[2017] KEHC 2456 (KLR)

[2017] KEHC 2456 (KLR)

The court held that the provisions of Order 24 Rule 3 of the Civil Procedure Rules, which govern abatement of suits upon the death of a party, do not apply to execution proceedings. Since judgment had already been entered before the plaintiff's death, there was no pending suit capable of abating. Order 24 Rule 10...

Source-derived case information.

Citation
[2017] KEHC 2456 (KLR)
Parties
Plaintiff: Samuel Matheri Githen; Defendant: Lawrence Mwaura
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
3 November 2017
Case Number
Civil Case 583 of 2001
Procedural Posture
Civil Case / Ruling on Notice of Motion to Declare Post 4th July 2013 Pleadings and Orders a Nullity
Outcome
application dismissed with costs
Judges
LM Njuguna
Legal Topics
Abatement of Suit, Death of Party, Execution Proceedings, Substitution of Parties
Source Language
english
Civil Procedure Abatement of Suit Death of Party Execution Proceedings Substitution of Parties

Source-derived case record

Summary, issues, holding and outcome

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Parties

Samuel Matheri Githen

Plaintiff

Lawrence Mwaura

Defendant

Procedural Posture

Civil Case / Ruling on Notice of Motion to Declare Post 4th July 2013 Pleadings and Orders a Nullity

Legal Issues

  1. 1 Whether the suit abated upon the death of the plaintiff after judgment had been entered.
  2. 2 Whether orders and pleadings issued after 4th July 2013 should be declared a nullity and expunged from the record.
  3. 3 Whether execution proceedings can continue after the death of the decree holder.

Ratio Decidendi

The court held that the provisions of Order 24 Rule 3 of the Civil Procedure Rules, which govern abatement of suits upon the death of a party, do not apply to execution proceedings. Since judgment had already been entered before the plaintiff's death, there was no pending suit capable of abating. Order 24 Rule 10 specifically excludes execution proceedings from the abatement rules. The application to declare all pleadings and orders after 4th July 2013 a nullity was therefore without merit, as execution could properly proceed despite the plaintiff's death. The court dismissed the application with costs.

Court Disposition

application dismissed with costs

Orders

  • The application dated 10th March 2017 is dismissed with costs.