https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3572

Kamau & another (Administrators of the Estate of the Late Lucy Nyambura alias Rachel Nyambura Kamau) v Gatheca & another (Environment and Land Case 136 of 2020) [2026] KEELC 3572 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3572 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 136 of 2020 JG Kemei, J June 10, 2026 Between Justus Ndungu Kamau 1st Plaintiff Judy Wanjiku Kamau Kiruri 2nd Plaintiff Administrators of the Estate of the Late Lucy Nyambura alias Rachel Nyambura Kamau and Joseph Kimani Gatheca 1st Defendant Githunguri Ranching Co. Ltd 2nd Defendant Ruling (In respect of the Plaintiffs’ application dated 11/4/2025, 1st Defendant’s application dated 6/10/2025 and the 2nd Defendant’s application dated 24/11/2025) The background 1.For determination before this Court are three applications filed by the parties as follows; the Plaintiffs’ Notice of Motion application dated 11/4/2025, the 1st Defendant’s application dated 6/10/2025 and the 2nd Defendant’s application dated 24/10/2025. The Plaintiffs’ application 2.The Plaintiffs’ application is expressed to be brought under the provisions of Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act and Order 45, Order 51 Rule 1 and 3 of the Civil Procedure Rules. In the main, the Plaintiff prays for the following orders;a.That there be an order of review and variation of orders given vide Judgment dated 28/11/2022 and enter the same in favour of the Plaintiff as per the Amended Plaint filed on 10/9/2019.b.That the costs be provided for. 3.The application is premised on the grounds set out on the face of it and further supported by the Affidavit of Judy Wanjiku Kamau Kiruki, dated the same day. The deponent states that judgment in respect of this suit was delivered on 28/11/2022 by Hon. Justice M.D. Mwangi, and that the Court dismissed the Plaintiffs’ case with costs to the 1st Defendant. The subject matter of the dispute is the parcel of land known as Ruiru/Kiu Block 2/4268, which had been balloted and allotted to the Plaintiffs by the 2nd Defendant. The 1st Defendant is alleged to have acquired the said parcel irregularly, illegally, and fraudulently. 4.The deponent avers that the judgment was based on the testimony of the 1st Defendant’s witnesses, John Rimui Waweru and Francis Kairianja Njoroge, who appeared as directors of the 2nd Defendant. These witnesses falsely told the Court that the land was balloted by Francis Njenga Gitau on 28/9/1984, cleared by the 2nd Defendant, and that a title was issued to him on 5/8/1999. 5.She avers that, by a letter dated 25/3/2025, the 2nd Defendant formally notified the deponent and provided records confirming that the land belongs to the Plaintiff under ballot Number 494. The 2nd Defendant’s records, including its register of members, unequivocally show that Francis Njenga Gitau was never a member of the 2nd Defendant and therefore could not have lawfully balloted or been cleared for title. The deponent asserts that the 1st Defendant’s testimony was therefore based on perjury, fraud, and misrepresentation. 6.The deponent avers that new and material evidence has been discovered, which, despite due diligence, was unavailable at the time of judgment. The 1st Defendant has since commenced execution proceedings to attach the Plaintiffs’ land, known as Ruiru West Block 1/1904. The applicant risks substantial and irreparable loss unless a temporary stay of execution is granted. The application is brought without undue delay and in good faith, and it is in the interests of substantive justice that the orders sought be granted. The 1st Defendant’s Replying Affidavit 7.The 1st Defendant opposed the application by the Replying Affidavit sworn on 29/4/2025. The 1st Defendant confirms that judgment was entered in her favour on 28/11/2022, and that she thereafter taxed her costs, resulting in a certificate of costs dated 9/7/2024 in the sum of Kshs. 719,887/=. She further asserts that the issues of irregularity, illegality, or fraud concerning property Ruiru Kiu Block 2/4268 were fully determined in that judgment and ought not to be reopened unless on appeal. Notably, the Plaintiffs have since withdrawn the appeal initially preferred. Regarding her witnesses, John Rimui and Francis Kairianja, the 1st Defendant states that they were called not as current directors of the 2nd Defendant but as former directors, a fact reflected in their witness statements and in Paragraphs 39 and 42 of the Judgment. She further contends that the Judgment was issued on the totality of the evidence adduced, not merely the testimonies of those witnesses. She therefore contends that the Plaintiffs’ assertion that these individuals represented the 2nd Defendant at the hearing is misleading. 