[2017] KEHC 3846 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 15 OF 2003

MUENI KIAMBA.....................................................APPELLANT

VERSUS

MBITHI KIMEU KIMOLO………….…………...RESPONDENT

(Being an appeal from the Sentence of Senior Magistrate’s Court at Kangundo delivered by Honourable N. M. NJAGI, (Senior Resident Magistrate) on 13th January, 2004 in KANGUNDO S.R.M.CR. CASE NO. 487 OF 1998)

JUDGMENT OF THE COURT

1. The Appeal herein arises from the ruling of Hon. N. M. Njagi Senior Resident Magistrate delivered on the 13th January 2004 in Kangundo SRMCC No. 487 of 1998. The said learned Senior Resident Magistrate had upheld a preliminary objection that had been raised on the part of the Respondent herein to the effect that the Plaintiff having died way back in 1999, the suit became abated necessitating substitution of the said Plaintiff with her legal representative within one year of the death and that the Plaintiff’s suit stood dismissed.

2. The Appellant being dissatisfied by the said ruling filed a Memorandum of Appeal dated 30/1/2003 raising the following grounds namely:-

1. THAT the learned trial Magistrate erred in law in failing to appreciate the meaning of Order XXIII Rule II of the Civil Procedure Rules.

2. The learned trial magistrate erred in law and fact in holding that the failure to substitute the Plaintiff was fatal to the suit even when the suit was at the execution stage.

3. The learned trial magistrate erred in law and in fact in holding that this suit had abated.

4. The learned trial magistrate erred in law and fact in holding that the said suit stood dismissed.

3. The Appellant therefore sought for the following reliefs namely:

a) The ruling of the learned magistrate dated 13/1/2003 in Kangundo SRMCC 487 if 1998 be reversed and set aside.

b) Civil Suit No. SRMCC 487 of 1998 (Kangundo) be reinstated and be ordered to proceed to finalization.

c) Costs of this Appeal and the applications in the lower court be borne by the Respondent.

4. With the leave of the court parties agreed to canvass the appeal by way of written submissions.

APPELLANT’S SUBMISSIONS

It was submitted for the Appellant that it was not necessary for the Plaintiff to be substituted upon her demise as the matter had already reached execution stage. It was further submitted that the suit had been concluded and what was pending was only execution since judgment had already been delivered and a decree issued. It was also submitted that limitation of execution of judgment pursuant to Section 4(4) of the Limitation of Actions Act is pegged at 12 years after the delivery of the judgment and at that time the matter had not abated and it was therefore erroneous for the trial magistrate to dismiss suit for want of substitution. It was finally submitted for the Appellant that the Appeal be allowed. The following cases were cited namely:-

1) AGNESS WANJIKU WANGONDU VS UCHUMI SUPERMARKET LTD – NBI CA NO. 137 OF 2002.

2) FIDELITY COMMERCIAL BANK LTD VS GREENWOODS LTD & 2 OTHERS – NBI HCC NO. 219 OF 2013.

RESPONDENT’S SUBMISSIONS

It was submitted for the respondent that the appeal herein is incompetent on the ground that the Appellant who is said to have died in April 1999 ought to have been substituted by a legal representative and thus the appeal could not have been lodged in the name of a dead person. It was further submitted that no execution proceedings could be undertaken without first substituting the Plaintiff and therefore the trial court was right in upholding the Respondent’s preliminary objection. Respondent’s counsel sought for the dismissal of the appeal with costs.

5. I have considered the submissions of the counsels for the parties herein, I find the following issues necessary for determination:

i) Whether it is mandatory to substitute a decree holder at the execution stage

ii) Whether a suit can abate when it had reached execution stage.

iii) Whether the filing of this appeal without substitution rendered the same incompetent.

6. As regards the first issue, it is noted that the Respondent’s preliminary objection raised before the trial court was in regard to Order 23(3)(1) of the Old Civil Procedure Rules and which is now Order 24(3)(1) New Civil

Procedure Rules which provides as follows:-

“Where one or two or more Plaintiffs dies and the cause of action does not survive or continues to the surviving Plaintiff or Plaintiffs alone or a sole Plaintiff or sole surviving Plaintiff dies another cause of action survives or continues, the court, on an application made in that behalf, shall cause the Legal Representative of the deceased Plaintiff to be made a party and shall proceed with the suit”.

Again Order 23(3)(2) of the Old Civil Procedure has been repeated with Order 24(3)(3) which provides:-

“Where within one year no application is made under suit rule(1), the suit shall abate so far as the deceased Plaintiff is concerned, and, on the application by the Defendant, the court may award him the costs ……..…..”.

It would appear from the above two provisions that substitution of a deceased Plaintiff is necessary. However, the same positions seems to be qualified by Order 23 Rule 11 of the Old Rules and now Orders 24 Rule 10 of the New Rules which provides thus:

“Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order”.

The above provisions seem to show that a suit that has reached execution stage should be allowed to proceed even in the absence of substitution of a deceased decreeholder. The High Court in the case of AGNES WANGONDU VS UCHUMI SUPERMARKET LTD – NBI HCCA NO. 137 OF 2002 held as follows:-

“So clearly, the requirement for substitution in Order 23 Rule 4(3) does not apply to proceedings in execution of an Order as was the case before the lower court”.

