Introduction
1. Vide a notice of motion application dated 20th February 2025 and filed on 21st February 2025, the applicant seeks an order for substitution of Joyce Cheptanui Lemet as 5th defendant herein, having obtained letters of administration ad litem as administrator of the estate of Julius Kangogo (deceased).
2. As can be discerned from the grounds on the face of the application and the averments contained in the affidavit sworn in support of the application, the application is premised on the grounds that the 5th defendant (now deceased) had defended the suit against the plaintiff on 19th December 2016 and had obtained decree against the plaintiff on 22nd November 2023 which is yet to be executed; that unfortunately the 5th defendant passed away on 13th November 2024; that the applicant Joyce Cheptanui Lemet (wife to the 5th defendant) obtained letters of administration ad litem on 29th January 2025 as administrator of the estate of Julius Kangogo (deceased). She urges the court to allow the application in the interest of justice.
3. The application is not opposed.
Analysis and determination
4. I have carefully considered the application, the affidavit in support and I find the issue for determination to be whether it is mandatory to substitute a deceased person at execution stage.
5. Order 24 Rule 4 of the Civil Procedure Rules provides;
“(1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within one year no application is made under sub rule (1), the suit shall abate as against the deceased defendant………………………………………….’’
Order 24 Rule 10 provides;
“Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order”.
6. The above provisions suggest that a suit that has reached execution stage should be allowed to proceed even in the absence of substitution of a deceased decree holder. See the case of Fidelity Commercial Bank Ltd Vs Green Woods Ltd & 2 Others –Nbi Hcc No. 219 of 2013, where the court held;
Under the provisions of Order 24 Rule 10 of the Civil Procedure Rules, it is provided that the substitution or causing the legal representative of the deceased to be made a party to the suit shall not be effected in the execution of the decree or order ………The Plaintiff or the Defendant or any party as the case may be is entitled to proceed with execution without substituting or making a party to the execution the Legal representative of the deceased”.
7. The same position was adopted in the case of Mueni Kiamba v Mbithi Kimeu Kimolo [2017] eKLR where the Court stated;
“I find there is wisdom in the above provision in that matters that have reached execution stage should be allowed to proceed without the need for substitution of deceased parties. This goes a long way in ensuring the overriding objective of the Civil Procedure Act and Rules namely the timely and expeditious determination of disputes between parties. Hence, it is my considered view that it was not mandatory to substitute the deceased decree holder at the execution stage and therefore the learned trial magistrate misapprehended the law when he ruled that the non-substitution of the decree holder was fatal to the suit….”
8. In Brian Muchiri Waihenya v Jubilee Hauliers Ltd &
another; Geminia Insurance Co. Ltd (Interested Party) [2018] eKLR the court held;
“It is plain and clear that this court having pronounced the final judgment and a decree drawn, being asked to re-engage itself and to interrogate whether or not the applicant ought to be enjoined in the suit at the late hour which is already pending before the Court of Appeal would in my very considered view be against the law and laid down principles of functus officio.
However, if it was a matter of correcting a clerical error or an incidental consequence of the final decision like execution proceedings or contempt of court proceedings that would be possible under the Civil Procedure Rules.
9. In applying the law and the cited decisions to the circumstances of this case, where judgement in this case was delivered on 22nd November, 2023 and a decree issued on 16th January, 2024 and what remains is finalization of the execution, I find there is wisdom in the provisions of Order 24 Rule 10 as read with Order 31 of the Civil Procedure Rules in that matters that have reached execution stage should be allowed to proceed without the need for substitution of deceased parties. What is required is proof that one has been appointed as the legal representative of the estate. This goes a long way in ensuring the overriding objective of the Civil Procedure Act and Rules, namely the timely and expeditious determination of disputes between parties. Hence, it is my considered view that it is not mandatory to substitute the deceased decree holder at the execution stage.
10. Consequently, I find the application dated 20th February 2025 devoid of merit and l dismiss it with no orders on costs as it was not defended.
11. Orders accordingly.
Dated, signed and delivered virtually at Iten this 20th May, 2025.
Ruling delivered virtually in the absence of:
N/A for the Applicant
N/A for the Respondent
Court Assistant: Christine