[2016] KEHC 4122 (KLR)
The court found that the execution proceedings were time barred under Section 4(4) of the Limitation of Actions Act, as more than 12 years had elapsed since the judgment was delivered. Additionally, Cromwell Kitana had not obtained letters of administration and therefore lacked legal capacity to represent the...
Source-derived case information.
- Citation
- [2016] KEHC 4122 (KLR)
- Parties
- Plaintiff: John Muema Mbevi; Defendant: Cromwell Kitana (Substituted for Samuel Kitana Mbatha, Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3190 of 1980
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion to Vacate Execution and Strike Out Defendant
- Outcome
- Application allowed. Execution proceedings vacated. Cromwell Kitana struck out. Each party to bear own costs.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Limitation of Actions, Execution of Judgments, Legal Representatives, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Muema Mbevi
Plaintiff
Cromwell Kitana (Substituted for Samuel Kitana Mbatha, Deceased)
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion to Vacate Execution and Strike Out Defendant
Legal Issues
- 1 Whether the execution proceedings are time barred under the Limitation of Actions Act.
- 2 Whether Cromwell Kitana should be struck out as a party for lack of legal capacity.
Ratio Decidendi
The court found that the execution proceedings were time barred under Section 4(4) of the Limitation of Actions Act, as more than 12 years had elapsed since the judgment was delivered. Additionally, Cromwell Kitana had not obtained letters of administration and therefore lacked legal capacity to represent the deceased's estate. The court rejected the plaintiff's estoppel argument, holding that participation in proceedings without legal authority does not confer capacity. As there was no one with legal standing to execute against, and the execution was statute-barred, the application to vacate execution and strike out Cromwell Kitana succeeded.
Court Disposition
Application allowed. Execution proceedings vacated. Cromwell Kitana struck out. Each party to bear own costs.
Orders
- Execution proceedings are vacated as time barred.
- Cromwell Kitana is struck out from the proceedings for lack of legal capacity.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 3190 OF 1980
JOHN MUEMA MBEVI …………………………………… PLAINTIFF
VERSUS
CROMWELL KITANA (Substituted for)
SAMUEL KITANA MBATHA (Deceased) ………………… DEFENDANT
RULING
This is one of the oldest cases pending in the High Court. The record before me is awash with applications filed by the parties herein some of which have reached the Court of Appeal and some of which were determined in the High Court. Some of the parties also have passed on and their positions taken by their representatives and or relatives.
Before me is a Notice of Motion dated 4th June, 2014 by the defendant for two substantive orders,
1. That the execution proceedings herein be vacated on account of the fact that the judgment is time barred.
2. That the name of the applicant Cromwel Kitana be struck out/removed from these proceedings.
The application is opposed and both parties have filed written submissions. These I have read. The judgment sought to be executed is said to have been given on 13th May, 1981. While in the process of many proceedings, Cromwel Kitana came onto record as the legal representative of the late Samwel Kitana who is deceased.
The learned counsel on record has put tremendous effort in addressing the issues at hand. That notwithstanding, I consider the subject to be straight forward in view of the law applicable.
I shall first address the issue of whether or not Cromwel Kitana’s name should be struck out. Although he has participated in the proceedings in the past, having been substituted for his father the late Samuel Kitana there is no evidence as far as the record before me can show, that he ever obtained letters of administration to take his late father’s position in these proceedings.
The judgment creditor has pleaded estoppel and submitted that having been on record and participated in proceedings in the past, Cromwel Kitana cannot now opt out of these proceedings. I am unable to uphold that submission. There is no serious challenge by the judgment creditor that Cromwel Kitana does not have a legal authority to step into the shoes of his father.
On the second issue the law is also clear as provided under Section 4. (4) of the Limitation of Actions Act Cap 22 Laws of Kenya that an action may not be brought upon a judgment after the end of 12 years from the date on which the judgment was delivered. The process of execution is an action of that nature which is prohibited under that section. No reasons have been advanced by the judgment creditor why this was not done earlier yet he had all the opportunity to do so against the property of the deceased judgment debtor even without a legal representative being in place.
Litigation must come to an end and it is time now for this very old matter to be put to rest. The execution I find, is time barred and having found that the Cromwel Kitana has no capacity at all in this matter to step into the shoes of his late father there is no one to execute against. The application therefore succeeds. The circumstances of this case demand that each party shall bear his own costs.
Orders accordingly.
Dated, signed and delivered at Nairobi this 16th Day of June, 2016.
A. MBOGHOLI MSAGHA
JUDGE