[2014] KEHC 8014 (KLR)
The court determined that the central issue is whether the decree has been fully settled. Since there is a dispute on this point, the court directed that the Deputy Registrar take accounts to establish the status of settlement. Only after this accounting can the court decide whether execution against the legal...
Source-derived case information.
- Citation
- [2014] KEHC 8014 (KLR)
- Parties
- Plaintiff: Mary Wanja Njoroge (Administrator of the Estate of Fredrick Njoroge Thuni, Deceased); Defendant: Ndungu Kimuchu (Deceased); Respondent: Jacinta Wangui Ndung’u; Respondent: Laban Muchiri Ndung’u
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2616 of 1981
- Procedural Posture
- Civil Suit / Preliminary Ruling on Application for Leave to Execute Decree Against Legal Representatives
- Outcome
- Interim order for Deputy Registrar to take accounts; final ruling deferred.
- Judges
- DW Mbuteti
- Legal Topics
- Execution of Decree, Legal Representatives, Settlement of Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wanja Njoroge (Administrator of the Estate of Fredrick Njoroge Thuni, Deceased)
Plaintiff
Ndungu Kimuchu (Deceased)
Defendant
Jacinta Wangui Ndung’u
Respondent
Laban Muchiri Ndung’u
Respondent
Procedural Posture
Civil Suit / Preliminary Ruling on Application for Leave to Execute Decree Against Legal Representatives
Legal Issues
- 1 Whether the decree against the original judgment-debtor has been fully settled.
- 2 Whether the plaintiff is entitled to execute the outstanding decretal sum against the legal representatives of the deceased judgment-debtor.
Ratio Decidendi
The court determined that the central issue is whether the decree has been fully settled. Since there is a dispute on this point, the court directed that the Deputy Registrar take accounts to establish the status of settlement. Only after this accounting can the court decide whether execution against the legal representatives is warranted. The court thus deferred a final ruling on the application until the factual question of settlement is resolved.
Court Disposition
Interim order for Deputy Registrar to take accounts; final ruling deferred.
Orders
- Deputy Registrar to take accounts to determine if the decree has been fully settled and what, if any, amount is outstanding.
- Parties to appear before the Deputy Registrar on a date to be set at delivery of this ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO 2616 OF 1981
MARY WANJA NJOROGE
(ADMINISTRATOR OF THE ESTATE OF
FREDRICK NJOROGE THUNI, DECEASED)...PLAINTIFF/DECREE-HOLDER
VERSUS
NDUNGU KIMUCHU (DECEASED)….1ST DEFENDANT/JUDGMENT-DEBTOR
AND
JACINTA WANGUI NDUNG’U
LABAN MUCHIRI NDUNG’U….………..RESPONDENTS
PREIMINARY RULING
1. The Plaintiff/Decree-Holder herein has sought by notice of motion dated 29th January 2014leave of the court to execute the outstanding decretal sum against the Respondents in this application, Jacinta Wangui Ndung’uandLaban Muchiri Ndung’u, being the legal representatives of the 1st Defendant/Judgment-Debtor, Ndung’u Kimuchu, who has since died. The application is made under section 37 (1) of the Civil Procedure Act, Cap 21. That provision states –
“Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of such deceased, or against any person who was intermeddled with the estate of such deceased”.
2. The main point of objection to the application taken by the Respondents in their replying affidavit sworn by the 1st Respondent and filed in court on 10th April 2014 is that the decree has been fully settled. The Plaintiff has joined issue with the Respondents upon that point by her supplementary affidavit filed on 28th April 2014.
3. I will in the circumstances direct that the Deputy Registrar of this court do take accounts for purposes of establishing whether or not the decree has been fully settled, and if not, what is outstanding upon it. For that purpose let the parties appear before the Deputy Registrar on a date to be given at delivery of this preliminary ruling. After the Deputy Registrar has taken accounts, the matter shall be brought back to this court in order to give the final ruling on the notice of motion dated 29th January 2014. Costs shall abide the final ruling. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 1ST DAY OF JULY 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 4TH DAY OF JULY 2014