[2021] KEELC 4628 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

ELC CASE NO. 260 OF 2016

FATUMA MOHAMUD MOHAMMED MIRE.............PLAINTIFF

VERSUS

JAPHET NTEERE MWENDWA...............................DEFENDANT

RULING

1. Fridah Makandi Nteere (the applicant herein) filed an application dated 27th February 2020 seeking the following Orders;

(i) That this Honourable Court be pleased to substitute the Defendant, Japhet Nteere Mwendwa who is now deceased with Fridah Makandi Nteere who is the legal Representative.

(ii) That this Honourable Court be pleased to extend stay of execution of the judgement dated 18th October 2018 issued to the Court until Nyeri Court of Appeal Civil Appeal No. 3 of 2019 is heard and determined.

2. The application was supported by the grounds set out in the application and the supporting affidavit of Fridah Makandi Nteere who averred that she is a daughter of Japhet Nteere Mwendwa (now deceased) and the legal representative of his estate. That vide an application dated 27/11/2018, this Court granted a stay of execution of the court’s judgement for 12 months. She has since timeously filed the appeal being Civil Appeal number 3 OF 2019. That the Court of Appeal is not fully constituted and he is apprehensive that the 12 months stay may lapse before the appeal is determined which will grievously affect her interest should the appeal succeed.

3. The plaintiff/Respondent opposed the application through grounds of opposition dated 14th April 2020 citing the following grounds;

(i)That this Court is now functus officio there being Nyeri Court of Appeal Civil Appeal No. 3 of 2019 against the judgement of this Court.

(ii)That the instant application ought to have been filed at the Court of Appeal by dint of Rule 99 of the Court of Appeal Rules.

(iii)That the provisions of Order 24 of the Civil Procedure Rules are in applicable in this matter as there is no pending suit or anything for determination by this court.

(iv)That the application is legally incompetent and the orders sought cannot issue.

4. Both parties canvassed the application through written submissions. The applicant submitted that the court is enjoined by the provisions of Section 1A, 1B, 3A and 3B to do substantial justice to the parties. She cited the case of Agnes Wanjiku Wang’ondu v Uchumi Supermarket Ltd [2008] eKLR where the court held that the substitution of a deceased party after judgement was optional though not mandatory.

5. The respondent submitted that the Court herein is functus officio and in this regard cited the case of Brian Muchiri Waihenya v Jubillee Hauliers Ltd & Another; Geminia Insurance Co. Ltd (Interested Party) [2018] eKLR. That by dint of Section 99 of the Court of Appeal Rules it is clear that the substitution of a party where a matter is pending under the Court of Appeal is vested in that Court only. That Order 24 of the Civil Procedure Rules, 2010 is inapplicable in this matter as there is no suit pending before this Court.

Analysis and Determination

6. I have carefully considered all the issues set out in the application, the affidavits and grounds of opposition. I do find that the issues for determination are; (i) Whether this Court has jurisdiction to substitute the deceased with the applicant herein and (ii) Whether the prayer for extension of the Stay Orders are merited.

7. On the first issue, the Procedure in case of death of a party to a suit is provided for under Order 24 of the Civil Procedure Rules. Sub rule 4 thereof provides as follows;

“(1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within one year no application is made under sub rule (1), the suit shall abate as against the deceased defendant”.

8. Rule 99 of the Court Of Appeal Rules 2010 also has a similar procedure as it states as follows;

“Death of party to appeal

(1)An appeal shall not abate on the death of the appellant or the respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased.

(2) If no application is made under sub-rule (1) within twelve months from the date of death of the appellant or respondent, the appeal shall abate.

(3) The person claiming to be the legal representative of a deceased party to an appeal may apply for an order to revive an appeal which has abated; and, if it is proved that the legal representative was prevented by sufficient cause from continuing the appeal, the court shall revive the appeal upon such terms as to costs or otherwise as it deems fit”.

