What a Debt Recovery Lawyer in Kenya Does in the First 14 Days

Creditors instruct us at two points. Some come within weeks of a default. Others come after a year of promises, part-payments and rescheduled meetings. The difference in outcome between those two groups is larger than any difference in the strength of their claims.

This article sets out what should happen in the first fortnight, because that is the period in which recovery is genuinely decided.

Days one to three: verify before you act

Before a single letter is sent, three things need checking.

Is the debt provable?

A debt is provable when there is a contract or order, evidence of performance, an invoice, and ideally an acknowledgement. The acknowledgement is the most valuable document in the file — it removes the argument about whether the sum is owed and leaves only the question of when it will be paid.

Where the paperwork is thin, that is not fatal but it changes strategy. A course of dealing evidenced by delivery notes and part-payments can establish a debt. It just costs more to prove.

Is it still within time?

The Limitation of Actions Act allows six years for a contract claim from the date the cause of action arose. A written acknowledgement or a part payment restarts that period. We check this first because a creditor who has been chasing informally for seven years has a commercial grievance rather than a legal claim, and it is better to know that before spending on proceedings.

Who is the debtor, exactly?

This sounds trivial and is not. Trading names are not legal persons. A company with a similar name is not the company you contracted with. A director who signed is not personally liable unless they guaranteed. A search at the Business Registration Service establishes the correct defendant, its directors and its registered office for service. Suing the wrong entity wastes months and costs.

Days three to seven: find out what the debtor has

This is the step most creditors skip and the one that most affects the outcome. A judgment is worth what the debtor owns, and that is knowable before you spend anything on proceedings.

• Land. A search at the relevant Lands Registry against the company or individual reveals registered property and any existing charges. A property already charged to a bank for more than its value is not a recovery target.
• Company filings. The annual return and any registered charges show whether a debenture already covers the company's assets. If a bank holds a fixed and floating charge, an unsecured creditor is a long way down the queue.
• Motor vehicles. Searchable against the registered owner.
• Bank accounts. Not directly searchable, but payments received from the debtor identify the bank and often the account. Keep every remittance advice.
• Trading behaviour. Is the business still operating? Are premises still occupied? Has staffing changed? A debtor winding down operations is dissipating assets, and that supports urgent relief.

Where this exercise shows a debtor with no traceable assets and no trading activity, the honest advice is usually to write the debt off rather than spend more chasing it. We would rather say that in week one than in year two.

Days seven to ten: the demand

A demand from an advocate does more than repeat what your credit control has already said. It establishes the debt formally, starts contractual interest running, creates the record that supports later proceedings, and signals that litigation will follow.

A properly drafted demand states the precise sum and how it is calculated, the contractual or factual basis, the period for payment — commonly 14 or 21 days — and the specific consequence of non-payment. It is sent by a method that proves delivery, and where the debtor is a company, to the registered office as well as the trading address.

A meaningful proportion of commercial debts are paid at this stage. Not because the debtor was persuaded, but because they were prioritising creditors who were pressing over creditors who were waiting.

Days ten to fourteen: choose the route

Three main options, and choosing wrongly is expensive.

Small Claims Court

For claims up to KES 1 million. Designed for determination within 60 days. For a straightforward liquidated debt in this range, the cost-to-recovery ratio is far better than any other forum, and this is where most SME debts belong.

Civil suit with summary judgment

For larger liquidated debts with no genuine defence, a plaint accompanied by an application for summary judgment under Order 36 avoids a full trial. The debtor must show a triable issue to be given leave to defend. Many commercial debts qualify, and it is materially faster than a defended suit.

Statutory demand

Against a corporate debtor owing more than KES 100,000, a statutory demand under the Insolvency Act 2015 gives 21 days to pay or reach agreement, failing which the company is deemed unable to pay its debts and a winding-up petition follows.

The leverage is considerable, because the debtor's banking relationships, licences and directors' positions all become exposed over a debt they had deprioritised. The constraint is absolute: never issue one where the debt is genuinely disputed. Courts treat that as an abuse of process, restrain the petition and award costs against the creditor. Our dispute resolution team makes this assessment before issuing rather than after.

When should you apply for urgent relief?

Where the asset investigation shows a debtor disposing of property, transferring assets to related parties, or preparing to leave the jurisdiction, interim relief takes priority over the demand.

Available orders include preservation of specific assets, attachment before judgment, and injunctions restraining dissipation. These require prompt application supported by credible evidence — a property listed for sale, a pattern of transfers to a director's own company, a sudden change in trading. A general suspicion will not do.

Interim relief is frequently the whole case. Once assets are secured, most commercial disputes settle, because the debtor's alternative is to litigate with their property already frozen.

What should you expect a lawyer to tell you?

Three things, and if they are absent, ask.

An honest view on recoverability. Not whether you would win — most undisputed debt claims are winnable — but whether you would be paid.

The cost against the recovery. Advocates' fees in Kenya scale with the amount claimed under the Advocates Remuneration Order, and court fees scale too. Costs are recoverable on the party-and-party scale, which is lower than what you pay. For debts below roughly KES 300,000, High Court proceedings rarely make commercial sense, though the Small Claims Court changes that arithmetic.

The realistic timeline. Small Claims Court, around 60 days. Summary judgment, three to six months where undefended. A defended commercial suit, one to three years. Execution adds time on top.

Enforcing once you have judgment

Judgment is a right to enforce, not payment, and creditors who stop at judgment recover nothing.

Garnishee proceedings attach money owed to the debtor by a third party, most commonly a bank. Where the account is identified and funded, this is the fastest route to actual money. It requires an order nisi, served on the bank, followed by an order absolute if no cause is shown.

Warrants of attachment and sale direct an auctioneer to attach and sell the debtor's movable or immovable property. Effective against identified assets, slower because the property must be attached, advertised and sold, and the realised price at auction is routinely well below market value.

Charging orders secure the judgment against the debtor's land or securities. This converts an unsecured judgment into a secured interest, which matters if the debtor later becomes insolvent.

Winding up or bankruptcy where the debtor cannot pay. This is a collective remedy — you join the queue rather than recovering individually — but it stops other creditors being paid ahead of you and brings a liquidator with investigative powers.

Which route fits depends entirely on the asset picture assembled in week one, which is the reason that step matters so much.

Preventing the next one

Most bad debts trace to contract terms rather than misfortune. Payment terms with a defined due date. Default interest at a rate that makes late payment unattractive. An express provision that recovery costs are payable by the debtor. Retention of title on goods supplied, which is free to include and routinely omitted. Personal guarantees where the exposure justifies them.

Then act on ageing. A receivables ledger reviewed monthly and escalated at 60 days recovers materially more than one reviewed when the auditor asks. Our commercial law practice reviews standard terms for clients whose recovery problem turns out to be a drafting problem, which it usually is.

The short version

Verify the debt and the debtor. Establish what they own before you spend. Demand formally with a deadline. Choose the forum by value and by whether the debt is disputed. Apply for preservation if assets are moving. And start while there is still something to recover, because that is the variable you control and the strength of your claim is not.