various modes of
3:08execution of decrees. But also remember
3:11on the flip side we've had the chance to
3:13talk about some of the remedies against
3:16decree and and judgment. Okay, we have
3:20talked about
3:21some of the remedies against the decree
3:24or the remedies against judgment.
3:28Are we together? Now in the last class
3:32we went through the process of
3:33execution. We went through the types of
3:37or the modes of execution. Uh we
3:39discussed delivery up of property,
3:43attachment and sale of
3:45movable property, attachment and sale of
3:48immovable property, attachment and sale
3:52of agricultural produce, attachment of
3:55salary, attachment of debt, the order of
3:58arrest and detention and also we did
4:01talk about appointment of receivers and
4:04I did mention the question to do with
4:06execution against the government. Now
4:10based on all those things, is there any
4:12person having a question? Is there any
4:14question emanating from what I've just
4:16said? Now should there be a question I
4:18am expecting you guys to give me that
4:21question so that we can explain it and
4:23then we can move straight ahead to what
4:26I'd love to do today.
4:32Any
4:39question?
4:49All right. Looks like we are fine. Looks
4:52like we are fine. Now one simple thing
4:55uh we talked about in the last class uh
4:58is that when it comes to the process of
5:00execution in terms of delivery app of a
5:03movable property, attachment and sale of
5:06movable property, attachment and sale of
5:09immovables, attachment and sale of
5:11agricultural produce, attachment of
5:14salary, arrest and detention,
5:17appointment of receivers. The process
5:19was simple that you would make an
5:20application under you' make an
5:23application under uh form 14 of appendix
5:27A that is a standard form for execution
5:30and you request the code for execution.
5:35Are we together
5:40now? Is there any question coming from
5:42that as well?
5:54No question. So I want us to talk about
5:55something special today and those are
5:58two things. The first thing uh is the
6:00question to do with uh attachment of
6:03debt. The question to do with attachment
6:05of debt. Now attachment of debt is
6:08whereby you are bringing a third party
6:11proceeding and you are attaching a debt.
6:16Okay, you are attaching a debt.
6:19Are we together? Attachment of debt
6:22simply involves the attachment of debt.
6:25That is what we call the guishi
6:26proceedings. And I have said that guishi
6:29proceedings are third party proceedings.
6:32They are third party proceedings. Now
6:34what are third party proceedings? Third
6:36party proceedings are proceedings that
6:38are initiated by or against a person
6:42that is not a party to the suit. So if
6:45you initiate a suit against another
6:47person that is not part
6:50uh that is not part of um uh the suit
6:53then that is a third party proceeding.
6:56So we've talked about the third party
6:57proceedings uh under order one where the
7:00judgment sorry where the defendant will
7:03bring in a third party for purposes of
7:06indemnity and contribution. We also
7:09talked about the objector proceedings
7:11under order 22 rule 51 to 54 and today
7:15we shall be looking at we shall be
7:17looking at attachment of debt which is
7:20called the guishi proceeding. So why is
7:22attachment of debt a third party
7:24proceeding? Why are Ganeshi's third
7:27party proceedings? It is very simple.
7:29Ganishi is a third party proceedings
7:31because number one a Ganishi
7:34by definition is any person that is
7:37indebted to the judgment data. Let's
7:41give the context
7:43guys. Are you hearing me?
7:48>> Yes.
7:54Am I too fast?
7:59consult.
8:04>> Okay.
8:06So, Ganeshi, before we go to the Ganesh,
8:09let's discuss the relationship between
8:11the judgment data and the decree holder.
8:14Now, we have the decree holder. The
8:16decree holder being the person that has
8:19the decree and then we have the judgment
8:21data the person who must pay for the
8:24decree. Okay. Now there are certain
8:27instances in the first six instances we
8:29have said you will go and execute
8:32directly against the judgment data. How
8:36you can attach their movable property,
8:38their immovable property, agricultural
8:40property. You can attach a salary. You
8:42can appoint a receiver. You can have
8:44them arrested and detained
8:47or you can have an order of delivery up
8:50of a property from there. Now in the
8:54next instance which is this one the
8:56proceedings you are executing
8:59not against the judgment data but any
9:02person that owes the judgment data. Any
9:05person that is indebted to the judgment
9:07data will of course okay will of course
9:12be the subject of that. So who is a
9:15Ganeshi? A Ganeshi is a person that is
9:17indebted to the judgment data. For
9:20instance, if I owe James money that I
9:24need to pay, James can also get that
9:26money from any person that owes me. Are
9:29we together? So if James
9:33needs let's say a thousand shillings
9:35from me, James can get that money from
9:38anyone that has my money. That could be
9:40the bank, could be anyone. Are we
9:42together? That is again is anyone that
9:46is indebted to the judgment, the
9:48judgment data.
9:56Yes sir.
9:57>> Yes we are.
10:00>> All right. Now the most important thing
10:03that to define is a debt. Now for this
10:06thing to be attached it must be a debt.
10:09For this thing to be attached it means
10:12whatever the Gishi is having should be a
10:15debt. Okay. Whatever the Ghi is having
10:19should be a debt.
10:22Are we together? It should be a debt.
10:27So if it is not a debt, you cannot
10:28attach it. Are you together? Now what is
10:31a debt? A debt is money that the
10:34judgment data would be entitled to at
10:37that specific moment. At that specific
10:40moment, is the judgment data entitled to
10:43the money?
10:45Is the judgment data entitled to that
10:48money? If the answer is yes, then that
10:50is a debt. If the answer is no, then
10:52that is not a debt.
10:58Are we together in one second?
11:06Yes. Yes, we are.
11:25All right. So let's give an example of
11:28what ordinarily would be termed as a
11:30debt. Now let's look at your
11:32relationship with the bank.
11:35Your relationship with the bank. Now
11:38normally when you deposit money with the
11:41bank when you take your money to the
11:42bank definitely you enter into a
11:45relationship called the data creditor.
11:50Are we together? Data creditor.
11:59Are we together?
12:01So let me explain again. The moment you
12:04go to the bank and you deposit your
12:06money with the bank then you become okay
12:11you become the data sorry the creditor
12:14and the bank becomes the data. So the
12:18relationship between you and your bank
12:21the relationship between you and your
12:23bank is that of a data citor.
12:28When you give the bank that money to
12:29keep for you, the bank is the bank is
12:32your data. The bank owes you that money
12:35and you're supposed to take it at any
12:36time that you want. Are we together?
12:39That of course that depends on the
12:40different uh modalities that we we'll
12:42discuss.
12:44Are we together? Now that is the
12:46relation between you and you and the
12:48bank. That is the relationship that you
12:50have with the bank.
12:53That of a data and a creditor. Are we
12:58together now? It is a debt. Remember, it
13:01is a debt. If it is money, okay? If it
13:06is money that the debt that you can take
13:09from the bank at that specific moment.
13:11So, the question we're asking ourself is
13:13on this specific day and this specific
13:16time, can you walk to the bank and
13:18withdraw that money?
13:20Okay. Can you walk to the bank and
13:23withdraw that money? If it is not
13:25possible for you to withdraw that money
13:27from the bank then that is not that is
13:29not a debt
13:32I don't know whether to
13:43>> so if you want to know whether something
13:46is a debt
13:49what is a debt a debt is money that you
13:54would be entitled to at that specific
13:57moment. So if it is money that you can
13:59go and withdraw from the bank at that
14:01moment, then it is a debt.
14:04Okay,
14:05I'll give another example. When you
14:07deposit a check with the bank, uh when
14:10you deposit a check,
14:14okay, when you deposit a check uh with
14:17the bank and normally it takes a few
14:19hours depending
14:24Okay. Um depending on um the bank uh
14:29normally it will take uh it will take
14:31like
14:33I don't know depends on the bank really
14:34and depends on the type of the check.
14:37Okay. So when that check is uh deposited
14:41normally you are not able to access the
14:43money at that moment. You can't access
14:45that money at that specific moment.
14:49that money is not available.
14:54Okay,
14:55it is not available.
14:58So sometimes sometimes
15:04sorry sometimes
15:08you've seen um when you walk to the ATM
15:12uh they will tell you two things. The
15:13first one they will tell you when you
15:14look at your account they'll tell you
15:16this uh the actual balance and the
15:18available balance. Okay. The actual
15:21balance and the available the available
15:24balance.
15:26Okay. The actual balance is the actual
15:30balance in your account but also the
15:33available balance is the balance. Okay.
15:36The available balance is the balance
15:38that you are able to access at that
15:40time. Sometimes you can see your actual
15:42balance is more than your available
15:44balance. The actual balance is more than
15:46the available balance.
15:50So how does that work? So if you
15:52deposited money, let's say a check of a
15:54million shillings, not really available
15:56shillings, you're not supposed to write
15:57a check of a million shillings, let's
15:58say 500,000.
16:00When you leave the bank the cashier and
16:02you go straight to the ATM once that
16:04check has been run through the system it
16:07will show that your balance is 500
16:09500,000
16:11is the actual balance but it is not
16:15available
16:17it being available
16:19um it being available means you can
16:22sorry you cannot withdraw it at that
16:24moment.
