[2022] KEHC 11441 (KLR)

Peter Mwangi Muthoni t/a Peter M. Muthoni & Company Advocates v Ndegwa & another (Miscellaneous Civil Application 30 of 2019) [2022] KEHC 11441 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11441 (KLR)

Republic of Kenya

In the High Court at Nyeri

Miscellaneous Civil Application 30 of 2019

FN Muchemi, J

June 2, 2022

FROM NYERI HIGH COURT CIVIL CASE NO. 63 OF 2010 (OS)

Between

Peter Mwangi Muthoni t/a Peter M. Muthoni & Company Advocates

Applicant

and

Juliet Wangui Ndegwa

Client

and

Francis James Ndegwa

Intended Respondent

Ruling

Brief Facts 1. The application for determination dated August 2, 2021 brought under section 37 (1) of the Civil Procedure Act and order 24 rule 1 of the Civil Procedure Rules seeks to substitute the respondent for the deceased herein.

2. In opposition to the application, the respondent filed a replying affidavit dated December 2, 2021. The same affidavit has been filed again by the court on February 18, 2022.

3. The parties argued the application orally before the court based on their affidavits.

The Applicant’s Case 4. The applicant states that he filed an advocate/client bill of costs dated April 10, 2019 which was taxed by the Deputy Registrar on July 17, 2019 in the sum of Kshs 606,603. 88/-. On July 26, 2019, this court issued a certificate of costs for the said amount and thereafter entered judgment for the stated sum thus converting the certificate of costs into a decree on October 22, 2019. On October 24, 2019, the court issued a decree for the decretal sum and the applicant avers that he embarked on executing the decree but did not succeed as he found out that the client had passed away on January 22, 2020 before satisfying the judgment debt.

5. The applicant further contends that on May 24, 2021, the Chief Magistrate’s Court Nyeri appointed the respondent as the administrator of the deceased’s estate vide Succession Cause No 74 of 2020 and thus it is only fair and just that the court substitute him for the deceased herein.

The Respondent’s Case 6. The respondent states that the deceased did not appoint the applicant firm to act for her in HCCC No 63 of 2010. The respondent further states that the deceased did not file a notice of appointment of an advocate neither did she serve him with any notice. On April 15, 2013, the deceased filed a notice of change of advocates and served the applicant firm and the respondent’s advocates where both parties acknowledged receipt. The respondent further adds that the applicant acted on his own instructions and filed an affidavit dated May 2, 2019 indicating that taxation would be carried out on May 6, 2019.

7. The respondent further states that the matter came up for taxation on May 6, 2019 for taxation of the bill of costs and not July 17, 2019 when the said bill was taxed ex parte. As such the respondent states that he was condemned unheard contrary to articles 22(1), 25 (1), 27(1) and 50 (1), (2) (b) and (f).

8. The respondent opposes the bill of costs as drawn as it contains fabricated figures which are aimed at robbing him colossal sums of money. Particularly, item number 1 which includes Nyeri Block III/170 and LR Thegenge/Karia/288 which are purported to have been valued at Kshs 13,000,000/- however no valuation report was filed in court together with the bill of costs to support those contentions. Further the respondent states that the 4 acres of LR Thegenge/Karia belonged to Crispin Wahome s/o Ndegwa and not to the deceased. The respondent further avers that the instruction fees was excessively exaggerated from Kshs 6,300/- to Kshs 150,000/- and that the VAT at Kshs 81,470. 88 was also excessive. Furthermore, the respondent avers that the bill was increased by 50% to Kshs 339,462. 05 without the applicant citing the basis of the law.

9. The respondent further contends that the total sum of the bill would be Kshs 1,006,603. 88/- which includes a sum of Kshs 400,000/-paid by the deceased whereas if the bill was taxed pursuant to the law it ought to sum to Kshs 80,000/-. The respondent avers that out of the Kshs. 400,000/- paid to the applicant, he ought to refund Kshs 320,000/- to the deceased.

10. The respondent states that the deceased became mentally retarded after the road accident in 1995 leaving her 20% incapacitated and that the applicant took advantage of her condition and siphoned colossal sums of money from her. The respondent argues that he was a respondent in HCCC No 63 of 2010 and he should therefore not be substituted in the instant matter.

Issue For Determination 11. The main issue for determination is whether the intended substitute/respondent should be substituted in place of the deceased.

The Law Whether The Intended Substitute/respondent Should Be Substituted In Place Of The Deceased 12. Section 37 (1) of the Civil Procedure Act provides:-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 has intermeddled with the estate of such deceased.

13. The respondent raised issues of errors in taxing the bill of costs which is not relevant to this application. For that reason, I will restrict myself to the issues in this application that relate to substitution of the deceased respondent.

14. It is not in dispute that the deceased passed away on January 9, 2020 and the bill of costs was taxed on July 17, 2019. The taxation is therefore proper because the bill of costs came up for taxation on May 6, 2019 and the deceased did not attend court despite being served with the hearing notice. This confirms that the deceased was aware that taxation of the bill took place on May 6, 2019. Furthermore, the deceased did not file any objection to the said bill. The record shows that when the bill came up for taxation on May 6, 2019, the applicant informed the taxing master that he received a cheque of Kshs 200,000/- from the deceased towards the offsetting of the bill which was still pending taxation. The ruling on taxation was delivered on June 4, 2019.

15. The applicant has annexed a copy of grant of letters of administration intestate whereby the respondent has been appointed as the legal representative in the estate of the deceased, Julieta Wangui Ndegwa. The same was issued by the Chief Magistrate’s Court in Succession Cause No 74 of 2020. Notably, the respondent has not opposed that he was appointed as administrator of the estate of the deceased. Thus it is not in dispute that the respondent is the legal representative of the estate of the deceased. It therefore follows that he is the right person to be substituted in place of the deceased. I make reference to the persuasive decision in Silas Njeru Njiru & 2 others v Mugo Mukere, Leonard Njeru Mukera & another (Intended Defendants/Respondents) [2022] eKLR where the court held:-As pointed out earlier in the ruling, where a defendant dies and the cause of action survives the defendant, then such deceased person can only be substituted by the legal representative of his estate. In Embu Succession Cause No 6 of 2017, the intended respondents were issued with letters of administration dated January 11, 2018 to the estate of the defendant. It therefore follows that they are the right parties to be substituted in place of the defendant.

16. The respondent argued that the applicant had been withdrawn from record by the deceased and was illegally on record. A notice of change of advocate was annexed dated March 22, 2013. It states that Juliet Wangui Ndegwa was to act in person with immediate effect. It was to be served on the applicant but there is no evidence that the said notice was ever served on the applicant. The respondent did not attach any affidavit of service to this application. That not withstanding this taxation file should not address that issue. The relevant file is HCCC No 63 of 2010

17. It is my finding that the applicant has satisfied the court as to the grounds supporting this application.

18. The application dated August 2, 2021 is hereby allowed. The applicant Francis James Ndegwa is hereby substituted in place of Juliet Wangui Ndegwa only for purposes of this High Court Misc Application No 30 of 2019.

19. Due to the nature of the application and the surrounding circumstances, I hereby order that each party meet their own costs.

20. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF JUNE, 2022. F MUCHEMIJUDGERULING DELIVERED THROUGH VIDEOLINK THIS 2ND DAY OF JUNE, 2022.