9. In Agnes Wanjiku Wang’ondu V Uchumi Supermarket Ltd [2008] eKLR, the Court in its analysis of the provisions of Order 24 and Order 31 of the Civil Procedure Rules held that the requirement for substitution does not apply to proceedings in execution of an order. That while Order 30 Rule 1 (now Order 31 Rule 1) states that it shall not ordinarily be necessary to make them parties to the suit, it does not say that they cannot be made parties to the suit. So, in appropriate circumstances, the personal representative can and should be allowed to be enjoined in the suit. The Court cited the case of Dhulla Harichand vs Gulam Mohu-Udin and Aziz Din s/o Gulam Mohu-Udin, (1940) KLR Vol. XIX at page 6 where the Court held as follows;

“No doubt, there is no express provision for substitution of the name of a representative of the deceased decree holder during the pendency of the execution proceedings but, as is apparent from a number of cases, such applications are filed and allowed, and the Courts have almost invariably treated such applications to be applications for continuation of the pending execution proceedings. It has been held more than once that the Code is not exhaustive. It is clear from O. XXII r. 12 read with rules 3 and 4 that an execution proceeding does not abate on the death of the decree holder. If so, there is no bar to the execution continuing at the instance of his representative”.

10. The same position was held in Mueni Kiamba v Mbithi Kimeu Kimolo [2017] eKLR where the Court made the following determination;

“I find there is wisdom in the above provision in that matters that have reached execution stage should be allowed to proceed without the need for substitution of deceased parties. This goes a long way in ensuring the overriding objective of the Civil Procedure Act and Rules namely the timely and expeditious determination of disputes between parties. Hence, it is my considered view that it was not mandatory to substitute the deceased decree holder at the execution stage and therefore the learned trial magistrate misapprehended the law when he ruled that the non-substitution of the decree holder was fatal to the suit….”

11. My understanding of the provisions of Order 24 as read with Order 31 of the Civil Procedure Rules is that the rights accruing, or any obligations owing from the deceased can only be enjoyed or enforced by the administrator of his/ her estate. There is no particular need for substitution of the deceased as what is required is proof that one has been appointed as the legal representative of the estate.

12. In Brian Muchiri Waihenya v Jubilee Hauliers Ltd & another; Geminia Insurance Co. Ltd (Interested Party) [2018] eKLR the Court opined as follows;

“It is plain and clear that this court having pronounced the final judgment and a decree drawn, being asked to re-engage itself and to interrogate whether or not the applicant ought to be enjoined in the suit at the late hour which is already pending before the Court of Appeal would in my very considered view be against the law and laid down principles of functus officio.

However, if it was a matter of correcting a clerical error or an incidental consequence of the final decision like execution proceedings or contempt of court proceedingsthat would be possible under the Civil Procedure Rules. [Emphasis mine]

13. In the current suit, the matter has been determined as per the Judgment of this court delivered on 18. 10. 2019. The only issue pending before this court are the execution proceedings. The issues raised in the application of 27. 2.2020 have a nexus with execution proceedings. Thus the issue clearly falls within the ambit of Order 24 of the Civil Procedure Rules. I find that the provisions of Rule 99 of the Court of Appeal Rules are distinguishable to this case since the same apply in proceedings at the appellate stage of the Court of appeal and the same do not oust the provisions of Section 24 of the Civil Procedure Rules. This is because the ELC court still retains the mandate to grant a remedy when faced with such an application on matters that are still within its jurisdiction (i.e contempt & execution) after the pronouncement of its judgement.

14. As regards stay of execution, I find that the ruling delivered on 3. 6.2019 determined the merits of the aforementioned issue, where the orders of stay of execution were granted for one year. The applicant however contends that the Court of Appeal is not currently fully constituted hence the directions on how the appeal shall be disposed off have not been issued.

15. I have taken into account that Japhet Nteere Mwendwa, the appellant passed on only three months after the issuance of the stay orders that were given on 3,6. 2019. The current application was filed timely during the subsistence of the stay orders. On this basis alone, it is only fair and just to give the current applicant an opportunity to pursue redress at the Court of Appeal. I have however also taken into consideration that the dispute has its birth through a sale agreement of 1990 which was between the respondent’s husband on one hand and the father of Japhet Nteere on the other hand. The dispute is 30 years old and ought to be dealt with speedily. In the circumstances, this court shall only extend the orders of 3. 6.2019 for a period of 6 months only from the date of delivery of this ruling.

16. In the final analysis the application of 27. 2.2020 is allowed in terms of prayer 1 (on substitution) while prayer 2 is allowed to a limited extent of 6 months from the date of delivery of this ruling. The applicant shall bear the costs of this application.

DATED, SIGNED AND DELIVERED AT MERU THIS 27TH DAY OF JANUARY, 2021

HON. LUCY. N. MBUGUA

ELC JUDGE

ORDER

The date of delivery of this Ruling was given to the advocates for the parties through a virtual session via Microsoft teams on 22. 10. 2020. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.

HON. LUCY N. MBUGUA

ELC JUDGE