https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7470

Kamwalo t/a Big Step Enterprises Auctioneers v Thiriku & another (Miscellaneous Civil Application E259 of 2024) [2026] KEHC 7470 (KLR) (Civ) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 7470 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Civil Application E259 of 2024 SN Mutuku, J May 18, 2026 Between Stephen Mutinda Kamwalo t/a Big Step Enterprises Auctioneers Applicant and Andrew Karimi Thiriku Judgment debtor and Grace Gathoni Karimi Respondent Ruling The Applications 1.This Ruling relates to two (2) applications, the Notice of Motion dated 27/01/2026 (the first application) filed by Stephen Mutinda Kamwalo T/A Big Step Enterprises Auctioneers (hereafter the Judgment Creditor). The 1st application seeks the following orders:i.Spent.ii.That this Honourable Court be pleased to substitute on record Andrew Karimi Thiriku (judgment Debtor Herein) With Grace Gathoni Karimi (administrator) in her capacity as the legal representative in execution of the decree herein for Kshs. 453,896.64 passed on 7th April, 2025.iii.That it has emerged that Andrew Karimi Thiriku (judgment Debtor) Passed Away On 20Th November, 2022 And Consequently Grace Gathoni Karimi (administrator) has taken over the administration of the estate.iv.That the costs of this application be provided for by the administrator in any event.v.That such further or other orders be made as the court may deem fit and expedient. sic 2.In support of the 1st application, the Judgment Creditor has deposed through his Supporting Affidavit that judgment in the present matter was entered in his favour against Andrew Karimi Thiriku (hereafter the deceased) to the tune of Kshs. 453,896.64 being taxed costs arising from the taxation as per a Certificate of Taxation dated 30/10/2024/ that warrants of attachment and sale were issued to M/S Beta Recovery Auctioneers (the Auctioneers) thereby resulting in the attachment of the deceased’s motor vehicle registration number KCN 019T on 17/11/2025 (the subject motor vehicle); that soon thereafter, one Agnes Wambui Nyambura (the Objector) filed objection proceedings claiming that the said motor vehicle had previously been sold to her by Grace Gathoni Karimi (hereafter the Administrator) in her capacity as the legal representative of the estate of the deceased, following his death on 20/11/2022 and that the court, vide its ruling delivered on 19.01.2026, directed that the attached motor vehicle be released to the Objector and further directed that the Judgment Creditor pursues execution with the legal representatives of the estate of the deceased. 3.It is the Judgment Creditor’s averment that the Administrator was confirmed as being the legal representative of the estate of the deceased during the course of the objection proceedings referenced hereinabove and that pursuant to Section 50 of the Civil Procedure Act (CPA), the court has the power to make an order for substitution of the deceased with the Administrator, to enable the Judgment Creditor to execute the decree accordingly. Grounds of Opposition 4.The Administrator has opposed the first application through Grounds of Opposition dated 17/02/2026 as listed hereunder:a.That the Application is incompetent, misconceived and bad in law.b.That the Defendant died prior to the taxation proceedings.c.That the taxation proceedings and ruling on the bill of costs dated 27th March 2024 having been conducted against a deceased person are a nullity.d.That substitution cannot be used to sanitize or cure proceedings that are void ab initio.e.That jurisdiction cannot be conferred retrospectively through substitution after the ruling on taxation.f.That there is no competent suit or proceedings capable of sustaining the substitution sought.g.That the Applicant is attempting to revive and enforce void proceedings through an improper procedural device. sic 5.It is on the premise of those grounds that the Administrator prays that the first application be struck out or dismissed with costs. 6.The Notice of Motion dated 17/02/2026 constitutes the second application. It was filed by the Administrator who has supported it with the grounds found on the body of the application and in the affidavit of the said Administrator. The 2nd application seeks the following orders:i.Spent.ii.Spent.iii.That all proceedings and consequential orders issued in this suit, including but not limited to the warrants of attachment and sale be set aside ex debito justitiae.iv.That this suit cum Miscellaneous Application and bill of costs dated 27th March, 2024 be struck out and/or dismissed in its entirety for being incompetent, null and void ab initio, having been filed against a deceased person.v.That the Honourable Court do order that the process server who allegedly served the bill of costs upon the judgment debtor to be availed for cross-examination on the veracity of the alleged service.vi.Spent.vii.That the costs of this application be borne by the applicant/respondent. 