[2021] KEELC 1316 (KLR)
The court held that while substitution of a deceased party is not mandatory at the execution stage under Order 24 of the Civil Procedure Rules, practical considerations require that the legal representative be made a party to enable execution of the decree, specifically the transfer of the suit property. The court...
Source-derived case information.
- Citation
- [2021] KEELC 1316 (KLR)
- Parties
- Plaintiff: Rose Gacheri; Defendant: Jane Nkirote
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 201 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Substitution and Execution
- Outcome
- Application allowed with no order as to costs.
- Legal Topics
- Substitution of Parties, Execution of Decree, Transfer of Land, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Gacheri
Plaintiff
Jane Nkirote
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Substitution and Execution
Legal Issues
- 1 Whether substitution of the deceased defendant with the legal representative is necessary at the execution stage.
- 2 Whether the legal representative can be compelled to execute transfer documents for the suit property as per the decree.
Ratio Decidendi
The court held that while substitution of a deceased party is not mandatory at the execution stage under Order 24 of the Civil Procedure Rules, practical considerations require that the legal representative be made a party to enable execution of the decree, specifically the transfer of the suit property. The court found that the judgment debtor, being deceased, cannot execute transfer documents, and therefore the legal representative must be substituted to effectuate the transfer as per the decree. The grant ad litem issued was specific to the execution of the decree in this case, justifying the substitution. The application was found meritorious and allowed to ensure the ends of justice...
Court Disposition
Application allowed with no order as to costs.
Orders
- The defendant Gideon M’Ikunyua M’Arithi (deceased) is substituted with his legal representative Jane Nkirote.
- The substituted defendant is compelled to sign all documents or instruments required for transfer of Parcel No. L.R Nthimbiri/Igoki/209 as per the decree issued on 18th December, 2017.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 201 OF 2012
ROSE GACHERI.........................................................................................PLAINTIFF
VERSUS
JANE NKIROTE.....................................................................................DEFENDANT
RULING
1. By a motion dated 8th February, 2021 the applicant seeks to substitute the defendant Gideon M’Ikunyua M’Arithi now deceased with his legal representative Jane Nkirote so as to finalize the suit.
2. The second prayer is for an order compelling the intended party once substituted to sign all documents or instruments required for transfer of Parcel No. L.R Nthimbiri/Igoki/209 as per decree issued by this court on 18th December, 2017.
3. The motion is supported by an affidavit sworn on 11th February 2021by the applicant, in which she has attached a copy of the decree and letters of grant ad litem issued by the Chief Magistrate Meru on 21st May 2019.
4. As a general rule upon the death of any party to a suit, the suit abates after 12 months from the date of death. Order 24 rules 3, 4 and 7 of the Civil Procedure Rules however provide that abatement does not apply to a suit at execution stage. Under Order 24 rule (4) (1) allows the court on application to cause the legal representative to be made a party and if not done within a year the suit abates by operation of the law. Order 24 Rule 10 does not however apply to proceedings in execution of a decree unless of course it is being made after twelve years as provided under Section 4 of the Limitation of Actions Act, Cap 22 Laws of Kenya.
5. In Agnes Wanjiku Wangondu –vs- Uchumi Supermarkets Ltd (2008) eKLR,the court held that the requirement for substitution does not apply to proceedings in execution stage and that Order 31 Rule 1 is clear that it shall not ordinarily be necessary to make an administrator a party for execution to issue against the property vested in them.
6. In Mueni Kiamba –vs- Mbathi Kimeu Kimolo (2017) eKLR the court held that matters that have reached execution stage should be allowed to proceed without the need for substitution of deceased parties as per overriding objective of the Civil Procedure Act and Article 159 of the Constitution. It goes without saying therefore that it is not mandatory to have the substitution of the defendant/judgment debtor herein.
7. The above notwithstanding, it is my considered view the judgment debtor herein cannot execute transfer documents. The decree has to be amended so that the legal representative may execute them for the ends of justice to be met.
8. In any event the grant issued herein was specific to the execution of the decree in the instant case.
9. For the foregoing reasons, I find the application with merit. The same is allowed with no order as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 27TH DAY OF OCTOBER, 2021
In presence of:
MR. RIUNGU FOR APPLICANT – ABSENT
MRS. OTIENO FOR RESPONDENT – PRESENT
COURT ASSISTANT - KANANU
HON. C.K. NZILI
ELC JUDGE