8.The 1st Defendant further deposes that the Plaintiffs have consistently sought to argue their case outside their pleadings, noting that neither Francis Gitau nor her vendor, Kinyanjui Njuguna, was ever sued. Consequently, the Plaintiff cannot impute any fraud or illegality to her, as her purchase was an outright transaction. She adds that after the dismissal of the Plaintiffs’ case, an application to the Court of Appeal was also dismissed, partly because the suit land had been subdivided and third-party purchasers were not joined. She attached the Ruling marked “JK3”. 9.Finally, the 1st Defendant avers that the Plaintiffs’ application herein, purportedly based on new documents or evidence, cannot stand because those documents were within the Plaintiffs’ and the 2nd Defendant’s knowledge. She prays that the application be dismissed with costs, as it was intended to delay execution and defame her character. The 1st Defendant’s application dated 6/10/2025 10.The 1st Defendant’s application is expressed to be brought under the provisions of Section 1A & 1B, 39(1) of the Civil Procedure Act, Order 21, Order of the Civil Procedure Rules and Section 68 of the Land Registration Act. Substantively, the 1st Defendant prays for orders that;a.The Court do allow the applicant to proceed and execute for the awarded costs amounting to Kshs. 719,887/= plus interest as against the property number Ruiru West Block 1/1904 and Ruiru Kiu Block 2/3122, property registered in the name of the deceased or any other property in the name of the deceased for satisfaction of the awarded costs.b.Costs of this application be provided for. 11.The application is based on the grounds set out on the face of it and further supported by his Affidavit of even date. The 1st Defendant asserts that the Court taxed his costs in the matter at Kshs. 719,887/- and a further sum of Kshs. 226,820/=, as evidenced by the Certificate of costs annexed thereto. He avers that these sums continue to attract interest and remain unpaid. The deponent contends that, in total disregard of the outstanding debt, the Plaintiffs have proceeded to distribute the deceased's estate without providing for or acknowledging settlement of the debt. He further contends that a copy of the confirmation of grant in respect of the deceased's estate shows that the properties known as Ruiru West Block 1/1904 and Ruiru Kiu Block 2/3122 remain in the name of the deceased under the administration of the Plaintiffs. 12.He avers that a prior attempt to execute directly was declined by the Deputy Registrar, who opined that Court permission is required, a position confirmed by his counsel. He prays that he be granted leave to attach the properties to recover the taxed costs before the administrators auction them. The Plaintiff’s Replying Affidavit 13.In response to the 1st Defendant’s application, the Plaintiffs filed the Replying Affidavit, sworn by Judy Wanjiku Kamau Kiruki on 20/11/2025. The deponent asserts that, in light of their application dated 11/4/2025 for review, the 1st Defendant’s application should be stayed pending its determination. The 2nd Defendant’s application 14.The 2nd Defendant’s application is expressed to be brought under the provisions of Section 1A, 1B & 3A of the Civil Procedure Act, Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules. The 2nd Defendant prays for orders that:a.This Honourable Court be pleased to set aside judgment delivered on 28/11/2022 and all consequential orders thereto in relation to land parcel Ruiru Kiu Block 2/4268.b.This Honourable Court be pleased to allow the 2nd Defendant to file its defence out of time.c.This Honourable Court be pleased to make such other orders that are appropriate in the circumstances. 15.The application is, on its face, supported by the affidavit of John Maina Mburu, the current chairman, sworn on 24/11/2025. The deponent avers that the 2nd Defendant is a land-buying company, originally formed in 1968 by members of the public for the purpose of acquiring parcels of land in Ruiru. He states that its members contributed funds, purchased shares, and were issued with share certificates upon full payment. Thereafter, the members balloted for the plots. He asserts that the Plaintiff was such a member. Having made the requisite payments and having a share certificate duly issued to him, he successfully balloted for ballot number 494, which resulted in the allocation of land parcel RUIRU KIU BLOCK 2/4268, with no other person being entitled to the same ballot. 