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ELCDismissedNotice of Motion dated 23rd May 2019 (in the suit concerning land parcel NO KIMILILI/KAMUKUYWA/530)· [2020] KEELC 3841 (KLR)

Benson Mangate Barasa – (Deceased) v Amos Wabwire; Joseph Barasa(Interested Party/Respondent) [2020] KEELC 3841 (KLR)

Environment and Land Court
23 January 2020
BOBoaz N. Olao
728 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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You cannot enforce costs against someone as an estate administrator if their temporary grant of letters of administration has already lapsed.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Bungoma (Boaz N. Olao, J) on a Notice of Motion dated 23rd May 2019 by the defendant, Amos Wabwire, seeking leave to execute an order for costs against Joseph Barasa, said to be the Administrator of the Estate of Benson Mangate Barasa, the deceased plaintiff whose suit over land parcel KIMILILI/KAMUKUYWA/530 had been struck out as res judicata and statute-barred by a ruling dated 9th March 2016. Costs were taxed at Kshs. 140,000/= on 8th June 2016 and stood at Kshs. 189,000/= at the time of the application. The application, brought under Sections 3A and 63(e) of the Civil Procedure Act and supported by counsel Paul Kassim Wafula's affidavit, relied on a temporary grant of Letters of Administration issued to the Respondent and Benedeta Namalwa Makokha on 18th October 2017, and on an order of 30th July 2018 substituting the deceased with the Respondent — an order subsequently struck out on 22nd November 2018. The Respondent opposed by grounds of opposition dated 10th July 2019, arguing the application was misconceived and offended Order 1 Rule 1 of the Civil Procedure Rules and the 22nd November 2018 ruling. The court held that the temporary grant, valid for only six months and never confirmed, lapsed on 18th April 2018, so the Respondent was no longer Administrator and no execution could proceed against him. The Notice of Motion was dismissed with no order as to costs.

Key legal issues

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Whether execution of taxed costs can proceed against a person whose temporary grant of Letters of Administration has lapsed

Holding

The application was dismissed because the temporary grant was never confirmed and lapsed six months after 18th October 2017, so the Respondent ceased to be Administrator on 18th April 2018

Reasoning

The temporary grant issued to the Respondent and Benedeta Namalwa Makokha expressly stated it would be valid for only six months. It was never confirmed and therefore lapsed. Relying on Black's Law Dictionary's definition of 'lapse', the court held that the Respondent ceased to be Administrator before the Notice of Motion was filed, and no execution of the taxed bill of costs could lawfully proceed against him.

p. 2

Legal principles established

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  • An unconfirmed temporary grant of Letters of Administration valid for six months lapses on expiry of that period and cannot found an application for execution against the administrator

Court orders

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  1. 1.The defendant/Applicant's Notice of Motion dated 23rd May 2019 is dismissed
  2. 2.There shall be no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 1 Rule 1
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act

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, "Benson Mangate Barasa – (Deceased) v Amos Wabwire; Joseph Barasa(Interested Party/Respondent) [2020] KEELC 3841 (KLR)", Case Analysis (2020). Notice of Motion dated 23rd May 2019 (in the suit concerning land parcel NO KIMILILI/KAMUKUYWA/530). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3841/eng@2020-01-23

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