BM’s insights on execution.

Meaning of execution

• This is the formal process by which a judgment of court is enforced to enable a

successful party enjoy the fruits of his or her judgment.

Knowledge areas required of a lawyer handling execution.

A lawyer handling execution must abreast himself on whether the decision intended to be
executed is;

(a) A final or interlocutory judgment. As a G/R execution is made in respect of final

judgments.
(b) One made in personam or in rem. As a G/R an execution process must affect
only parties to the suit and not outsiders (Kanyabikal & Anor v AG [1987] HCB
47).
(c) One being commenced against the legal representative of a deceased
J/debtor and in which case such legal representative shall be liable to the extent
of the property of the deceased which he is still holding under the estate (S. 37 &
39 CPA). The J/creditor must first take out a NTC and serve it on such
representative (O.22 r. 19(1) (b) CPR).

Essential steps to take prior to making an application for execution.

1. Preparation/drafting of a decree. Courts execute decrees and orders. Duty to

draft a decree is on successful party who desires to execute it (Asadi v
Livingstone Ola [1985] HCB 50).
A decree must agree with the judgment. It will bear the suit number, names and
description of parties, the particulars of the claim, the decision of court and the
reliefs granted but shall not include the amount of costs awarded (O. 21 r. 6 CPR)
.
The date on which a judgment was passed is the date of the decree (O. 21 r.7 (1)
CPR).
2. Seeking approval. An extracted decree should be sent to opposite counsel to
confirm its contents.
Where such counsel declines to participate having been given the opportunity the
decree holder’s advocate will send it to the registrar with a forwarding letter
explaining the none participation of his fellow counsel, and in which case the
registrar will endorse it after confirming its contents with the court judgment.
However, a disagreement on the contents of a decree between counsel for both
parties will be settled by the judge/Magistrate who passed the judgment (O.21 r. 7
(2) CPR).

1
 3. File it in court together with the filing fees.
4. Where the judgment was entered with costs to the decree holder, draft a bill of
costs together with taxation hearing notices and finally obtain a certificate of
taxation.
5. Serve a copy of the decree to the losing party together with a notice demanding
satisfaction of the decree.
6. If no compliance is made, then file an application to court for execution of
the decree.

NB. A Decree is enforced within 12 years unless the applicant can show that its execution
was all along defeated by the loosing party’s fraud (S. 35 CPA).

Where a decree being enforced is more than one year old, the decree holder must serve
the losing party a NTC before executing it against him or her (O. 22 r. 19 (1) (a) CPR).
This is a mandatory requirement (Peter Gukina v The Returning Officer & Others)

How to make an application for execution of a decree:

This may be oral or made in writing.

(a) An oral application. These are very rare, but can be made where circumstances
are that, it is a judgment for recovery of money, the J/debtor is still within the court’s
precepts, and the preferred mode is to have the debtor arrested and committed to
civil prison.
(b) Written application. This is the most common.
It takes the tabular form provided under O. 22.r. 8 (2) (a) – (i) CPR. See: Uganda
Land Commission v Park Royal & 2 Ors HCMA No. 545/2004 arising out of
HCCS No. 1589/2000.
The exception to this form is a garnishee application which is made by way of
chamber summons.

Modes of execution (S. 38 CPA).

(i) Delivery of specified property (movable and immovable property).

(ii) Attachment and sale.
(iii) Sale without attachment (e.g articles or property already deposited in court as
security for costs or in cases where both the j/debtor and j/debtor cooperates
to identify a buyer and sale without necessitating the involvement of a bailiff).
(iv) Attachment of debts/garnishee; and the conditions to satisfy.
(v) Arrest and detention in civil prison and the duty on the J/creditor to meet the
debtor’s upkeep.
(vi) Appointment of a receiver.
(vii) Any other mode deemed appropriate

2
Meaning of property and the various categorizations. (S. 44 CPA)

(a) Decree
(b) Money
(c) Shares
(d) Livestock
(e) Crops
(f) M/vehicles
(g) Machinery & plants
(h) Land
(i) Buildings
(j) Etc, etc.

Privileges which some parties like AG & LG enjoy in execution.

How to protect interests of aggrieved parties to contested decisions and those

subject to illegal and improper processes.

(a) When to stay an execution

(b) When to set aside a decree and execution process.
(c) When to only set aside an execution.

How to protect interests of 3rd parties whose property has become a subject of an
execution process.