16:26Are you together? You cannot withdraw it
16:28at that specific at that specific moment
16:31and that is why we are calling it a
16:33balance that is not that is not
16:35available
16:39guys. So it means therefore then that
16:42money that 500,000 shillings is not a
16:45debt at that moment because you can't
16:47withdraw it.
16:49Number two, if you open a savings
16:52account with a bank, if you open a
16:54savings account with the bank, okay, you
16:57open a savings account with the bank, to
17:01what extent? You tell the bank that hey,
17:03I want to save my money and I want this
17:05account to be locked for one year. It
17:08means until that one year has expired,
17:11that is not a debt. The bank doesn't owe
17:13you that money because it is a fixed
17:15account. It is a locked account. Are we
17:18together? So I want you to understand
17:20the concept of a debt. That is what I'm
17:22trying to do. A debt is money that you
17:24can walk into a bank and withdraw at the
17:26at that exact moment. That is a debt.
17:29And therefore that is the money that you
17:32can bring a Ganeshi proceedings over.
17:36Are we together? You can only bring a
17:38proceedings over a debt. Money that is
17:40owed to you by the bank. It is not money
17:42that will be owed. It is money that is
17:44already there and you can access it. Are
17:47we together?
17:55All right. So then the question then is
17:59in any instance at any time you are
18:02deciding whether to bring a GHI
18:04proceedings it is very important for you
18:06to define a debt. Is it a debt? Is it
18:10money that the judgment data can access
18:12at that moment? I hope I've answered
18:14that question very well or I've
18:16explained that point of debt uh almost
18:18sufficiently.
18:21Now let's talk about the procedure.
18:24Let's talk about the procedure.
18:27Let us talk about the procedure. Now the
18:29procedure is very simple. The procedure
18:31is very simple. Uh in all instances like
18:34the first six I mentioned, you normally
18:37bring the standard application. uh the
18:40standard application uh which is uh the
18:43application for uh the application for
18:46execution and when it comes to Ghy
18:49proceedings you actually make an actual
18:50application called the notice of motion
18:53which is brought under certificate of uh
18:55certificate of agency
18:59I don't know whether I'm moving too fast
19:02now before we get into the uh the
19:03process remember that there are two
19:06people sorry there are three people in
19:07the gui proceedings the first One is the
19:10first one is the judgment creditor, the
19:12decree holder and the second one is the
19:14judgment data and the third one is now
19:18the Ganishi. The Ganeshi being the
19:20person that owes money. Okay. The person
19:23that owes money to the judgment data
19:26that is the G that is a Gishi.
19:30Are we guys together? Any questions so
19:32far?
19:44took up a motor.
19:56All right.
20:01All right. So if there's no question,
20:05let me try and bring up my screen.
20:08I hope we are understanding what gi
20:11proceedings are.
20:13I hope we are understanding what gi
20:16proceedings are.
20:21>> Yes, we are.
20:21>> Fully and well.
20:24Fully and well.
20:27>> Yes, we are.
20:31All right.
20:33So,
20:42you can see my screen. I hope so.
20:53All right. So now
20:56whenever you're making an application to
20:58court, whenever you're making an
21:01application for court and this is a
21:02Ganeshi uh proceedings application,
21:05there are few things you're telling the
21:07court. Okay, there are a few things that
21:10you are actually telling telling the
21:12court. What are you telling the court?
21:14Number one, you're telling the court
21:16that hey, I got a judgment.
21:20Okay. I as the decree holder, I obtained
21:24a judgment against the judgment data.
21:28Okay. I obtained judgment against the
21:31judgment data.
21:40Are we together? That is the first one.
21:41The second one that I obtained a decree
21:46after the judgment. I extracted a
21:49decree.
21:51Okay.
21:53Number two, that decree has not been
21:57satisfied.
21:59The decree has not been satisfied.
22:04The decree has not been satisfied.
22:08Are you together? The decree has not
22:10been satisfied.
22:13Number three, you're telling the court
22:15that
22:17the Ganeshi has an account or the data
22:20has an account with the Ganeshi.
22:24Okay. Number four, that that account has
22:29money.
22:31Okay? That account has money.
22:35Okay? And lastly, you're telling the
22:37court that that money should be used to
22:40satisfy to satisfy the decree.
22:48Are we together?
22:56>> Yes, we are.
23:02>> All right. So, what are we saying again,
23:04guys? It's a story. Applications are
23:06stories. You need to be very good at
23:08storytelling for you to prepare your uh
23:11for you to prepare uh your application.
23:17All right. S. So what are we saying that
23:21number one? I
23:25did what? I obtained judgment against
23:28the judgment against the judgment. Uh
23:31data. I obtained judgment against the
23:34judgment data. That is number one.
23:37Number two, you're telling
23:40uh the court that after the judgment, I
23:44obtained a decree. Okay? I obtained a
23:47decree against the judgment data. Number
23:50three, that decree has not been
23:53satisfied. The decree has not been
23:55satisfied.
23:57That decree has not been satisfied.
24:01Okay, are we together? The decree has
24:04not been satisfied.
24:06Number four, you're telling the court
24:09that this person that is called the
24:12judgment data has an account with the
24:16Ganishi.
24:17Number five, that that account has
24:20enough money to satisfy the decree or to
24:24partially satisfy the decree depends.
24:26Okay? And then it is in the interest of
24:29justice that that money be transferred
24:32to the judgment creditor to satisfy the
24:34decree. Full stop. That is all you need
24:37to mention. So that is what you're
24:39mentioning. You're telling the court
24:41that is your ground. Whenever you're
24:43going to court for an order of Ghi, you
24:46are telling the court that you obtained
24:47a judgment and a decree. Okay? If you
24:50are given a date, you indicate the date
24:52that that decree has not been satisfied
24:55and that the Ganishi has an account
24:57belonging to the judgment data that has
24:59enough money and that that money be
25:01transferred to the judgment creator or
25:03the decree holder for the satisfaction
25:05of satisfaction of the decree.
25:08All right. Now that is your story line.
25:11But again what is the what is the
25:13application? What are you praying for?
25:16Now normally there are usually four
25:18things okay that you're praying for four
25:22things or five but two are not important
25:25so generally you have two or generally
25:27three that you're praying for the main
25:29prayers let's the main prayers the first
25:31one is what we call an order ni an order
25:35ni
25:37number two we have an order of
25:39attachment
25:41okay number three is an order absolute
25:44it. So those three prayers are very
25:47important. We have an order ni and we
25:50have an order um of attachment and then
25:53an order absolute. Remember that we have
25:56it is attachment of debt. So there must
25:58be an order of attachment. So what I
26:00what you're saying is this
26:02whenever you make an application for a
26:04Gishi proceeding or a Ganishi order then
26:08you asking the court to give an order ni
26:11an order of attachment and then an order
26:14absolute.
26:17All right let's um break it down. Now
26:21whenever you make this application and
26:23the court is convinced the court shall
26:26issue on the f the first order that the
26:28court will give is an order is an order
26:31ni
26:33okay an order ni an order ni is an order
26:37that will do two things number one it
26:40will
26:42summon the gani to come to court and
26:45explain whether indeed they have an
26:48account that belongs to the judgment
26:50data and whether that account has money
26:53and if it does why that account should
26:56not be attached. Are we together? That
26:58is the first one. The second one is that
27:02this order will create what you call an
27:06equitable charge. It will create an
27:09equitable charge over the account. How?
27:12The moment the bank has been served with
27:15the order ni that account is
27:18automatically charged. The account is
27:20automatically charged and therefore you
27:22cannot transfer any money from that
27:25account. That account is charged.
27:28That account is charged.
27:33Okay. The next one is an order of
27:36attachment. The moment the court has
27:38issued an order ni and also um an order
27:43of course an equitable charge then the
27:46ni will serve as
27:50notice to show cost. Number two it will
27:52create a charge over the account and
27:54then the bank or the gani will be
27:57required to enter appearance and explain
28:01file their replying affidavit explaining
28:03whether that account has money or not.
28:05So in that instance the bank will of
28:07course be coming to number one confirm
28:10that yes there's money here we don't
28:12have a problem transferring it. That's
28:13one. Number two
28:15the bank can come to court and confirm
28:18that no we don't have an account here.
28:21Number three the bank can come to court
28:23and say no no no.
28:26Okay there's no account. Sorry there's
28:28an account here with the money but we
28:31don't want this account to be attached.
28:33Are we together? Now once the court has
28:36received the response the court will
28:38hear the matter. If the court is
28:39convinced with the applicant that is the
28:43judgment creditor the court will issue
28:46an order of attachment attaching that
28:48account. And then lastly the court will
28:51issue an order absolute. The order
28:54absolute is what will direct the Ganeshi
28:57to transfer that amount of money in that
28:59account directly to the judgment the
29:02judgment creditor.
29:05If you're not still understanding what
29:07I'm saying, your hand should be up.
29:23Guys, your hand should be up if you're
29:26not understanding what I'm saying.
