[2011] KEHC 3371 (KLR)
The court held that since the application seeks execution of a decree and there is no requirement for the deceased respondent to execute any document, it is not necessary to substitute the deceased respondent. The court found that Order 24 rule 10 of the Civil Procedure Rules supports this position. Therefore, the...
Source-derived case information.
- Citation
- [2011] KEHC 3371 (KLR)
- Parties
- Applicant: Silvia Wangui Wandeto; Respondent: Francis Wandeto Kahuti
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 350 of 1999
- Procedural Posture
- Civil Case / Ruling on Directions
- Outcome
- Motion to proceed for hearing as scheduled without substitution of the deceased respondent.
- Legal Topics
- Execution of Decree, Substitution of Parties, Transfer of Land, Death of Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silvia Wangui Wandeto
Applicant
Francis Wandeto Kahuti
Respondent
Procedural Posture
Civil Case / Ruling on Directions
Legal Issues
- 1 Whether it is necessary to substitute the deceased respondent before proceeding with the execution of the decree.
- 2 Whether the Deputy Registrar can execute documents to transfer land in the absence of substitution of the deceased respondent.
Ratio Decidendi
The court held that since the application seeks execution of a decree and there is no requirement for the deceased respondent to execute any document, it is not necessary to substitute the deceased respondent. The court found that Order 24 rule 10 of the Civil Procedure Rules supports this position. Therefore, the motion for execution may proceed without substitution, and the Deputy Registrar may execute the necessary documents for the transfer of the land in question.
Court Disposition
Motion to proceed for hearing as scheduled without substitution of the deceased respondent.
Orders
- The motion dated 22nd October 2008 shall proceed for hearing as scheduled.
- It is not necessary for the applicant to substitute the deceased respondent before execution.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL CASE NO. 350 OF 1999
SILVIA WANGUI WANDETO……………................………………APPLICANT
VERSUS
FRANCIS WANDETO KAHUTI ……..............................………RESPONDENT
RULING ON DIRECTIONS
SILVIA WANGUI WANDETO, the applicant herein, took out the Motion dated 22nd October 2008 in which she applied for an order to allow the Deputy Registrar to execute the necessary documents to transfer the parcel of land known as L.R. NAROMORU BLOCK 1/RAGATI/193 Guara area, Nyeri District to the purchaser. When the Motion came up for interpartes hearing, Mr. Muthui learned advocate for the Respondent urged this court to give directions on whether or not it is necessary to substitute the Respondent who is said to have passed away on 22nd April 2009. Mr. Kinyanjui was of the view that it was not necessary underOrder 24 rule 10of the Civil Procedure Rules. I have perused the aforesaid Motion plus the affidavit in support. Basically the Applicant is seeking to have the decree executed. In the entire application there is no allegation that the Respondent is required to execute any document. In my view it is not necessary for the Applicant to wait for the deceased to be substituted. I direct that the Motion proceeds for hearing as scheduled.
Dated and delivered at Nyeri this 1st day of April 2011.
J. K. SERGON
JUDGE
In open the presence of Mr. Muthui Kimani for Respondent and Lompo h/b Kinyunjui for applicant.
J.K. SERGON
JUDGE