Case ID:184432

Rose Gacheri v Jane Nkirote [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 201 of 2012

Parties:

Rose Gacheri v Jane Nkirote

Date Delivered:

27 Oct 2021

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Ruling

Judge(s):

Christopher Kyania Nzili

Citation:

Rose Gacheri v Jane Nkirote [2021] eKLR

Advocates:

Mr. Riungu for applicant

Mrs. Otieno for respondent

Court Division:

Environment and Land

County:

Meru

Advocates:

Mr. Riungu for applicant

Mrs. Otieno for respondent

History Advocates:

Both Parties Represented

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC CASE NO. 201 OF 2012

ROSE GACHERI.........................................................................................PLAINTIFF

VERSUS

JANE NKIROTE.....................................................................................DEFENDANT

RULING

1. By a motion

dated 8

th

February, 2021

the applicant seeks to substitute the defendant

Gideon M’Ikunyua M’Arithi

now deceased with his legal representative

Jane Nkirote

so as to finalize the suit.

2. The second prayer is for an order compelling the intended party once substituted to sign all documents or instruments required for transfer of

Parcel No. L.R Nthimbiri/Igoki/209

as per decree issued by this court on

18

th

December, 2017

.

3. The motion is supported by an affidavit sworn on

11

th

February 2021

by the applicant, in which she has attached a copy of the decree and letters of grant ad litem issued by the

Chief Magistrate Meru on 21

st

May 2019

.

4. As a general rule upon the death of any party to a suit, the suit abates after 12 months from the date of death.

Order 24 rules 3, 4 and 7 of the Civil Procedure Rules

however provide that abatement does not apply to a suit at execution stage. Under

Order 24 rule (4) (

1) allows the court on application to cause the legal representative to be made a party and if not done within a year the suit abates by operation of the law.

Order 24 Rule 10

does not however apply to proceedings in execution of a decree unless of course it is being made after twelve years as provided under

Section 4 of the Limitation of Actions Act

,

Cap 22 Laws of Kenya

.

5. In

Agnes Wanjiku Wangondu –vs- Uchumi Supermarkets Ltd (2008) eKLR

,

the court held that the requirement for substitution does not apply to proceedings in execution stage and that

Order 31 Rule 1

is clear that it shall not ordinarily be necessary to make an administrator a party for execution to issue against the property vested in them.

6. In

Mueni Kiamba –vs- Mbathi Kimeu Kimolo (2017) eKLR

the court held that matters that have reached execution stage should be allowed to proceed without the need for substitution of deceased parties as per overriding objective of the

Civil Procedure Act and Article 159 of the

Constitution

. It goes without saying therefore that it is not mandatory to have the substitution of the defendant/judgment debtor herein.

7. The above notwithstanding, it is my considered view the judgment debtor herein cannot execute transfer documents. The decree has to be amended so that the legal representative may execute them for the ends of justice to be met.

8. In any event the grant issued herein was specific to the execution of the decree in the instant case.

9. For the foregoing reasons, I find the application with merit. The same is allowed with no order as to costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 27

TH

DAY OF OCTOBER, 2021

In presence of:

MR. RIUNGU FOR APPLICANT – ABSENT

MRS. OTIENO FOR RESPONDENT – PRESENT

COURT ASSISTANT - KANANU

HON. C.K. NZILI

ELC JUDGE