Wellington Muramba v Hazel Tendai Hanyani (In her capacity as Executrix of the estate of the late Vincent Matongo DR No. 1954/18) and Others

The matter arose from an earlier dispute (HH 288/16) where Vincent Matongo had sued Applicant (Wellington Muramba) for refund of $92,000 paid towards purchase of a house after Applicant cancelled the agreement of sale in January 2013. Vincent also claimed $24,450 for improvements (perimeter wall and borehole) and $1,000 rental. The High Court ruled in Vincent's favor in May 2016. Applicant appealed to the Supreme Court. Vincent died in 2018 and his estate was registered as DR 1954/18, with Hazel Tendai Hanyani (First Respondent) appointed as Executrix. The Supreme Court partially upheld the appeal in October 2019, ordering Applicant to pay $92,000 (deposit refund), $20,800 (improvements), interest, and three-quarters of costs. A writ of execution was issued on 21 January 2020 citing the deceased Vincent as Plaintiff, which was withdrawn after Applicant challenged it. On 27 September 2021, another writ was issued, again citing the deceased and containing errors in party designation. Applicant sought to set aside this defective writ.

• Whether a writ of execution issued in the name of a deceased party is valid
• Whether proper substitution of the executor/executrix is required before issuing a writ of execution
• Whether technical defects in a writ of execution warrant setting it aside
• What is the appropriate costs order where an applicant succeeds on a technical point while avoiding substantive obligations

1. The writ of execution issued on 27 September 2021 is set aside. 2. Each party bears its own costs.

Where a party to proceedings dies, the executor, curator, trustee or other legal representative must comply with Rule 32(9) of the High Court Rules 2021 by filing a notice with the registrar and serving all parties stating that they wish to be substituted for the deceased party. Only after proper substitution can a writ of execution be validly issued in the name of the legal representative in their representative capacity. A writ of execution issued in the name of a deceased person is fatally defective and must be set aside. Technical compliance with substitution procedures is mandatory before enforcement proceedings can proceed.

The court observed that it is unacceptable for a party who has been found liable by the Supreme Court to clutch at technicalities instead of honoring their obligations. While condoning technical errors in pleadings where parties are unrepresented and where technicalities would prejudice substantive justice, the court will not reward a party who uses procedural defects to avoid meeting confirmed legal obligations. The court also noted that when a debt is incurred in a specific currency (US dollars in this case), absent a court order to the contrary, payment should be in that same currency and not an equivalent in another currency.

This case clarifies the procedural requirements for execution of judgments where a party has died. It emphasizes the importance of proper substitution procedures under Rule 32(9) of the High Court Rules 2021 before enforcement proceedings can be validly instituted. The case also demonstrates judicial discretion in costs awards, particularly where a party succeeds on technical grounds while attempting to avoid substantive legal obligations. The judgment balances strict procedural compliance with considerations of substantive justice and good faith in litigation.