[2023] KEELC 41 (KLR)
The court found that the applicant, having obtained letters of administration ad litem, is the proper legal representative of the deceased plaintiff. Section 37(1) of the Civil Procedure Act expressly provides for the substitution of a deceased decree holder with their legal representative for purposes of execution....
Source-derived case information.
- Citation
- [2023] KEELC 41 (KLR)
- Parties
- Plaintiff: Andriano Munyua M’Ikiunga; Applicant: Lucy Kioro Munyua; Defendant: Francis Gituma M’Aruja
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 125 of 2006
- Procedural Posture
- Environment and Land Case / Ruling on Application for Substitution of Deceased Plaintiff
- Outcome
- Application allowed. Decree to be amended to substitute applicant as decree holder. No order as to costs.
- Judges
- CK Nzili
- Legal Topics
- Substitution of Parties, Execution of Decree, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andriano Munyua M’Ikiunga
Plaintiff
Lucy Kioro Munyua
Applicant
Francis Gituma M’Aruja
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Substitution of Deceased Plaintiff
Legal Issues
- 1 Whether the applicant should be substituted as the decree holder in place of the deceased plaintiff for purposes of execution.
- 2 Whether the decree should be amended to reflect the substitution.
Ratio Decidendi
The court found that the applicant, having obtained letters of administration ad litem, is the proper legal representative of the deceased plaintiff. Section 37(1) of the Civil Procedure Act expressly provides for the substitution of a deceased decree holder with their legal representative for purposes of execution. The court further relied on the authority of Bakari Ibrahim vs Issa Ibrahim (2016) eKLR, which clarified that the procedural rules under Order 24 do not apply to execution proceedings and that Section 37 is the governing provision. Since there was no opposition to the application and the necessary documentation was provided, the court allowed the amendment of the decree to...
Court Disposition
Application allowed. Decree to be amended to substitute applicant as decree holder. No order as to costs.
Orders
- The decree is to be amended to reflect Lucy Kioro Munyua as the decree holder in place of the deceased plaintiff.
- There will be no orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
M’Ikiunga v M’Aruja (Environment & Land Case 125 of 2006) [2023] KEELC 41 (KLR) (18 January 2023) (Ruling)
Neutral citation: [2023] KEELC 41 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment & Land Case 125 of 2006
CK Nzili, J
January 18, 2023
Between
Andriano Munyua M’Ikiunga
Plaintiff
and
Francis Gituma M’Aruja
Defendant
Ruling
1. The application dated October 31, 2022 has been brought by Lucy Kioro Munyua the applicant seeking to substitute the deceased plaintiff who passed on July 16, 2022 obtained letters of administration ad litemon October 5, 2022 and for purposes of execution the decree has to be amended to reflect the changes. Attached to her supporting affidavit is the certificate of death and a copy of the letters of administration marked as annexures LKM “1” and “2” respectively.
2. The application has been served upon the defendant who has not filed any response.
3. Section 37 (1) of the Civil Procedure Act allows for a substitution of a deceased decree holder or debtor with a legal representative for purposes of execution.
4. In Bakari Ibrahim vs Issa Ibrahim (2016) eKLR, the Court of Appeal held that Order 24 Rules 3, 4, 6, 7 and 10 Civil Procedure Rules do not apply to proceedings in execution of a decree or order and that a party must comply with Section 37 of the Civil Procedure Act, otherwise the execution process would be unlawful.
5. There is no dispute that a decree of this court was issued in favour of the deceased on May 21, 2021. In order for it to be effective, there is obviously need to amend it to reflect the proposed changes.
6. Consequently, I allow for its amendment to reflect the applicant as the decree holder in place of the deceased. There will be no orders as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 18TH DAY OF JANUARY, 2023HON. C.K. NZILIELC JUDGEIn presence of:C/A: KananuMiss Mukaburu for plaintiff/applicantMiss Chepkoech for Kaumbi for respondents