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ELCPartially AllowedApplication dated 27th February 2020 (in the suit whose judgment was delivered on 18th October 2019)· [2021] KEELC 4628 (KLR)

Fatuma Mohamud Mohammed Mire v Japhet Nteere Mwendwa [2021] KEELC 4628 (KLR)

Environment and Land Court
27 January 2021
1,953 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 can replace a deceased party after judgment and extend stay orders, but only briefly in long-running disputes.

What this practically means

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Executive summary

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The applicant, Fridah Makandi Nteere, daughter and legal representative of the deceased defendant Japhet Nteere Mwendwa, sought substitution of the deceased as a party and an extension of stay of execution of the court's judgment until Nyeri Court of Appeal Civil Appeal No. 3 of 2019 is determined. A 12-month stay had been granted on 3.6.2019 and the deceased died about three months later. The respondent opposed, contending that the court was functus officio having pronounced final judgment with an appeal pending, that substitution in appellate matters lies only with the Court of Appeal under Rule 99 of the Court of Appeal Rules, and that Order 24 of the Civil Procedure Rules was inapplicable as no suit was pending. The court framed two issues: its jurisdiction to substitute the deceased, and whether extension of stay was merited. On jurisdiction, it held that only execution proceedings remained pending; substitution has a nexus with execution and falls under Order 24. Rule 99 of the Court of Appeal Rules applies only to appellate proceedings and does not oust the trial court's residual mandate over execution and contempt matters. Following Wang'ondu, Dhulla Harichand and Mueni Kiamba, substitution at execution stage is not mandatory but the court retains the power. On stay, the court found the application timely and fair to allow pursuit of the appeal, but limited the extension to six months given the dispute's 30-year history. Prayer 1 was allowed in full, prayer 2 partially, and the applicant was to bear the costs of the application.

Key legal issues

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01

Jurisdiction to substitute a deceased party after judgment

Holding

The ELC retains jurisdiction to effect substitution of a deceased party where only execution proceedings remain pending, notwithstanding functus officio objections and the pendency of an appeal.

Reasoning

The court held that after final judgment, the only issues pending are execution proceedings. Substitution of a deceased party has a nexus with execution and falls under Order 24 of the Civil Procedure Rules. Relying on Agnes Wanjiku Wang'ondu and Mueni Kiamba, the court noted that substitution at execution stage is not mandatory but the court retains residual mandate over execution and contempt matters even after pronouncing judgment. Rule 99 of the Court of Appeal Rules governs appellate proceedings only and does not oust this jurisdiction.

p. 3
02

Effect of legal representation on enforcement of rights and obligations of a deceased party

Holding

Rights accruing to or obligations owing from a deceased party can only be enjoyed or enforced by the administrator of the estate; formal substitution is not strictly necessary so long as appointment as legal representative is proved.

Reasoning

Reading Order 24 with Order 31 of the Civil Procedure Rules, the court held that the personal representative is the proper person to enforce or enjoy the deceased's rights. Substitution is not a mandatory requirement; what is required is proof of appointment as legal representative of the estate. The court relied on the Wang'ondu and Kiamba authorities, which held that substitution is optional at execution stage and that proceedings in execution do not abate on death.

p. 2
03

Extension of stay of execution pending appeal

Holding

The court extended the existing stay orders by only 6 months, balancing the applicant's right to pursue the appeal against the need to resolve a 30-year-old dispute speedily.

Reasoning

The court noted the stay orders granted on 3.6.2019 for 12 months, and that the appellant died only three months later. The application was filed timeously during the subsistence of the stay orders, and fairness dictated giving the applicant an opportunity to pursue the appeal. However, because the dispute originated in a 1990 sale agreement and is 30 years old, the court granted only a six-month extension rather than the indefinite stay sought.

p. 3

Legal principles established

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  • Where a suit has been determined and only execution proceedings remain pending, the trial court retains jurisdiction to deal with substitution of a deceased party, which falls within Order 24 of the Civil Procedure Rules.
  • Rule 99 of the Court of Appeal Rules applies to appellate proceedings and does not oust the trial court's jurisdiction over matters within its residual jurisdiction such as execution.

Court orders

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  1. 1.Substitution of the deceased defendant Japhet Nteere Mwendwa with Fridah Makandi Nteere as legal representative (prayer 1 allowed)
  2. 2.Extension of the stay of execution orders granted on 3.6.2019 for a limited period of 6 months from the date of delivery of the ruling (prayer 2 allowed to a limited extent)
  3. 3.Applicant to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 24
  • Civil Procedure Rules, 2010Order 31
  • Civil Procedure Rules, 2010Order 21 rule 1
  • Civil Procedure ActSections 1A, 1B, 3A and 3B
  • Civil Procedure ActSection 24
  • Court of Appeal Rules, 2010Rule 99

Cases cited (4)

  • Agnes Wanjiku Wang'ondu v Uchumi Supermarket Ltd
    [2008] eKLR
  • Brian Muchiri Waihenya v Jubillee Hauliers Ltd & Another; Geminia Insurance Co. Ltd (Interested Party)
    [2018] eKLR
  • Dhulla Harichand vs Gulam Mohu-Udin and Aziz Din s/o Gulam Mohu-Udin
    (1940) KLR Vol. XIX at page 6
  • Mueni Kiamba v Mbithi Kimeu Kimolo
    [2017] eKLR
Jurisdiction invoked
Order 24 and Order 31 of the Civil Procedure Rules, 2010, read with Sections 1A, 1B, 3A and 3B 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, "Fatuma Mohamud Mohammed Mire v Japhet Nteere Mwendwa [2021] KEELC 4628 (KLR)", Case Analysis (2021). Application dated 27th February 2020 (in the suit whose judgment was delivered on 18th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4628/eng@2021-01-27

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