16.The deponent deposes that the 2nd Defendant failed to participate in the present proceedings because, as its chairman and the legal custodian of all company documents, he was seriously ill for much of 2022 and 2023, as evidenced by the annexed medical documents. During that period, the company’s affairs, including Court appearances relating to its land matters, came to a halt, thereby causing a travesty of justice. 17.It is further deposed that the 2nd Defendant has a strong defence, as set out in the annexed draft defence. He prays that the 2nd Defendant be afforded an opportunity to be heard on the merits. The 1st Defendant’s Replying Affidavit 18.The 1st Defendant opposes the 2nd Defendant’s application, as set out in his Replying Affidavit sworn on 27/11/2025. The 1st Defendant summarises the litigation history of the dispute and contends that the Plaintiffs have persistently pursued the matter through various Courts since 2006. It is deposed that the Plaintiffs initially filed the claim in Gatundu CMCC No. 315 of 2006, but later withdrew it. Thereafter, a substantially similar suit was filed in Thika CMCC No. 1234 of 2010, which was dismissed for want of jurisdiction. The Plaintiffs subsequently lodged an appeal in High Court Civil Appeal No. 397 of 2012, Nairobi, which, upon the establishment of the Environment and Land Court, was converted into ELC Appeal No. 66 of 2015. By consent of the parties, the appeal was finalised with directions that the dispute be heard on its merits, and the matter was transferred to the Environment and Land Court at Nairobi, culminating in the instant suit. 19.The deponent further avers that the 2nd Defendant was at all material times aware of the proceedings and was actively represented. It is stated that advocates from the firm of Muchoki Kang’ata & Njenga, including Advocate Kihara and later Miss Swaka, appeared for the 2nd Defendant on several occasions before both the Court and the Deputy Registrar. Specifically, appearances are said to have been made on 8/6/2021, 9/6/2021, and 22/11/2021, when directions were issued and a hearing date of 28/2/2022 was fixed. Despite these appearances and opportunities to participate, the 2nd Defendant allegedly failed to file a defence or attend the hearing on 28/2/2022. The deponent further states that no notification was ever given to the Court regarding the alleged illness of the 2nd Defendant, and that subsequent hearing notices, including one for 28/4/2022, were duly served upon his advocates. 20.The deponent asserts that the 2nd Defendant later changed advocates to the firm of Kanyi Kiruchi Advocates but remained largely inactive despite being aware of the proceedings and the judgment on record. The deponent contends that the 2nd Defendant has known of the suit throughout its pendency since 2006 and cannot credibly attribute its failure to participate to its Chairman’s alleged illness between 2022 and 2023. It is further averred that the judgment entered in favour of the 1st Defendant does not prejudice the 2nd Defendant, and that the present application to set aside the dismissal is unnecessary and appears motivated by personal grievances rather than any legitimate legal prejudice, as the 2nd Defendant had ample notice and opportunity to be heard. 21.The deponent avers that the 2nd Defendant’s claim of sickness by one John Mburu Maina is unsupported by any medical evidence or official documentation, and that the alleged M-Pesa payments to Agha Khan Hospital do not identify the patient or the nature of the illness. It is further contended that the screenshots presented lack the electronic certificates required under the Evidence Act, rendering them inadmissible. The deponent also notes that the 2nd Defendant appointed new counsel in 2022 yet failed to move the Court for over three years after judgment, constituting inordinate and unexplained delay. 22.The deponent asserts that the 2nd Defendant’s board includes other directors, such as the Secretary and Treasurer, who could have testified if the alleged illness were genuine. Notably, one Njenga, a partner at the firm that initially represented the 2nd Defendant and who serves as the 2nd Defendant’s Secretary, must have been aware of the claimed sickness, and his failure to alert the Court suggests the sickness is an afterthought. A copy of the CR12 showing Njenga as Secretary is annexed as evidence. In relation to the draft defence, the deponent avers that it seeks dismissal of the case, which the Court has already granted. 