https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3482

 ***REPUBLIC OF KENYA*** ***IN THE ENVIRONMENT AND LAND COURT AT NAROK*** ***ELC CASE NO. 16 OF 2017*** ***REHEMA ABDI (suing as the Legal Representative of the Estate of AhmedAbdi Murasa)……………PLAINTIFF/APPLICANT*** ***VERSUS*** ***ZAKARIA NJENGA KAMITI …… 1ST DEFENDANT/RESPONDENT*** ***KONENE NARANKAIK ………… 2ND DEFENDANT/RESPONDENT*** ***RULING*** 1. The matter for the determination is the ***Notice of Motion Application*** dated ***18th August 2025*,** pursuant to ***Sections 1A, 1B, 3A, 37, 63*** ***(e) & 80*** of the ***Civil Procedure Act***, and ***Article 159*** of ***the Constitution of Kenya 2010,*** wherein the Plaintiff/Applicant has sought for the following Orders; * 1. ***There be stay of execution of the Decree in respect of costs pending the inter parties hearing and determination of this Application.*** 2. ***The Warrants of Attachment and Warrants of Sale issued on 23rd July 2025, be lifted, set aside, reviewed and/or discharged.*** 3. ***There be a declaration and/or finding that the Judgment Debt is due from the Estate of Ahmed Abdi Murasa (Deceased) and that Rehema Abdi as the Legal Representative of the Estate of Ahmed Abdi Murasa (Deceased), is not personally liable for the judgment debt, but only liable to the extent of any property of the Deceased that has come into her hands in accordance with Section 37(2) of the Civil Procedure Ac*** 4. ***That costs of the Application be provided for.*** 2. The Application is supported by the grounds set out on the face of the Application, and on the Supporting Affidavit of ***REHEMA ABDI***, the Plaintiff/Applicant herein and the Legal Representative of the ***Estate of Ahmed Abdi Murasa (Deceased).*** 3. The grounds in support of the Application are; that the Deceased filed this suit seeking orders of ***Adverse possession*** against the Defendants in respect of land parcel known as ***NAROK/TOWNSHIP/163,*** which suit wassuccessful before this court, but which decision was set aside in ***Nakuru Court of Appeal Case No. 245 of 2019,*** wherein his estate was condemned to pay all costs. 4. Further that the Deceased died before the initial judgment was delivered and ***Rehema Abdi,*** was issued with ***Grant Ad litem,*** to substitute the Deceased in the proceedings herein; that the costs of the suit were assessed in the sum of ***Kshs. 941,225****/****00*** on ***29th******May 2025***. 5. That the 1st Defendant successfully applied for ***Warrants of Attachment*** and ***Sale of assets*** belonging to ***Rehema Abdi,*** and the same were issued on ***23rd July 2025;*** that the 1st Defendant, the ***Decree holder*** herein purports to execute the Decree herein against ***Rehema Abdi personally*** instead of the Estate of the Deceased. 6. That ***Section 37(2)*** of the ***Civil Procedure Act,*** provides that a Legal Representative of the Deceased is only liable to the extent of the estate of the Deceased in her hands; that the estate of the Deceased is yet to be administered; that ***Rehema Abdi*** has urged her siblings to commence ***Succession proceedings*** in respect to the estate of the Deceased, wherein the Decree holder shall be included as ***a Creditor*** to facilitate payment of the ***Judgment debt*** before distribution of the estate. 7. That the aforesaid ***Warrants*** seeking to recover the ***Judgment debt*** owed by the Estate from the legal representative personally were issued per incuriam and are improper and tantamount to circumventing and short circuiting the lawful mode of collecting debts from a deceased person. That the Decree Holder shall not suffer any prejudice if the Court grants the Orders sought in the said Application; and that it is in the interest of justice that the Court allows the Application. 8. In her Supporting Affidavit, the Plaintiff/Applicant reiterated the grounds in support of the Application and prayed that the court allows the in Application as prayed. 9. The 2nd Defendant/Respondent filed a Replying Affidavit in opposition to the Application, which Affidavit was sworn on ***18th October 2025,*** wherein he averred: that the Plaintiff/Applicant is the ***Personal Representative*** of the Estate of the deceased and is liable to satisfy the **Costs** awarded to him by the court. 10. Further, that the Plaintiff/Applicant actively participated in the taxation proceedings leading to the ***resultant Certificate of Taxation*** dated ***29th May 2025,*** and has never raised the issue that she did not have the assets of the estate of the Deceased. Further that the Deceased died in ***2018,*** and the Plaintiff/Applicant has not commenced ***Succession proceedings*** in respect to his estate; that the Plaintiff/Applicant’s intention is get the Orders sought in the Application and continue delaying payment of his costs. 11. The 2nd Defendant/Respondent averred that he is greatly prejudices by the orders sought in the Application herein and that he will continue to be prejudiced as he cannot enjoy the fruits of the judgment delivered in his favour in ***NAKURU COACA No. 245 of 2019****;* and that the instant application seeking stay of execution is an afterthought, and that the same should be entirely dismissed with costs to him. 12. The Instant Notice of Motion Application was canvassed by way of written submissions. 13. The Plaintiff/Applicant filed her Written Submissions dated ***20th February 2026,*** in support of her Application dated ***18th August 2025,*** and submitted that the attempt by the 1st Defendant to attach ***her personal assets*** is contrary to the provisions of ***Section 37(2)*** of the ***Civil Procedure Act,*** which states that ***a Legal Representative*** is only liable to the extent of the deceased’s property in her hands. 