[2020] KEELC 862 (KLR)
The court held that Order 24 Rule 10 of the Civil Procedure Rules applies, meaning that substitution of the deceased defendant is not required for execution of the decree. Since judgment was delivered while all parties were alive and the cause of action continued, execution can proceed against the estate of the...
Source-derived case information.
- Citation
- [2020] KEELC 862 (KLR)
- Parties
- Plaintiff: Andrew Mukulu; Defendant: Miriam Ijai; Defendant: Elphas Aradi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 39 of 2019
- Procedural Posture
- Execution Application / Ruling on Application for Execution of Decree
- Outcome
- application granted
- Judges
- NA Matheka
- Legal Topics
- Execution of Decree, Substitution of Parties, Transfer of Land, Estate of Deceased, Land Control Board Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Mukulu
Plaintiff
Miriam Ijai
Defendant
Elphas Aradi
Defendant
Procedural Posture
Execution Application / Ruling on Application for Execution of Decree
Legal Issues
- 1 Whether the court should empower the Executive Officer/Deputy Registrar to execute transfer documents in place of the judgment debtors to effectuate the judgment.
- 2 Whether substitution of the deceased defendant is required for execution of the decree.
- 3 Whether the application for execution is merited in light of the pending appeal and death of the 1st defendant.
Ratio Decidendi
The court held that Order 24 Rule 10 of the Civil Procedure Rules applies, meaning that substitution of the deceased defendant is not required for execution of the decree. Since judgment was delivered while all parties were alive and the cause of action continued, execution can proceed against the estate of the deceased. The application to empower the Executive Officer/Deputy Registrar to execute the necessary transfer documents in place of the judgment debtors is therefore merited and granted. The court found no justification to delay execution due to the death of the 1st defendant or the pending appeal, as the rules specifically allow execution in such circumstances.
Court Disposition
application granted
Orders
- The Executive Officer/Deputy Registrar Environment and Land Court is empowered to execute all documents of transfer in place of Miriam Ijai and Elphas Aradi for transfer of half of land parcel No. Isukha/Shirere/589 to the plaintiff's name to give effect to the judgment delivered on 23rd July 2019.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 39 OF 2019
ANDREW MUKULU....................................................PLAINTIFF/DECREE HOLDER
VERSUS
MIRIAM IJAI
ELPHAS ARADI...............................................DEFENDANTS/JUDGEMENT DEBTOR
RULING
The application is dated 18th February 2020 and is brought under Sections 3A and 98 of the Civil Procedure Act Cap 21 Laws of Kenya seeking the following orders;
1. That the Executive Officer/Deputy Registrar Environment and Land Court be empowered to execute all documents of transfer in place of Miriam Ijai & Elphas Aradi for transfer of half of land parcel No. Isukha/Shirere/589 out of the estate of the late Enos Keya Kinadoso to the plaintiff/applicant’s name in order to give effect to the judgment of court delivered on 23rd July, 2019.
2. That costs of this application be provided for.
It is based on the affidavit of Andrew Mukulu and on grounds that the respondents have declined to sign the application of the Land Control Board consent for sub division of the suit land in execution of the judgment delivered by this honourable court on 23rd July, 2019. That the plaintiff/decree holder wishes to enjoy the fruits of the judgment by way of execution. That execution of the decree can only be by the Executive Officer/Deputy Registrar. That there should be an end to litigation in the best interest of justice. That it is in the interest of justice that the application be allowed.
The respondent submitted orally that they have filed an appeal and that the 1st defendant is deceased and they need time to substitute. That there is no administrator of her estate at the moment.
This court has considered the application and the submissions therein. Order 24 Rule 10 of the Civil Procedure Rules states as follows:-
“24. (10) Nothing in order 3,4 and 7 apply to proceedings in execution of a decree or Order”.
Rule 3 deals with the death of a Plaintiff or Plaintiffs. Rule 4 deals with the death of a Defendant or several Defendants. It is clear that Order 24 Rule 10 removes the necessity of a legal representative in proceedings in execution of a decree or an order.
In the case of Eunice Kirunda Kinyua v Josephat Mwathi Kibiri (2018) eKLR the court held that;
“In the present case, both parties were alive and well up till the court concluded the hearing and reserved the judgment to a future date. The defendant died a few weeks before the judgment was delivered. It is my view that under Order 24 Rule 1, the suit did not abate as the cause of action continued. What remained was execution which could be effected against the estate of the deceased. This is especially so because the judgment was delivered well within the one year period prescribed by order 24 rule 2. ”
In the instant case judgement was delivered on the 23rd July 2019. All the parties were alive and well during the trial and delivery of judgement. The 1st defendant lodged an appeal on the 23rd September 2019 and died three months later. I find that Order 24 Rule 10 of the Civil Procedure Rules is applicable in this matter in that there would be no requirement for substitution when it comes to execution of the decree. I find this application is merited and I grant the same with no orders as to costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 27TH OCTOBER 2020.
N.A. MATHEKA
JUDGE