29:30Okay, you guys are not cooperating. So
29:33let's go. So after that we proceed and
29:36file our our grounds. We proceed and
29:39file our grounds. And in terms of
29:41grounds, what are the grounds? Number
29:43one, you have a judgment and a decree
29:45against the judgment data. That judgment
29:47and decree has remained unsatisfied.
29:50And the judgment data has an account
29:53with the machine. That account has
29:55enough money to settle the decree and
29:58that that money should be transferred to
30:00the judgment data. Are we together? Any
30:03question
30:18>> Susan?
30:21>> No, I didn't understand what happens
30:23after I've understood what you have said
30:24about after an order of n has been
30:26granted. What about I've not understood
30:28on the place of another of attachment
30:30what happens
30:33>> but it's a touch I've said the three
30:35orders give me the chronology
30:37give me the chronology of what I've said
30:39>> no no said
30:41>> give me give me the chronology give me
30:43the chronology of what happens just like
30:46I've explained the given so you said
30:53finally an order hey relax.
30:58Which orders are we talking about and
31:00what are they supposed to be doing? That
31:01is what I'm saying.
31:05>> So number one,
31:06>> can you hear me?
31:08>> I can hear you.
31:09>> So I've said I've said an order an order
31:12of attachment then an order absolute.
31:14Then you said that is where it's a
31:17notice to show cause where the the
31:20Ganesh is invited to no the GI is
31:24invited to say whether they have an
31:26account with the judgment data uh
31:28whether the account should be attached
31:30that's what I got but I didn't get for
31:32attachment of order that order I didn't
31:35get it
31:38>> uh okay that is uh that is fine
31:42uh that is fine
31:44So let's uh go to the next
31:51any question I mean I want to combine
31:53all the question then I can explain
31:54again anyone else with a confusion. Uh
31:57somebody else uh called Cambi.
32:01[clears throat and cough]
32:02>> Yeah thank you Malimu. How do you get to
32:04know how much money somebody has in the
32:08account for you to say uh that you hold
32:12this amount in this account? or ai um
32:16you know uh for you to have that account
32:19at um a subject of this application
32:24that's easy uh that's easy you can do
32:28whatever you want to do insider dealings
32:31nowadays if I know Camboni Timotei has
32:34an account with KCB I'll just call
32:37someone at KCB a friend of mine who
32:39works at KCB and like hey there's this
32:41guy that owes me money called Timotei I
32:43know he has a bank account there and
32:45then they'll tell me give me his ID or
32:47give me his name. they'll just do a
32:48search for me and tell me that it's not
32:50hard so I'll know
32:53or if I don't have uh any person working
32:56in KCB I'll have you followed you know
32:59I'll just hire a private investigator uh
33:02they will follow you wherever you are
33:03when you walk to a bank they'll be there
33:04with you think they're customers but
33:06they're just following
33:08so whatever you do and remember again
33:10let me explain this the court does not
33:13care whether you broke into the bank's
33:17vault
33:18whether I hacked into your phone,
33:20whether the court does not care whether
33:24it was a violation of your privacy. The
33:27court doesn't care. Okay? When it comes
33:30to Aanishi proceedings, there is only
33:32one simple question that is being
33:34answered. It is not a position for you
33:37to start saying, "Oh, you violated my
33:39right, my data privacy." That is not
33:42important here. What is important at
33:44this time is the bank. Do you have an
33:47account with this belonging to this
33:49person? Yes. Is there money in that
33:51account? Yes. Transfer it to the
33:54judgment date. It doesn't matter how you
33:55know it. What is important is is there
33:58money there? And is that money
34:00sufficient to satisfy the decree? So
34:03there are so many things that people
34:04have done in practice to get to know. Of
34:07course they and the most common one they
34:09will hire somebody. And remember
34:12nowadays if somebody has your ID number
34:14they know everything about you. They
34:16know all the bank accounts you have.
34:18They know all the properties you have,
34:20you know, they know everything. They
34:22just need to know your account number.
34:23So, I mean, sorry, not account number,
34:25just your ID. Okay. Once somebody has
34:28your ID or even your name, your full
34:30name, it is easy to know that
34:32information is everywhere. Okay?
34:34Everywhere. Even your phone number is
34:37enough to know your bank account and
34:39balances. So, it's not hard.
34:42If somebody doesn't know, they just
34:44don't want to know. But they can know if
34:45they want to. So if you owe them money
34:47and they really want to know whether you
34:49have an account, they will know it. Very
34:51easy.
34:54All right. And of course in Kenya we
34:56don't have a very strong system against
34:58uh such uh breaches and also we don't
35:01have systems that uh will track
35:05for instance in certain jurisdictions
35:08and of course some companies in Kenya
35:10have done have implemented that in
35:11certain jurisdiction if you work in a
35:14bank if you work in a bank and um uh you
35:18search somebody's name a customer's name
35:22everybody will be notified that you're
35:23looking for that
35:25And unless that was sanctioned by a
35:28ticket, you go and explain to the
35:31manager why you are looking for Timothy.
35:34They will call you and ask you, hey, why
35:35are you searching for Timothy in the
35:37system? Was there a ticket that was
35:40raised for Timothy or by Timothy? So
35:42that works in other jurisdiction where
35:44the systems are very tight to of course
35:47prevent the privacy the um I mean the
35:50the violation of the privacy and the
35:51protection of sensitive information. But
35:53in Kenya here as I mean apart from few
35:56institutions that have implemented that
35:58system and private companies most
36:00companies they will know I mean nobody
36:03will know that I I know your account
36:06balance I just need to call my friend
36:08they will search and nothing will
36:09happen. So again that is where we are
36:11right now as a third world country. But
36:14that is not an issue. But also remember
36:15I've said that what is important
36:18is whe is money not how you got it. And
36:21the question the court will not ask you
36:23how did you know this information? No,
36:26that is not important. Now then that
36:28therefore means if you as a judgment
36:30data you feel that your right has been
36:32violated, your privacy has been
36:35violated, you will go and sue the bank
36:38go and sue the bank later and then the
36:40bank will the bank will deal with
36:41whoever leaked that information.
36:44All right. So that is that I'm going to
36:46explain the process again. Uh Tanina
36:48what is your question? I want to measure
36:50them.
36:51>> Yes. Thank you. My question is if uh the
36:55degree to amount that we want to get is
36:58like 1 million and the judgment data has
37:01like half a million do we go for a Gishi
37:06uh proceedings or attachment of like
37:09said to we we attach the 500.
37:14Do you go for Gani and then what
37:18>> or
37:20execution?
37:22What are we talking about here? What is
37:24your question? Hey, what is your
37:25question? We're talking about Gishi
37:27proceedings,
37:28>> not attachment of of movable property.
37:31So, what is your question on
37:32proceedings? This person has a debt of a
37:35million
37:36>> decree is a million and in his account
37:39there's 500,000
37:41shillings. Uh-huh. Your question is
37:43>> so do we go for Gandhi now for that
37:46amount
37:48which is not enough for satisfying the
37:50decree to amount or is the right way to
37:55do attachment of that 500,000 in the
37:58account
37:59>> that is that is partial settlement. So
38:01yes whether somebody owed you a million
38:04and they only have 1,000 in their
38:06account you'll get another th00and but
38:09of course the bank will first deduct
38:10their charges. So you'll get the
38:12partial. So the partial settlement if
38:14there's not enough money in that account
38:16there will be partial settlement. So
38:18whatever is there will be taken and it
38:20will satisfy the decree partially and
38:23then you go back hunting again. You look
38:26for another account. If you get another
38:28account you'll come and say yes I have a
38:31decree against this person which is not
38:33fully satisfied.
38:35This person has this amount of money
38:37which can satisfy this one fully or
38:39partially.
38:41You get what I'm saying?
38:46>> Yes.
38:47>> All right, Jacqueline.
38:53>> Okay. My question is I've just had a
38:56thought in an instance whereby
39:00whereby like the judgment data
39:03they I'm sure they don't save in a bank
39:06and they they're saving their money in
39:08the in an empa
39:11does an empa entail like a bank like can
39:15I can get that order so that I can
39:19attach get that order of attachment of
39:23debt against the empessa so that when
39:26the money enters the empessa maybe it
39:28directs to my empa can that happen
39:31>> no
39:34it can't happen because of the last
39:37thing you've said when the money enters
39:40it goes direct you know it doesn't work
39:42like that why it must be a debt yes if
39:47you know that I have 100,000 in my
39:49persona now and that I owe you some
39:52money you will get a Ghi order ni take
39:55it quickly to Safariccom Empessa and
39:58have them freeze my Empessa account so
40:01that after the case they will transfer
40:04the whole 100,000 in my Empessa to you
40:08but you cannot guarantee my account in
40:10waiting in advance that
40:14no it must be money that is there
40:17because Safar will be called and they
40:19will be told Safar is there money in
40:22this person's Empa account.
