Korir v Koech

14 days was granted and the matter scheduled for a further mention for 21st November 2020 on which day, only the Respondent had complied and a date was scheduled for ruling. Respondent’s submissions 5. The Respondent framed the issues for determination as follows; i. Whether the application is in compliance with order 24 rule 3(2) of the Civil Procedure Rules. ii. Whether the cause of action herein survived the deceased Plainti. iii. Whether Joseph Cheruiyot Koech should be made a party in this case in place of the deceased Plainti. iv. Whether a personal representative ad litem of the estate of the deceased Plainti can pursue eviction of the Defendant. v. Who should bear the costs of the application? 6. On the rst issue for determination, the Respondent relied on the provisions of order 24 rule 3(1) of the Civil Procedure Rules to submit that the Plainti passed away on the 8th August 2020 wherein the Limited Grant of Letters of Administration had been obtained on 14th September 2021. That the current application had been led on 21st September 2022, two years later without an extension of time and no sucient reason for the delay had been advanced. That the Plainti’s suit abated on 8th August 2021. 7. On the second issue for determination as to whether the cause of action survived the Plainti, it was the Respondent’s submission that since the suit was instituted by the Plainti in her personal capacity as an absolute proprietor of land parcels No Kericho/Silibwet /93 and Kericho/Silibwet/1231 where she had sought eviction of the Defendant, judgment had been delivered to the eect that the Defendant’s right to only accrue upon the demise of the Plainti. That fortunately for the Defendant, the Plainti had since passed on and her rights to claim over the suit property had now accrued. That the Plaintis’ absolute right over the suit property had therefore died with her. 8. On the issue as to whether the personal representative ad litem of the estate of the deceased Plainti could pursue eviction of the Defendant, the Respondent submitted in the negative, stating that such eviction could only be exercised by the deceased Plainti in her personal capacity. That only the succession court could determine the Defendant’s claim over the suit parcels of land also this court no longer had jurisdiction to entertain the suit the same having died with the Plainti. 9. As to whether Joseph Cheruiyot Koech should be made a party in place of the deceased Plainti, it was the Respondent’s submission that the suit had abated and pursuant to the provisions of order 24 rule 3(1) of the Civil Procedure Rules, the said Joseph Cheruiyot Koech had not sought for an extension of time as prescribed and therefore he did not merit to be made party to the suit. That further substitution of the deceased could not add any value to the suit which had rested with the Plainti deceased. 10. On the issue of costs, the Respondent relied on the provisions of section 27 of the Civil Procedure Act to submit that costs usually followed the event and since the application was frivolous, the costs should be borne by the Plainti. Determination 11. It is unfortunate that after the death of the Plainti, the Respondent’s Counsel in a rather brave, rare and unorthodox manner submitted that ‘fortunately for the Defendant, the Plainti had since passed https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22184/eng@2023-12-07 2

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on and her rights to claim over the suit property had now accrued.’ as if to rejoice over the death of the Plainti on behalf of his client. This phrase leaves a bitter taste in the mouth. 12. Be as it may, it is not in dispute Judgment in this matter was delivered on 6th April 2018 wherein the court found in favour of the Plainti and directed the Defendant to vacate from land parcel No Kericho/Silibwet /93 within three months and further that she removes the cautions registered against land parcels No Kericho/Silibwet /93 and Kericho/Silibwet/1231. 13. It is further not in dispute that the Plainti subsequently passed away on the 8th August 2020 wherein Joseph Cheruiyot Koech obtained a Limited Grant of Letters of Administration on 14th September 2021 and led an application dated 18th August 2022, seeking leave to substitute the said deceased Plainti so as to execute the Decree of the court on behalf of the deceased’s estate. The application was opposed by the Grounds of Opposition led by the Respondent as herein above stated which grounds I have considered together with the submissions herein led and the applicable law. 14. Sections 82 and 83 of the Law of Succession Act are explicit on the powers and the duties of personal representatives respectively. Among the duties bestowed on them, as provided under section 82 is to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative. 15. Execution of judgments and/or decrees is governed by section 4(4)of the Limitations of Actions Act which provides as follows: “ An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent Order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due”. 16. In the case of M’ikiara M’rinkanya & Another v Gilbert Kabeere M’mbijiwe [2007] eKLR, the Court of Appeal held that; “ The construction given to the corresponding Section 4 (4) of the Act by the courts in this country is much wider. All post judgment proceedings including originating proceedings and interlocutory proceedings for execution of judgment are statute barred after 12 years.’’ 17. This nding in eect interpreted the word “action” to cover execution of judgments and that the time within which to execute a decree could not be extend after 12 years. 18. In the present matter, pursuant to delivery of the judgment seeking that the Defendant herein vacates from land parcel No Kericho/Silibwet /93 and further that she removes the cautions registered against land parcels No Kericho/Silibwet /93 and Kericho/Silibwet/1231, there was no evidence that the decree of the court has been appealed from, varied or reviewed. Court orders and decrees are intended to be complied with and the Plainti’s administrator is only but seeking compliance with the court order or the decree of the court. 19. As a general rule, upon the death of any of the party to a suit, the suit abates after 12 months from the death of the party. However an examination of order 24 rules 3, 4 and 7 of the Civil Procedure Rules suggests that such abatement does not apply to instances where the suit is at the execution stage. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22184/eng@2023-12-07 3

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Indeed there is an exception to the general rule provided for by order 24 rule 10 of the Civil Procedure Rules which provides that: “ Nothing in rules 3, 4 and 7 shall apply to proceedings in execution of a decree or order.” 20. It is clear from the provision of the law that the suit cannot abate at the execution stage where a party to the suit is deceased. Indeed after the decree holder died, the execution process stalled and that it is only when her personal representative was appointed that time started running, which was on 14th September 2021. As such, the 12 year period guaranteed by the provisions of section 4(4) of the Limitation of Actions Act for execution of a court Decree had not lapsed at the time the application for substitution of the deceased Plainti was presented before court, as the decree was not statute-barred and that the estate of the deceased Plainti cannot be barred from enjoying the fruits of the judgment. 21. I nd the Grounds of Opposition dated 25th July 2023 and led by the Defendant on an equal date, lacking merit and is thereby dismissed. To save on judicial time, the Plainti’s application dated the 18th August 2022 is herein allowed with costs. Joseph Cheruiyot Koech be and is herein substituted as the legal representative of the deceased Plainti so as to execute the Decree of the court on behalf of the deceased’s estate. DATED AND DELIVERED VIA MICROSOFT TEAMS AT KERICHO THIS 7TH DAY OF DECEMBER 2023. M.C. OUNDO ENVIRONMENT & LAND – JUDGE KERICHO ELC No. 5/2014 RULING Page 2 of 2 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22184/eng@2023-12-07 4

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