(a) In case an attachment & sale is ordered in execution – Objector Proceedings

(b) In case of an order for delivery of property made without attaching the property –
Setting aside.

Workshop No. 1.

Part A (i) HCCS No. 569/2017 Kagulire v Kasirye Gwanga:

This is a judgment in personam.

All modes of execution provided for under S. 38 (a) – (e) CPA can apply against him; but
given the J/debtors errant conduct, it is advisable that one proceeds by any other manner
not specifically mentioned (S. 38 (f) CPA).

S. 95 CPA allows execution to commence before taxation of the bill of costs.

S. 86 UPDF Act protects his pensions and gratuity from attachment under this kind of
execution.

• Extract a decree

3
 • Have it filed and sealed by court.
• Extract a demand notice and have it served on the J/debtor a copy served on the
CDF.

Part A (ii)

Kagulire v M/s High Tidings Ltd. It is a decree of 2010 hence 10 years old. It is still
enforceable provided a NTC is first served on the J/debtor or the defendant

The judgment gives the J/creditor a right to;

(a) Recover specified immovable property ie land

(b) Recover general damages, mesne profits and taxed costs.
• There is need to obtain additional information on the Plot No. of this property and
bring the application within the ambit of O. 21 r. 10 CPR.
• Recovery of monies by attachment and sale of a building with tenants:

This file will require taking the following steps:-

(a) Make an application for transfer of decree to the Execution & Bailiffs Division
(O. 22 r. 6 CPR).
(b) Make a formal application to the court for delivery of the specified property
(O.22 r. 32 CPR); and to recover the decreed damages by attachment and sale
of immovable property (O.22 r. 27 & 75 CPR).
(c) J/creditor should on application for execution furnish court with a certified
copy/search report from Lands Office confirming the J/debtors ownership of the
land to be attached for sale (O.22 r. 11 CPR, as augmented by S. 44 CPA)
In case of any doubt as to ownership of J/debtors property such debtor can on
the application of the J/creditor be summoned before court for examination as
to her property or on the means she intends to satisfy the decree (O. 22 r. 38
(b) CPR).
(d) Court to issue two distinct warrants: One for delivery of possession of land and
the other for attachment and sale of immovable property. The latter warrant will
also carry an order barring J/debtor from changing ownership or charging the
attached property in any way.
(e) Court to require the J/debtor to deposit its certificate of title in respect of the
attached property (S. 48 CPA & O. 22 r. 51 (1) CPR).
(f) Bailiff to advertise property in a newspaper of wide local circulation (O.22 r. 63
CPR).
(g) Notice of attachment and sale to be placed at the building and to serve as notice
to any tenants thereon.

4
 (h) Bailiff to obtain a valuation report from an approved and licensed property
valuer.
(i) Bailiff to cause a registration of the warrant of attachment and sale together
with a copy of the decree with Land Registry.
(j) Bailiff to sale by public auction 30 days after the date of the advert of the notice
of sale to the highest bidder (O. 22 r.75 & r. 64 CPR).
(k) Highest bidder to pay the full price immediately he is so declared or in any case
to make a deposit of not less than 25% of the price; and continue to complete
the balance within 15 days from such date (O.22 r. 77(1) & 78(1) CPR).
(l) Bailiff to issue a receipt to the buyer acknowledging payments made.
(m)Any default in completing payments as required by law will render the purported
sale of no effect and the property will be due for sale to any other willing buyer
(O.22 r. 79 & 80 CPR).
(n) Proceeds of sale to be deposited in court unless given to counsel for the
J/creditor for onward transmission to the client and in which case such lawyer
with issue a bailiff with an acknowledgement.
(o) A return of attachment and sale to be made by the bailiff to the excuting court
as soon as practicable.

Part B/ Kagulire v Liz Confectionaries

The part covers execution against a partnership.

See: O. 22 r. 46 & O. 22 r. 47 CPR on execution against a partnership. Also see: Desai

v Shah [1972] EA 491.

In this case, the property sold, ie the M/vehicle wasn’t property of the J/debtor but of
Equity Bank.

A judicial sale is not complete by the mere act of sale but upon confirmation by court.
[Lawrence Muwanga v Stephen Kyeyune SCCA No. 12/2001).

The bank can object to the attachment and have the property released (O. 22 r. 55, 56 &
57 CPR). The question for determination under objector proceedings is not title; but one
of possession at the time of attachment coupled with some explanable interest.