23.He further states that Francis Njoroge, a former secretary of the 2nd Defendant who testified for the 1st Defendant, is now deceased, thereby causing substantial prejudice to the 1st Defendant if the judgment were set aside. Accordingly, the 1st Defendant argues that the 2nd Defendant’s application is without merit and should be dismissed with costs to the 1st Defendant. Directions on submissions 24.The Court directed the parties to file their submissions. The parties complied. The Court has read and duly considered the submissions in its analysis and determination. Analysis and determination 25.I have considered the applications, the rival affidavits thereto and the submissions filed in support thereof. I distil the following three issues for determination:a.Whether the Judgment delivered on 28/11/2022 in this suit should set aside as sought by the 2nd Defendant;b.Whether the Judgment delivered on 28/11/2022 in this suit should reviewed as sought by the Plaintiffs;c.Whether leave to execute for costs should be granted to the 1st Defendant as sought;d.Who should bear the costs of the suit? Whether the Judgment delivered on 28/11/2022 in this suit should be set aside as sought by the 2nd Defendant; 26.The grant of orders for setting aside a judgment provides an opportunity to an aggrieved party under two scenarios: one, where the judgment is irregular; two, where the judgment is regular. For an irregular judgment sought to be set aside, it shall go that way as of right, because it means that the party was not given an opportunity to be heard, and the rules of natural justice cannot permit a party to be condemned unheard. The Court ought to set it aside ex debito justiciae, which means as a matter arising from justice. 27.On the other hand, setting aside ex parte judgment, is discretionary where the ex parte judgment was regular. In both cases, the concern of the Court should be to do substantive justice to all the parties in the suit. 28.Article 50 of the Constitution guarantees fair hearing and sub article (1) thereof provides as follows;Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body. 29.Order 12 Rule 7 of the Civil Procedure Rules, 2010 empowers the Court to set aside or vary a judgement or Order entered as a consequence of the non-attendance of any party. It provides that: -“Where under this Order judgment has been entered or the suit has been dismissed, the Court, on application, may set aside or vary such judgment or order upon such termsas may be just.” 30.Further the provision is buttressed by Order 51 Rule 15 of the Civil Procedure Rules which provides: -“The Court may set aside an order made ex parte" 31.The well-established principles of setting aside interlocutory judgments were laid out in the case of Patel –vs- East Africa Cargo Handling Services Ltd (1974) EA 75 as per Duffus P. who stated as follows:“The main concern of the Court is to do justice to the parties and the Court will not impose conditions on itself to fetter the wide discretion given to it by the rules. I agree that where it is a regular judgement as is the case here the Court will not usually set aside the judgement unless it is satisfied that there is a defence on the merits. In this respect defence on merits, does not mean in my view, a defence that must succeed, it means as Sheridan J, put it “a triable issue” that is an issue which raises a prima facie defence and which should go to trial for adjudication.” 32.A distinction exists between a default judgment that is regularly entered and one which is irregularly entered. The difference between the two was elaborated in detail by the Court of Appeal in the case of James Kanyita Nderitu vs. Marios Philotas Ghika & Another [2016] eKLR where it was stated that;“…. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 Rule 11 of the Civil Procedure Rules, to move the Court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the Court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his Memorandum of appearance or defence, as the case may be, the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer, whether in the whole it is in the interest of justice to set aside the default judgement, among others.” 33.The considerations are however different in case of an irregular judgement. The Court stated as follows: -“In an irregular judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiciae, as a matter of right. The Court does not even have to be moved by a party once it comes to its notice that the judgment is irregular, it can set aside the default judgment on its own motion. In addition, the Court will not venture into considerations of whether the intended defence raises triable issues or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo -vs- Attorney General [1986 – 1989] EA 456).” 