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ELCDismissedE.L.C. Appeal No. 6A of 2017· [2020] KEELC 2102 (KLR)

Njue Munyi Kivuana (Suing as the personal representative of the estate of Munyi Kivuana (Deceased) & 2 others v Gilbert Njeru Njagi & 20 others [2020] KEELC 2102 (KLR)

Environment and Land Court
13 February 2020
2,754 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed an attempt to block enforcement of a 1998 elders' award on Embu family land, ruling execution can proceed even after a trustee dies.

What this practically means

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Executive summary

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The Environment and Land Court at Embu (Y.M. Angima, J) dismissed an appeal against the ruling and order of Hon. M.N. Gicheru (CM) of 27th March 2017 in Embu CMCC No. 105 of 1990, a land dispute over Title No. Evurore/Nguthi/1964 that has been in court for over 30 years. The Respondents had sued claiming the Appellants were fraudulently registered as absolute proprietors of ¼ shares each when in fact they held the land in trust for various families. An elders' panel chaired by the District Officer found the Appellants were registered as trustees and ordered sub-division; the award was read in 1993 and adopted as a judgment of the trial court on 25th September 1998 but never implemented. When the trustees died without implementation, the Respondents obtained orders mandating the 1st Respondent to supervise distribution. The Appellants appealed on three grounds: that the trial court interfered with the adopted award; that substitution of deceased trustees should have preceded execution; and that costs were wrongly awarded. The court rejected all three, holding the 2017 orders merely implemented the award without disinheriting anyone; that there is no legal requirement for substitution before execution (citing Dhola v Gulam Mohusin); and that costs follow the event under Section 27 of the Civil Procedure Act, with no misdirection shown (applying Mbogo v Shah). The court also censured the Appellants for attempting to delay and obstruct implementation. The appeal was dismissed with costs, implementation of the award ordered to proceed expeditiously, and the stay orders vacated.

Key legal issues

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01

Whether the orders of 27th March 2017 altered or interfered with the elders' award adopted as judgment

Holding

No; the orders merely enabled implementation of the adopted award and did not exclude the Appellants or their families from their share

Reasoning

The court found only one award and one judgment existed and the Respondents sought only to enforce the 1998 judgment to enjoy the fruits of it. The application was imperfectly drafted but its substance was enforcement of the award. Nothing in the orders excluded the Appellants' families; the Appellants' contrary contention had no evidential support and relied on a pedantic reading.

p. 2
02

Whether substitution of deceased trustees had to precede execution of the judgment

Holding

No; there is no legal requirement that substitution of a deceased party precede execution, and the 3rd Appellant could not use his own omission to defeat the Respondents

Reasoning

Relying on Dhola v Gulam Mohusin, the court held execution may proceed without appointment of personal representatives of a deceased decree holder. The duty to apply for substitution lay with the 3rd Appellant holding letters of administration ad litem, and the Appellants demonstrated no prejudice from the omission.

p. 3
03

Whether the trial court erred in awarding costs of the application to the Respondents

Holding

No; costs follow the event under Section 27 of the Civil Procedure Act and the trial court's discretion was properly exercised

Reasoning

Costs are discretionary and follow the event under the proviso to Section 27 of the Civil Procedure Act. Applying Mbogo v Shah, an appellate court interferes with a discretionary award only upon misdirection, wrong principles, or manifest failure to exercise discretion judicially. No error of principle or non-judicial exercise was shown.

p. 3

Legal principles established

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  • Execution proceedings may proceed without the appointment of personal representatives of a deceased party
  • Costs follow the event unless the court for good reason otherwise orders
  • An appellate court should not lightly interfere with a trial court's award of costs absent misdirection or failure to exercise discretion judicially

Court orders

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  1. 1.The appeal be and is hereby dismissed in its entirety with costs to the Respondents
  2. 2.The Elders award and consequent judgement of the trial court dated 25th September 1998 shall be implemented expeditiously
  3. 3.The 1st Respondent, Gilbert Njeru Njagi, is mandated to supervise the distribution of the suit property (Title No. Evurore/Nguthi/1964) amongst all the beneficiaries entitled thereto
  4. 4.The Deputy Registrar of the court shall sign and execute all the necessary documents on behalf of the Appellants for the purpose of fully implementing the judgement of the court
  5. 5.The subsisting orders of stay in favour of the Appellants are vacated forthwith

Authorities

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Legislation

  • Civil Procedure ActSection 27

Cases cited (3)

  • Dhola V Gulam Mohusin
    (1940) 19 LRK 6
  • Hussein Janmohamed & Sons V Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
  • Mbogo & Another V Shah
    [1968] EA 93
On appeal from
Chief Magistrate's Court at Embu
Embu CMCC No. 105 of 1990
Jurisdiction invoked
Appeal from the ruling and order of the Chief Magistrate's Court (Embu CMCC No. 105 of 1990)

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, "Njue Munyi Kivuana (Suing as the personal representative of the estate of Munyi Kivuana (Deceased) & 2 others v Gilbert Njeru Njagi & 20 others [2020] KEELC 2102 (KLR)", Case Analysis (2020). E.L.C. Appeal No. 6A of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2102/eng@2020-02-13

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