[2019] KEHC 6738 (KLR)
The court held that the application for substitution and joinder was futile because the judgment sought to be executed was delivered over 28 years ago, and the statutory limitation period for executing a judgment is 12 years under Section 4(4) of the Limitation of Actions Act. Since the time for execution had long...
Source-derived case information.
- Citation
- [2019] KEHC 6738 (KLR)
- Parties
- Appellant: Samson T. Thumbi; Respondent: Sophia Wanjiru Wainaina; Respondent: Peter Kinyanjui Njuguna; Respondent: Stephen Gachohi Njuguna; Respondent: Johana Gicho Ngatho; Respondent: Stephen Njoroge Karungu; Applicant: Kiburi wa Thumbi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 92 of 1988
- Procedural Posture
- Civil Appeal / Ruling on Application for Substitution/enjoinder After Death of Appellant
- Outcome
- application dismissed
- Judges
- JK Sergon
- Legal Topics
- Joinder of Parties, Substitution of Parties, Limitation Periods, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson T. Thumbi
Appellant
Sophia Wanjiru Wainaina
Respondent
Peter Kinyanjui Njuguna
Respondent
Stephen Gachohi Njuguna
Respondent
Johana Gicho Ngatho
Respondent
Stephen Njoroge Karungu
Respondent
Kiburi wa Thumbi
Applicant
Procedural Posture
Civil Appeal / Ruling on Application for Substitution/enjoinder After Death of Appellant
Legal Issues
- 1 Whether the applicant should be enjoined as a party in place of the deceased appellant for purposes of executing the decree.
- 2 Whether the application for substitution is barred by limitation under Section 4(4) of the Limitation of Actions Act.
Ratio Decidendi
The court held that the application for substitution and joinder was futile because the judgment sought to be executed was delivered over 28 years ago, and the statutory limitation period for executing a judgment is 12 years under Section 4(4) of the Limitation of Actions Act. Since the time for execution had long lapsed, enjoining the applicant as a party would serve no useful purpose. The application was therefore dismissed.
Court Disposition
application dismissed
Orders
- The summons for enjoinder/substitution is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 92 OF 1988
SAMSON T. THUMBI..................................................APPELLANT
-VERSUS-
SOPHIA WANJIRU WAINAINA......................1ST RESPONDENT
PETER KINYANJUI NJUGUNA.....................2ND RESPONDENT
STEPHEN GACHOHI NJUGUNA..................3RD RESPONDENT
JOHANA GICHO NGATHO............................4TH RESPONDENT
STEPHEN NJOROGE KARUNGU................5TH RESPONDENT
RULING
1) Kiburi wa Thumbi, the applicant herein, took out the summons dated 28th January 2019 in which he sought for an order to have him enjoined as a party in this appeal in place of the late Samson Thumbi Kiburi who passed away on 25. 9.2002. The applicant swore an affidavit which he filed in support of the motion.
2) It is the submission of the applicant that judgment in this appeal was delivered on 12th March 1991 and that the appellant passed away before executing the decree. The applicant further stated that upon the appellant’s death, he together with the late Joyce Wanjiru Thumbi, obtained letters of administration in respect of the estate of Samson Thumbi Kiburi, deceased. The applicant has specifically applied to be enjoined to this appeal to enable him execute the decree.
3) In determining an application for joinder of parties, the court has a wide discretion. However, an applicant must show that he or she is a necessary party in the action. It should also be shown that the action is still pending and alive. In this appeal, the following factors appear undisputed:
First, that the appellant passed away on 25th September 2002, about 17 years ago.
Secondly, that the decision on appeal was delivered on 12th March 1991, about 28 years ago.
Thirdly, that the applicant took out letters of administration in respect of the estate of Samson Thumbi Kiburi, deceased on 4th April 2005.
4) I have already pointed out that the applicant is seeking to be enjoined to this appeal solely for purposes of executing the decree which was issued about 28 years ago.
5) Under Section 4(4)of the limitation of Actions Act (Cap 22 Laws of Kenya), ac action may not be brought upon a judgment afterthe expiry of 12 years from the date it was delivered.
6) It is therefore clear that the enjoinder of the applicant to this appeal serves no useful purpose. Consequently, I decline to grant the order but instead dismiss the summons with no order as to costs.
Dated, Signed and Delivered at Nairobi this 14th day of May, 2019.
...........................
J. K. SERGON
JUDGE
In the presence of:
………………………. for the Appellant/Applicant
……………………………. for the 1st Respondent
…………………...………. for the 2nd Respondent