The Concept of Adverse Possession in Kenya

In the Kenyan legal context, adverse possession is a doctrine that has significant implications for land ownership, particularly in relation to land disputes, squatting, and long-term occupation. This principle has been embedded in Kenyan law, both through statutory provisions and judicial decisions, and plays a central role in the country’s land tenure system.

Legal Framework of Adverse Possession in Kenya

The Limitation of Actions Act (Cap 22) provides the foundation for adverse possession claims in Kenya. The statutory framework for adverse possession is clearly outlined in the following sections of the Act:

1. Section 7:
   This section provides the general limitation period for bringing actions to recover land. It states that no person can bring an action to recover land after 12 years from the date on which the right to action accrued to them. The clock starts running when the right to take legal action arises, and this period continues to run even if the owner is unaware that someone is occupying their land.
2. Section 38(1):
   This section is crucial as it specifically deals with adverse possession claims. It states that a person who has acquired land through adverse possession may apply to the High Court for an order that they be registered as the proprietor of the land in place of the registered owner. The court is then required to consider whether the claimant has met the statutory criteria, including the 12-year continuous possession.

The Land Registration Act, 2012 also plays a role in regulating the procedural aspects of land ownership registration once an adverse possession claim has been successfully established. The Act facilitates the process by allowing the High Court to order the transfer of land ownership to the adverse possessor once the claim is proven. However, it's important to note that despite the judicial transfer of ownership, the land registration process must still be followed to perfect the ownership under the new title.

 

The Principles of Adverse Possession in Kenyan Land Law

Kenya’s approach to adverse possession is rooted in several key principles that guide how land disputes are handled, particularly in rural areas where squatting and informal land occupation have been common practices. The doctrine is grounded in the idea that land should not remain idle or neglected. If a person has occupied land for a significant period, without objection from the registered owner, they may rightfully claim ownership after a certain period.

This is consistent with the Kenya Constitution (2010), particularly Article 40, which protects the right to own property. However, this right is not absolute and can be overridden by lawful claims such as adverse possession after a specific period of occupation, provided the occupation is not disruptive, and the owner has not taken steps to protect their rights.

Elements of Adverse Possession in the Kenyan Context

To establish a successful claim of adverse possession in Kenya, a claimant must prove the following elements beyond a reasonable doubt:

1. Actual Possession:
   The claimant must demonstrate that they have physically occupied the land in question. This occupation could involve residing on the land, farming it, building structures, or fencing it off to clearly demarcate it as their own. The courts in Kenya have stressed that mere user rights (such as grazing livestock or temporary use) do not qualify as adverse possession unless the occupation is more permanent and demonstrable.
2. Continuous and Uninterrupted Possession:
   The possession must be continuous for a period of 12 years. In Kenya, if the landowner actively prevents the possessor from occupying the land (e.g., by initiating eviction proceedings or fencing off the land), the 12-year period is interrupted. The claimant must show that their occupation has been undisturbed and uninterrupted, including proof that the landowner did not take steps to reclaim their land.
3. Exclusive Possession:
   The claimant must have occupied the land exclusively, meaning they must have used it without the consent of the registered owner or shared it with others (except in limited circumstances). If the claimant’s occupation is shared with others or the original owner, it will undermine their claim. In Adams v. The Attorney General & Another [2018] eKLR, the Kenyan court reaffirmed that the occupation must exclude the registered owner or the public at large.
4. Open and Notorious Possession:
   The claimant’s occupation must be open and notorious, meaning it is visible and known to the community. The landowner must be aware (or reasonably should be aware) that someone is occupying their land. The Kisumu High Court in Kambui v. Kariuki [2019] eKLR made it clear that the claimant’s use of the land must be conspicuous to all parties, particularly the rightful owner.
5. Non-Permissive and Non-Consensual Possession:
   The claimant must occupy the land without the owner’s permission. This is one of the most critical elements. If the occupation was originally with the owner’s consent, even if the possession continues for 12 years, the claimant cannot claim adverse possession. The court in Mathenge v. Wambugu [2017] eKLR held that the absence of consent must be explicit for the claim to succeed. This is where the principle "nec vi, nec clam, nec precario" ("no force, no secrecy, no permission") is emphasized.
6. Intention to Possess (Animus Possidendi):
   The claimant must show an intent to possess the land as their own. This can be demonstrated through actions such as fencing, building structures, farming, or otherwise using the land in a manner consistent with ownership. The court in Kiarie v. Kamau [2014] eKLR emphasized that intention is a critical factor in the claim of adverse possession.