7.The Administrator has deposed that she is the legal representative of the estate of the deceased following his death on 20/11/2022. That prior to his death, the deceased was the registered owner of the subject motor vehicle; that the subject motor vehicle was involved in a road accident resulting in the filing of Milimani CMCC No. 6530 of 2020-Antony Mutua Mutunga v Andrew Karimi Thiriku (the primary suit); that to the knowledge of the administrator, the suit was settled between the plaintiff therein and the insurance company and that prior to the above settlement, however, the Judgment Creditor proceeded to attach the subject motor vehicle necessitating a payment to him of Kshs. 36,000/- to secure its release on 11/12/2023, following which the Judgment Creditor did not make any further demands from them. 8.The administrator has deposed, further, that nevertheless, the Judgment Creditor proceeded to file the present taxation matter, yet by then the deceased had already passed on; that upon delivery of the taxation ruling in the present matter, the Judgment Creditor yet again proceeded to attach the subject motor vehicle, thereby prompting the objection proceedings; that no civil suit can be instituted against a deceased person; that where such proceedings have been filed, the same become null and void ab initio and that substitution cannot be undertaken on a suit which is already a nullity. 9.The Administrator has deposed that it remains unclear how the firm of KRK Advocates purportedly received instructions to act for the deceased and defend the matter, in the absence of any instructions; that, it was impossible for the process server to allege prior service of the Bill of Costs in this matter, yet the deceased had died by then and the insurance company (Directline Assurance Limited) could not have received the said document on his behalf. Replying Affidavit 10.In opposing the 2nd application, the Judgment Creditor swore a Replying Affidavit on 20/02/2026 in which he has deposed that following judgment and settlement of the decretal amount in the primary suit, he proceeded to file the present Miscellaneous matter to pursue his Auctioneer costs, hence the Bill of Costs dated 27/03/2024 which was taxed in the manner earlier set out, upon the taxing master’s satisfaction that service thereof had been effected upon the firm of Kimondo Gachoka & Co. Advocates acting for the deceased’s insurer and upon consideration of the Grounds of Opposition filed by the said firm, to challenge the Bill of Costs; that he only came to learn of the death of the deceased upon instructing the Auctioneers to execute the warrants of attachment and sale against him; that nevertheless, it is apparent that the Administrator in her capacity as wife to the deceased and the legal representative to his estate, proceeded to dispose of the subject motor vehicle by selling the same to the Objector and that this turn of events resulted in the court order for release of the said vehicle to the Objector. 11.The Judgment Creditor has termed the 2nd application as an abuse of the court process and stated that he is entitled to the prayer for substitution sought in the 1st application. He sought dismissal of the 2nd application for want of merit. Submissions 12.The two (2) applications were canvassed simultaneously, by way of written submissions. Submitting in support of the first application and in opposition to the second application, the Judgment Creditor has reiterated his earlier averments, that following judgment in the primary suit, the deceased and/or his personal representatives, paid him a sum of Kshs. 36,000/- in respect of the attached subject motor vehicle, but did not entirely settle his auctioneer fees, thereby prompting him to lodge the present Miscellaneous proceedings in a bid to recover his outstanding costs. 13.The Judgment Creditor has also reiterated the contents of his supporting affidavit to the 1st application and his Replying Affidavit to the 2nd application, in ultimately urging the court to find in his favour by allowing the 1st application and dismissing the 2nd applicaiton. 14.The Administrator has anchored her submissions on Maridadi & 2 others v Panesar; Elms & another (Defendant) (Applying as Executors of the Estate of Pritam Singh Panesar - Deceased) (Environment & Land Case E002 of 2021) [2023] KEELC 722 (KLR) (6 February 2023) (Ruling) where the court held that a case cannot be instituted against a deceased person. She also relied on Viktar Maina Ngunjiri & 4 Others Vs Attorney General & 6 Others, High Court at Nairobi Civil Suit No 21 of 2016 (2018) eKLR where a Bill of Costs was dismissed for having been filed by advocates for an already deceased person. She has submitted that in the present instance, the taxation proceedings undertaken in the present Miscellaneous matter and all resulting orders and decisions are a nullity for having been filed against the deceased following his death. 