34.The right not to be condemned unheard is a cardinal principle of natural justice, without which the rule of law would be without equilibrium. This principle, like a golden thread, must be seen to run throughout all Court processes even as the Court strives to uphold the law and other legal principles. The legitimacy of Court decisions and the rule of law find their bearing on this principle. See case of Mandeep Chauhan vs. Kenyatta National Hospital & 2 Others (2013) e KLR. 35.At this juncture, I pose to ask myself whether the judgment entered in this matter was regular or irregular. To determine this, I have to determine whether the 2nd Defendant was duly served. 36.It is not in dispute that the 2nd Defendant was duly served with a Summons to enter an appearance. The record shows that the 2nd Defendant was at all material times aware of and actively represented in the proceedings. It in fact entered an appearance and appointed an advocate to represent it. The record specifically shows that the 2nd Defendant was duly represented in Court on 8/6/2021, 9/6/2021, and 22/11/2021, when directions were issued and a hearing date of 28/2/2022 was fixed. Despite these appearances and opportunities to participate, the 2nd Defendant neither filed a defence nor attended the hearing on 28/2/2022. As noted by the 1st Defendant, at no time was the Court notified of the alleged illness of the 2nd Defendant’s Chairman. 37.Further, although the 2nd Defendant changed its advocates from Muchoki Kangáta & Njenga to Kanyi Kiruchi Advocates on 9/9/2022, the latter firm was duly served with the hearing notice for 28/4/2022 but did not actively participate in the proceedings. 38.It therefore follows that the Court entered a regular judgment in this case, which can only be set aside upon satisfaction that there is a meritable defence; that the prejudice that will be occasioned to the parties; and that there is an explanation for the delay in bringing that application to set aside the judgement. 39.Regarding the merits of the Draft Defence, I note that it generally alleges that the 1st Defendant committed fraud in acquiring the Title to the suit property. It further contends that the 1st Defendant was not a member of the Plaintiffs, and hence could not claim any right from them. I have perused the Judgment and note that the issue of fraud was adequately addressed by the trial Court. The burden of proof lay with the Plaintiffs to prove their case. The Court noted that, having stated how he acquired the property, and with the Plaintiffs failing to join the previous owners, the Plaintiffs failed to prove their case to the required standard. The Draft Defence herein does not seek to join the previous owner from whom the 1st Defendant purchased the suit property. It is therefore unlikely to alter the Court’s finding. 40.As for the prejudice likely to be occasioned to the parties, I note that the dispute is mainly between the Plaintiffs and the 1st Defendant. The 1st Defendant averred that one of his witnesses, Francis Njoroge, a former secretary of the 2nd Defendant who testified for the 1st Defendant, is now deceased. Evidently, setting aside the Judgment and reopening the case for a fresh trial will be prejudicial to the 1st Defendant’s case. 41.As for the explanation for the delay in bringing the application to set aside the judgment, the 2nd Defendant argues that its Chairman, who is the custodian of its records, was unwell and therefore could not defend the suit. The 2nd Defendant is a registered company, and its records are not kept by an individual. Further, even if the said Chairman was indeed ill as alleged, that fact was never brought to the Court’s attention. It is equally my finding that there was inordinate delay in filing the instant application. Judgment was delivered on 28/11/2022, and the instant application was filed on 24/11/2025. That is 3 years after the judgment was delivered. 42.Based on the foregoing, I see no basis for varying or setting aside the Judgment delivered on 28/11/2025. It is therefore my finding that the 2nd Defendant’s application dated 24/11/2025 is not merited. Whether the Judgment delivered on 28/11/2022 in this suit should reviewed as sought by the Plaintiffs; 43.The power of this Court to review its own judgments is discretionary but must be exercised strictly within the confines of the law. The underpinning legal provision for seeking review is found in Section 80 of the Civil Procedure Act, which states that;“Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of Judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.” 