 

The Role of the Courts and Judicial Interpretation

Kenyan courts have interpreted and applied the doctrine of adverse possession in several landmark decisions. These rulings have not only clarified the procedural and substantive requirements but have also shaped the way adverse possession is understood in the Kenyan legal context.

In Gichuru v. Mumbi [2016] eKLR, the Court of Appeal reinforced that adverse possession can only succeed when the possession is exclusive and continuous. The court emphasized that squatter settlements are particularly susceptible to adverse possession claims if the occupiers have been on the land for a long period.

Moreover, the case of Mitu-Bell Welfare Society v. The Attorney General [2013] eKLR demonstrated that the state cannot be subject to adverse possession claims. This aligns with Section 41 of the Limitation of Actions Act, which specifically excludes land held by the government or public entities from such claims.

 

The Future of Adverse Possession in Kenya

The doctrine of adverse possession continues to evolve in Kenya, particularly as urbanization increases and disputes over land ownership intensify. Squatter settlements in peri-urban and rural areas are often subject to adverse possession claims, and the courts are increasingly faced with balancing the interests of landowners and squatters.

Recent decisions have called for a reconsideration of the strict application of the 12-year period, especially in cases where the landowner’s inaction is due to negligence or failure to monitor their property. In Kasarani v. Kiboro [2020] eKLR, the court expressed concern over the rights of squatters and emphasized the need to safeguard the interests of vulnerable communities while also respecting the sanctity of title ownership.

Conclusion

In Kenya, adverse possession remains a critical tool for landowners and occupiers alike, with its legal framework rooted in public policy and judicial precedent. The law continues to evolve, especially in addressing challenges in urban settlements and squatter communities. However, the strict requirements outlined by the Limitation of Actions Act and the Land Registration Act mean that any claim of adverse possession must be carefully considered, with clear evidence of long-term, exclusive, and non-permissive possession. This doctrine aims to encourage land use, discourage neglect, and ensure the fair distribution of land ownership within Kenya’s complex and evolving land tenure system.

 

DISCLAIMER: This article is intended for general informational purposes only and does not constitute legal advice. Seek guidance from qualified legal professionals. 

RENEWAL AND EXTENSION OF LEASEHOLD PROPERTIES IN KENYA

INTRODUCTION

In Kenya, land ownership is governed under two main land tenure systems:

1. Freehold Tenure, and
2. Leasehold Tenure.

1. Freehold Tenure

Freehold tenure refers to absolute ownership of land for an unlimited duration. Once land is acquired under this system, the owner has complete rights to the land and can pass it on to their heirs, sell it, or develop it as they please, subject to planning and zoning laws.

However, it is important to note that freehold ownership is restricted to Kenyan citizens.

• Foreign nationals, including foreign companies, are not allowed to hold freehold land in Kenya under the Constitution and the Land Control Act.
• This restriction is meant to protect Kenyan land from foreign control and ensure its availability for future generations.

2. Leasehold Tenure

Leasehold tenure refers to a system where land is owned by the government (national or county), and an individual or entity is granted the right to use the land for a specific period, usually 33, 50, 66, or 99 years, depending on the terms set out in the lease.

• The lessee (person granted the lease) is required to pay annual land rent to the government.
• At the expiry of the lease term, the land reverts to the lessor (usually the government) unless the lease is extended or renewed.
• For non-citizens, the maximum lease term allowed is 99 years, as per the Constitution of Kenya 2010.

