Section 40 of Civil Procedure Act CAP 21: Arrest and detention
(1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall as soon as practicable be brought before the court, and his detention may be in any prison of the district in which the court ordering the detention is situate, or, if such prison does not afford suitable accommodation, in any other place which the Minister may appoint for the detention of persons ordered by the courts of such district to be detained: Provided that—
(i) for the purpose of making an arrest under this section, no dwellinghouse shall be entered after sunset and before sunrise;
(ii) no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto; but when the officer authorized to make the arrest has duly gained access to any dwelling-house he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found;
(iii) if the room is in the actual occupancy of a woman who is not the judgment-debtor, and who according to the custom of her community does not appear in public, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest;
(iv) where the decree in execution of which a judgment-debtor is arrested is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.
(2) The Minister may, by notice in the Gazette, declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as he may direct.
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- Section 41 - Subsistence allowances
The Minister may, by notice in the Gazette, fix scales of monthly allowances payable for the subsistence of a judgment-debtor.
- Section 42 - Detention and release
(1) Every person detained in prison in execution of a decree shall be so detained—
(a) where the decree is for the payment of a sum of money exceeding one hundred shillings, for a period not...
- Section 43 - Release on ground of illness
(1) At any time after a warrant for the arrest of a judgment-debtor has been issued, the court may cancel it on the ground of his serious illness.
(2) Where a judgment-debtor has been arrested, the...
- Section 44 - Property liable to attachment and sale in execution of a decree
(1) All property belonging to a judgment debtor, including property over which or over the profits of which he has a disposing power which he may exercise for his own benefit, whether that property is...
- Section 45 - Seizure of property in dwelling-house
(1) No person in executing any process under this Act directing or authorizing seizure of movable property shall enter any dwelling-house after sunset and before sunrise.
(2) No outer door of a...
- Section 46 - Property attached in execution of decrees of several courts
(1) Where property not in the custody of a court is under attachment in execution of decrees of more courts than one, the court which shall receive and realize that property and shall determine any...
- Section 47 - Private alienation of property after attachment to be void
Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein, and any payment to the judgmentdebtor of any debt, dividend or other moneys...
- Section 48 - Purchaser’s title
Where immovable property is sold in execution of a decree and the sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not...
- Section 49 - Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff
(1) No suit shall be maintained against any person claiming title under a purchase certified by the court in such manner as may be prescribed on the ground that the purchase was made on behalf of the...
- Section 50 - Distribution of assets
(1) Where assets are held by any court and more persons than one have before the receipt of such assets by such court lodged applications in court for the execution of decrees for the payment of money...
- Section 51 - Resistance to execution
Where the court is satisfied that the holder of a decree for the possession of immovable property, or that the purchaser of immovable property sold in execution of a decree, has been resisted or...
- Section 52 - Power of court to issue commission
Subject to such conditions and limitations as may be prescribed, the court may issue a commission—
(a) to examine any person;
(b) to make a local investigation; (c) to examine or adjust...
- Section 53 - Commission to another court
(1) A commission for the examination of any person may be issued by the High Court to any subordinate court or to any advocate, and by a subordinate court of the first or second class to any other...
- Section 54 - Letter of request
In lieu of issuing a commission, the High Court or a subordinate court with the sanction of the High Court may issue a letter of request to examine a witness residing at any place outside Kenya.
- Section 55 - Commission issued by foreign court
Commissions issued by foreign courts for the examination of persons in Kenya shall be executed and returned in such manner as may be from time to time authorized by the High Court.
- Section 56 - When alien may sue
(1) Alien enemies residing in Kenya with the permission of the President, and alien friends, may sue in the courts of Kenya.
(2) No alien enemy residing in Kenya without such permission, or residing...
- Section 57 - When foreign state may sue
(1) A foreign state may sue in any court of Kenya, provided that state has been recognized by Kenya, and provided the object of the suit is to enforce a private right vested in the head of that state...
- Section 58 - When interpleader suit may be instituted
Where two or more persons claim adversely to one another the same debt, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges...
- Section 59 - Arbitration
All references to arbitration by an order in a suit, and all proceedings thereunder, shall be governed in such manner as may be prescribed by rules.
