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ELCPartially AllowedNot stated in judgment· [2013] KEELC 153 (KLR)

Humphrey Mbaka Nandi v Jennifer Nyambura Kamau [2013] KEELC 153 (KLR)

Environment and Land Court (as per judgment; judge delivered it at Nyeri)
29 November 2013
742 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a deceased person's estate, not the administrator personally, pays suit costs, and arrest warrants must follow the correct legal procedure.

What this practically means

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Executive summary

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The defendant, Jennifer Nyambura Kamau, administratrix of the estate of Moses Kamau Mwangi (deceased), brought a Notice of Motion dated 12th October 2012 under Section 3A of the Civil Procedure Act seeking to set aside a warrant of arrest issued against her on 14th September 2012 and to bar all execution against her. Her position was that the costs of the suit in which Humphrey Mbaka Nandi had successfully sued her as legal representative of the deceased's estate - over land parcel NGINDA/SAMAR/BLOCK2/315 - were payable by the estate, not by her personally, and that the plaintiff had misled the court in obtaining the warrant. The plaintiff maintained that the defendant should pay costs as per the certificate as administratrix. Ombwayo J held that the judgment of Sergon J was clear that costs were to be paid from the estate and not by the defendant personally. The court further held that the notice to show cause issued under Order XXI rule 18 of the Civil Procedure Rules, 2010 was illegal to the extent it suggested the judgment debtor could be arrested and jailed for six months, since rule 18 only provides for notice as to execution against a legal representative, and the Deputy Registrar has no power to order arrest and imprisonment under that rule. The proper procedure for arrest and imprisonment lies under Order XXI rules 32 to 35. The court directed the defendant to appear before the Deputy Registrar under rule 18, with rules 33, 34 and 35 to follow, and ordered each party to bear its own costs.

Key legal issues

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01

Whether costs of the suit were payable by the defendant personally

Holding

The judgment of Sergon J was clear that costs were payable by the estate of the deceased, not by the defendant personally

Reasoning

The plaint sought costs against the defendant as legal representative of the estate, and the judgment directed that costs be met by the estate. The defendant, as administratrix, was liable to have costs paid from the estate but not personally; accordingly the warrant of arrest issued against her personally was misconceived.

p. 2
02

Legality of the notice to show cause and warrant of arrest

Holding

The notice to show cause implying payment or six months' jail was illegal, as arrest and imprisonment cannot issue under Order XXI rule 18

Reasoning

Order XXI rule 18 only provides for notice to show cause why execution should issue against the legal representative of a deceased person. It does not authorise arrest and imprisonment. Arrest and imprisonment in execution of a money decree are governed by Order XXI rules 32 to 35, and imprisonment of a legal representative requires proof of refusal to pay from the estate.

p. 2

Legal principles established

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  • A legal representative of a deceased judgment debtor cannot be arrested and imprisoned in execution unless it is established that he or she has refused to pay the decretal sum from the estate
  • Under Order XXI rule 18 of the Civil Procedure Rules, 2010, the Deputy Registrar has no power to order arrest and imprisonment; the rule only provides for notice to show cause why execution should not issue against the legal representative of a deceased person
  • The procedure for execution by arrest and imprisonment of a judgment debtor is provided for in Order XXI rules 32, 33, 34 and 35, not Order XXI rule 18

Court orders

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  1. 1.The warrant of arrest issued against the defendant on 14/9/2012 was set aside in effect; the defendant/judgment debtor to appear before the Deputy Registrar to show cause why execution should not issue against her as legal representative under Order XXI rule 18
  2. 2.Thereafter, the procedure under Order XXI rules 33, 34 and 35 to follow
  3. 3.Each party to bear its own costs
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power of the court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Humphrey Mbaka Nandi v Jennifer Nyambura Kamau [2013] KEELC 153 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/153/eng@2013-11-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.