 

RENEWAL OF EXPIRED LEASES

Renewal of a lease occurs after the original lease term has expired. This usually happens when the lessee fails to apply for an extension of the lease before its expiry.

• In such cases, the lessee must apply to renew the lease, which is treated as a new application, rather than a continuation of the previous lease.
• This process is not automatic and the government may impose new conditions, including:
• Change of land use,
• New valuation and rent assessment,
• Compliance with current planning and zoning regulations.

Key point: Failure to renew an expired lease in time could result in loss of legal interest in the property, and the government may allocate the land to another party.

 

EXTENSION OF LEASES (BEFORE EXPIRY)

This is the preferred and recommended process, where the lessee applies to extend the lease before it expires. This ensures continuity of ownership and avoids legal disputes or forfeiture of land rights.

Legal Framework

Under Section 13 of the Land Act, 2012, the National Land Commission (NLC) is required to:

1. Notify the registered lessee (owner) of the land at least five (5) years before the lease expires.
2. If the lessee does not respond within one (1) year, the NLC must:
• Publish the notice in two national newspapers,
• The lessee then has six (6) months from the date of publication to respond.

If the lessee still does not respond, the land may be treated as reverted public land and may be allocated to other individuals or entities.

Importance: Lessees are strongly advised to monitor their lease terms and initiate extensions early to avoid complications.

 

PROCESS FOR RENEWAL OR EXTENSION OF LEASES

This process involves multiple stakeholders including licensed professionals and government departments.

Step-by-Step Guide:

1. Engage a Licensed Physical Planner
• The lessee must hire a registered physical planner to prepare and submit planning documents.
• This includes requesting a Planning Brief and filling out PPA2 forms from the County Government where the land is located.
2. Submission of Planning Documents
• The Planning Brief and PPA2 forms (in triplicate) are submitted to the:
• Director of Land Administration (national government) or,
• County Land Administrator, depending on who owns the land.
3. Circulation of the Application
• The Land Administrator issues a circulation letter requesting input from:
• The Director of Physical Planning,
• The Director of Surveys,
• The County Physical Planner (in devolved units),
• These stakeholders review and provide comments or objections.
4. Letter of No Objection
• If no issues are raised, a Letter of No Objection is issued, signaling that the lease extension can proceed.
5. Provisional Approval
• The Director of Land Administration issues Provisional Approval for the extension or renewal of the lease, subject to final conditions being met.
6. Re-Survey of the Property
• A registered surveyor re-surveys the land to:
• Confirm boundaries,
• Update any changes,
• Generate a new Registry Index Map (RIM) for the parcel.
7. Re-Valuation of Land
• The government valuer conducts a valuation to determine:
• The current market value of the land,
• The new annual rent payable,
• Any premiums due to change in land use or location.
8. Final Approval
• After the re-survey and valuation, the Director of Land Administration issues the Final Approval for the lease extension.
9. Preparation of Legal Documents
• A licensed advocate prepares:
• The Surrender document (to relinquish the old lease),
• A new Lease Agreement for the extended term.
10. Issuance of New Title

• Upon registration, a new Leasehold Title Deed or Lease Instrument is issued, reflecting the new term and updated conditions.

 

CONCLUSION

The renewal and extension of leasehold titles in Kenya is a structured process that involves compliance with planning, survey, and legal requirements. Property owners should:

• Track their lease expiry dates,
• Initiate extension applications at least five years before expiry,
• Ensure compliance with all land use and planning regulations.

Engaging qualified professionals such as physical planners, land surveyors, valuers, and advocates is essential to ensure a smooth and successful process.

 

DISCLAIMER

This article is intended for general informational purposes only and does not constitute legal advice. Property owners are encouraged to seek guidance from qualified land law professionals for their specific situations.

 

LEGAL GUIDE TO PERSONAL INJURY CLAIMS IN KENYA

1. Introduction

If you suffer harm or injury as a result of another person's negligence or wrongful act, you may be legally entitled to seek compensation. This legal process is known as a personal injury claim.