40:25Okay,
40:28that is what will happen. But also
40:29remember that I hope you do remember and
40:31you do understand how the Safariccom
40:34transactions work. The custodian banks,
40:37there's there's no money that is held by
40:39Safariccom. There's no money that is
40:41held by Safariccom, but money is held by
40:43is held by KCB and NCBA. So when you
40:46send me money, that money goes straight
40:48to uh straight to the bank. And it is
40:50not really money. It is not actual
40:51money. It is just an electronic uh an
40:54electronic instruction. The money the
40:56actual money is in NCBA and ACD. But
41:00yes, you can issue that order against
41:03Safariccom.
41:05Okay, that order can be issued against
41:08Safariccom to Gani
41:10or to attach my Empessa account and
41:14everything that is in that account.
41:16Another thing is that it doesn't have to
41:18be the bank. It doesn't have to be the
41:21bank. Are we together? This person could
41:25be
41:27any a circle. You could be saving with a
41:29circle. Uh you could be saving with um a
41:33micro finance. You could even be a
41:36natural person. If I know that Josephine
41:38owes me money and Steven owes Joseph
41:41money, then I can go against Steven. Any
41:44person that has money that belongs to
41:46the judgment data will be a Ganishi.
41:50Okay? It doesn't have to be the bank. It
41:51can be it can be any person.
41:55I hope we are together.
42:04>> Yes, we are.
42:07>> All right. Last question before I go and
42:10answer Susan on the on the process Dorin
42:14bit and then we can look at the
42:16application itself.
42:19>> Yeah, thanks Jack. Would the account be
42:22attached if it's a jointly owned
42:24account?
42:25>> What do you think?
42:31>> That is an obvious answer.
42:34Will that account be attached? Will it
42:36be attached?
42:40>> I'm struggling to
42:42>> There's nothing to struggle about. Stop
42:44looking for struggle.
42:46There nothing to struggle about. It's a
42:48very simple question. Do you think it
42:49will be attached?
42:52That account is jointly owned between
42:54you and somebody else. Do you think that
42:56account will be will be attached?
43:01>> Oh, okay.
43:03>> Okay. Is not an answer. What is the
43:05answer?
43:08>> It should be a church because it's not
43:10exclusive to the judgement.
43:13>> The account must The question is very
43:16simple. It must be a debt owed to the
43:19judgment data. Is that the judgment
43:21data's debt? Is that money belonging to
43:24the judgment data?
43:26Does it belong to the judgment data? It
43:28is yes or yes or no. So if it is no,
43:31then no.
43:37Are we together? So we will come back to
43:40that. But of course it is clear it must
43:42be money belonging to the judgment data.
43:45Now that is a question you ask yourself.
43:51All right. Any other question
43:54that I want us to go through the process
43:56together
43:58so that we understand
44:11All
44:21right. So, so you can see my
44:24my screen. I'm hoping so. Of course, you
44:28can see my screen. And on my screen, uh
44:32you can see an application. So, I want
44:34us to go through uh this application.
44:38I want us to go through the application
44:41and see how therefore we can make an
44:44application for uh we can make an
44:46application for Gishi. What are the
44:50prayers and what are the grounds? What
44:52are the prayers and what are the
44:55grounds?
45:08All right. So normally
45:11normally
45:13uh you always bring it under certificate
45:16of agency. So this application must
45:18always be brought under certificate of
45:19agency. Uh it must always be brought
45:22under certificate of agency. And of
45:24course it depends the court will depend
45:25on which court. uh if the money is above
45:2920 million of course that is a high
45:31court. If it is below 20 million then it
45:33is uh the lower court the relevant
45:36jurisdiction. The parties are of course
45:38three. Uh we have the the applicant
45:41being the decree holder. Uh we have the
45:44judgment data and then we have the Ghi.
45:48Okay. So the Ghi is a third party there
45:50and you indicate and the Ghi which is
45:54normally the second respondent. to the
45:57applicant, second first respondent and
45:59second respondent.
46:01certificate of agency which is uh as
46:03clear as it is now it is urgent because
46:06if you don't move with certificate of
46:07agency this money will be transferred
46:10they will transfer the money before you
46:12realize it the money shall have been
46:14shall have been transferred before you
46:16do realize the money shall have been
46:18transferred so you don't waste time you
46:20move with the speed
46:23now you bring it under of course is a
46:25miscellaneous application it means is a
46:27an independent application that is
46:29brought before the
46:31And of course I'll say the court is any
46:33court
46:34uh the court is any court that has
46:36jurisdiction. Now if the suit here was
46:39lodged in the high court then you bring
46:41it before the high court. It is the
46:42decree of the high court. If the suit
46:44here was issued in um was lodged in a
46:49magistrate court for a matter below 20
46:52million then you go to the magistrate
46:54court. That is clear. Now what are the
46:56things you're praying for? Now anytime
46:58you bring an application under
46:59certificate of agency then it is obvious
47:02that you are going to be praying for an
47:04order certifying the application as
47:07agent that this matter be certified as
47:10agent that is the first one the second
47:12one you'll be praying for an order ni an
47:16order ni and I've said an order ni will
47:20do one main thing but also it has the
47:22effect of doing something else which is
47:25a consequence of ni So that the court do
47:28issue an order ni to the Ganeshi to do
47:32what? To show cause why the first
47:35respondents
47:37account with the Ganeshi should not be
47:39attached in the satisfaction of the
47:42decree. So they need to come and explain
47:45they need to come and explain why that
47:49order should not be issued against that
47:52account. So we are inviting the bank to
47:55come and show cause. We cannot just
47:57attach but we are inviting the bank. Now
48:00as we serve the bank with an order ni
48:03that order ni automatically will create
48:06a charge over the account. So that the
48:10moment the bank has been served with
48:11that nissi the bank is not able okay the
48:15bank is not able to do what the bank is
48:18not able to transfer or mess with that
48:21account.
48:23Okay. Now the moment you get that order
48:26to the bank is served or the gunship is
48:30served. The moment they served they will
48:32respond. They will enter clearance of
48:33course and they respond
48:35responding through a replying affidavit.
48:38Now in that replying affidavit they will
48:41lay out their case
48:44and their case can be of course into
48:46three. The first thing they could be
48:49saying is that no, we don't have an
48:51account. Okay. Number two, they could be
48:54saying yes, we have an account. It has
48:56the money. We are not opposed to uh
48:58transferring it. Okay. And then number
49:02four, sorry. Number three is that they
49:05will clearly indicate yes, we have an
49:07account. This account has money, but we
49:10are not, sorry, somebody's unmuted. We
49:14are not going to be transferring or uh
49:16we're not going to be transferring this
49:18money.
49:33Are we guys together?
49:39Yes.
49:51All right.
49:53So, SA so that will be will be the
49:57response from the bank. Now, the next
50:00thing if the court is not convinced the
50:02moment you file those applications the
50:04court will hear the application. Okay?
50:07The court will hear the uh the court
50:09will hear the application and the court
50:10will make will make an order. The court
50:13will make an order. Now if the court is
50:15convinced that yes
50:18this
50:20uh account should be attached, the court
50:22will issue an order attaching that is
50:25order three an order attaching the
50:27account. The court will issue an order
50:31attaching the account. Okay, that
50:34account will be attached. After the
50:36account has been attached, the court
50:38will issue an order absolute. The court
50:41will issue an order absolute. That is
50:43the last order directing the bank to
50:47transfer that money to the decree uh to
50:52the decree holder.
51:02Are you here?
51:08>> Yes, we are.
51:11>> I I I lifted my hands to to ask a
51:15clarification of you at that point.
51:18>> Oh, yes. Uhhuh. Proceed
51:22>> what that point you have just said that
51:25the court can uh say we have the money
51:28but we are not transferring. So
51:31what what
51:32>> there will be there will be reasons
51:33there will be reasons they'll give the
51:35reasons there
51:37>> and we are coming back to that.
51:39>> Okay. Okay. So then let me wait. I just
51:41wanted to know what are some of the
51:42reason why they will not say they are
51:43not transferring.
51:44>> Yes.
51:45>> So yes you're going to you're going to
51:47answer that for us as we start. You're
51:49going to tell us what some of the
51:50reasons could be. So get ready and tell
51:53me if you are in a bank.
51:59I go now or later.
52:02>> No, no, not now. We are coming back
52:04there.
52:12>> I'm good. We can proceed then.
52:15All right.
52:17Good. Now we first need to understand
52:20the order the application and then we
52:24can look at the response are together.
52:26Now the first thing you're asking the
52:28court is the court to issue an order ni
52:31to the Ganeshi to come and explain why
52:34that account should not be attached.
52:38Okay. The Ganeshi should come and
52:40explain why the account should not be
52:42attached. Number two, once that order
52:45has been served upon the gui, it will of
52:49course charge the account. The account
52:51will be charged, not attached, but
52:53charge. Okay. Then the third the second
52:58prayer you're asking for is an order of
53:00attachment. Remember it is an attachment
53:02of debt. So you are asking the court to
53:04issue an order of attachment.
53:07Okay? Doing what? Attaching that
53:09account.
53:11Are we together?
53:14Why is it being attached? So that it can
53:17satisfy the decree. So that it can
53:20satisfy the decree.
