Debts (Summary Recovery) Act

LAWS OF KENYA
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The Debts (Summary Recov
CHAPTER 42
Revised Edition 1977 (1962)
Printed and Published by the Government Printer
Nairobi

2 CAP. 42 Debts (Summary Recovery) [Rev. 1977
CHAPTER 42
THE DEBTS (SUMMARY RECOVERY) ACT
ARRANGEMENT OF SECTIONS
Section
1—Short title.
2—Recovery of civil debts.
2A—Jurisdiction of magistrates.
3—Commencement of proceedings.
4—Magistrate to issue summons.
5—Warrant not to issue, but if defendant fails to appear
magistrate may proceed ex parte.
6—Procedure in trials.
7—Defendant may be a witness.
8—Order for payment.
9—Dismissal of complaint.
10—Costs.
11—Enforcement of order for payment.
12—Procedure for committal.
13—Appeal.
14—Rules of court.

—Order for payment.
9—Dismissal of complaint.
10—Costs.
11—Enforcement of order for payment.
12—Procedure for committal.
13—Appeal.
14—Rules of court.

Rev. 19771 Debts (Summary Recovery) CAP. 42 3
CHAPTER 42
THE DEBTS (SUMMARY RECOVERY) ACT
Commencement: 26th May, 1913
An Act of Parliament to make provision for the summary
recovery of civil debts
1. This Act may be cited as the Debts (Summary Re- Short title.'
covery) Act. 2. Any sum declared by any Act, whether past or Recovery of
future, to be a civil debt recoverable summarily may be civil debts. recovered in the court of any magistrate of competent
jurisdiction in the manner prescribed by this Act. 2A. (1) A magistrate holding a subordinate court of the
first class shall have jurisdiction in any suit or proceeding
brought under this Act, and, notwithstanding anything con-
tained in the Magistrate's Courts Act, the pecuniary jurisdic-
tion of such magistrate in any such suit or proceeding shall be
unlimited. Jurisdiction of
magistrates. 17 of 1962, s. 2,
10 of 1969, Sch. Cap. 10.

c-
tion of such magistrate in any such suit or proceeding shall be
unlimited. Jurisdiction of
magistrates. 17 of 1962, s. 2,
10 of 1969, Sch. Cap. 10.

(2) The Chief Justice, may, by order in the Gazette,
confer on any magistrate holding a subordinate court of the
second class power to exercise the jurisdiction conferred by
subsection (1) of this section on a magistrate holding a
subordinate court of the first class, subject to such pecuniary
limitation as he may order. (3) Any magistrate having jurisdiction over any suit or
proceeding brought under this Act may, at any stage of the
proceedings, transfer such suit or proceeding to the court of
any other magistrate having such jurisdiction. -
3. (1) All proceedings under this Act shall be com-
menced by complaints, which shall be in writing and shall set
forth the particulars of the claim. (2) A magistrate shall not be required to examine a com-
plainant on oath before issuing a summons to the defendant. 4. (1) A magistrate of competent jurisdiction receiving a Magistrate to
complaint may issue a summons stating shortly the matter of issue summons. the complaint and requiring the defendant to appear at a
certain time and place before him to answer the complaint. Cap. 8 (1948),
17 of 1960,
L.N. 299/1956,
L.N. 172/1960,
17 of 1962,
36 of 1962,
10 of 1969. Commencement
of proceedings.

him to answer the complaint. Cap. 8 (1948),
17 of 1960,
L.N. 299/1956,
L.N. 172/1960,
17 of 1962,
36 of 1962,
10 of 1969. Commencement
of proceedings.

4 CAP. 42 Debts (Summary Recovery) [Rev. 1977
(2) The particulars of the claim shall, unless embodied
in the summons, be annexed to, and if so annexed shall be
deemed to be part of, the summons. Cap. 75. (3) The provisions of the Criminal Procedure Code
relating to the service of a summons shall apply to the service
of any summons issued under this Act. Warrant not to
issue, but if
defendant fails
to appear
magistrate may
proceed
ex parte. Dismissal of
complaint. 5. A warrant shall not be issued for compelling the
attendance of the defendant to answer any such complaint, but
if on the day and at the place appointed in and by the sum-
mons, or on any day to which the hearing may be adjourned,
the defendant fails to appear, then and in every such case, if
the magistrate is satisfied that the summons was duly served
upon the defendant a reasonable time before the time so
appointed for his appearance as aforesaid, it shall be lawful
for such magistrate to proceed ex parte to the hearing of the
complaint, and to adjudicate thereon as fully and effectually,
to all intents and purposes, as if such defendant had personally
appeared before him in obedience to the said summons. 6.

on as fully and effectually,
to all intents and purposes, as if such defendant had personally
appeared before him in obedience to the said summons. 6.

