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ELCAllowedNotice of motion dated 14/11/2013 (High Court/ELC suit number not stated in judgment)· [2021] KEELC 1980 (KLR)

Peter Kilemi M’Itimitu (Legal Representative of the Estate of M’Itimitu M’Mwithia – Deceased) v Diocese of Meru & another [2021] KEELC 1980 (KLR)

Environment and Land Court
22 September 2021
1,161 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that a widow can execute a court decree without formally substituting her deceased husband within 12 months of his death.

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 (Hon. Lucy N. Mbugua, ELC Judge) delivered electronically on 22 September 2021 on a notice of motion dated 14/11/2013 brought under Order 24 rules 1, 2 and 3(2) of the Civil Procedure Rules. The applicant, Teressa Kaari Kobia, widow of the deceased 2nd defendant (who died on 7/9/2012), sought leave to file the application outside the statutory 12-month period and to be appointed legal representative of the deceased so as to continue pending execution proceedings. She relied on Dhulla Harichad and Agnes Wanjiku Wang'ondu, arguing the suit had been concluded while the 2nd defendant was alive, so it could not abate, and only execution remained. The 1st defendant opposed through a replying affidavit sworn by its advocate Christine Murithi, contending the application was an abuse of process, fatally defective, marked by inordinate and unexplained delay of several years, and that any purported execution on a bill of costs drawn in 2015 and taxed in 2020 would be unprocedural; it relied on Kestem Company Ltd. The plaintiff did not oppose. The court found the 2nd defendant died on 7/9/2012, letters of administration issued on 24/9/2013, and judgment was delivered on 30/10/2009 while he was alive. Applying Order 24 Rule 10, which excludes rules 3, 4 and 7 from execution proceedings, and following its own decision in Fatuma Mohamud Mohammed Mire (citing Agnes Wanjiku Wang'ondu and Mueni Kiamba), the court held that no substitution within 12 months is required to execute a decree. Noting the matter was before the Court of Appeal until 31/7/2015 and the dispute was over 20 years old, the court allowed the application in the interest of justice, with each party bearing their own costs.

Key legal issues

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01

Whether substitution of a legal representative is required for execution of a decree after the decree-holder's death

Holding

It is not required; Order 24 Rule 10 precludes the application of Rules 3, 4 and 7 to execution proceedings.

Reasoning

Order 24 Rule 10 expressly excludes rules 3, 4 and 7 from execution proceedings. Once judgment has determined the parties' rights, only execution remains, and execution may proceed without substituting the deceased party's legal representative. The court adopted its prior holding in Fatuma Mohamud Mohammed Mire citing Agnes Wanjiku Wang'ondu, and noted the matter was on appeal until 31/7/2015, explaining the delay.

p. 2
02

Whether leave should be granted to bring the application outside the statutory period despite inordinate delay

Holding

Leave granted in the interest of justice given the age of the dispute and the pendency of the appeal until 2015.

Reasoning

The court took into account that the matter was headed to the Court of Appeal around the time of the 2nd defendant's death and remained there until 31/7/2015. Finding the dispute over 20 years old, the court exercised discretion in the interest of justice and allowed the application, though the 1st defendant had argued the applicant was indolent.

p. 2

Legal principles established

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  • Substitution of a legal representative is not required for execution of a decree; Order 24 rules 3, 4 and 7 do not apply to proceedings in execution.
  • Where judgment has been rendered, the legal representative of a deceased decree-holder need not be substituted within 12 months to execute the decree.

Court orders

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  1. 1.The application dated 14/11/2013 is allowed
  2. 2.Teressa Kaari Kobia appointed/approved to be enjoined as legal representative of the deceased 2nd defendant for continuation of execution proceedings
  3. 3.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rules 1, 2 & 3(2)
  • Civil Procedure RulesOrder 24 Rules 3, 4, 7 and 10
  • Civil Procedure RulesOrder 31 Rule 1 (formerly Order 30 Rule 1)
  • Civil Procedure RulesOrder 21 rule 1
  • Limitation of Actions ActSection 4(4)

Cases cited (5)

  • Dhulla Harichad vs Gulam Mohu-Udin and Aziz Din s/o Gulam Mohu Udin
    (1940) KLR Vol XIX
  • Agnes Wanjiku Wang'ondu vs Uchumi Supermarket Ltd
    [2008] eKLR
  • Kestem Company Ltd V Ndala Shop Limited & 2 others
    [2018] eKLR
  • Fatuma Mohamud Mohammed Mire v Japhet Nteere Mwendwa
    [2021] eKLR
  • Mueni Kiamba v Mbithi Kimeu Kimolo
    [2017] eKLR
Jurisdiction invoked
Order 24 rules 1, 2 & 3(2) of the Civil Procedure Rules

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, "Peter Kilemi M’Itimitu (Legal Representative of the Estate of M’Itimitu M’Mwithia – Deceased) v Diocese of Meru & another [2021] KEELC 1980 (KLR)", Case Analysis (2021). Notice of motion dated 14/11/2013 (High Court/ELC suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1980/eng@2021-09-22

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