14. She further submitted that she only holds a ***Grant of Letters of Administration Ad litem***, which ***Grant is limited***, and not ***a full grant*** of administration; that no property of the Deceased has come into her hands as the estate is yet to be administered and distributed; and that ***the judgment debt*** is the liability of the estate of the Deceased, and not hers personally. 15. In support of her argument, reliance was sought in the case of ***Standard Chartered Bank Kenya Limited vs. James Akalich* (2014) eKLR,** where the court held that a ***Legal Representative,*** cannot be ***held personally liable*** for the debts of a Deceased person unless proven that they have intermeddled with or wasted the Deceased’s estate. 16. The Plaintiff/Applicant further submitted that as a family, they have engaged a consultant in ***Islamic law*** ,to help them navigate the ***succession process*** and that the ***Decree holder*** shall be the 1st person to be paid. 17. The Plaintiff/Applicant further submitted that the ***Warrants of Attachment*** ***and Sale*** issued on ***23rd July 2025,*** seeking to recover a debt owed by the Estate of the Deceased from her ***personal assets*** were issued ***per incuriam*** and that allowing such execution would amount to bypassing the lawful mode of collection from a Deceased’s estate and a disregard of succession laws where a Decree Holder should participate in the administration of the estate as a creditor. 18. Reliance was sought in the case of ***National Bank of Kenya Ltd vs Rose Njoki Githunguri* *(2015) eKLR,*** where the court held that warrants of attachment issued against the personal property of a legal representative of the estate of a deceased person are irregular and the same should be set aside. 19. The 2nd Defendant/Respondent subsequently filed written submissions dated ***11th March 2026,*** in support of his Replying Affidavit sworn on ***8th October 2025,*** and in opposition to the ***Notice of Motion Application*** dated ***18th August 2025****.* 20. It was submitted that the ***Warrants of Attachment and Warrants of Sale*** issued on ***23rd July 2025,*** are regular, arise from a valid court judgment and that they should neither be set aside nor reviewed; that the Application seeking to set aside such warrants ought to prove substantial prejudice or procedural irregularities, such as improper service or wrongful proclamation, which the Plaintiff/Applicant has not proven. 21. He relied on the case of ***Republic vs. Kenyatta University; Losem Naomi Chepkemoi (Ex Parte)* [2021] eKLR** where the Court held that: ***“… However, as between a decree holder and judgment holder the Civil Procedure Rules only provide either for stay of execution pending determination of a suit between the parties under Order 22 Rule 25 of the Civil Procedure Rules; or for the withdrawal of an attachment or termination of execution under Order 22 Rules 49 and 50. In the latter case, an attachment can be terminated in the following circumstances****;* 1. ***The decreed amount, all costs, charges, and expenses from the attachment of property are paid into the court, or*** 2. ***Satisfaction of the decree is made through the court or certified to the court, or*** 3. ***The decree is set aside or reversed upon application.*** ***Other than the above procedure which is the one available to the Respondent herein as judgment-debtor, the only other applicable procedure for lifting warrants of attachment and sale are the objection proceedings by a third-party objector is provided in Order 22 Rule 51 to Rule 54.*** ***It is evident that the Respondent has applied a wrong procedure in seeking to have the warrants of attachment and sale lifted, and has not demonstrated any of the grounds provided by law for such attachment to be substantively determined, since the decree that is the basis of the execution herein still remains valid and unsatisfied.”*** 1. Further reliance was sought in the case *of* ***Macharia vs. Mutungi (Being an administrator of the Estate of the Late Maina Koine) (Environment and Land Appeal 6 of 2023) [2025] KEELC 36 (KLR) (Ruling)*** where the court stated as follows: ***“Consequently, the court finds and holds that the warrants of attachment issued by this court were procedurally and lawfully issued. There would be no justification therefore to recall and or set aside the warrants of attachment…”*** ***“… In a nutshell, as at 17th September 2024, the warrants were valid and the auctioneer acted lawfully in terms of Rule 12 of the Auctioneers Rules. If the warrants expire before full extension, as a consequence of the orders staying execution, the auctioneer is obligated to apply for their extension for a period not exceeding 45 days within which he shall finalize the execution.”*** ***“I do think that the application herein was merely calculated at delaying execution and nothing more. This application has no merits. It is hereby dismissed with costs to the Respondent”*** 1. It was the 2nd Defendant/Respondent’s submission that the Plaintiff/Applicant is the ***Personal Representative*** of the estate of the Deceased and is liable under the law to satisfy the ***costs awarded*** by the Court to the him; and that she actively participated in the taxation proceedings that resulted into the Certificate of taxation dated ***29th May 2025***. 