15.She has submitted, further, that given that the present proceedings are a nullity ab initio, the same cannot be cured by an order of substitution, as sought in the 1st application. The Administrator has drawn the court’s attention to the case of Benjamin Leonard Mc Foy v United Africa Company Limited [1961] All ER 1169 where it was determined that a void act is regarded as a nullity and incurably bad. She has equally referenced the case of Naikuni v Naikuni & 7 others; Manyuele (Applicant) (Environment & Land Case 9 of 2023) [2025] KEELC 3064 (KLR) (3 April 2025) (Ruling) in which the court restated the legal position that where a party is deceased, no suit can stand against him or her and that no substitution can be sought or granted in an attempt to such suit. 16.She has argued that there is no evidence of proper service of the Bill of Costs upon the deceased or his legal representatives; that any purported service is questionable and defective; that nevertheless, the estate of the deceased paid the Judgment Creditor a sum of Kshs. 36,000/- which would reasonably have catered for his auctioneer fees and that even if it were so that the deceased was represented by the firm of advocates instructed by the insurer, this would not cure the anomaly resulting from proceedings instituted against a deceased person. Analysis and Determination 17.I have considered both applications and the arguments supporting or opposing each. To make sense of the decisions of this court in respect of the two applications, I find it prudent to determine the 2nd Application first. The reasons for this will become clear in that if this court were to find that the suit, Miscellaneous Application and Bill of Costs dated 27th March, 2024, were null ab initio, then it will follow that there is no basis for the orders sought in the 1st application. 18.To grant or refusal to grant the order to set aside or vary an order, judgment or any consequential decree or order, is discretionary upon the satisfaction of the court that the applicant has met the threshold or failed to do so. 19.The applicable provision therefore is Section 3A of the CPA, which reserves the inherent power of the court “to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court.” 20.The Court of Appeal in Rose Njoki King’au & Another v Shaba Trustees Limited & Another [2018] eKLR had this to say in respect of Section 3A CPA:“Also cited was Section 3A of the Civil Procedure Act which enshrines the inherent power of the Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court. In Equity Bank Ltd versus West Link Mbo Limited [2013], eKLR, Musinga, JA stated inter alia, that, by “inherent power” it means that:“Courts of law exist to administer justice and in so doing, they must of necessity balance between competing rights and interests of different parties but within the confines of law, to ensure that the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without its being derived from the Constitution or statute. Such power enables the judiciary to deliver on their constitutional mandate…..inherent power is therefore the natural or essential power conferred upon the court irrespective of any conferment of discretion.” 21.The circumstances giving rise to the two applications are set out as follows: That the primary suit, arising from a road traffic accident involving the subject motor vehicle, was filed against the deceased resulting in judgment against the deceased. Subsequently, the Judgment Creditor attached the subject motor vehicle in execution thereof. However, during the intervening period the insurer of the deceased settled the decretal amount resulting in the release of the subject motor vehicle on 11/12/2023 after payment of a sum of Kshs. 36,000/- by the estate of the deceased. 22.The record also shows that thereafter, the Judgment Creditor filed the present Miscellaneous matter through a Bill of Costs dated 27/03/2024 seeking auctioneer costs against the deceased. That Bill was taxed at Kshs. 453,896.64. That the Judgment Creditor subsequently instructed the Auctioneers to apply for warrants of attachment and sale, through which the subject motor vehicle was attached a second time. That the attachment triggered objection proceedings, which resulted in the ruling and order made by this court on 19/01/2026 for release of the subject motor vehicle, to the Objector. 23.From the record, it is not in dispute that the taxation proceedings were lodged by the Judgment Creditor against the deceased. It is not also disputed that at the time of lodging the taxation proceedings herein, the deceased was not alive. In fact, the record and in particular the Certificate of Death annexed to the affidavit supporting the 2nd application, shows that the deceased’s date of death is 20/11/2022, close to one and a half (1½)) years prior to the taxation proceedings. 24.The legal position on this is that proceedings cannot be brought against a deceased person and where such proceedings are undertaken, they are deemed null ab initio. This position was restated by the court in the case of Maridadi & 2 others v Panesar; Elms & another (Defendant) (Applying as Executors of the Estate of Pritam Singh Panesar - Deceased) (Environment & Land Case E002 of 2021) [2023] KEELC 722 (KLR) (6 February 2023) (Ruling) cited by the Administrator, as well as in the case of Viktar Maina Ngunjiri & 4 others v Attorney General & 6 others [2018] KEHC 1972 (KLR) also cited by the Administrator in her written submissions. 