53:23Okay. Lastly, you are asking the court
53:27you are asking the court to do what? You
53:30are asking the court to
53:34issue an order absolute which is an
53:38order transferring.
53:40This is an order transferring that
53:43amount of money from that account to the
53:46decree holder.
53:49Are you together?
53:57Yes, we are.
54:25All right.
54:27Any person that is still not
54:29understanding the the prayers part there
54:31are three main prayers cost and
54:33certification. Those are standard. The
54:35first prayer is ni attachment and order
54:38absolute. Nissi show cost attachment
54:42attaching the account. Order absolute
54:45directing the bank to transfer the
54:46money. So are we together on that? If
54:49you're not understanding that, please
54:50again let me see your hand.
55:03All right. Nobody. So now once you make
55:06such prayers then we go to the grounds.
55:09And the grounds I've already explained
55:10I've already explained the grounds. And
55:11what are the grounds? The grounds are
55:14you obtained a judgment and a decree.
55:16Okay. That that decree was not satisfied
55:19and that there is an account belonging
55:21to the judgment data with the Ganeshi
55:24that has money that it is in the
55:26interest of justice that that money be
55:28transferred.
55:30Guys, if you are to be uh told if you're
55:34told to discuss the contents of this uh
55:37application, if you are told to discuss
55:39the contents of this um application,
55:43would you be able to do that?
55:58And if you're not able to do that, I
56:00need to see your hands
56:09cuz I want us to move into the response
56:11now. I want us to move into the
56:14response. So is there any question guys?
56:21>> Uh yes Hussein
56:24>> um I just wanted to clarify what you
56:27said at what point is the equitable
56:30charge created is
56:34>> at the point of service.
56:38>> Okay. at the point of service so that
56:41the moment you've been served with an EC
56:44you as the bank the moment it is served
56:46with the bank and the bank has seen it
56:48the bank will have no excuse of
56:50transferring that money if you transfer
56:52that money then you know you're going
56:55against a court order so the moment
56:57you're served it is called an equitable
57:00charge because it is rising out of
57:02equity okay because you've seen it you
57:05cannot run away and now proceed and
57:07transfer the money that N itself the
57:10moment you've been served with it will
57:12stop you from any transfer.
57:16So at the point of service when you are
57:18subbed with it.
57:26>> All right. So any question on the
57:28application? It is a normal notice of
57:30motion application. It is brought under
57:33order 23
57:35or if you like uh section 1 a 1B uh of
57:40the civil procedure act.
57:51Okay.
57:56So [clears throat] is it the position
57:58that we are good so that we can start
58:00looking at the response?
58:09>> Yes, we are.
58:11>> All right. So in your free time, please
58:13um
58:15uh make sure you attempt
58:19proceed and attempt
58:21a question.
58:23Not a question, but really just draft
58:25one. You can draft it from anywhere.
58:27Just draft one from any from anywhere.
58:39All right.
58:44All right. Let's get to the response
58:45now. So, there's a question that I'm
58:47looking for. It is a 222 question or a
58:50223 question. Uh that question
58:54provides that a bank where you work at
58:57has been served with an application or
59:00an order an application for Ganeshi. Uh
59:04the bank has been served with our
59:05application for Ganeshi. Uh the bank is
59:08um requesting you or you required to
59:11make uh you're required to make a
59:13response. You are required to respond to
59:15that application. Okay. You are required
59:18to respond to that application. What are
59:20some of the things you will include in
59:22that application? Number one, how do you
59:24respond replying affidavit? And then now
59:28what will be your response? Now if the
59:30bank is opposing the attachment, what
59:33are some of the reasons that the bank
59:34can put forth? Put up your hand and tell
59:36me they're very simple things. If you
59:38are in a bank, you've been served with a
59:40decree and you don't want to that that
59:42account to be attached. What are some of
59:43the reasons?
59:48Let's mention them one by one. Let's
59:51start with um somebody called Steven
59:55Kinako.
1:00:00I I when I've asked you the question I
1:00:03think I was thinking of uh if uh the
1:00:07money is there but uh we the the person
1:00:12has a loan with the bank which is coming
1:00:14due or rather an installment of loans.
1:00:17I'm just thinking of that as a reason.
1:00:19So the bank will not release a
1:00:20>> make make that very clear. Make that
1:00:23very clear in terms of
1:00:25>> an obligation an obligation with the
1:00:27bank which is outstanding.
1:00:32>> Okay. Yes.
1:00:34>> Or there's an agency there can also be
1:00:35an agency from another institution by
1:00:39the uh like if there's an agency with K
1:00:42which they have issued agency to the
1:00:44account. I don't know. Thank you.
1:00:48So the first one is saying uh there is
1:00:50an obl an existing obligation
1:00:53uh that that account uh is being
1:00:57suspended or is already serving an
1:00:59existing obligation. There's a loan
1:01:01account is a loan account
1:01:02>> loan account
1:01:03>> the money the money that is there will
1:01:05be used to satisfy uh the loan that has
1:01:08been advanced. Some some some banks do
1:01:10have loan accounts whereby the money
1:01:12will you'll be given money based on your
1:01:16account. The bank will advance you a
1:01:18loan what do you call we call them um
1:01:22um
1:01:24this the term forgetting the term but
1:01:26the bank will give you money on the
1:01:28strength of your current account. So if
1:01:31you have a million in your bank account,
1:01:33the bank can advance you a loan
1:01:36on the balance of that a million. So
1:01:38that in case you default, the bank will
1:01:40simply the bank will simply take the the
1:01:43million that you have in your account.
1:01:44So if there's already an existing
1:01:46obligation uh I mean extending to that
1:01:49account then the bank will not will not
1:01:51want that account to be that account to
1:01:54be of course
1:01:57interfered with. I
1:01:58>> think it's called cash cover. Is it?
1:02:01>> Yes.
1:02:02>> Yes. There's another word as well.
1:02:04>> Okay.
1:02:05>> Gilbert forami. What is the second one?
1:02:12>> Yeah, the second one could be
1:02:16that the judgment dctor does not on the
1:02:19account.
1:02:21>> Yes, you can see that there's no account
1:02:22here. The bank fine. Yes, you can see
1:02:25there's an account but the bank sorry
1:02:27the judgment data does not own this
1:02:30account. This account does not belong to
1:02:32the judgment data. That is a very good
1:02:34point. Uh-huh. What else?
1:02:36Let's talk to somebody called
1:02:39Omera.
1:03:06We can't hear you. We can't hear you. Uh
1:03:10let's go to
1:03:12Dr. Kennet.
1:03:15>> Thank you. Uh I don't know this is an
1:03:18excuse that uh
1:03:21uh prior lean set of security interest.
1:03:27I'm again
1:03:28>> that that the bank has lean only on the
1:03:32on the money
1:03:34uh in the judgment data account. If that
1:03:38is the same as uh the same as um
1:03:42the previous one that is existing
1:03:46another one then
1:03:48>> okay
1:03:48>> that the the fund are joined or in third
1:03:51party property joint account.
1:03:57>> Yes. Uh it is a joint account. Okay.
1:04:02It is a joint account.
1:04:10Uh-huh. Let's talk to Dorin.
1:04:15>> But the account has no money.
1:04:17>> Exactly. Very simple. Yes, there's an
1:04:20account, but there's no money here. The
1:04:23account has no money. The account has no
1:04:26has no money. Penina
1:04:31>> that the money held is in the account is
1:04:33the money held in trust.
1:04:36>> Yes, that that account is a trust
1:04:38account that that money that is held
1:04:40there is held in trust for other people
1:04:43by the judgment data. So it doesn't that
1:04:45money does not belong to the uh to the
1:04:48judgment data alone. It is a trust.
1:04:50Okay.
1:04:59Just wondering malmo how how that point
1:05:01goes because
1:05:03you you told us by the by the time you
1:05:06apply for gangi you it's you to prove to
1:05:10the court that you have established that
1:05:12I have money in that account. So how
1:05:13does that one apply then?
1:05:17>> Sometimes you're not very sure the
1:05:18amount of money there. You can your guy
1:05:20can just tell you hey somebody has he
1:05:22has an account here. this is the count
1:05:23number you know but now you don't know
1:05:27exactly how much is there you know or
1:05:30sometimes you have interacted before
1:05:33okay you are you've interacted before uh
1:05:36you've interacted before uh with uh this
1:05:39guy you know the account number you know
1:05:41the account number but as the time
1:05:43you're bringing the application you're
1:05:45not very sure if there's money in that
1:05:47account or there's no money in that
1:05:48account
1:05:50okay so the bank is the custodian of
1:05:53that account. Therefore, the bank will
1:05:55come and explain. You know, you as the
1:05:58judgment creditor, the decree holder,
1:06:00your work is only to allege.
1:06:03Okay? Your work as the decree holder is
1:06:06to allege that there's an account here
1:06:08with money. Then the reason why we are
1:06:11calling the bank, we have to call the
1:06:13bank to come and explain because the
1:06:15bank is the one that has a superior
1:06:17information about that account. So the
1:06:20bank will come and give further
1:06:21explanation that yes there's an account
1:06:23here. Yes it has money but that money is
1:06:27held in trust or that money is for
1:06:31another obligation. Okay.