The procedure in trials before subordinate courts
prescribed by the Criminal Procedure Code shall, so far as
applicable, be followed in the trial of a case under this Act. 7. The defendant in any proceedings under this
Act shall be a competent witness for the defence. 8. (1) If on the hearing of the complaint the magistrate
is satisfied that the defendant is liable to pay the sum claimed
or any part thereof, he shall make an order that the defendant
do pay into court such sum as the magistrate may adjudge is
payable by the defendant. (2) A magistrate by whose order any sum is adjudged to
be paid may do all or any of the following things, namely—
(a) allow time for the payment of such sum; and
(b) direct payment to be made of the said sum by instal-
ments; and where a sum is directed to be paid by
instalments and default is made in the payment of
any one instalment, the same proceedings may be
taken as if default had been made in payment of all
the instalments then remaining unpaid. 9. If, on the hearing of the complaint, the magistrate
is satisfied that the defendant is not liable to pay the sum
claimed or any part thereof, he shall dismiss the complaint. Procedure
in trials.

istrate
is satisfied that the defendant is not liable to pay the sum
claimed or any part thereof, he shall dismiss the complaint. Procedure
in trials.

17 of 1962, s. 3. Cap. 75. Defendant may
be a witness. Order for
payment.

17 of 1962, s. 3. Cap. 75. Defendant may
be a witness. Order for
payment.

Rev. 19771 Debts (Summary Recovery) CAP. 42 5
10. (1) In any case in which a magistrate makes an order
against the defendant, he may, at his discretion, award and
order in the order that the defendant shall pay to the com-
plainant such costs as to the magistrate seem reasonable, and
the sum so allowed for costs shall be specified in the order,
and be recoverable in the same manner, and under the same
warrant, as any sum of money adjudged to be paid is
recoverable.

be specified in the order,
and be recoverable in the same manner, and under the same
warrant, as any sum of money adjudged to be paid is
recoverable.

(2) Whenever a magistrate dismisses a complaint, it shall
be lawful for him, at his discretion, by his order of dismissal,
to award and order that the complainant shall pay to the
defendant such costs as to the magistrate seem just and
reasonable, and such costs shall be recoverable in the like
manner as any other sum of money adjudged to be paid under
this Act is recoverable:
Provided that whenever proceedings have been instituted
by a person in the service of the Government for the recovery
of moneys alleged to be payable to the Government or to any
department of the Government, and in such proceeding an
order is made against the complainant under this subsection
for the payment of costs, such order shall be served upon the
head of the department in which the complainant is serving,
and the costs ordered to be paid by the complainant shall be
paid out of such fund as the Minister may, by general or
special order, direct. 11.

ving,
and the costs ordered to be paid by the complainant shall be
paid out of such fund as the Minister may, by general or
special order, direct. 11.

(1) Subject to the following provisions of this
Act, where default is made in paying any money payable by
virtue of an order made under this Act, a magistrate may—
(a) commit the defaulter to prison for a term not exceed-
ing six weeks or until payment of the sum due
(whichever period is the shorter); or
(b) order execution of the order, as if it were a decree
to which the provisions of the Civil Procedure Cap. 21. Act apply, by attachment and sale, or sale without
attachment, of any property liable to such form of
execution under that Act, or by attachment of debts
(including salary accrued to or become due) as pro-
vided by that Act. (2) All costs incurred in endeavouring to enforce an order
shall, unless the magistrate otherwise orders, be deemed to be
due in pursuance of the order. 12. (1) A magistrate shall not commit any person to
prison in default of payment of any money payable by virtue
Costs. L.N. 299 / 1956,
L.N. 172/1960. Enforcement
of order for
payment. 17 of 1960, s. 3. Procedure for
committal. 17 of 1960, s. 4.

ayable by virtue
Costs. L.N. 299 / 1956,
L.N. 172/1960. Enforcement
of order for
payment. 17 of 1960, s. 3. Procedure for
committal. 17 of 1960, s. 4.