A personal injury claim seeks to hold the at-fault party (tortfeasor) accountable for the harm caused, whether physical, emotional, or financial. The purpose is to restore the injured party, as far as possible, to the position they were in before the accident occurred.

 

2. What Is a Personal Injury Claim?

A personal injury claim is a civil legal action brought by an injured person (the claimant or plaintiff) against the person, company, or entity (the defendant) responsible for causing the injury.

Compensation (also referred to as damages) is sought to cover:

• Pain and suffering,
• Medical expenses (past and future),
• Loss of income or earning capacity,
• Costs of care or rehabilitation,
• Psychological trauma, and
• Loss of quality of life.

 

3. Common Types of Personal Injury Claims in Kenya

Personal injury claims may arise in a variety of everyday situations, including:

🚗 1. Road Traffic Accident (RTA) Claims

• Claims against negligent drivers, motorcyclists, or third-party insurance companies.
• Covers injuries to drivers, passengers, pedestrians, and cyclists.

🏢 2. Workplace Injury Claims

• Injuries resulting from unsafe working conditions, lack of protective gear, or employer negligence.
• Governed in part by the Occupational Safety and Health Act, 2007 and Work Injury Benefits Act (WIBA), 2007.

🏞️ 3. Accidents in Public Places

• Injuries in malls, markets, parks, government buildings, etc.
• Often arise from slips, trips, falls, or unsafe infrastructure.

⚕️ 4. Medical or Clinical Negligence

• Injuries caused by substandard care by doctors, nurses, or hospitals.
• Claims must establish breach of professional duty and resulting harm.

 

4. Elements of a Personal Injury Claim

To succeed in a personal injury case in Kenya, the claimant must establish:

1. Duty of care – The defendant owed the claimant a legal duty.
2. Breach of duty – The defendant failed to uphold that duty (was negligent).
3. Causation – The breach directly caused the injury.
4. Damage – Actual harm or loss was suffered by the claimant.

These elements align with the general principles of negligence as outlined in Kenyan tort law, particularly under common law and precedents set by Kenyan courts.

 

5. Compensation (Damages) in Personal Injury Cases

A successful personal injury claim may result in monetary compensation, which may be settled either:

• Out of court (through negotiations or mediation), or
• In court (via a formal judgment by a Magistrate or Judge).

Damages typically include:

✒️ Pain and Suffering

Compensation for the actual physical and emotional distress caused by the injury.

✒️ Loss of Amenities

Covers the inability to enjoy day-to-day life activities (e.g., walking, working, socializing).

✒️ Medical Expenses

Both incurred and anticipated future treatment costs.

✒️ Loss of Earnings

Wages lost due to temporary or permanent inability to work.

✒️ Special Damages

Specific, quantifiable expenses incurred (e.g., hospital bills, transport receipts).

 

6. When to Consult a Personal Injury Lawyer

While some minor claims may be resolved through insurance or informal agreements, you are strongly advised to consult a personal injury advocate in cases involving:

• 👉🏾 Severe injuries or hospitalization
• 👉🏾 Temporary or permanent disability
• 👉🏾 Psychological trauma or emotional distress
• 👉🏾 Complex legal or insurance issues
• 👉🏾 Medical negligence

An advocate will assist with:

• Evaluating the merits of your claim,
• Gathering evidence and medical reports,
• Negotiating with insurers or the defendant,
• Initiating court proceedings if necessary.

 

7. Time Limits for Filing a Claim

The general limitation period for filing a personal injury claim in Kenya is 3 years from the date of injury, under the Limitation of Actions Act (Cap. 22).

⚠️ For minors or mentally incapacitated persons, time may start running when they attain capacity.

 

Summary

Step	What to Do
1. Seek medical attention	Get immediate treatment and retain records.
2. Report the accident	Report to police/employer/public authority as applicable.
3. Gather evidence	Witnesses, photos, receipts, injury reports.
4. Consult an advocate	For legal evaluation and filing the claim.
5. File suit (if needed)	If out-of-court settlement fails, file in court.