The same position was also adopted in the case of FIDELITY COMMERCIAL BANK LTD VS GREEN WOODS LTD & 2 OTHERS –NBI HCC NO. 219 OF 2013 where Justice Kariuki held this:-

“Under the provisions of Order 24 Rule 10 of the Civil Procedure Rules, it is provided that the substitution or causing the legal representative of the deceased to be made a party to the suit shall not be effected in the execution of the decree or order ………The Plaintiff or the Defendant or any party as the case may be is entitled to proceed with execution without substituting or making a party to the execution the Legal representative of the deceased”.

From the record of the lower court, there is evidence that at the time the Respondent raised the Preliminary Objection, the decreeholder was already deceased and that the matter had reached an advanced stage of execution wherein the Respondent had already been served with a Notice to Show Cause and further a warrant of arrest in execution had been issued and further that the Respondent had been committed to civil jail in default of payment of the decretal sums. At the time the said Preliminary Objection was being raised and which led to the ruling, the subject of this Appeal, the Respondent was fighting to be released from civil jail. It was only logical for the process of execution of the decree to be left to proceed to conclusion without going back and seeking to substitute the deceased decreeholder. Hence, the Provisions of Order 24 Rule 10 of the Civil Procedure Rules takes care of such circumstances. Indeed the matter had proceeded upto judgment and decree and what remained only was the finalization of the execution. I find there is wisdom in the above provision in that matters that have reached execution stage should be allowed to proceed without the need for substitution of deceased parties. This goes a long way in ensuring the overriding objective of the Civil Procedure Act and Rules namely the timely and expeditious determination of disputes between parties. Hence, it is my considered view that it was not mandatory to substitute the deceased decree holder at the execution stage and therefore the learned trial magistrate misapprehended the law when he ruled that the non-substitution of the decreeholder was fatal to the suit.

7. As regards the second issue, it is noted that the gist of the Respondent’s preliminary objection before the trial court was that the suit had abated following the death of the decreeholder necessitating a substitution. The provisions of Order 23 Rule 11 of the Old Civil Procedure Rules and now Order 24 Rule 10 of the New Rules provide expressly that substitution and abatement of suits shall not apply to execution of orders. In the case of AGNES WANJIKU WANGONDU VS UCHUMI SUPERMARKET LTD - NBI HCCA NO. 137 OF 2002, it was held that a suit could not abate at execution stage but that it was optional for a party to seek to substitute.

A perusal of the lower court record reveals that judgment was delivered on the 29th January 1999 and a decree issued thereafter. It was during the execution of the decree that the respondent who had been committed to civil jail raised the preliminary objection that the suit had abated following the death of decreeholder. It is agreed that the decreeholder died sometimes in April 1999 long after the judgment had been delivered and a decree extracted. The preliminary objection was being raised during the stage of execution and the learned trial magistrate ruled that the suit had abated following the demise of the Plaintiff/Decreeholder. I find the trial court misdirected itself in view of the clear provisions of Order 23(11) of the Old Rules and Order 24(10) of the New Rules which provide that substitution and abatement of suits shall not apply to execution of orders. Again the judgment delivered on 29/1/1999 ought to have been executed within 12 years after delivery pursuant to the provisions of Section 4(4) of the Limitation of Actions Act Cap 22 Laws of Kenya. At the time the preliminary objection was being raised on 20/12/2002, the judgment was hardly three years old and could not be said to have lapsed. The matter had been concluded and what was remaining was execution of the decree. The suit therefore could not be said to have abated at execution stage.

8. As regards the last issue, it is noted that this appeal was lodged by the Appellant’s counsel in the name of the deceased Decreeholder following the ruling of the trial court. The filing of this Appeal was as a consequence of the lower court’s ruling which upheld the preliminary objection raised by the Respondent that the suit had abated following the death of the decreeholder. Since the matter was in regard to execution proceedings, the provisions of Order 24 Rules 3, 4 and 7 of the Civil Procedure Rules are precluded and the parties to the suit are entitled to proceed with execution proceedings without substituting or making a party to the execution the legal representative of the deceased. Again as noted in the case of Agnes Wanjiku Wangondu Vs Uchumi Supermarket Ltd (Supra) that substitution does not apply to proceedings in execution of an order, it follows that this appeal is still part of the proceedings of execution and that the Appellant was at liberty to either substitute or proceed with the matter the way it is since it is at execution stage. Hence, the filing of the Appeal herein without substitution did not render the Appeal as incompetent. Further by dint of Article 159 (2) (d) of the constitution, courts are ordered to do substantive justice to parties and not to place a lot of premium on undue regard to procedural technicalities.

9. In the result, it is the finding of this court that the Appeal herein has merit. The same is allowed. Consequently, the ruling of the learned trial Magistrate dated 13/1/2003 in Kangundo SRMCC 487/1998 is hereby reversed and set aside. The dismissed suit is reinstated and be ordered to proceed to finalization. The costs of this Appeal is awarded to the Appellant.

It is so ordered.

Dated and delivered at MACHAKOS this 13TH day of JULY 2017.

D. K. KEMEI

JUDGE

In the presence of:

Langalanga for Kavita for Respondent ..

.C/A: Nicholas