Topic 4: Decrees and Execution of Decrees

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What is a Decree?

A decree is a formal expression of an adjudication by a court which conclusively determines the rights of
the parties with regard to the matters in controversy in a suit. It is the official order or judgment given by
the court.

Example:

If a court orders a defendant to pay a plaintiff Ksh 1,000,000 as damages, that order is a decree.

Who is a Judgment Debtor?

A judgment debtor is the party against whom the decree is made. This is the person who is required to
comply with the court’s order, such as paying money or delivering property.

Example:

If the court orders Mr. A to pay Mr. B damages, Mr. A is the judgment debtor.

Who is a Decree Holder?

A decree holder is the party in whose favor the decree is made. This party has the right to enforce the
decree.

Example:

In the above case, Mr. B is the decree holder.

Who Applies to Execute a Decree?

The decree holder applies to execute the decree when the judgment debtor fails to comply voluntarily.
How Does a Party Apply to Execute a Decree?

Filing an Application:

The decree holder files an application for execution at the court that issued the decree or at a court with
jurisdiction to execute it.

Issuance of Execution Order:

The court issues a warrant or order of execution directing the relevant officer (such as a court bailiff) to
enforce the decree.

Service of Notice:

The judgment debtor is served with a notice informing them of the execution proceedings.

Application for Stay of Execution of Decree

A stay of execution is an order that temporarily suspends the enforcement of a decree. This is crucial
when the judgment debtor intends to appeal or review the judgment.

Important Points:

The application must be supported by valid reasons, such as an appeal pending before a higher court.

The court considers whether the appeal has a likelihood of success and whether the stay would cause
injustice to the decree holder.

Principles of Stay of Execution of Decree

· Balance of Convenience: The court weighs the hardship that may be caused to both parties.

· Preservation of Status Quo: The stay maintains the current situation until the appeal or review is
determined.

· Security: Sometimes the court requires the judgment debtor to provide security or bond to
protect the decree holder’s interests.
Court by Which Decree May Be Executed

· The decree is generally executed by the court that issued it.

· However, if the judgment debtor’s property is outside that court’s jurisdiction, execution can be
sought in the court where the property is located.

The Procedure in Execution of Decree

· Application for Execution: The decree holder files a formal application.

· Issuance of Execution Warrant: The court issues a warrant to the bailiff or other authorized
officer.

· Attachment of Property: The officer attaches the judgment debtor’s property.

· Sale of Property: The attached property is sold by public auction to satisfy the decree.

· Distribution of Proceeds: The proceeds are used to pay the decree holder, with any surplus
returned to the judgment debtor.

Properties Subject to Attachment and Sale While Executing Decrees

· Movable Property: Vehicles, machinery, livestock, furniture, etc.

· Immovable Property: Land and buildings, subject to specific procedures.

· Exempt Property: Certain properties may be exempt, such as tools of trade or basic household
items, depending on the law.

Role and Conduct of Auctioneers During Execution

· Auctioneers conduct the sale of attached property in a transparent and fair manner.

· They must advertise the sale properly to attract bidders.

· They are responsible for ensuring the sale is conducted according to the law and court orders.

· Auctioneers must provide a report of the sale to the court.

A notice to show cause is a procedural step where the judgment debtor is given an opportunity to
explain why execution should not proceed.

Purpose:

To ensure fairness and give the debtor a chance to raise objections or seek a stay.

It is often issued before attachment or sale of property.

Summary

Understanding decrees and their execution is vital in civil litigation. The decree is the court’s final order,
and execution ensures compliance. The process involves several steps, including application, attachment,
sale, and possible stay of execution. Proper conduct by all parties, including auctioneers, ensures justice
and fairness.

Types of Decrees

Understanding the different types of decrees is essential as it affects the mode of execution and
enforcement. The Civil Procedure Act and Civil Procedure Rules recognize various types of decrees, each
serving different purposes.

1. Preliminary Decree

A decree that settles some but not all issues in a suit.

It does not finally dispose of the entire suit but deals with specific questions, such as the determination
of rights or interests pending a final decision.

Example: In a suit for partition of land, the court may issue a preliminary decree declaring the shares of
the parties before ordering the actual division.

2. Final Decree

A decree that conclusively determines the rights of the parties and finally disposes of the suit.
It is executable and can be enforced immediately unless stayed by the court.

Example: A decree ordering payment of money or transfer of property.

3. Consent Decree

A decree based on an agreement between the parties, recorded and approved by the court.

It has the same effect as a final decree but is arrived at by mutual consent rather than litigation.

Example: Parties agree to settle a dispute over property and the court records this agreement as a
consent decree.

4. Preceptive Decree

A decree that directs a party to perform a specific act, such as transferring property or delivering
possession.

It is not a final determination of rights but compels action.

Example: A decree ordering a landlord to hand over possession of premises to the tenant.

5. Declaratory Decree

A decree that declares the rights of parties without ordering any specific action or awarding damages.

It clarifies legal relationships.

Example: A decree declaring ownership of land.

6. Executory Decree

A decree that requires further action to give effect to the judgment, such as a decree for sale of property
to satisfy a money judgment.

It is enforceable through execution proceedings.

Why Are Types of Decrees Important?

The type of decree determines the mode of execution. For example, a preliminary decree may require a
final decree before execution.

Some decrees, like declaratory decrees, may not be directly executable but serve as a basis for further
action.

Understanding the nature of the decree helps in advising clients on enforcement strategies.
Summary of Types of Decrees
Type of Decree Description Example Executable?
Preliminary Settles some issues, Partition share Not immediately
not final declaration
Final Conclusively Payment of money Yes
disposes of suit
Consent Based on parties’ Settlement of Yes
mutual agreement dispute
Preceptive Directs a party to Handing over Yes
perform an act possession
Declaratory Declares rights Declaration of Usually no
without ordering ownership
action
Executory Requires further Sale of property to Yes
action to enforce satisfy debt