Equally Liz Confectionaries can challenge the sale as having been unlawful since it was
effected after the expiry of the warrant of attachment and sale.

This however does not absolve the partnership liability under the decree but may spur the
J/creditors efforts to cause court to examine her on her property and how she intends to
satisfy the decree passed against her (O. 22 r. 38 (a) CPR).

5
Ndagire can also sustain an action for damages against the bailiff over wrongful
execution. A warrant to attach a motor vehicle is not a general licence to attach even her
10 wedding cakes which were donated to security guards. The bailiff’s actions cannot be
protected under S. 46 (2) Judicature Act as the same were unlawful.

Again, James Musisi’s residential home in Gayaza cannot be attached as the same is
subject to third party equities. Likewise Musisi cannot be arrested under the powers of a
warrant for attachment and sale of a movable property to wit, the double cabin pickup.
Such arrest would be unlawful and open to challenge.

Part C/: Nabweru CM’s CS No.99/2017 Kagulire v Nshekanabo Wilbroad.

The J/detor owns 140 heads of livestock in Nakasonola District, he owns a sugar cane
plantation within Lugazi, Buikwe District, he operates a bank Account with Cairo
International Bank on which he receives proceeds of the sugar sale from SCOUL.

(a) Livestock: These can be attached and sold in execution (O.40 CPR); but the
process is very risky.
(b) Sugar cane crops: These are categorized as agricultural produce, in form of a
growing crop.
They can be attached and sold in execution (O. 22 r. 41 & 42 CPR).
An application for attachment of growing crops shall specify the time at which the
crop is likely to be ready for harvesting (O.22 r. 42 (1) CPR).
Attachment is made by affixing a copy of the warrant at the garden where the sugar
cane crop is growing (O.22 r. 41 (a) CPR).
From the facts it appears the crop is mature and now being sold to SCOUL and
sale proceeds being kept with Cairo International Bank.
The decree holder may not bother himself with attaching the agricultural cops but
opt to;
(c) Garnishee/ Attachment of debts: - either; SCOUL or CAIRO INTERNATIONAL
BANK. This by far is the most viable option to take.

O. 23 (1) CPR provides that;

A court may upon an ex parte application either before or after the oral
examination of the J/debtor and upon an affidavit of the decree holder or his
advocate order for garnishee nisi; provided the garnishee will be heard upon
notice of at least 7 days before an order absolute can issue against her.
The conditions to satisfy under garnishee proceedings are:
(i) The applicant/decree-holder has a decree issued by the honourable court
for recovery of money against the J/debtor.
(ii) Such decree has remained unsatisfied.

6
 (iii) There is an existing debt between the garnishee and the j/debtor which
monies are still in possession of the garnishee.
(iv) The garnishee is within the jurisdiction of the court.

Mode of application: Chamber summons supported by an affidavit (O.23 r. 10 CPR).

Effect of a garnishee order nisi: Once served on the garnishee together with the
application, it serves as a freezing order and shall bind such debts in the hands of the
garnishee (O. 23 r.2 CPR).

Garnishee order absolute (O.23 r. 3 CPR): Can issue where;

(a) The garnishee does not dispute her debt due to the j/debtor; or
(b) Fails without justification to appear and on the hearing date. Such failure is deemed
as an admission of liability between him and the J/debtor.

Effect of payment by a garnishee or execution on a garnishee: Serves as a valid discharge

against the j/debtor to the amount paid or levied even where the proceedings forming the
subject of the execution process were set aside (O. 23 r. 7 CPR)

Remedies to a J/debtor who has;

(i) Lodged an appeal

(ii) Claims to have never been served with the court process prior to the judgment
under execution.

A pending appeal.

Pendency of an appeal by itself does not entitle the J/debtor to a stay of execution (O.43
r. 4 (1) CPR.

J/debtor must file an application for stay of execution pending appeal (O. 43 r. 4 (2) CPR).
The application shall be by way of chamber summons (O.43 r. 10 CPR).

The grounds/conditions to prove are:

1. Applicant has expressed desire to exercise his constitutional right by lodging the
pending appeal (Memorandum of appeal in the High Court).
2. Applicant’s pending appeal is not frivolous but has high prospects of success.
3. Applicant has promptly filed application for a stay before the execution process is
complete against him.
4. Applicant’s right to appeal will be defeated/rendered nugatory if a stay of execution
is not granted.
5. Applicant has deposited security or made an undertaking for security for due
performance of the decree should his appeal turn out to be unsuccessful.