 

Disclaimer: This document is intended for general informational purposes only and does not constitute legal advice. You should seek guidance from a licensed advocate if you believe you have a valid personal injury claim.

 

LEGAL ANALYSIS OF THE LEGAL PROCESS OF INSTITUTING SUCCESSION PROCESS IN KENYA

1. Legal Framework

The law governing succession in Kenya is primarily the Law of Succession Act, Cap. 160 of the Laws of Kenya. It provides the legal mechanism for the administration of a deceased person’s estate and guides the distribution of assets to rightful heirs and beneficiaries.

Succession proceedings can be either:

• Testate – where the deceased left a valid written or oral will, or
• Intestate – where the deceased did not leave a will, or the will is invalid.

The procedure outlined here primarily focuses on intestate succession, which is more common and often more legally complex.

 

2. Key Stages in Instituting a Succession Cause

Step 1: Filing a Petition for Letters of Administration

• A petition is filed at the High Court (Family Division) or in certain cases, at a Magistrate's Court if the estate value does not exceed KSh 5 million (as per The Magistrates' Courts (Succession Matters) Rules, 2015).
• The petitioner is usually a surviving spouse, child, parent, or other dependent of the deceased, as recognized under Section 29 of the Law of Succession Act.
• The petition seeks to be granted Letters of Administration Intestate, which authorize the petitioner to administer the deceased's estate.

 

Step 2: Preparation and Submission of Supporting Documents

The petition must be accompanied by a number of required documents, including:

📝 Mandatory Documents:

1. Death Certificate – Certified copy to confirm the deceased is dead.
2. Chief’s Letter – Issued by the area chief where the deceased resided. It must confirm:
• The date of death,
• The full list of dependents and beneficiaries, and
• Whether any disputes exist regarding the estate.
3. Identification Documents:
• National ID cards of the petitioner(s),
• National IDs or birth certificates of the beneficiaries.
4. Affidavit in Support of Petition (Form P&A 5) – Declares:
• Assets and liabilities of the deceased,
• The names and relationships of all beneficiaries.
5. Affidavit of Justification of Proposed Administrators (Form P&A 11) – Required where there is more than one proposed administrator.
6. Consent to Petition (Form P&A 38) – Signed by other dependents agreeing to the petitioner(s) being appointed administrator(s).
7. Guarantee by Sureties (Form P&A 57) – Required where the administrator(s) are not the sole beneficiaries. Sureties are persons who guarantee proper estate administration.

 

Step 3: Payment of Court Fees

Once documents are accepted, the court issues an invoice covering:

• Filing fees – Varies based on the size of the estate.
• Kenya Gazette fee – For the mandatory publication notice.

These fees must be paid before the court processes the petition.

 

Step 4: Publication in the Kenya Gazette

• After filing, the petition is published in the Kenya Gazette as required under Rule 7(4) of the Probate and Administration Rules.
• The notice serves two purposes:
• Public notification of the intention to administer the estate, and
• Provides an opportunity for any objections to be raised within 30 days from the date of publication.

If an objection is raised, it triggers a contentious succession cause, which may involve litigation or mediation.

 

Step 5: Issuance of Grant of Letters of Administration

• If no objections are filed within the gazettement period, the court issues the Grant of Letters of Administration Intestate.
• This grant authorizes the petitioner (now administrator) to:
• Collect and preserve the estate,
• Pay debts and taxes,
• Prepare a schedule for distribution.

⚠️ Note: The grant does not allow distribution yet. The administrator must first apply for confirmation of the grant.

 

Step 6: Confirmation of Grant and Identification of Beneficiaries

• After 6 months, the administrator must apply for confirmation of the grant under Section 71 of the Law of Succession Act.
• This application (Form P&A 54) must include:
• A schedule of assets, and
• A proposal on how the estate will be distributed among beneficiaries.
• Beneficiaries must consent to the mode of distribution, or else the court may adjust it to ensure fairness (especially in polygamous families).
• The court confirms the grant and authorizes the actual distribution of the estate.

