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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the orders of 27th March 2017 altered or interfered with the elders' award adopted as judgment
No; the orders merely enabled implementation of the adopted award and did not exclude the Appellants or their families from their share
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.
Whether substitution of deceased trustees had to precede execution of the judgment
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
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.
Whether the trial court erred in awarding costs of the application to the Respondents
No; costs follow the event under Section 27 of the Civil Procedure Act and the trial court's discretion was properly exercised
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.
Legal principles established
#- 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
#- 1.The appeal be and is hereby dismissed in its entirety with costs to the Respondents
- 2.The Elders award and consequent judgement of the trial court dated 25th September 1998 shall be implemented expeditiously
- 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.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.The subsisting orders of stay in favour of the Appellants are vacated forthwith
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.