1:06:36Are we together?
1:06:39Completely together. Completely
1:06:41together.
1:06:42Thank you.
1:06:51All right. Uh, somebody Gilbert,
1:06:54I'm still looking for more points. Give
1:06:56me more points.
1:06:58>> Yeah. Uh,
1:07:00but it is a fixed account and not
1:07:03available for you at the moment.
1:07:05>> Exactly. That is very important. That is
1:07:07not a debt. Yes, there's money here, but
1:07:10this money is not debt yet. It is not a
1:07:12matured account. This account will
1:07:14mature in December. It is not debt yet.
1:07:18Okay. It is not a debt yet.
1:07:43Okay, let's go to somebody calledina.
1:07:47Not uh Audi.
1:07:53>> If the judgment data disputes the amount
1:07:56owed,
1:07:58>> the debt owed.
1:08:01>> What do you mean? If the what?
1:08:03>> The judgment data disputes the debt
1:08:05owed.
1:08:06>> How is that possible?
1:08:09Maybe the debt they owing is not the
1:08:11exact money that they need to pay. They
1:08:13not giving the exact amount. There is a
1:08:15dispute in it.
1:08:17>> I'm not understanding. They don't agree
1:08:19with who?
1:08:20>> With the amount that the
1:08:24the decree holder is claiming.
1:08:26>> Give me an instance. But they have a
1:08:29decree. There's a decree. The decree was
1:08:31prepared. The decree said pay 1 million.
1:08:34If you don't agree with the decree, what
1:08:36are you supposed to do? Audi, what are
1:08:38you supposed to do at this point?
1:08:40There's no dispute as to the decree. The
1:08:41decree is already there. This person is
1:08:43not cooking figures. He has a decree.
1:08:46Whatever is serving on the bank is a
1:08:48decree. A court decree. It's a decree of
1:08:51the court. So what do you mean there's a
1:08:53dispute? If there's a dispute, then
1:08:55there's no decree.
1:08:57Audi, what is the procedure of
1:08:59extracting a decree?
1:09:02Where there's a dispute
1:09:19in I'm speaking to
1:09:40I think I I am not me but I agree with
1:09:42you that
1:09:44>> cannot arise.
1:09:46>> Hey we are talking to Audi Audi.
1:09:55>> Kindly repeat the question.
1:09:59Be serious. The question is simple. I've
1:10:02asked it three times. What is the
1:10:04process of extracting a decree where
1:10:06there's a dispute? Like you're saying,
1:10:25you extract the decree. Then you serve
1:10:28upon the other party. Then you agree.
1:10:35>> Then you agree. What? What are you
1:10:36saying? Does that make sense to you?
1:10:39Then you agree.
1:10:43>> Then you agree on the amount of
1:10:46>> What do you mean amount? Hey,
1:10:51>> what are you saying? What is the process
1:10:53of extracting a decree? Your clients
1:10:55wants you to extract a decree. What is
1:10:56the procedure?
1:11:16Arin Audi time is on our side. I want us
1:11:20to go back
1:11:22to that but please unmute your
1:11:24microphone and proceed. What is the
1:11:26process of extracting a decree?
1:11:29>> You draft the decree then you send it to
1:11:32the other party. If there is a dispute,
1:11:38>> if there's a dispute,
1:11:39>> start with when there's no dispute. What
1:11:41is what if there's no dispute?
1:11:44>> Then you file it in court. You file it
1:11:46in court.
1:11:49Then the regist will look at it and take
1:11:52it before the judge. Then it is signed.
1:11:54Then you extract it and serve the other
1:11:56party.
1:11:59>> What? What?
1:12:02We don't tell the judge. If there's no
1:12:03dispute, there's no judge. So, Uh-huh.
1:12:07Proceed.
1:12:09>> There's no dispute. Where there's no
1:12:10dispute. Uh-huh.
1:12:12>> Where there's no dispute, the
1:12:19where there's no dispute, the high
1:12:20court, the deputy registra signs it.
1:12:22>> Hey, what do you mean? The high court,
1:12:24the deputy registister. What are you
1:12:25saying, my friend? Deputy registra signs
1:12:29it then you start start
1:12:35I don't like those answers you're giving
1:12:37me right now this thing I've taught like
1:12:39since judgment I've taught like five
1:12:41times since we did judgment last so 21
1:12:46to 8 21 to8 what is the procedure start
1:12:49again we'll be here until Come on.
1:13:06>> Mhm.
1:13:07>> Can can somebody kindly help me?
1:13:10>> Nobody's going to sit exams for you. Are
1:13:13you going to tell the marker please
1:13:14invigilator
1:13:17let somebody help me in this question?
1:13:19No. So what is the process of extracting
1:13:21a decree?
1:13:23>> Mhm.
1:13:24>> You you draft the decree.
1:13:26>> That's number one. Mhm. You draft the
1:13:28you prepare the draft decree.
1:13:31>> Then uh you serve the other party.
1:13:35>> Okay.
1:13:36>> If there is no dispute, you find
1:13:39>> there's no dispute. Mhm. You find
1:13:43then the regist
1:13:49the other party.
1:13:50>> What do you mean you extracted and ser
1:13:55I'm asking the process of extracting the
1:13:57decree and you're saying it has been
1:13:58signed you extract it. Does that make
1:14:01sense?
1:14:04>> Okay. After it has been signed you serve
1:14:06the other party.
1:14:08Why is something the other party?
1:14:15Okay. What if there's a dispute? Where
1:14:17there's a dispute?
1:14:29When there's a dispute,
1:14:32the
1:14:34When there's a dispute,
1:14:40you
1:14:58guys, this something we've done every
1:14:59day and every time I start the class I
1:15:01ask you guys do you have a question from
1:15:03the previous class everybody says yes we
1:15:05do yes we do yes so
1:15:09and there's a reason why every class I
1:15:11have talked about the process of
1:15:13extracting a decree because you cannot
1:15:15talk about execution of decrees without
1:15:19extracting the decree
1:15:21okay
1:15:24you cannot talk about the process of
1:15:27executing a decree without the process
1:15:29of uh extracting the decree. So if you
1:15:32don't know the process of extracting the
1:15:33decree then that is a big problem. That
1:15:37is a very very very big problem. A very
1:15:39big problem and I'm not very sure
1:15:41whether you are able to understand the
1:15:44process of executing a decree if you
1:15:46don't understand the process of exec uh
1:15:48extracting the decree.
1:15:52Okay.
1:16:04Okay. Anyway, what was your question,
1:16:07Audi?
1:16:10>> No, it was not a question. I answered
1:16:12and you you said my answer was not
1:16:15right.
1:16:17>> No, it's your question.
1:16:20Not the answer. the question.
1:16:22>> No, I give an answer.
1:16:27>> What is your answer?
1:16:33>> My answer was that if there is a
1:16:35dispute,
1:16:37if the judgment data disputes the date
1:16:39owed,
1:16:41>> that can't be possible.
1:16:43>> Yeah. And you
1:16:46>> and why can't it be possible? Because
1:16:49once there is a decree then there is no
1:16:52nobody's disputing anything the
1:16:54everything has been agreed upon. So
1:16:56there is no dispute once the decree is
1:16:58out has been attracted.
1:17:04>> Okay
1:17:06that is uh okay.
1:17:15Aha.
1:17:17So go and read on the process of
1:17:20extracting a decree order 21 rule 8. It
1:17:24is all there. All all there.
1:17:29Okay.
1:17:30All there. It is all there.
1:17:3321 rule 8
1:17:37uh provides for everything in as far as
1:17:40extraction of a decree is concerned.
1:17:43Please understand that.
1:17:44It is important for you to understand
1:17:46that because you are not able to proceed
1:17:50with it if you don't know the process of
1:17:53getting the decree must be there and if
1:17:55it is not there okay if it is not there
1:17:59then um
1:18:01you must get it you must extract it you
1:18:05can't extract it unless you know
1:18:09Okay.
1:18:31So
1:18:32>> maybe what
1:18:33>> uh
1:18:35in relation to what our audience just
1:18:37said uh question we
1:18:40>> Yes.
1:18:42>> I'm coming back to questions. I'll come
1:18:45down. I'm coming back to questions. So
1:18:49I'm still finishing up on the process of
1:18:51Ganishi, the terms of prayers, the terms
1:18:54of grounds and the terms of the
1:18:56response. So the response from the bank
1:18:58could be anything. There is no debt,
1:19:00there's no account. The account has no
1:19:02money. That money is not yet a debt. It
1:19:05is a joint account. Uh it is jointly
1:19:07owned. You know, so many things uh that
1:19:11can uh exist. So many thing that can
1:19:14exist uh for purposes of uh for purposes
1:19:19of refuting the attachment refuting the
1:19:22attachment of uh that account. Are we
1:19:26together? That
1:19:29would be the response of the bank. And
1:19:31such things are so many. And where do
1:19:34you start from? You start from the point
1:19:36where there's a debt or no debt. That
1:19:39account could be a joint account, could
1:19:41be held uh jointly
1:19:44uh could be held jointly by other
1:19:47people. It could be a trust account. Uh
1:19:50it could be
1:19:53um an account that is low, not yet
1:19:56mature. Uh it could be an account that
1:19:58is sorting out uh sorting out an
1:20:01existing an existing obligation. It will
1:20:04be sorting out an existing obligation.
