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ELCAllowedNot stated in the judgment· [2021] KEELC 975 (KLR)

Julia Kainda M’mbijiwe v Luke Muriungi Makathimo [2021] KEELC 975 (KLR)

Environment and Land Court
17 November 2021
1,783 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted an auction of a dead woman's land, ruling you cannot execute a judgment against a deceased person without legally substituting their estate.

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 Meru (Nzili, ELC J) on a notice of motion dated 25th August 2021 filed in an appeal by Eunice Karimi Mbijiwe, following the death on 4th February 2021 of the appellant, Julia Kainda M'Mbijiwe. The application sought restraining orders against an intended public auction of the deceased's properties (parcels Kibirichia/Kibirichia/5797 & 5798), confirmation of the status quo existing since 9th February 2021, and a declaration that the auction of 30th August 2021 against the deceased was unlawful. The applicant relied on authorities on execution against deceased persons and the effect of non-compliance with Section 37 of the Civil Procedure Act. The respondent opposed, arguing the status quo orders were conditional and had lapsed, the application was a delaying tactic, execution had been effected after substitution, and the applicant had been duly notified of the sale. The court framed nine issues and, on the record, found that the decree, warrants of attachment, notification of sale and newspaper advertisement all bore the deceased's name, although the respondents knew from 9th February 2021 that she had died. The application for substitution had not been allowed, the decree was never amended, and no notice to show cause issued against the estate. The court held the execution contravened Section 37 of the Civil Procedure Act, Order 24 Rule 4 of the Civil Procedure Rules and Sections 35 and 64 of the Law of Succession Act, and amounted to an attempt to intermeddle with the estate, taken in disregard of subsisting status quo orders. The application dated 25.8.2021 was allowed with costs.

Key legal issues

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01

Whether execution against a deceased judgment debtor without substitution was lawful

Holding

It was unlawful; the decree and execution papers bore the deceased's name, substitution had not been allowed, and no notice to show cause issued against the estate

Reasoning

The decree signed on 28.1.2021 named Julia Kainda M'Mbijiwe as judgment debtor, as did the warrants of attachment, notification of sale and newspaper advertisement, despite the respondents knowing since 9.2.2021 that she had died on 4.2.2021. The application for substitution was never allowed, the lower court decree was never amended to include the legal representative, and no notice to show cause issued. This contravened Section 37 of the Civil Procedure Act, Order 24 Rule 4 of the Civil Procedure Rules and the Law of Succession Act, amounting to intermeddling.

p. 3
02

Whether subsisting status quo orders existed at the time of execution

Holding

Status quo orders existed, having been granted on 9.2.2021 and confirmed operational on 30.8.2021, yet execution proceeded

Reasoning

The court record showed status quo orders granted on 2.2.2021 and 9.2.2021 after the applicant's death, and on 30.8.2021 the court confirmed the orders were operational. The respondents nevertheless took out warrants dated 17th May 2021 and advertised the auction for 16th August 2021. The court found the respondents acted while aware the deceased was dead and that subsisting orders were in place; the auctioneer, though served, did not rebut the factual issues, and complicity was inferred.

p. 3

Legal principles established

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  • Execution may not issue against a deceased judgment debtor except through substitution by a legal representative, in compliance with Section 37 of the Civil Procedure Act and Sections 35 and 64 of the Law of Succession Act
  • Executing against the estate of a deceased person without amending the decree or joining the legal representative amounts to intermeddling with the estate

Court orders

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  1. 1.The application dated 25.8.2021 is allowed with costs (restraining orders stopping the intended sale by public auction of the appellant's properties, confirmation of status quo since 9.2.2021, and declaration that the public auction of 30th August 2021 against the deceased Julia Kainda M'Mbijiwe was lawful reliefs in the allowed motion)

Authorities

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Legislation

  • Civil Procedure ActSection 37(1)
  • Civil Procedure ActSection 37
  • Civil Procedure RulesOrder 24 Rule 4
  • Law of Succession ActSection 35
  • Law of Succession ActSection 64

Cases cited (6)

  • Bakari Ibrahim vs Isa Ibrahim
    (2016) eKLR
  • Maxam Ltd & 2 Others vs Heineken East Africa Import Co. Ltd & 2 Others
    [2017] eKLR
  • Spire Bank Ltd vs Gladys Njeri Wainaina & Another
    [2020] eKLR
  • Satwant Singh Dhanjal & 2 Others vs Kenya Revenue Authority
    [2005] eKLR
  • Joseph Thiga Kariuki suing as the legal representative of the estate of Pauline Wanjiku Thiga (Deceased) vs Joseph Kahonoki Njoroge & Another; Sarah Wanjiku Kahonoki (Objector)
    [2020] eKLR
  • Athman Omar Zuberi vs Mamson Aso Apinde
    [2012] eKLR
Jurisdiction invoked
Appellate/interlocutory jurisdiction of the Environment and Land Court over the appeal from the lower court (specific provision not stated in the judgment)

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, "Julia Kainda M’mbijiwe v Luke Muriungi Makathimo [2021] KEELC 975 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/975/eng@2021-11-17

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