Egylyne Chepchirchir Choge & another v County Council of Trans-Nzoia [2022] KEELC 831 (KLR)
The bottom line
#A Kenyan widow's bid to stop auctioneers seizing her late husband's property failed because she skipped a mandatory objection notice, though the attachment itself was ruled defective.
What this practically means
#Executive summary
#Key legal issues
#Effect of execution initiated by an inactive advocate
The execution was not invalidated by the alleged inactive status of the instructing advocate, since the objector failed to prove the advocate signed the execution application or that the firm had no other qualified advocates, and documents signed by an unqualified advocate are not void
The objector did not demonstrate that Mr. Simiyu Wafula signed the execution application nor that he was the sole practitioner. The law firm's replying affidavit was sworn by another advocate. Sections 9, 22, 31 and 34 of the Advocates Act are silent on the fate of documents drawn by an unqualified advocate; the remedy is disciplinary, not nullification by the court.
Whether a decree abates on the death of a judgment debtor
A decree does not abate on the death of a judgment debtor; it becomes a debt of the estate, and execution is barred only after twelve years under Section 4(4) of the Limitation of Actions Act
Abatement under Order 24 Rules 3 and 4 applies to pending suits where substitution is not made within one year. Order 24 Rule 10 exempts execution proceedings. Section 37(1) of the Civil Procedure Act permits execution against the legal representative or an intermeddler. Execution commenced nine years after the decree was within the twelve-year limitation period.
Whether proclamation of a deceased's estate is intermeddling
Proper execution against the estate through lawful procedure is not intermeddling; administrators must pay the deceased's debts, and the objector failed to prove which proclaimed property was hers personally
Under Sections 82, 83 and 35 of the Law of Succession Act, administrators must ascertain and pay the deceased's debts. A demand or execution against estate property is lawful. The objector did not distinguish her personal property from the estate's property, and household goods vest absolutely in the surviving spouse.
Defectiveness of the proclamation
The proclamation was defective because it was levied more than twelve months after the decree against a legal representative without the notice to show cause required by Order 22 Rule 18(1) and without a waiver of that requirement
Household goods proclaimed should not have been attached as they vest in the surviving spouse under Section 35 of the Law of Succession Act. Further, execution against the deceased's legal representative after twelve months from the decree required a notice to show cause, which was neither issued nor waived by court.
Procedure for raising an objection to attachment
The Objector's application was struck out because she never issued the notice of objection required under Order 22 Rule 51 before filing the application
Order 22 Rule 51 requires a notice of objection supported by an affidavit served on all parties before an objection application is brought. The objector filed the application without this notice, leaving it without foundation. Article 159 does not excuse non-compliance with mandatory procedural rules.
Legal principles established
#- A decree does not abate upon the death of a judgment debtor; execution may issue against the legal representative or any person who has intermeddled with the estate, within the limitation period of twelve years
- Documents signed by an advocate not in active practice are not thereby rendered null and void; the remedy lies in disciplinary processes
- An objection to attachment must be preceded by a notice of objection under Order 22 Rule 51; without it the objection application is defective and liable to be struck out
Court orders
#- 1.The Objector's Notice of Motion dated 20/12/2021 is struck out as incompetent
- 2.Under Section 63(e) of the Civil Procedure Act, the warrants of attachment and the proclamation are declared irregularly issued and made and a nullity
- 3.Both parties are at liberty to follow the right procedure with regard to satisfaction of the decree
- 4.Each party shall bear their own costs of the Application
- Jurisdiction invoked
- Sections 5 of the Judicature Act Cap 8, Sections 45 and 46 of the Law of Succession Act, Order 22 Rule 57 of the Civil Procedure Rules 2010 and Sections 1A, 1B, 3, 3A, 18, 34, 61 and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Egylyne Chepchirchir Choge & another v County Council of Trans-Nzoia [2022] KEELC 831 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/831/eng@2022-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.