2. This Court has carefully considered the instant Application, the Court Record in general, cited provisions of law together with the rival written submissions and the annexures thereto and renders itself as follows: 3. On stay of execution of the Decree issued in ***NAKURU COACA No. 245 of 2019,*** it is evident that it was for the then Plaintiff as the Respondent to pay the costs to the Defendant as Appellant, and that the current Plaintiff/Applicant herein took over the suit from the Deceased pursuant to ***a Grant of Letters of Administration Ad Litem***, which Grant is limited for the purpose of prosecution or defending a suit on behalf of the estate of the Deceased as was held by the court in the case of ***Republic v Mbeere South Sub County Deputy Commissioner & 2 others; Ireri (Interested Party); Murage (Exparte) [2022] KEELC 4737 (KLR)****.* 4. Under ***Sections 37 and 39*** of the ***Civil Procedure Act***, where a decree is issued against a person in his capacity as ***a Legal Representative*** of a deceased’s estate, execution does not automatically lie against the ***Personal property*** of that ***Legal Representative***. Rather, liability is limited only to the estate’s property that came into his/her hands and has not been duly administered. 5. ***Section 39(1)*** of the ***Civil Procedure Act*** specifically provides that where a decree is passed against a party as ***a Legal Representative*** of a deceased person, and the decree is for payment out of the deceased’s estate, execution may only proceed through ***attachment and sale of the estate’s property***. It is only under ***Section 39(2)*** that execution may issue personally against the ***Legal Representative,*** and even then, only to the extent that he/she has failed to account for estate assets proved to have come into his possession. 6. The Court in in the case of ***David Kirimi Charles v Muntu Kirimana Mungania [2017] KEHC 8120 (KLR),*** emphasized that ***a Legal Representative*** is not ***personally liable*** for a decree against a deceased person unless the court first establishes that the estate assets came into his possession and were misapplied or not duly accounted for. 7. Similarly, in the case of ***Nyambura & another v Baiya [2024] KEHC 8190 (KLR)****,* the Court reiterated that execution against the ***Legal Representative*** is restricted to the assets of the estate and not the ***personal assets*** of the Administrator unless the statutory threshold under ***Section 39(2)*** is satisfied. 8. Accordingly, although this Court has found that the ***Warrants of Attachment*** were ***procedurally issued***, the crucial question is whether the property proclaimed belonged to the estate of the deceased or constituted the ***personal*** ***property*** of the Plaintiff/Applicant. 9. If the proclaimed goods form part ***the Legal Representative’s personal property***, execution against the said property would be ***unlawful*** ***absent a*** ***prior finding*** by the Court that Plaintiff/Applicant had wasted, misapplied, or failed to account for estate assets within the meaning of ***Section 39(2)*** of the ***Civil Procedure Act***. No such finding appears on record, nor has the ***Decree-holder*** demonstrated that the attached assets formed part of the estate of the deceased. 10. In the circumstances, this Court finds and holds that execution against the ***Plaintiff/Applicant’s personal assets*** was i***mprope***r and contrary to ***Sections 37 and 39*** of the ***Civil Procedure Act***. The proclamation and intended ***Attachment,*** to the extent that they targeted the ***Applicant’s personal property*** as opposed to ***estate’s property***, cannot stand. 11. In the present matter, the Plaintiff/Applicant moved this Court in her capacity as the ***Personal Representative*** of the estate of the deceased, pursuant to a ***Grant ad litem*** issued to her. The ***Warrants of Attachment*** herein were issued against her ***personal property,*** yet there is no evidence placed before this Court demonstrating that the proclaimed goods form part of the estate of the deceased, neither is there any prior finding by the Court that the Applicant misapplied, wasted, or failed to account for estate assets so as to justify execution against her personally. 12. The Court therefore finds and holds that the Applicant has established an ***arguable and prima facie meritorious*** case warranting preservation of the ***status quo pending*** the hearing and determination of the application. Unless stay is granted, the Applicant stands to suffer substantial loss through attachment and sale of ***her personal property*** in satisfaction of a decree that was not issued against her personally. 13. Further, the Court is alive to the principle that the purpose of stay of execution is to preserve the subject matter so that the proceedings are not rendered nugatory. In ***Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR),*** where it was held that the discretion to grant stay should be exercised in such a manner as not to render an appeal or intended proceedings nugatory. 14. In the circumstances, and in the interest of justice, this Court is satisfied that the Plaintiff/Applicant’s Application dated ***18th August 2025*,** is ***merited*** and the same is ***allowed entirely*** in terms of ***prayers 2,3 and 4*** with costs being in the cause. **It is so ordered**. **Dated, signed and delivered virtually at Narok this 28th day of May 2026.** **L. Gacheru** **Judge** **Delivered online in the presence of:** **Elijah Meyoki – Assistant** **Mr. Thuita for the Plaintiff/Applicant** **N/A for the 1st Defendant/ Respondent** **Mr. Ngaruiya for the 2nd Defendant/Respondent** **L. Gacheru** **Judge**