1:20:07For instance, it is maybe an overdraft
1:20:10uh is an overdraft uh that that account
1:20:13is seeking to fund or is maintained for
1:20:18purposes of being a loan account. It is
1:20:21a loan account.
1:20:23Are we together?
1:20:27All right. So that being said, that is
1:20:30the end of Gishi proceedings. I want to
1:20:33take as many questions on Ganeshi
1:20:34proceedings. Audi your question is um
1:20:39sorry your assignment is on extraction
1:20:41of decrease and everybody else
1:20:43extraction of decrease under and order
1:20:46218 order 218 is where extraction of
1:20:50decrees are
1:20:53all right so that is your assignment in
1:20:55the next class on Monday I want answers
1:20:58on the extraction of the decree from
1:21:00Audi
1:21:02now let's take questions and these are
1:21:04qu and don't cheat yourself By the way,
1:21:06don't cheat yourself that you can
1:21:08understand Ganeshi uh at a go in one
1:21:11sitting. You can't. So you need to ask
1:21:13as many questions as as you can. Why? So
1:21:17that you understand it. You can
1:21:19understand it once. So let us go through
1:21:22it and understand it more and more and
1:21:25more.
1:21:27So please, please, please let's go. Tell
1:21:31me which questions do you have in as far
1:21:33as can she proceeding is concerned and
1:21:37we start with Cambod.
1:21:41Thank you for the guidance uh thus far.
1:21:44Um could uh can an appeal be a ground
1:21:48for
1:21:50um uh you know like the Ganeshi
1:21:54u
1:21:56uh or stay stay orders can they be can
1:22:01they be a basis of um
1:22:04uh of saying uh you see you are not
1:22:07properly before us uh until an appeal is
1:22:10determined. Uh can that be a ground for
1:22:13the Ganeshi to say uh we will not
1:22:15proceed with this until that is
1:22:17determined?
1:22:19>> That is not a ground. And tell me why
1:22:21why do you think an appeal
1:22:25will not stay
1:22:28uh the process of Ganeshi will not stop
1:22:29the state of Gan? Why do you think that?
1:22:33>> No. an appeal with the state orders
1:22:35which where state orders have already
1:22:37issued.
1:22:41Your question is now confused. What is
1:22:45your question?
1:22:51Um my um
1:22:55the
1:22:57the judgment uh data has approached
1:23:03uh a superior court uh for
1:23:08uh
1:23:11to and file an appeal against uh the
1:23:14order that has been given and they have
1:23:17since obtained a stay orders. Can that
1:23:20be a basis of uh
1:23:23>> what is a what is a state what is a stay
1:23:26order
1:23:30>> against okay well against you know the
1:23:33execution of uh this decree.
1:23:36>> So what is the effect of a stayholder
1:23:38once it has been issued
1:23:42what does it do?
1:23:47I I think I'm lost.
1:23:50>> What is the effect of a stay order? What
1:23:53is a stay order supposed to do?
1:23:55>> It annals the it it um
1:23:58it supposed to hold um
1:24:02the whatever
1:24:05um it whatever it is speaking to.
1:24:09>> What do you mean whatever it is speaking
1:24:10to? In this case, in this instance that
1:24:12you've given us,
1:24:14>> what would be the consequence of a stay
1:24:16order if a party has uh obtained a stay
1:24:18order
1:24:24>> that we will not go ahead with
1:24:26the the execution of our decree?
1:24:32>> Okay. So your question is
1:24:40>> I'm answered.
1:24:42>> What is your answer? What is the answer?
1:24:46that uh the if state orders have issued
1:24:51then it can be a basis for the Ganishi
1:24:55not to
1:24:58um not uh to refuse to you know
1:25:03um
1:25:09uh
1:25:11a lot of uh saying a lot of Um
1:25:17what is the effect of the Ghana fee
1:25:21in this instance
1:25:23that the Ganeshi will not um you know
1:25:25honor honor the
1:25:28uh
1:25:30the execution?
1:25:34>> Why
1:25:38they have stay orders?
1:25:40>> Good. So the moment a state of execution
1:25:43has been issued, you cannot execute. You
1:25:46cannot even make an application for
1:25:47execution. Even the ones we discussed
1:25:49last week, you cannot attach salary,
1:25:51attach movable, movables, appoint to
1:25:54severs, can she? You can't bring all
1:25:56that. Where there's a stay, where is a
1:25:59stay order?
1:26:04Are we together?
1:26:07>> Yeah. Yes. Yes. Yes.
1:26:12All right.
1:26:15Uhhuh.
1:26:17As many questions as possible. If you
1:26:19want to ask questions on um
1:26:23uh the prayers, questions on the
1:26:25grounds, questions on the response,
1:26:27please ask. Let's you not leave this
1:26:29class without uh without understanding
1:26:32something.
1:26:35>> Uh thank you, Jon. Let me carry on from
1:26:38the stair. If it's a a state of
1:26:41execution has been uh issued for 30
1:26:44maybe a period of 30 days
1:26:48and that
1:26:50>> and the decree sorry the judgment data
1:26:52does not uh sorry
1:26:57>> I'm referring to a question that I was
1:26:59looking at and it says that uh a stay of
1:27:03execution had been given for 30 days
1:27:07and it's 3 months months beyond that
1:27:10period.
1:27:12So what happens after that? Does that
1:27:14order
1:27:15>> hey
1:27:16>> stay lift?
1:27:17>> That is that is that is a very simple
1:27:19and obvious question that you should not
1:27:21be asking. If the court says that stay
1:27:24execution is issued for 30 days. What
1:27:26happens after 30 days?
1:27:29Pay is stay is given for how long? It
1:27:34means execution is stayed for how long?
1:27:38>> For 30 days. Uh then after that
1:27:40>> what what happens after 30 days? Can you
1:27:42execute now?
1:27:44>> Yes.
1:27:47>> Yes. So what is your question again?
1:27:49Come back to your question.
1:27:50>> No, now it's answered.
1:27:54>> Okay.
1:27:56>> Yeah. My second question was uh
1:27:59uh the responses by the banks. By the
1:28:02banks, sorry.
1:28:03Okay.
1:28:04>> In an instance where this account is
1:28:07doant but it has money.
1:28:11>> What is a do account that has money?
1:28:14>> No. A doant account is where you've not
1:28:16operated it for I think 3 months.
1:28:21>> Is that a do account?
1:28:23>> Yeah. If you don't transact in your
1:28:24account for 3 months, the
1:28:27>> uh some banks they will reach out to you
1:28:30and tell you your account is doant. You
1:28:33start transacting.
1:28:36Yeah. If you don't transact quote and
1:28:40you can't transact
1:28:45it.
1:28:48>> Okay. So now my question
1:28:52um if would that be a reason why the
1:28:56bank would not uh attach that account
1:29:00before
1:29:00>> do you think is the reason
1:29:03what what is what is the main question
1:29:04you ask the bank is being asked by the
1:29:07court
1:29:09>> to attach the funds in my account
1:29:12>> the question the question they're being
1:29:14asked what is the question that the bank
1:29:16is being asked
1:29:20When somebody brings a GI application,
1:29:23what is the question the bank or the GI
1:29:26is being asked?
1:29:28What is the issue?
1:29:31>> They should cause why that
1:29:34>> no. Oh, sorry.
1:29:36>> What what is what is the what what is
1:29:39the bank being told to being what is the
1:29:41question that the bank is being asked?
1:29:46Hussein, what is the question? What is
1:29:49the court trying to identify?
1:29:51>> Does this person have a date with you?
1:29:54>> Does this person has a debt with you?
1:29:56And by that it means
1:29:59>> uh
1:30:02by debt it means
1:30:05what exactly? Do you owe them?
1:30:10>> You tell me. By debt it means what?
1:30:15In simple terms,
1:30:17>> it means um money that the
1:30:20data has access to at this point in time
1:30:24and can go get it whatever he wants to.
1:30:29>> Okay, let's cuz you guys are not
1:30:31answering the question like I'm I'm
1:30:32asking. Let me give another instance and
1:30:34this goes to Dorin. Dorin, when you are
1:30:36making application for for Ganeshi, what
1:30:38are your grounds? Dorin,
1:30:43your grounds are
1:30:48My grounds are that I obtained a
1:30:52judgment against uh
1:30:57okay sorry let me look for the words in
1:30:59my head that [snorts] uh I obtained a
1:31:03judgment against the judgment uh data.
1:31:07>> Okay.
1:31:09>> Yes. and I went ahead and extracted the
1:31:11decree
1:31:13>> that is yet to be satisfied.