6 CAP. 42 Debts (Summary Recovery) [Rev. 1977
of an order made under this Act or for any want of sufficient
execution to satisfy any such money—,
(a) unless a summons to appear and be examined on oath
has been served on that person; and
(b) unless it is proved to the satisfaction of the magistrate
that that person has, or has had since the date of
the order, the means to pay the money in respect of
which he has defaulted, and refuses or neglects or,
as the case may be, has refused or neglected to pay it. (2) Proof of the means of the person making default may
be given in such manner as the magistrate thinks just, and, for
the purpose of such proof, the debtor and any witness may be
summoned and their attendance enforced by the same process
as in cases in which the magistrate has jurisdiction in criminal
matters, and such person making default and witnesses may be
examined on oath. (3) Every order of committal under this section shall be
issued, executed and obeyed in like manner to commitments
Cap 75.

es may be
examined on oath. (3) Every order of committal under this section shall be
issued, executed and obeyed in like manner to commitments
Cap 75.

under the Criminal Procedure Code, except that, for the pur-
poses of the orison laws for the time being in force, the person
committed shall be deemed to be a civil prisoner.'
(4) There shall be endorsed on every order of commit-
ment the sum on the payment of which the defendant may be
discharged. (5) When an order of commitment is issued, the defendant
may, at any time before he is delivered to the officer in charge
of the gaol, pay to the officer holding the order the amount
endorsed thereon as that on the payment of which he may be
discharged, and on receiving that amount the officer shall
discharge the defendant, and shall forthwith pay the amount
to the magistrate who made the order. (6) No imprisonment under this section shall operate as
a satisfaction, or extinguishment of any debt, or deprive any
person of any right to levy execution under section 11 of this
Act against the property or debts of the person imprisoned in
the same manner as if such imprisonment had not taken
place.. 13. An appeal shall lie to the High Court from any
order made under section 8 or section 9 of this Act, and the
Cap. 75.

sonment had not taken
place.. 13. An appeal shall lie to the High Court from any
order made under section 8 or section 9 of this Act, and the
Cap. 75.

provisions of the Criminal Procedure Code relating to appeals
from the order of a subordinate court shall apply to such
appeal.

Rev. 19771 Debts (Summary Recovery) CAP. 42 7
14. The Chief Justice may make rules of court fixing
fees, prescribing forms and generally for the purposes of, and
for giving effect to, the provisions of this Act.
Rules of court.
17 of 1960, s. 5,
36 of 1962, Sch.

bing forms and generally for the purposes of, and
for giving effect to, the provisions of this Act.
Rules of court.
17 of 1960, s. 5,
36 of 1962, Sch.

Rev. 1977] Debts (Summary Recovery) CAP. 42 9
[Subsidiary]
SUBSIDIARY LEGISLATION
Rules of Court under section 14
THE DEBTS (SUMMARY RECOVERY) RULES
1. These Rules may be cited as the Debts (Summary Recovery)
Rules. 2. The particulars of a complaint for recovery summarily of a
civil debt shall be in the form in the Schedule to these Rules, and
shall set forth the particulars of the complaint, and shall be filed in
duplicate. 3. The fees payable on a complaint under the Act shall be the
same as those payable under the rules of court for the time being
in force in regard to civil suits generally, so far as they may apply
to proceedings under the Act or these Rules. SCHEDULE (r. 2)
Form of Complaint
Complaint Civil Debts,
Summary Recovery. Chapter 42 of the Laws. IN THE COURT
AT
Name of complainant and address for service:—
Name of defendant and address for service : —
[I f the complainant sues, or the defendant is sued in a representative
capacity, the particulars must state in what capacity the com-
plainant sues or the defendant is sued]
Particulars of Complaint
Date , 19....

entative
capacity, the particulars must state in what capacity the com-
plainant sues or the defendant is sued]
Particulars of Complaint
Date , 19....

Signature of Complainant
Directions of Magistrate :—
To
of [Defendant]
You are hereby summoned to appear in this Court in person on
the day of , 19...., at
o'clock in the forenoon to answer the complaint set forth herein. Take notice that, in default of your appearance, the complaint
will be heard and determined in your absence. Given under my hand and the seal of this Court this
day of , 19. , at
Magistrate
Cap. 8 (1948),
Sub. Leg.