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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 1628 (KLR)

Samuel Kipkemoi Laboso v Stephen Mwangi Wambugu (sued as the administrator of the estate of the late William Wambugu Njenga) & another [2018] KEELC 1628 (KLR)

Environment and Land Court
18 September 2018
1,152 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot tax costs against a party who has died — proceedings must be paused until an executor or administrator replaces them.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Nakuru (Munyao Sila J) determined an application dated 19 April 2018 by the defendants, brought under Section 37(1) of the Civil Procedure Act, seeking substitution of the deceased plaintiff, Samuel Kipkemoi Laboso, with David Kiprono Cheruiyot, his personal representative, for purposes of executing taxed costs. The underlying suit, filed on 25 April 2012, concerned a claim to half an acre of land known as Nakuru/Municipality Block 29/50 (Ronda), which the plaintiff alleged was fraudulently titled wholly to the defendants' father. The court had struck out the suit on 16 March 2015 as res judicata, the plaintiff having earlier filed Nakuru CMCC No. 130 of 1985 over the same subject matter. The defendants then taxed their bill of costs on 27 March 2018, ex parte, at Kshs. 169,698 - after the plaintiff's death on 7 October 2015 and without substitution. The respondent opposed the motion, contesting the taxation. The court allowed substitution but, exercising its inherent jurisdiction to correct apparent anomalies on the face of the record even without a formal motion, set aside the taxation, holding that proceedings should have been stayed pending substitution and the bill ought not to have been taxed when the plaintiff was dead. The bill was remitted for fresh taxation inter partes, and costs of the application were awarded to the defendants because the respondent, despite obtaining a grant in December 2015, never sought substitution.

Key legal issues

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01

Whether taxation of costs could stand where the party against whom costs were taxed had died before taxation and before substitution

Holding

The taxation was irregular and was set aside; the bill was remitted for fresh taxation inter partes after substitution

Reasoning

The court found it undisputed that the plaintiff died on 7 October 2015 while the bill was taxed on 27 March 2018, ex parte. Proceedings ought to have been stayed pending substitution. The Deputy Registrar likely taxed without knowledge of the death, but the irregularity was apparent on the face of the record. The court invoked its inherent jurisdiction to correct the anomaly rather than await a formal reference.

p. 2
02

Whether the deceased plaintiff should be substituted by his personal representative for purposes of execution of costs

Holding

Substitution allowed; the personal representative to represent the deceased without formal amendment of the plaint

Reasoning

The respondents did not dispute that the applicant, David Kiprono Cheruiyot, obtained a grant of letters of administration in Nakuru High Court Succession Cause No. 272 of 2015 and is the personal representative of the deceased plaintiff. The court saw no obstacle to substitution, though it penalised the respondent's delay in seeking substitution by awarding the applicants costs.

p. 2

Legal principles established

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  • Further proceedings in a suit must be stayed pending substitution of a deceased party; a bill of costs cannot properly be taxed before substitution of a deceased litigant.
  • A court has inherent jurisdiction to correct an apparent anomaly on the face of the record even without being formally moved.

Court orders

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  1. 1.Substitution of the deceased plaintiff with David Kiprono Cheruiyot, who shall represent the deceased plaintiff without the necessity of formally amending the plaint
  2. 2.Setting aside of the taxation of the bill of costs on the ground that it was taxed when the plaintiff was dead and before substitution had been effected
  3. 3.Liberty to the defendants to fix a date for fresh taxation of their bill of costs inter partes
  4. 4.Costs of the application awarded to the defendants

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSection 37(1)
Jurisdiction invoked
Section 37(1) of the Civil Procedure Act, Cap 21 Laws of Kenya, and the court's inherent jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Kipkemoi Laboso v Stephen Mwangi Wambugu (sued as the administrator of the estate of the late William Wambugu Njenga) & another [2018] KEELC 1628 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1628/eng@2018-09-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.