 

Step 7: Distribution of the Estate

• The administrator proceeds to distribute the estate according to the confirmed grant.
• Before distribution, the administrator must:
• Pay any debts, taxes, and funeral expenses from the estate.
• Obtain a Clearance Certificate from KRA showing that any applicable estate duty or capital gains tax has been settled.
• Upon completion, the administrator files an account of the administration if required.

 

3. Special Cases

A. Where There Is a Valid Will (Testate Succession)

• If the deceased left a valid will, the process involves filing for probate rather than letters of administration.
• An executor named in the will applies for a Grant of Probate.
• Process is similar but includes production of the original will and affidavit of attesting witnesses.

B. Where Minor Beneficiaries Are Involved

• The court may require the appointment of guardians.
• Any appointed administrator must act in the best interest of the minors.
• Proceeds due to minors are usually held in trust or deposited in a bank until the child attains majority age (18 years).

 

4. Applicable Legal Provisions

Law	Section / Rule
Law of Succession Act (Cap. 160)	Sections 29, 35, 36, 66, 71, 76
Probate and Administration Rules	Rules 7, 10, 26, 40
Constitution of Kenya, 2010	Article 27 – Equality of all beneficiaries
Magistrates' Court Act	Section 9 – Jurisdiction in succession matters up to KSh 5 million
Trustee Act (Cap. 167)	In cases involving holding property in trust

 

Conclusion

The process of instituting succession in Kenya is structured to ensure transparency, fairness, and legal compliance in the distribution of a deceased person’s estate. While the process is relatively straightforward in uncontested cases, it can become lengthy and complex where disputes arise or assets are extensive.

Engaging a qualified probate and succession advocate is highly advisable, especially for:

• Estates with high value or complex ownership structures,
• Blended families or multiple households,
• Disputed wills or beneficiaries.

 

REVIEW: LAND ALLOCATION & TITLING PROCESS

This process generally applies to land owned by the government or public institutions, especially in urban areas, and where no title exists yet. It involves a step-by-step procedure involving planning, surveying, deed preparation, and final registration of a leasehold interest.

 

1. Preparation of a Part Development Plan (PDP)

• First Step: Determine whether a Part Development Plan (PDP) has already been prepared for the land.
• A PDP is a planning document that indicates the intended use of the land — e.g., residential, commercial, public purpose, etc.
• It also outlines parcel boundaries, road reserves, plot sizes, and infrastructure plans.
• If no PDP exists:
• One must be prepared by a licensed Physical Planner at the County Government level.
• The draft PDP is then submitted to the Director of Physical Planning at the Ministry of Lands (National Government) for approval.
• Once approved, it becomes a legal framework for subsequent surveying and registration steps.

v  Legal Basis: Physical Planning Act (repealed, but still guides practice under transition); current framework is under the Physical and Land Use Planning Act, 2019.

 

2. Survey and Preparation of Cadastral File

• After PDP approval, a survey is carried out by a licensed land surveyor.
• The surveyor prepares:
• A survey plan (with precise measurements and coordinates of the parcel).
• A cadastral file, which includes the survey plan, beacon certificates, and computation sheets.
• These documents are submitted to the Director of Surveys at the Survey of Kenya for:
• Authentication and verification, to ensure the survey is accurate and compliant.
• Approval of survey plan, which becomes part of national mapping records.
• At this stage, “checking fees” must be paid for the authentication process.

 

v  Legal Basis: Land Registration Act, 2012; Survey Act (Cap 299).

 

3. Indenting by the Director of Land Administration

• Once the survey is approved, the documents are forwarded to the Director of Land Administration (formerly Commissioner of Lands) for "indenting."
• Indenting is a process where the Director checks:
• That the surveyed land does not overlap with any existing parcels.
• That the land is available for allocation and free of any encumbrances or claims.
• It serves as a final internal check before deed plans are issued and the lease prepared.

