A warrant of execution authorises the police to take a debtor’s belongings and sell them. The Act draws a small circle around what cannot be taken, and a larger one around what the warrant simply does not reach.
The statutory exemption
The wearing apparel and bedding of the defendant and his family, and the tools and implements of the defendant’s trade, the whole not exceeding in value the sum of K200.00, shall not be taken under a warrant of execution.
Three things are protected: clothes, bedding, and tools of trade. The protection is for the family’s clothes and bedding, not only the debtor’s. But the cap is the whole of those things together, valued at K200, a figure fixed decades ago. A carpenter’s tools worth K1,500 are exempt only to K200; the officer may take the rest. The National Court’s equivalent under Order 13 of the National Court Rules is described in what property can be seized to satisfy a judgment.
Household goods: taken, but not removed
Household goods beyond the exemption can be seized, but section 174(6) treats them specially: unless the debtor consents in writing or the warrant directs otherwise, they are not removed from the house until the day of sale; instead, enough to satisfy the execution is impounded by affixing a conspicuous mark. The family keeps the use of its furniture until the sale, and removing a marked item or defacing the mark is an offence under section 174(7). If the debtor pays before the sale day, nothing leaves the house.
Goods belonging to someone else
If a claim is made to or in respect of any goods or chattels distrained under a warrant of execution, or to their proceeds or value, by a person not being a party against whom the warrant has issued, a Magistrate, on the application of the officer charged with the execution, may issue a summons directed to the party obtaining the warrant and the party making the claim.
A warrant is against the debtor’s goods, not the goods in the debtor’s house. A spouse’s sewing machine, a relative’s vehicle, a bank’s vehicle under a chattel mortgage, and stock held on consignment can all be claimed by their owner through the interpleader procedure in sections 178 and 179, which stays any separate action and lets the Court decide who owns the goods. See adverse claims.
What a warrant does not reach at all
| Property | Why | Alternative |
|---|---|---|
| Land, a State Lease, a house as real property | The warrant is against “goods and chattels” only (s 173) | National Court: a judgment there can be enforced against land |
| Wages and money in a bank account | Owed to the debtor by a third party, not goods in his possession | Attachment of debts under s 182: garnishee |
| Money owed by customers | Same | Garnishee; or the oral examination under s 181 to identify them |
| Property of the State | Claims By and Against the State Act s 13(1) | Certificate of judgment under s 14 of that Act |
| Goods already seized under another warrant | Section 143 of the Criminal Code makes removing property under lawful seizure an offence; priority goes to the first levy | Wait for the surplus under s 174(11) |
| Customary land and things attached to it | Not chattels; and customary land is outside the District Court’s reach | Land Courts for ownership; nothing for enforcement |
Cash and cheques are not exempt
Section 175 allows money and bank notes belonging to the debtor to be seized and applied without sale, and cheques, bills, promissory notes, bonds and securities to be seized and held as security, with the creditor entitled to demand payment and sue on them in the debtor’s name. Cash in the till of a trade store is therefore the first thing an officer will look for.
Vehicles
A vehicle is a chattel and is the commonest item seized from a debtor of any substance. It is exempt only if it is genuinely a tool of the debtor’s trade within the K200 cap, which in practice it never is. A vehicle subject to a hire-purchase agreement or chattel mortgage belongs, in part or whole, to the financier, who will claim under section 178. A PMV with a bank’s interest noted on the registration is a common example.
How a debtor objects
A debtor who says the officer has taken exempt clothing or tools, or goods that belong to another person, should say so at the levy and ask the officer to note it, and should then apply to the Court promptly; the sale must otherwise proceed within 14 days. The Court can direct the officer under the terms of the warrant, and the owner of the goods can invoke section 178. An officer who wilfully exceeds the warrant is liable for the excess, and section 174(8) makes improper charges an offence. The Magistrates’ Manual also records instances of officials selling seized goods to themselves below value, and warns supervising magistrates to watch for it.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.