44.The above provision is further augmented by Order 45 rule 1 Civil Procedure Rules that;“(1)Any person considering himself aggrieved—a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of Judgment to the Court which passed the decree or made the order without unreasonable delay.” 45.From the above provisions, it is clear that while Section 80 of the Civil Procedure grants the Court the power to order a review, Order 45 sets out the jurisdiction and scope of review, limiting it to the discovery of new and important matters or evidence, a mistake or error on the face of the record, and any other sufficient reason. 46.The Plaintiffs ground their plea for review squarely on the "discovery of new and material evidence" that, despite due diligence, was not available at the time of judgment. They aver that, subsequent to the delivery of the judgment herein, the 2nd Defendant has written to them confirming that its records indicate that the suit property belongs to the Plaintiffs under ballot number 494. 47.The Supreme Court of Kenya, in the case of Evan B. Nyairo & 2 Others v. Shell East Africa (as reaffirmed in Pancras T. Swai v. Kenya Breweries Limited [2014] eKLR), expounded on this principle, stating verbatim:“A review may be granted whenever the Court considers that it is necessary to correct an evident error or omission, or where there is a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made." 48.Discussing the scope of review, the Supreme Court of India in the case of Ajit Kumar Rath –vs- State Of Orisa & Others, 9 Supreme Court Cases 596 at Page 608 had this to say:-“The power can be exercised on the Application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ...means a reason sufficiently analogous to those specified in the rule”. 49.The Court of Appeal in the case of Stephen Wanyoike Kinuthia (suing on behalf of John Kinuthia Marega (deceased)) –vs- Kariuki Marega & Another (2018) eKLR stated categorically that where an Applicant in an Application for review seeks to rely on the ground that there was discovery of new and important evidence, that ground must be strictly proved. The Court of Appeal emphasised that an Application based on the ground of discovery of a new and important matter or evidence will not be granted without strict proof of that allegation. 50.The Plaintiffs’ case is premised on the letter dated 25/3/2025. The 2nd Defendant formally communicated to the Plaintiffs, providing records confirming that the land belongs to the Plaintiffs under ballot Number 494. The 2nd Defendant’s records, including its register of members, unequivocally show that Francis Njenga Gitau was not its member. On that basis, the Plaintiffs urge the Court to admit the said material and to review its judgment. 51.I am not persuaded that I should exercise my discretion in favour of the Plaintiffs. In my view, the alleged new evidence was within the knowledge of the 2nd Defendant and the Plaintiffs, and the 2nd Defendant could have produced it during the hearing of the suit. It is clear to me that the application herein seeks to fill gaps and patch up the weak points in the Plaintiffs’ case. Had the Plaintiffs been diligent before filing the suit, or even at the hearing, they could have discovered the alleged new evidence. I say this in light of the evidentiary burden which required the Plaintiffs to prove their case. 52.Further, the Court notes that there has been inordinate delay in filing the application, amounting to about three years after the judgement was entered. Therefore, I am of the view that the Plaintiffs have not satisfied the conditions for the grant of the orders of review sought under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Whether leave to execute for costs should be granted to the 1st Defendant as sought; 53.It is not in dispute that the 1st Defendant taxed his costs awarded to him in the Judgment. Subsequently, Certificates of Costs dated 9/7/2024 and 5/8/2025, in the sums of Kshs. 719,887/= and Kshs. 226,820/= respectively, were duly issued. The 1st Defendant now seeks leave of this Court to execute for the said costs, together with interest thereon. 54.The law governing entry of judgment on a taxed bill is Section 51(2) of the Advocates Act, which provides that:“The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including an order that judgment be entered for the sum certified to be due.” 55.9. The legal position under this provision is settled. Once a Certificate of Taxation has been issued and has not been set aside or varied, the Court may enter judgment for the certified amount, provided the retainer is not disputed. 