 

4. Preparation and Approval of Deed Plans

• Based on the approved survey, the Director of Surveys prepares a Deed Plan for each parcel.
• A Deed Plan is a legal diagram showing:
• The plot boundaries,
• Total acreage/size,
• Georeferencing coordinates.
• Once approved, the Deed Plan becomes a registrable instrument.
• An Advocate (or legal representative) may now submit a request to the Director of Land Administration to prepare a lease document using the approved Deed Plan.

v  Deed Plan is mandatory for leasehold title registration.

 

5. Execution and Registration of the Lease Document

• The Lease Document is prepared by the Ministry of Lands (Director of Land Administration), detailing:
• The terms of the lease (usually 99 or 33 years),
• The lessee’s rights and obligations,
• Rent payable (if any),
• Any user restrictions.
• Once prepared:
• The lease is executed (signed) by both the government (lessor) and the allottee (lessee).
• The signed lease is then registered at the relevant Land Registry where the land is located.
• A Certificate of Lease (also referred to as the Title Deed for leasehold property) is issued in the lessee’s name.

✅ Legal Basis:

• Land Act, 2012
• Land Registration Act, 2012
• Land (Allocation of Public Land) Regulations, 2017
• Constitution of Kenya, 2010 – Article 62 (on public land)

 

⚖️ Summary of Key Institutions Involved

Step	Institution/Office
PDP preparation	County Physical Planning Department
PDP approval	Director of Physical Planning (Ministry of Lands)
Survey & Cadastral file	Licensed Surveyor + Survey of Kenya
Indenting	Director of Land Administration
Deed Plan approval	Director of Surveys
Lease preparation	Director of Land Administration
Registration	Land Registry (Ministry of Lands)

 

📝 Final Notes:

• This process may take several months to years, depending on:
• Complexity of the land allocation,
• Government processing times,
• Availability of complete documentation.
• Proper due diligence and following the correct administrative hierarchy is crucial.
• It is advisable to engage a licensed surveyor, registered physical planner, and a qualified advocate throughout the process.

GARNISHEE PROCEEDINGS IN KENYA

1. Introduction

Garnishee proceedings are a form of execution of court decrees where a creditor seeks to recover a debt by targeting a third party (the garnishee) who owes or holds money for the judgment debtor (JD). This is an indirect way of enforcing a judgment where the debtor is unable or unwilling to satisfy the decree.

2. Legal Framework

Garnishee proceedings in Kenya are governed primarily by:

• Civil Procedure Act, Cap. 21, Laws of Kenya — specifically Section 44 and 45.
• Order 23 of the Civil Procedure Rules, 2010.
• Relevant case law, including:
• Kenya Commercial Bank Ltd v. Samuel Kamau Macharia [2008] eKLR
• Africa Merchant Assurance Co Ltd v. George Kimani Njau [2020] eKLR

3. Key Definitions

Garnishment

A judicial process where the court directs a third party (garnishee) to pay a debt owed to the judgment debtor, directly to the decree holder.

Garnishee

Under Order 23 Rule 1, a garnishee is a person or institution who owes a debt to the judgment debtor or holds money/property on their behalf (commonly a bank).

Order Nisi

An interim court order requiring the garnishee to appear before the court and explain why the debt they hold on behalf of the JD should not be paid to the decree holder.

Order Absolute

The final order directing the garnishee to pay the funds directly to the decree holder, if no valid objection is raised.

4. Procedure for Garnishee Proceedings

Step 1: Application for Order Nisi

• The decree holder files an ex parte application under Order 23 Rule 1(1), supported by an affidavit.
• The affidavit must disclose:
• Existence of a valid decree.
• Existence of a debt owed by the garnishee to the judgment debtor.
• Evidence that the garnishee is within the court’s jurisdiction.