1:31:16>> Okay.
1:31:18>> But I know let me use KCB judgment data
1:31:22has an account with KCB and that account
1:31:24has money.
1:31:25>> KCB is who in this case
1:31:28>> he's now the Ganishi.
1:31:30>> Okay. that you know
1:31:33>> the judgment has an account with KCB and
1:31:36that account has funds which can satisfy
1:31:39either wholly or partly this decree.
1:31:44>> Okay.
1:31:44>> Does it does it talk about endowment
1:31:47account or active account?
1:31:49>> It just says account that has money.
1:31:52>> Good. Does that answer your question?
1:31:56>> Oh
1:31:58yes it does. It doesn't matter whether
1:32:01it doesn't matter whether is a doant
1:32:03account. The question that the bank is
1:32:05being asked is hey the bank
1:32:07>> do you have an account with this person?
1:32:09Yes. Is that account having money? Yes.
1:32:12Lora.
1:32:14>> It's a very simple thing. So it doesn't
1:32:16matter whether you and very rarely will
1:32:19you find the bank suspending your
1:32:20account because you've not transacted in
1:32:22it. If it's an account that has money,
1:32:25the bank will not even disturb you. That
1:32:26is not a do account. It's a very active
1:32:27account as long as it has money. But if
1:32:29it doesn't have money for a long time,
1:32:32then of course they'll notify you that
1:32:34your account is dominant and you need to
1:32:36activate it by putting some money.
1:32:37Activation simply means you put money in
1:32:39it. But anyway, so the question like
1:32:41I've said, the question that is being
1:32:43asked in this instance uh is very
1:32:46simple. The question is is there money
1:32:48in this account? Is it enough to satisfy
1:32:52uh to satisfy the debt or can it satisfy
1:32:55the debt? That is all. So it doesn't
1:32:57matter uh anything else whether it's
1:33:00doand or active we just asking whether
1:33:02there's whether there's money.
1:33:05Yes.
1:33:07>> Thank you.
1:33:09>> I think actually is right an account
1:33:13which you have not transacted for more
1:33:15than 6 months. Okay. You cannot access
1:33:17those funds and even the bank themselves
1:33:20they can't access the funds unless of
1:33:22course a word of court I would imagine.
1:33:25So is a doand account doesn't have not
1:33:28to be having funds as long as you have
1:33:30money and you have not transacted that
1:33:31account you cannot access and so I think
1:33:34reconsider you I think you should
1:33:36reconsider and check on it I don't think
1:33:39the bank can transfer that funds until
1:33:42you come to the bank and activate it the
1:33:45reason is because for the for account to
1:33:48be have money let's say like it has that
1:33:503 million and you have not used it for
1:33:52six uh for one year or 6 months that
1:33:55above the bank don't know whether you
1:33:57are there and you in existence. So they
1:33:59need to look for you and you activate
1:34:01the account physically. I I think I've
1:34:03seen the situation whereby the bank
1:34:05cannot even yourself you cannot access
1:34:07those funds until you go and follow the
1:34:09process and it takes some few days even
1:34:11when you go there. So I I
1:34:12>> And what is the process? And what is the
1:34:15process? You said a quarter. Do you need
1:34:16a court order to open your to get
1:34:18account?
1:34:19that that's why I've said I think you
1:34:21with your clarification and say I would
1:34:24imagine probably a bank with a code
1:34:27order probably that can they can move
1:34:29the money because uh they may not need
1:34:31you now if if you don't
1:34:33>> dis
1:34:36I mean yes I'm I'm not disputing the the
1:34:39doc account but I'm saying normally the
1:34:41bank has
1:34:44this money is not even in the bank this
1:34:48money is not with the bank. The bank has
1:34:50your money. So the bank has this money
1:34:53and you can't say that the bank cannot
1:34:54access this money. It can access it
1:34:56because when you give bank the money
1:34:58where is the bank is the bank keeping
1:34:59that that money in a box. No, the bank
1:35:02has that money. The bank is doing
1:35:03business with that money. So the bank
1:35:05has access to this money. So for
1:35:07whatever reason if uh you've not
1:35:09transacted this account, I mean I've not
1:35:12come across an instance I've not come
1:35:14across an instance where the bank is
1:35:15telling me my account is dormant because
1:35:16I've not operated it for a long time.
1:35:18But it has told me that doant because
1:35:21there's no money in it for like a year.
1:35:23That is possible. But again, every bank
1:35:26will have their own roots. But what I'm
1:35:28saying is if the bank will always have
1:35:29an access to this account because it is
1:35:31the one they are the ones having this
1:35:33account. They are the ones having this
1:35:35account. Okay, they are the ones. What
1:35:38if it is a locked account? Will it
1:35:39become dominant in a year? Because
1:35:41locked accounts are locked accounts. You
1:35:43can't transact out of it. So again the
1:35:46bank will have different rules but the
1:35:48question that is being answered when it
1:35:50comes to gui proceedings is is there an
1:35:53account does it have money? Yes it has
1:35:56money because the bank is the one that
1:35:58has that money. So you can't say that
1:36:00the bank will not have this money even
1:36:01the bank can't access it. Why? Where is
1:36:03the money? Was it stolen? No. It is the
1:36:07bank and the bank is doing business with
1:36:08it and the bank is supposed to give it
1:36:10to you upon demand. If the bank is not
1:36:13able to access it, then that is not that
1:36:16is not your money. Could be it is money
1:36:19that has been wired through a check and
1:36:21the check is not yet cleared or it is
1:36:24money that you expect.
1:36:26For instance, some of you that do the
1:36:29Airbnb businesses um some of you have
1:36:31been coned
1:36:33in this simple way. Some of you have
1:36:35been coned in a very simple way just
1:36:37through the bank balances. Somebody will
1:36:40uh will pretend that they've written
1:36:41your check. They'll write you a check of
1:36:44a million. Not let's say you agree that
1:36:47hey I want to book your house for for 5
1:36:50days. I'll pay you 100,000. And then
1:36:53they will write you a check of 200,000.
1:36:56And then they will tell you hey that
1:36:58100,000 extra please I'm sorry I I
1:37:01didn't see that. please uh let me uh let
1:37:03me let me go and um transfer that money
1:37:06to my friend or transfer it back to me
1:37:10because you've seen the bank the moment
1:37:11you deposit that check in the account
1:37:13the bank will send you a message that
1:37:15your account is being credited even
1:37:17though that money is not available you
1:37:19will find that the bank will send you a
1:37:21message and then tomorrow the following
1:37:24day after you wire this money back to
1:37:26the person that's um
1:37:29sent you the check you realize that the
1:37:31account will the bank or the check will
1:37:33bounce and that's how you lose the
1:37:35money. So that is the simple concept of
1:37:37the available balance and the actual
1:37:40balance. Okay. So when a check is sent
1:37:43that money is not there. It is nowhere.
1:37:46You can write a fake check. The bank
1:37:48will do a a um a pseudo credit. Let's
1:37:52call a pseudo credit. And then at some
1:37:54point that account will not be actually
1:37:56credited because there's no funds in
1:37:58that account. the the bank will bounce
1:38:00the check. But what I'm trying to say is
1:38:02this the bank no if the account has the
1:38:04money the bank will have the money and
1:38:05therefore you just need to do what you
1:38:09need to ask the bank to transfer. So is
1:38:12there money in the account? Yes. And
1:38:14when you are praying for orders of
1:38:16Ganeshi what are you saying? You're
1:38:18saying hey I have a decree a decree and
1:38:20a judgment not satisfied. This bank has
1:38:23an account that has money. Okay. So the
1:38:26bank should only come to court and tell
1:38:27us number one there's there's no account
1:38:30there's no money or there's money but
1:38:32this account does not belong to the
1:38:34judgment data. Okay. So if you say the
1:38:38account is doant but it has money you'll
1:38:40be told to transfer it
1:38:42transfer it
1:38:45anyway. So a Uhhuh. Uh Gor not gor sorry
1:38:50nan kop
1:39:07[snorts]
1:39:11you have answered my question so I'm I'm
1:39:13I'm good. Uh
1:39:16I will make a follow up with you uh for
1:39:18more clarification later. Thank you Mim.
1:39:28>> All right.
1:39:29So we to start on uh execution against
1:39:32the government. We were to start uh
1:39:35execution against the government.
1:39:41uh we were to start at uh on execution
1:39:44against government but it's late. I want
1:39:47us to ponder on Ganeshi proceedings. I
1:39:50want you if you still not feeling
1:39:52confident about Ganesh I want you to do
1:39:56a write up. I want you to go and do a
1:39:59write up in terms of what is Ganeshi
1:40:02proceedings. Okay. Uh who is the
1:40:05Ganeshi? uh the prayers you can ask the
1:40:08grounds and the response that the bank
1:40:10can give. I want you to do that.
1:40:30All right, that being said guys, I will
1:40:32then stop the recording. I will stop the
1:40:35recording there. Please get the
1:40:36recording. I'll see you tomorrow for
1:40:38I'll see you tomorrow for
1:40:42uh commercial.

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