7
Where the applicant is unable to satisfy the 5 th condition herein, it is advisable that he
does not rely on O.43 CPR but S. 98 CPA & S. 33 Judicature Act. In which case, he can
make the application for stay by way of a notice of motion supported by an affidavit.

When to seek a stay under O.22 r. 26 CPR.

This can be available where there is a pending suit at the same court between the parties
to an execution process. For avoidance of doubt, an appeal or an application to set aside
a judgment are not treated as pending suits for purposes of this rule.

When can a stay obtain under O.22 r. 23 CPR.

This is applicable under circumstances that where a decree has been transferred from
one magistrate’s court to another for purposes of effecting an execution process against
the J/debtor, and such j/debtor has advanced reasons to that court why he feels justified
to challenge the decree or the execution process in motion.

Where the executing court is satisfied that the grounds raised justify a need for an inquiry
in the matters raised by the j/debtor, it will pursuant to this rule grant the J/debtor a stay
for the time specified in the order to enable him exercise his right by making an
appropriate application before the court which passed the decree (O.22 r. 23 (1) CPR).

However, such a stay of execution will be on condition that the J/debtor or the person
against whom the execution had been ordered deposits security or the court may make
any other condition as it deems fit to protect the interest of the decree-holder (O.22 r. 23
(3) CPR).

None service of process/summons in a matter the subject of an ongoing execution.

A defendant confronted with such a situation has the options of;

(a) Making a formal application to the executing court to set aside the decree and
judgment, and to enlarge him time within which to participate in the proceedings.
Want of service is an effective ground to set aside a judgment as it goes to the root
of denial of a right to a hearing. (Art. 28 (1) & 44 (c) of the Constitution of the
Republic of Uganda, 1995. See Bitamisi Namuddu v G. Rwabuganda)
(b) Making an application for a stay of execution pending the disposal of the
application to set aside the decree and judgment.

Workshop No. 2:

A/ [Execution against Government, Local Government and other statutory

bodies/agencies].

8
 (i) Execution against Government. This is governed by S. 19-21 GPA Cap. 77;
and Rules. 14-17 of The Government Proceedings (Civil Procedure)
Rules.

General principles on execution against government.

• Execution proceedings against government can commence after a grace period of

21 days from the date of the decree.
• There shall be no attachment of government property in execution of a decree.
• Government cannot suffer liability on a suit commenced against her by summary
procedure as such suit is illegal (R. 17 (2) The Government Proceedings (Civil
Procedure) Rules).

Procedures:

1. Extract a decree.
2. Draft bill of costs and cause to be fixed for hearing and taxed inter parties; and
finally obtain a certificate of taxation.
3. Make an application to the registrar for a certificate of order.
4. Serve the decree together with a certificate of order to the AG, under a covering
letter providing account Number of the beneficiary (J/creditor).
5. AG to transmit the certificate of order to the Treasury Officer of Accounts to
appropriate payments.
6. Where the same are not effected within a reasonable time, the J/creditor may take
out mandamus proceedings against such public officer.

Execution against a LG See: Provisions of the LGA.

General principles.

• Execution against a LG can only commence against a LG after a grace period of

6 months from the date of the decree.
• Property of a LG can be attached and sold in execution, with the exception of:
(i) Fixed assets of the Local Government.
(ii) Statutory grants and releases meant for service provision, staff salaries and
infrastructure development.

Garnishing money on the Land Fund Account to satisfy debts of UNRA.

This would amount to an illegal attachment. This money belongs to Government. It cannot
lawfully leave the account save to address the purpose for which it was created such as
compensating landlords for registered interests in their lands lost to bonafide occupants.

9
B/ Negative orders granted on judicial review proceedings like this one against Muni
University are self-executing.

Once the same is extracted and served, execution of the same is deemed complete
(Kyambogo University v Prof. Isiah Omolo Ndiege).

Effect of none compliance with an order for Certiorari.

Court orders must be respect. Any one aggrieved with it has an option of setting it aside
on justifiable reasons, but not to ignore it.

Remedy against disobedience.

The Uni administration stand to suffer imprisonment in civil detention for contempt of court
or pay damages for the violation made.

Counsel for the successful party can take out contempt of court proceedings against the
administration of the Uni.

10