Step 2: Issuance of Order Nisi

• If the court is satisfied, it issues an Order Nisi directing the garnishee to appear and show cause why the debt should not be paid to the decree holder.
• This order must be personally served on the garnishee at least seven (7) days before the hearing — see Order 23 Rule 2.

Step 3: Hearing of Garnishee Show Cause

• On the return date, the garnishee appears in court and may:
• Admit liability and consent to the debt being paid to the decree holder.
• Contest the application (e.g., argue the funds are not available or are held in trust).
• If the garnishee fails to appear, the court may proceed ex parte and issue an Order Absolute.

Step 4: Order Absolute

• If satisfied, the court issues an Order Absolute under Order 23 Rule 4, compelling the garnishee to pay the sum directly to the decree holder.

5. Attachment of Bank Deposits

Legal Principle:

Money held in bank or building society accounts is considered a debt owed by the bank to the account holder and is, therefore, attachable through garnishee proceedings.

Limitations DO NOT prevent garnishment:

Even if the bank account has conditions such as:

• Withdrawal only upon notice,
• Requirement to present deposit book or withdrawal slip,
• Personal attendance of the account holder,

These do not affect the enforceability of a valid garnishee order once it is issued.

As per Order 23 Rule 1(1), the garnishee is liable regardless of the contractual terms, provided the funds belong to the judgment debtor.

Case law:
In Choice TV Limited v Safaricom Limited [2021] eKLR, the court affirmed that conditions placed by financial institutions cannot override a garnishee order once issued by a competent court.

6. Jurisdictional Considerations

• The garnishee must be within the jurisdiction of the court issuing the order.
• The court must have issued a valid decree and execution must be legally permissible.

7. Exceptions and Defenses by Garnishee

A garnishee may resist the order by proving:

• No debt is owed to the JD,
• The account is jointly owned and not solely in the name of the JD,
• The funds are held in trust or for a third party,
• A prior attachment or legal restriction exists on the account.

8. Limitation on Use of Garnishee Proceedings

Garnishee proceedings cannot be used:

• To attach immovable property (use attachment instead),
• Where no monetary decree exists,
• Where the judgment debtor has been declared insolvent or bankrupt, and distribution of assets must follow the insolvency process.

9. Enforcement of Order Absolute

Once the court issues an Order Absolute, the garnishee is legally bound to comply. Non-compliance may attract contempt proceedings or enforcement mechanisms under Section 38 of the Civil Procedure Act.

10. Conclusion

Garnishee proceedings offer an effective and lawful method for enforcing monetary decrees when the judgment debtor lacks liquid assets but has third parties indebted to them. However, strict procedural compliance is required, particularly regarding notice, jurisdiction, and documentation. Legal representation is highly recommended to avoid pitfalls that may render the process defective.

References:

• Civil Procedure Act, Cap. 21
• Civil Procedure Rules, 2010 – Order 23
• Kenya Commercial Bank Ltd v. Samuel Kamau Macharia [2008] eKLR
• Choice TV Limited v. Safaricom Limited [2021] eKLR
• Africa Merchant Assurance Co Ltd v. George Kimani Njau [2020] eKLR

Analysis: The KENYAN Law perspective on Custody Order

ection 83 of the Children’s Act sets out the following principles guiding the court in making a custody order. The court must consider the following:

1. The conduct and wishes of the parent or guardian of the child
2. The ascertainable wishes of the relatives of the child
3. The ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has made his/her home in the last 3 years before the application to the court.
4. The ascertainable wishes of the child.
5. Whether the child has suffered any harm, or is likely to suffer any harm if the order is not made,
6. The customs of the community to which the child belongs.
7. The religious persuasions of the child
8. Whether a care order, or a supervision order, or a personal protection order, or an exclusion order has been made in relation to the child concerned and whether or not those orders remain in force.
9. The circumstances of any sibling of the child concerned; and of any other children of the home, if any.
10. The best interest of the child.

Once the court considers all the above, it will then proceed to make a custody order. Many times a court is guided by official inquiry reports made by Child Services, who then decide whether or not to recommend either parent to have custody of their child.