- Section 59A - Establishment of Mediation Accreditation Committee
(1) There shall be a Mediation Accreditation Committee which shall be appointed by the Chief Justice.
(2) The Mediation Accreditation Committee shall consist of— (a) the chairman of the Rules...
- Section 59B - Reference of cases to mediation
(1) The Court may—
(a) on the request of the parties concerned; or
(b) where it deems it appropriate to do so, or
(c) where the law so requires,
direct that any dispute presented before it be...
- Section 59C - Other alternative dispute resolution methods
(1) A suit may be referred to any other method of dispute resolution where the parties agree or the Court considers the case suitable for such referral.
(2) Any other method of alternative dispute...
- Section 59D - Power to enforce private mediation agreements
All agreements entered into with the assistance of qualified mediators shall be in writing and may be registered and enforced by the Court.
- Section 60 - Power to state case for opinion of court
Where any persons agree in writing to state a case for the opinion of the court, then the court shall try and determine the same in the manner prescribed.
- Section 61 - Public nuisance
(1) In the case of a public nuisance, the Attorney-General, or two or more persons having the consent in writing of the Attorney- General, may institute a suit though no special damage has been...
- Section 62 - Public charity
In the case of an alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the...
- Section 63 - Supplemental proceedings
In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed—
(a) issue a warrant to arrest the defendant and bring him before the court to show cause why he...
- Section 64 - Compensation for arrest, attachment or injunction on insufficient grounds
(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under section 63—
(a) it appears to the court that the arrest, attachment or injunction...
- Section 65 - Appeal from other courts
(1) Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court—
(a) Deleted by...
- Section 65A - Renumbered as section 79B.
Renumbered as section 79B.
- Section 66 - Appeal from decree of High Court
Except where otherwise expressly provided in this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie from the decrees or any part of decrees...
- Section 67 - Appeal from original decree
(1) An appeal may lie from an original decree passed ex parte.
(2) No appeal shall lie from a decree passed by the court with the consent of parties.
- Section 68 - Appeal from final decree where no appeal from preliminary decree
Where any party aggrieved by a preliminary decree does not appeal from that decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
- Section 69 - Decision where appeal heard by two or more judges
Where an appeal is heard by a court consisting of two or more judges the appeal shall be decided in accordance with the opinion of the judges or a majority of them:
Provided that where a court...
- Section 70 - Renumbered as section 79A.
Renumbered as section 79A.
- Section 71 - Renumbered as section 79C.
Renumbered as section 79C.
- Section 71A - Second appeal from subordinate court
(1) Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court from a decree...
- Section 72 - Second appeal from the High Court
(1) Except where otherwise expressly provided in this Act or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High...
- Section 75 - Orders from which appeal lies
(1) An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if...
- Section 76 - Other Orders
(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error,...
- Section 77 - What court to hear appeal
Where an appeal from any order is allowed, it shall lie to the court to which an appeal would lie from the decree in the suit in which the order was made.
- Section 78 - Powers of appellate court
(1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power— (a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them...
- Section 79 - Procedure in appeals from appellate decrees and orders
The provisions of this Part relating to appeals from original decrees shall, as far as may be, apply to appeals—
(a) from appellate decrees; and
(b) from orders made under this Act or under any...
- Section 79A - No decree to be altered for error not affecting merits or jurisdiction
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any...
- Section 79B - Summary rejection of appeal
Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree,...
- Section 79C - Mode of hearing appeal
Appeals from subordinate courts shall be heard by one judge of the High Court except when in any particular case the Chief Justice shall direct that the appeal be heard by two or more judges of the...
- Section 79D - Grounds for second appeal from High Court
No second appeal from a decree passed in appeal by the High Court shall lie except on the grounds mentioned in section 72.
- Section 79E - No second appeal from High Court in certain cases
No second appeal from a decree passed in appeal by the High Court shall lie in any suit when the amount or value of the subject-matter of the original suit does not exceed ten thousand shillings...
- Section 79F - Appeals by paupers
A person who has been allowed to take, defend or be a party to any legal proceedings in a subordinate court as a pauper may not appeal to the High Court, or from the High Court to the Court of Appeal,...
- Section 79G - Time for filing appeals from subordinate courts
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which...