[2023] KEELC 16885 (KLR)
The court held that the death of the judgment debtor does not halt the execution of a decree in rem, as the cause of action survives against the estate. The court found that the opposition to execution was improperly raised by counsel who had not been appointed as a legal representative of the deceased's estate. The...
Source-derived case information.
- Citation
- [2023] KEELC 16885 (KLR)
- Parties
- Plaintiff: Parmuat Oloishorua Kore; Respondent: Philip Santamo Wuantai; Respondent: Wuantai Ole Saire; Respondent: Nisa Ole Wuantai; Respondent: Kajiado Resident Magistrate; Respondent: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Case Civil Suit 400 of 2017
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Execution and Security
- Outcome
- Application allowed as drawn with costs to the applicant.
- Judges
- MN Gicheru
- Legal Topics
- Execution of Decree, Eviction Orders, Appointment of Legal Representative, Jurisdiction of Land Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Parmuat Oloishorua Kore
Plaintiff
Philip Santamo Wuantai
Respondent
Wuantai Ole Saire
Respondent
Nisa Ole Wuantai
Respondent
Kajiado Resident Magistrate
Respondent
Attorney General
Respondent
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Execution and Security
Legal Issues
- 1 Whether the court should order police security for the execution of warrants in a land decree.
- 2 Whether the judgment debtor or his estate should pay the costs of eviction.
- 3 Whether the death of the judgment debtor halts execution of the decree.
Ratio Decidendi
The court held that the death of the judgment debtor does not halt the execution of a decree in rem, as the cause of action survives against the estate. The court found that the opposition to execution was improperly raised by counsel who had not been appointed as a legal representative of the deceased's estate. The Environment and Land Court's jurisdiction does not extend to the distribution of the deceased's estate, which is a matter for the High Court. The court further found that the issues raised regarding homesteads and distribution were not grounds to stop execution, and no valid court order had been produced to stay execution. Accordingly, the court allowed the application for...
Court Disposition
Application allowed as drawn with costs to the applicant.
Orders
- The OCS Kiserian Police Station is ordered to provide security to Front Bench Auctioneers and the District Surveyor during execution of the warrants.
- The applicant, Parmuat Oloishorua Kore/judgment debtor, is ordered to pay the costs of the eviction exercise incurred by the decree holder.
Full Case Text
Judgment text and source record
27 paragraphs
Kore v Wuantai & 4 others (Environment and Land Case Civil Suit 400 of 2017) [2023] KEELC 16885 (KLR) (17 April 2023) (Ruling)
Neutral citation: [2023] KEELC 16885 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Case Civil Suit 400 of 2017
MN Gicheru, J
April 17, 2023
Between
Parmuat Oloishorua Kore
Plaintiff
and
Philip Santamo Wuantai
1st Respondent
Wuantai Ole Saire
2nd Respondent
Nisa Ole Wuantai
3rd Respondent
Kajiado Resident Magistrate
4th Respondent
Attorney General
5th Respondent
Ruling
1. This Ruling is on the Notice of Motion dated March 25, 2022. The Motion which is brought under Order 22 Rule 29 of the Civil Procedure Rules and the Contempt of Court Act seeks two prayers;i.An order to the OCS Kiserian Police Station to provide Security to Front Bench Auctioneers and the District Surveyor while executing the warrants.ii.That the Applicant, Parmuat Oloihorua Kore/Judgment debtor be ordered to pay the costs of the eviction exercise that may be incurred by the decree holder.
2. The Application is supported by three grounds and an affidavit by Isaac Onyango Aloo which has four annexures. The gist of the above material is as follows. The Applicant was requested to voluntarily comply with the court decree dated November 20, 2018, his application for stay of execution was dismissed on July 31, 2019. Nothing else remain other than to execute the decree yet the judgment debtor has threatened the auctioneer and the surveyor.
3. The Motion is opposed and Pithon Mwangi has sworn a Replying Affidavit dated July 30, 2022 in which he says that the judgment debtor passed away on July 12, 2022 as per the annexed certificate of death dated December 1, 2022. He adds that the deceased did not show any hostility to the Respondent and the warrants of attachment were not served upon the deceased. Other issues raised are that the judgement does not include the individual homesteads of the Respondent and his dependents and its execution would be ulta vires.
4. I have carefully considered the Application in its entirety including the Affidavits, the annexures and the issues raised in the entire Motion. I find that the Motion has merit for the following reasons.Firstly, it is surprising for counsel to come on record after the death of the Applicant and say that the Applicant is deceased. The question that arises is, who instructed him? . The person who instructed him should have sought to be appointed as legal representative of the estate of the deceased under Order 24 of theCivil Procedure Rules.Secondly, it is obvious that the decree holder is being resisted by the estate of the deceased otherwise they would not have opposed the Application.Thirdly, Pithon Mwangi, counsel for the estate of the deceased is not the right person to swear the Replying Affidavit. He cannot give first hand evidence in these proceedings.Fourthly and very surprisingly, it is incredible that at this late stage of execution, issues of homesteads and the distribution of the deceased’s property are being raised in this court. This is a land Court. Its jurisdiction is limited to strictly environment and land matters. Distribution of the estate of the deceased is an issue to be dealt with by the High Court. What must happen is that the decree of this court will be executed. Whatever remains of the estate of the deceased will be distributed amongst his heirs. That cannot be a reason to stop the execution of this court’s decree. The only way to stop such execution is by an order of this court or that of a higher court. No such order has been annexed to the Replying Affidavit.Finally, the judgment herein is in rem and not in personam. This means that the cause of action survives the deceased and his heirs will have to make do with whatever is left of the deceased’s estate after execution of the decree herein.For the above stated reasons, I find merit in the motion dated March 25, 2022 and I allow it as drawn with costs to the Applicant. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 17TH DAY OF APRIL, 2023. N. GICHERUJUDGE