[2014] KEHC 4936 (KLR)
The court found that the suit had not abated upon the death of the original defendant because the substantive matter had already been determined by the judgment of 9/3/1999, and what remained was the execution of the decree. The court held that, for effective execution, it was necessary to join the current...
Source-derived case information.
- Citation
- [2014] KEHC 4936 (KLR)
- Parties
- Plaintiff: Richard Muthee Metho; Plaintiff: Francis Wanjohi Metho; Defendant: Migui Kibechu; Defendant: David Mbuthia Karogo
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 30 of 1989
- Procedural Posture
- Civil Case / Ruling on Joinder of Parties and Execution of Decree
- Outcome
- application for joinder allowed; suit to proceed to execution against new parties
- Judges
- A Ombwayo
- Legal Topics
- Land Boundary Disputes, Joinder of Parties, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Muthee Metho
Plaintiff
Francis Wanjohi Metho
Plaintiff
Migui Kibechu
Defendant
David Mbuthia Karogo
Defendant
Procedural Posture
Civil Case / Ruling on Joinder of Parties and Execution of Decree
Legal Issues
- 1 Whether the suit had abated due to the death of the original defendant.
- 2 Whether it is necessary to join the new proprietor(s) of the subdivided land for execution of the decree.
- 3 Whether the pending matter is execution or a substantive hearing.
Ratio Decidendi
The court found that the suit had not abated upon the death of the original defendant because the substantive matter had already been determined by the judgment of 9/3/1999, and what remained was the execution of the decree. The court held that, for effective execution, it was necessary to join the current proprietors of the subdivided land, including Mr. David Mbuthia Karogo, as parties to the suit. The court relied on Order 24 rule 10 of the Civil Procedure Rules, which exempts execution proceedings from abatement rules applicable to substantive suits. The application to join the new proprietor(s) was therefore merited and allowed.
Court Disposition
application for joinder allowed; suit to proceed to execution against new parties
Orders
- Mr. David Mbuthia Karogo is hereby enjoined in this suit as a defendant.
- Other beneficiaries of the subdivision of parcel No. Gikondi/Kiirungi/35 are to be joined as defendants.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
ENVIRONMENT & LAND COURT
CIVIL CASE NO.30 OF 1989
RICHARD MUTHEE METHO)
FRANCIS WANJOHI METHO)....................................PLAINTIFFS
VERSUS
MIGUI KIBECHU.......................................................... DEFENDANT
R U L I N G
The plaintiffs Richard Muthee Metho and Francis Wanjohiowners of GIKONDI/KIIRINGU/36 sued Mugui Kibechu owner of GIKONDI/KIIRINGU/35in 1989 for trespass in that the defendant had encroached on the plaintiffs' land. The matter was referred to arbitrators who found that the District Land Registrar and District Land Surveyor were the right persons to decide on the matter. The court therefore directed that the District Land Registrar to determine the boundary between the two parcels of land. This was not done as parcel of land No.GIKONDI/KIIRINGU/35 was subdivided to create 1035 – 1040. The plaintiff now intends to join the proprietor of 1035, Mr. David Mbuthia Karogo to enable the court properly determine the matter.
Mr. Theuri opposes the application because he believes the suit has abated because the original defendant died in 14/10/2007. This court does not agree with him and finds that at the time of the defendant's death, the matter had been determined and therefore what is pending is the execution of the decision of the court. Order 24 rule 10 of the Civil Procedure Rules provides that nothing in rules 3, 5 & 7 shall apply to proceedings in execution of the decree.
This matter was decided on 9/3/1999 what is pending is the implementation. However, to execute the decree it is necessary to join the persons who benefited from the subdivision of plot No.Gikondi/Kiirungi/35.
I do find the application merited as Mr.David Mbuthia Karogo is the proprietor of parcel of land Gikondi/Kiirungi 1035 that resulted from subdivision Gikondi/Kiirungi 35and borders Gikondi/Kiirungi 36,
The upshot of the above is that Mr. David Mbuthia Kerogo is hereby enjoined in this suit as a defendant in this matter together with the other beneficiaries of the subdivision of the said parcel of land No.Gikondo/Kiirungi/35. The addition be done within 30 days. Mention on 30/6/2014.
Dated, signed and delivered at Nyeri this 16th day of May 2014.
A. OMBWAYO
JUDGE