(Application to stop execution of a judgment on basis that the decree is caught up by limitation of time; plaintiff’s suit dismissed for want of prosecution in June 2004; costs taxed in September 2004; the plaintiff passing on in December 2004; administrator to his estate appointed in 2009; attempt to execute for the taxed costs being made in December 2024; attempt at execution being made 20 years after the costs were taxed; court of opinion that the execution of costs is time barred by dint of Section 4 (4) of the Limitation of Actions Act; application allowed)
1. The application before me is that dated 7 March 2025 filed by the plaintiff. It is an application seeking the following orders :
(1) Spent (certification of urgency).
(2) That this Honourable Court be pleased to declare that the execution of the decree of 16 June 2004 is statute barred.
(3) That consequently the Honourable Court be pleased to dismiss with costs the Notice to Show Cause why the plaintiff should not pay Kshs. 306,166/= being the costs of this case.
(4) That costs of this application be borne by the defendants.
2. The application is opposed.
3. By way of background, this suit was commenced by Stanley Ondoro Boraya (now deceased) vide a plaint filed on 13 September 1994. He had sued the respondents claiming that they had trespassed into his land Gesima Settlement Scheme/2. The respondents filed defence to oppose the suit. The suit partly proceeded for hearing but was dismissed for want of prosecution by Bauni J on 16 June 2004 with costs to the respondents. The respondents filed their bill of costs which was taxed on 28 September 2004 at Kshs. 303,591/=. The original plaintiff/judgment debtor, died shortly thereafter on 18 December 2004. Probably because he had died, the matter lay quiet until 2013 when the firm of M/s Kimanga & Co, then on record for the respondents, wrote seeking to have the file availed for it had been taken to the National Archives. The file was brought and on 1 September 2015, an application dated 24 July 2015 was filed for substitution of the deceased plaintiff with his wife Rhoda Mongina Ondoro, who is the applicant herein. The application remained unprosecuted for a long time, probably because the proprietor of M/s Kimanga & Company Advocates also died. On 26 October 2023, the respondents filed a notice appointing M/s Bosire Gichana & Company Advocates to represent them. They subsequently caused the application dated 24 July 2015 to be heard. I heard the application and delivered ruling on 13 November 2024. Later, the respondents filed a notice directed to the applicant to have her show cause why she should not pay the taxed costs. It is that notice which has provoked this application. It is the contention of the applicant that the decree is time barred.
4. The respondents filed grounds of opposition asserting that the notice to show cause is properly before court.
5. In his submissions, Mr. Okenye, learned counsel for the applicant, relied on the Court of Appeal decision in the case of M’Ikiara M’Rinkanya & Another vs Gilbert Kabeere M’Mbijiwe, Court of Appeal at Nyeri, Civil Appeal No. 124 of 2003 and my own decision in the case of Moses Kipkurui Bor vs John Chirchir, Nakuru ELC No. 763 of 1992. In both cases Section 4 (4) of the Limitation of Actions Act, Cap 22, Laws of Kenya was in issue. It provides as follows :
(4) 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.
6. It will be seen from the above that no action may be brought upon a judgment after 12 years from the date of the judgment. In M’Ikiara v Mbijiwe, it was held that the word ‘action’ includes all post judgment proceedings. The court stated as follows :
“The construction given to the corresponding section 4 (4) of the Act by 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.”
7. In our case, the suit was dismissed on 16 June 2004. The costs were taxed on 28 September 2004. Thus in respect of costs, the respondents needed to move the court in execution thereof within 12 years. The 12 years lapsed on 28 September 2016. I have not seen, within this period of time, any application for execution of the taxed costs.
8. In his submissions, Mr. Bosire, learned counsel for the respondents, relied on Section 80 of the Law of Succession Act, which provides as follows :
80. When grant takes effect
(1)A grant of probate shall establish the will as from the date of death, and shall render valid all intermediate acts of the executor or executors to whom the grant is made consistent with his or their duties as such.
(2)A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of such grant.
9. Counsel urged that the time stopped running from the time the application for substitution was filed.
10. I do not agree. Time did not stop running against the respondents merely because they filed an application for substitution. Whereas it may be arguable that there could be no execution over the estate of the deceased original plaintiff without there being an administrator, nothing stopped the respondents from procuring the appointment of an administrator for the estate of the deceased original plaintiff much earlier. In any case, Mr. Bosire in his submissions avers that the applicant obtained a grant so as to represent the estate of the deceased plaintiff on 20 September 2009. From this day, the estate of the original plaintiff had an administrator and execution could proceed. It was not mandatory for there to be filed an application for substitution for execution to proceed against the estate as explained in my ruling of 13 November 2024. I stated as follows :
What of where the person who is dead is the judgment debtor ? An estate of a deceased person is protected and ought not to be intermeddled with until there is a legal representative. People may in fact be tempted to take advantage of the lack of a legal representative to cause havoc to the estate. Immediately there is a legal representative, there is nothing to stop execution, since the estate has an administrator who is present to protect the interest of the estate. Again pursuant to Rule 11, it is not mandatory to first seek substitution, but just as I have explained above, for purposes of good order and record, it is prudent to file an application to substitute, so that it is also known to all and sundry and also to the court, who is representing the estate of the deceased judgment debtor. So yes, although execution can proceed, it is good practice to undertake substitution.
11. There was already an administrator in the year 2009 and execution could therefore proceed even without a formal application for substitution being filed. Thus the filing of the application for substitution in the year 2015 cannot be considered as having stopped the running of time. Even assuming that we take 2009 as the base year, execution needed to have proceeded by the year 2021. The notice to show cause was filed on 9 December 2024 which is beyond 12 years.
12. I am therefore persuaded that the execution of the taxed costs is time barred as 12 years from the date of taxation are long lapsed.
13. This application is merited and is hereby allowed with costs. The notice to show cause is dismissed with costs.
14. Orders accordingly.
DATED AND DELIVERED THIS 16 DAY OF JULY 2025
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT KISII
Delivered in the presence of :
Mr. Magara h/b for Mr. Okenye for the applicant
No appearance on part of Mr. Bosire Gichana for the respondents
Court Assistant – Michael Oyuko