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ELCPartially AllowedNotice of motion dated 22/04/2024 (Machakos ELC suit; judgment of 29/11/2018)· [2025] KEELC 795 (KLR)

Ndunda v Ndunda & another; Kalii (Applicant) (Environment & Land Case 1 of 2021) [2025] KEELC 795 (KLR)

Environment and Land Court
25 February 2025
AKA. Y. Koross
1,304 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that a court award does not die with the winner — a deceased person's family representative can continue enforcing it.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (Koross J) determines a notice of motion dated 22/04/2024 by Elizabeth Ndinda Kalii seeking to be substituted for the 2nd defendant, who died on 28/10/2022 after judgment and at the execution stage, having been awarded costs of Kshs 165,224.24 by a ruling of 23/03/2022. The applicant, holder of a limited grant of letters of administration, sought to continue execution of the decree. The plaintiff opposed, arguing the application contravened Order 24 Rules 1 and 2 of the Civil Procedure Rules and that the 2nd defendant's claim had abated on 28/10/2023, six months after death, and that the motion was filed six months after the limited grant without explanation for the delay. The 1st defendant did not respond. The court framed two issues: whether the motion is merited, and what orders should issue, including costs. The court held that Order 24 Rule 10 excludes the abatement and substitution rules from execution proceedings, so the claim did not abate. Relying on Dhulla Harichand as approved in Agnes Wanjiku Wang'ondu v Uchumi Supermarket Ltd, and Order 31 Rule 1 of the Civil Procedure Rules, the court held the personal representative of a deceased decree-holder may either carry on the pending execution or apply for fresh execution, and substitution applications are properly treated as applications for continuation of pending execution proceedings. The application was allowed; the applicant may continue execution; each party bears their own costs of the motion; and the file was marked as closed.

Key legal issues

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01

Whether the court should allow the applicant to substitute the 2nd defendant (deceased decree-holder) for purposes of execution of the decree, and whether the suit/claim can abate at the execution stage

Holding

The motion was merited. Order 24 Rule 10 excludes the abatement provisions from execution proceedings, so the 2nd defendant's claim did not abate on his death. Under Order 31 Rule 1, the applicant as personal representative (holder of a limited grant) could be substituted to continue execution.

Reasoning

Order 24 Rule 10 of the Civil Procedure Rules expressly provides that rules 3, 4 and 7 do not apply to proceedings in execution of a decree. Consequently the claim did not abate when the 2nd defendant died at the execution stage. Order 31 Rule 1 gives the court discretion in suits concerning property vested in an executor or administrator. Drawing on Dhulla Harichand (cited in Agnes Wanjiku Wang'ondu v Uchumi Supermarket Ltd), the court held the heirs may either carry on the pending execution or apply for fresh execution, and substitution applications are routinely allowed and treated as continuation of pending execution proceedings. The applicant having opted for substitution, the court found no reason to deny the relief.

p. 4

Legal principles established

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  • The provisions governing abatement and substitution on death of a party (Order 24) do not apply to proceedings in execution of a decree or order
  • At the execution stage, the heirs of a deceased decree-holder may either apply to carry on the execution proceedings or apply for fresh execution; substitution applications are treated as applications for continuation of pending execution proceedings

Court orders

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  1. 1.The application dated 22/04/2024 is allowed
  2. 2.The applicant is at liberty to continue with the execution process
  3. 3.Each party is to bear their respective costs of the motion
  4. 4.The file is effectively marked as closed since judgment was rendered on 29/11/2018

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rules 1, 2, 3, 4, 7 and 10
  • Civil Procedure RulesOrder 31 Rule 1

Cases cited (6)

  • Dhulla Harichand vs Gulam Mohu-Udin and Aziz Din s/o Gulam Mohu-Udin
    (1940) KLR Vol. XIX on page 6
  • Agnes Wanjiku Wang'ondu V Uchumi Supermarket Ltd
    [2008] Kehc 2233 (KLR)
  • Shailendranath Ghosh vs Surendranath De
    (1930, I.L.R. 57 Cal. p. 1137 at p. 1140)
  • Kedarnath Goenka vs Anant Prasad Singh
    (L. R. 52 I. A. 188)
  • Khaja Mohamed Noor J. (case cited at (1934) I.L.R. 13 Pat. P. 777)
    (1934) I.L.R. 13 Pat. P. 777
  • Akhoy Kumar Talukdar v. Surendra Lal Pal
    (1926, C. W. N. 735)
Jurisdiction invoked
Not expressly stated; motion under the Civil Procedure Rules seeking substitution of a deceased party at the execution stage

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, "Ndunda v Ndunda & another; Kalii (Applicant) (Environment & Land Case 1 of 2021) [2025] KEELC 795 (KLR)", Case Analysis (2025). Notice of motion dated 22/04/2024 (Machakos ELC suit; judgment of 29/11/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/795/eng@2025-02-25

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