Andrew Mukulu v Miriam Ijai & another [2020] eKLR

Court
Environment and Land Court at Kakamega
Category
Civil
Judge(s)
N.A. Matheka
Judgment Date
October 27, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Andrew Mukulu v Miriam Ijai & another [2020] eKLR


1. Case Information:
- Name of the Case: Andrew Mukulu v. Miriam Ijai and Elphas Aradi
- Case Number: ELC Case No. 39 of 2019
- Court: Environment and Land Court, Kakamega
- Date Delivered: 27th October 2020
- Category of Law: Civil
- Judge(s): N.A. Matheka
- Country: Kenya

2. Questions Presented:
The central legal issues presented to the court were:
1. Whether the Executive Officer/Deputy Registrar of the Environment and Land Court should be empowered to execute transfer documents on behalf of the defendants for half of the land parcel No. Isukha/Shirere/589, following a judgment delivered on 23rd July 2019.
2. Whether the application for execution should be granted in light of the defendants' claims of pending appeals and the death of one of the defendants.

3. Facts of the Case:
The plaintiff, Andrew Mukulu, sought to execute a court judgment that awarded him half of the land parcel No. Isukha/Shirere/589, which belonged to the estate of the late Enos Keya Kinadoso. The defendants, Miriam Ijai and Elphas Aradi, were initially resistant to signing the necessary documents for the transfer, prompting Mukulu to file an application for the court to allow the Deputy Registrar to execute the documents on their behalf. The defendants contended that they had filed an appeal against the judgment and noted that the first defendant, Miriam Ijai, was deceased, necessitating time to substitute her in the proceedings.

4. Procedural History:
The case progressed as follows:
- The initial judgment was delivered on 23rd July 2019, favoring the plaintiff.
- The defendants filed an appeal on 23rd September 2019.
- Following the death of the first defendant, the plaintiff filed an application on 18th February 2020, seeking permission for the Deputy Registrar to execute the transfer documents due to the defendants' refusal to comply.
- The court considered the application and the defendants' oral submissions regarding the appeal and the need for substitution.

5. Analysis:
Rules:
The court referenced Order 24 Rule 10 of the Civil Procedure Rules, which stipulates that the rules regarding the necessity for a legal representative do not apply in execution proceedings. This provision allows for the execution of a decree without requiring substitution of parties due to death.

Case Law:
The court cited the case of *Eunice Kirunda Kinyua v. Josephat Mwathi Kibiri (2018) eKLR*, where it was held that a suit does not abate due to the death of a defendant if the judgment is delivered within the prescribed period. The court emphasized that execution can proceed against the estate of the deceased as long as the judgment was rendered while all parties were alive.

Application:
The court applied the rules and case law to the facts of the case, concluding that since the judgment was delivered while all parties were alive, and given the subsequent death of the first defendant, the execution could proceed without the need for substitution. The court found the application merited and granted it, allowing the Deputy Registrar to execute the necessary documents.

6. Conclusion:
The court ruled in favor of the plaintiff, granting the application for the Deputy Registrar to execute the transfer documents on behalf of the defendants. This decision underscored the principle that execution of judgments can occur despite the death of a party involved, provided the judgment was rendered while all parties were alive.

7. Dissent:
There was no dissenting opinion noted in the ruling, as the decision was unanimous and granted without costs.

8. Summary:
The outcome of *Andrew Mukulu v. Miriam Ijai and Elphas Aradi* affirmed the court's authority to allow execution of judgments without requiring substitution of parties in certain circumstances, particularly where a party has died after the judgment was delivered. This case has significant implications for the enforcement of civil judgments in Kenya, reinforcing the ability of courts to ensure that justice is served without unnecessary delays due to procedural technicalities.

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