56.The Court of Appeal in Lubulellah & Associates Advocates v N K Brothers Limited [2014] eKLR affirmed that where the retainer is not disputed, and the certificate of taxation has not been set aside, the Court is entitled to enter judgment for the sum certified. The Court clarified that:“The law is very clear that once a taxing master has taxed the costs, issued a Certificate of costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the Court save to enter judgment. An applicant is not required to file suit for the recovery of costs. The certificate of costs is final as to the amounts of the costs and the Court would be quite in order to enter judgment in favour of the Applicant against the Respondent herein for the taxed sum indicated in the Certificate of Taxation.” 57.In the present matter, Certificates of Taxation exist confirming the amounts due. However, execution of the taxed costs is premature because the Certificate of Costs has yet to be converted into a Decree. Execution of taxed costs cannot be undertaken before the Certificate of Costs has first been converted into a Decree after Judgment thereon has been entered. In other words, a Certificate of Costs is not, by itself, an executable instrument and must first be adopted as an order of the Court or incorporated into a Decree before execution can proceed. While, therefore, a Certificate of Costs is final “as to the amount payable”, it is not a Decree that can be executed. Initiating execution on the sole basis of a Certificate of Costs, without a Decree, therefore renders the execution premature. 58.The position set out above has been restated in numerous cases and is a long-settled position of the law and procedure. I cite, for instance, the decision of Ibrahim J (as he then was) in the case of Rubo Kimngeich Arap Cheruiyot v Peter Kiprop Rotich [2006] eKLR, in which he stated as follows:“It is my view that a Decree duly approved and signed had to be on record for any execution to take place, whether for the eviction, costs or otherwise. As far as the parties in a suit are concerned, a certificate of costs is not an executable legal instrument. A certificate of costs is not capable of being “executed”. Warrants of attachment and sale cannot in law be issued on the basis of a certificate of costs. There must be a decree first. It is true that the Decree may not be necessarily or always contain the ascertained costs. Costs can be determined before a decree is issued or subsequently, after the Decree has been drawn. However, for one to recover costs, there must be a decree. Any money awarded by Court including costs is only payable under a decree particularly, if it is through enforcement (see Order XXI, Rule 1).” 59.I am also persuaded by the case of Oloo & Oloo Advocates LLP v Kenya Broadcasting [2026] KEHC 1190 (KLR), in which Aburili J. stated as follows:“Thus, a certificate of taxation is not per se executable. only a decree is. Therefore, to execute, the certificate of taxation has to be followed by entry of judgment and issuance of a decree. ...............” 60.It follows, therefore, that the 1st Defendant, being the holder of the certificate of costs, must apply to the Court for the Court to enter judgment adopting the certificate of costs and to issue a decree capable of execution. There is no shortcut to recovering costs in taxation matters. See Rubo Kipngetich Arap Cheruiyot v Peter Kiprop Rotich, Civil Case No. 193 of 1993. 61.In the absence of a judgment on taxed costs and a decree, there would be no basis for granting the orders sought. The lapse renders the application for execution premature, null and void. Any execution process commenced before the adoption of the certificates of costs was premature, irregular and unprocedural, and hence set aside. 62.Accordingly, the 1st Defendant’s application is dismissed because the orders sought are not grounded in law. 63.Final orders for disposala.In the upshot, the Plaintiffs’ application dated 11/4/2025, 1st Defendant’s application dated 6/10/2025 and the 2nd Defendant’s application dated 24/11/2025 are all not merited. They are dismissed.b.Each party shall bear their own costs. 64.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered Online in the presence of:Mr. Saende for the PlaintiffMr. Njonjo for the 1st DefendantPARA 3.Mr. Kanyi for the 2nd DefendantCA- Ms Yvette Njoroge