25.In the latter case, the court in declining to uphold a bill of costs filed therein, reasoned thus:“In the Indian case of C. Muttu vs. Bharath Match Works AIR 1964 Kant 293 the court observed,“If he (defendant) dies before the suit and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons issued in the suit by whomsoever accepted is also a nullity. Similarly, an order made in the suit allowing amendment of plaint by substituting the legal representative of the deceased as the defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such a person.” 26.Further to the foregoing and on the issue of representation, it is both bizarre and inexplicable to note that the deceased was purportedly represented by the insurer’s advocates in the taxation proceedings, to the extent that they filed Grounds of Opposition to oppose the Bill of Costs. It has already been established that the deceased had died by this point and was therefore a non-existent person, incapable of giving any instructions. 27.There is also nothing on the record to show that the estate of the deceased ever engaged or instructed the said advocates to take up the matter on their behalf in any event. As such, it is reasonable to find that the said advocates acted in the absence of any proper or valid instructions, notwithstanding the fact that they purportedly acted on behalf of the deceased’s insurer. Their representation in the proceedings was anchored on a nullity and cannot therefore be upheld. 28.In reasoning so, I am persuaded by the following finding set out in the above-cited case of Viktar Maina Ngunjiri case that:In yet another Indian Case of Pratap Chand Mehta vs Chrisna Devi Meuta AIR 1988 Delhi 267 the court citing another decision observed as follows,“ …..if a suit is filed against a dead person then it is a nullity and we cannot join any legal representative; you cannot even join any other party, because, it is just as if no suit had been filed. On the other hand, if a suit has been filed against a number of persons one of whom happens to be dead when the proceedings were instituted, then the proceedings are not null and void but the court has to strike out the name of the party who has been wrongly joined. If the case has been instituted against a dead person and that person happened to be the only person then the proceedings are a nullity and even Order 1 Rule 10 or Order 6 Rule 17 cannot be availed of to bring about amendment.” 29.In sum therefore, I find that all actions undertaken in the proceedings relating to the present Miscellaneous matter as well as all consequential orders and decisions are a nullity, the same having been pursued against a deceased person. Consequently, the same cannot in any manner be sustained. 30.Upon my finding above, I do not deem it necessary to consider the prayer seeking to have the process server who allegedly served the Bill of Costs cross-examined, since the same would serve no useful purpose in the circumstances. 31.Consequently, I am persuaded to grant the prayer seeking to set aside the proceedings and consequential orders. 32.Turning now to the 1st application seeking to substitute the deceased with the Administrator, given my findings above, the 1st application cannot be cured or otherwise sustained by way of substitution. In reasoning so, I am persuaded by the reasoning articulated in the case of Naikuni v Naikuni & 7 others; Manyuele (Applicant) (Environment & Land Case 9 of 2023) [2025] KEELC 3064 (KLR) (3 April 2025) (Ruling) cited by the Administrator, where the court pronounced itself in the following manner:“The suit against the 5th Defendant being a nullity, then it same is bad in law, and is automatically null and void, and there is nothing that can be done to salvage it for now. There being no doubt that the 5th Defendant was dead at the time of filing this suit, the said deceased Defendant cannot be substituted to breathe life into the suit. The Plaintiff has urged the court not to strike out the suit, but to allow the substitution of the 5th Defendant with the Applicant. However, as observed above, a suit against a deceased person is a nullity, and it cannot be cured through substitution or joinder.” 33.For all the foregoing similar reasons, I decline to grant the prayers sought in the 1st application. 34.In the end, the following orders are issued:a.The Notice of Motion dated 27/01/2026 is hereby dismissed for lack of merit.b.The Notice of Motion dated 17/02/2026 succeeds in terms of prayers (iii) and (iv).c.For the avoidance of doubt, all proceedings and consequential orders issued in this suit, including but not limited to the warrants of attachment and sale be and are hereby set aside ex debito justitiae.d.Further to c) above, the Bill of Costs dated 27/03/2024 and filed in the present Miscellaneous Civil Application No. E259 of 2024 be and is hereby dismissed in its entirety for being incompetent, null and void ab initio, the same having been filed against a deceased person.e.In the circumstances, the Administrator shall have the costs in respect of the 1st and 2nd applications. 35.Orders shall issue accordingly. DATED, SIGNED AND DELIVERED THIS 18TH DAY OF MAY, 2026.S. N. MUTUKUJUDGE