[2010] KEHC 3921 (KLR)
The court found that the application for substitution was fundamentally defective because it relied on provisions of the Civil Procedure Rules (Order XXII) that are inapplicable to the present proceedings. Specifically, Order XXII Rule 4 pertains to garnishee proceedings and does not apply to succession matters....
Source-derived case information.
- Citation
- [2010] KEHC 3921 (KLR)
- Parties
- Applicant: Sicily Muthoni Gutu; Applicant: Adelide Wanjira Gakuya; Respondent: Waguama Ndiga; Applicant: Alikalander Wathuiya Miano
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 24 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application for Substitution of Deceased Respondent
- Outcome
- application dismissed
- Legal Topics
- Substitution of Parties, Applicability of Civil Procedure Rules, Garnishee Proceedings, Probate and Administration Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sicily Muthoni Gutu
Applicant
Adelide Wanjira Gakuya
Applicant
Waguama Ndiga
Respondent
Alikalander Wathuiya Miano
Applicant
Procedural Posture
Civil Appeal / Ruling on Application for Substitution of Deceased Respondent
Legal Issues
- 1 Whether the application for substitution of the deceased respondent is competent under Order XXII Rules 4 and 12 of the Civil Procedure Rules.
- 2 Whether Order XXII of the Civil Procedure Rules applies to succession proceedings under the Law of Succession Act.
Ratio Decidendi
The court found that the application for substitution was fundamentally defective because it relied on provisions of the Civil Procedure Rules (Order XXII) that are inapplicable to the present proceedings. Specifically, Order XXII Rule 4 pertains to garnishee proceedings and does not apply to succession matters. Furthermore, Order XXII is not one of the Civil Procedure Rules incorporated into the Law of Succession Act by Rule 63(1) of the Probate and Administration Rules. As such, the application was dismissed for being incompetent and hopelessly defective.
Court Disposition
application dismissed
Orders
- The application for substitution of the deceased respondent is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 24 of 2008
SICILY MUTHONI GUTU………………………………………..1ST APPLICANT
ADELIDE WANJIRA GAKUYA…………………………………..2ND APPLICANT
VERSUS
WAGUAMA NDIGA…………………………………………………..RESPONDENT
AND
ALIKALANDER WATHUIYA MIANO…………………………….APPLICANT
R U L I N G
This application is brought to court under Order XXII (22) Rule 4, 12 of the Civil Procedure Rules.
It is seeking the substitution of one Waguama Ndiga who is deceased. I find the application incompetent and hopelessly defective for the following reasons:-
1. Order XXII Rule 4 provides as hereunder;
“ If the garnishee disputes his liability, the court
instead of making an order that execution be
levied, may order that any issue or question
necessary for determining his indebtedness be tried and determined in the manner in which an issue or question in a suit is tried or determined.”
Clearly, these are not garnishee proceedings.
2. Order XXII of the C.P.A Rules is not one of the orders imported into the Law of Succession Act Vide Rule 63 (1) of the Probate and administration Rules.
The application is therefore dismissed.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 16th day of Feb, 2010
In presence of:- Mr. Kariithi and Mr. Ngigi for the parties,