https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11094

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **MISC. CIVIL APPLICATION NO. E065 OF 2021** **B.M MUNG’ATA & CO. ADVOCATES ………......……APPLICANT/RESPONDENT** **-VERSUS-** **ESTHER NDETE MBULUI …………………….…1ST RESPONDENT/1ST APPLICANT** **ERICK MUSYA KAINDI………………..………..2ND RESPONDENT/2ND APPLICANT** **RULING** 1. The Application for determination is dated 23/04/2026 filed under Certificate of Urgency. It is brought under **Section 3A of the Civil Procedure** **Act** and **Order 51 Rule 1 of the Civil Procedure Rules** and all other enabling provisions of the law. It seeks the following orders; 2. **Spent.** 3. **THAT the honorable Court be pleased to issue an order of temporary injunction and/or stay of execution order staying the Warrants of Attachment and Sale issued on 21st of April 2026 and restraining the Respondent, their agents or M/S First Choice Auctioneers from attaching, removing, advertising for sale or in any other way dealing with the Applicant’s proclaimed assets pending the hearing and determination of this Application.** 4. **THAT the Respondent by himself and/or through his authorized servants be restrained from proceeding with the execution to recover costs due by the estate of David Kaindi Mbului (deceased) against Administrators in their personal capacity pending the hearing and determination of the intended Appeal.** 5. **THAT the costs of this Application be borne by the Applicant/Respondent.** 6. The application is supported by the grounds on its face and the affidavit sworn by Erick Musya Kaindi on the same day. He deposed that he is one of the Administrators of the Estate of David Kaindi Mbului hence duly authorized to swear the affidavit on behalf of his co-Respondent. 7. He further deposed that the Respondent acted for the deceased’s estate and with the consent of Administrators, he sold property as directed by the court to meet Advocates’ fees and other related costs. That, the total taxed costs on the two matters (HC E076 & E065 of 2021) are to be paid by the estate and not Administrators in their personal capacity. 8. That, having represented the estate, the Respondent has all the information regarding estate properties and a simple search at the Land’s Office would have informed him of the properties where the interest of all beneficiaries is available for attachment. 9. It was averred that; the Respondent has chosen to take advantage of failure on their part to issue receipts for monies received *via* Mpesa or cash. That, in the letter dated 25/01/2022 **(EMK 1),** the Respondent acknowledged receipt of Kshs. 1,600,000/= being proceeds of sale of two properties known as Parcels No. 1276 and 1535 Malili Ranch and the money has never been released to the estate to this day. 10. He deposed that the Respondent’s Bill of Costs in HCC E076 of 2021 & E065 of 2021 were taxed at Kshs. 537,570/= & 1,273,570/= respectively making a total of Kshs. 1,811,400/= and the Respondent was informed that there was a credit balance as per annexure marked **EMK2**. 11. That, the taxed amount was opposed but the court disallowed their objection on the grounds that there was no evidence of a credit balance. It was admitted that indeed the court was not informed about the credit balance because the Applicants did not expect the Respondent to deny having received the monies. 12. It was stated that, according to information from their Advocates, the Respondent denied having received the said money and the court dismissed their application for review. 13. That, they are ready to deposit Kshs. 652,924.22 in court as per the Proclamation of Attachment dated 22/04/2026 as they pursue the appeal and if stay is not granted, they will suffer irreparable loss, harassment and damage. That, they have a *prima facie* case with high chances of success. That, unless the orders sought are granted, the Respondent will actualize the threat of selling the subject vehicle through public auction to their detriment. 14. The application is opposed through the Replying Affidavits of Sofia K. Mutua sworn on 13/05/2026. She deposed that she is an Advocate of the High Court of Kenya practicing in the firm of B.M Mung’ata & Co. Advocates hence competent to swear the affidavit. That, the grounds in the application do not warrant the grant of the orders sought. 15. That, the Respondent filed an Advocate-Client Bill of Costs dated 07/10/2021 which was taxed with the participation of the Applicants and a ruling **(SKM 1a)** delivered on 27/09/2024. That, subsequently, a Certificate of Taxation **(SKM 1b)** for Kshs. 537,570/= was issued on 18/10/2024 and no reference was filed against the ruling of the Taxing Master. 16. He further stated that after issuance of the Certificate of Taxation, parties, through their respective Advocates, commenced negotiations on the timelines for payment and the Applicants’ Advocates admitted that the taxed costs were owing and that funds would be released soon. Copies of correspondence are exhibited as **SKM 2a & 2b.** 17. He averred that, an application for review of the Taxing Master’s ruling was dismissed *vide* a ruling **(SKM 3)** of 03/03/2025 and no appeal nor reference was ever filed against it. 18. That, after several promises of settlement and failure to settle the taxed costs, the Advocate filed an application for adoption of the Certificate of Taxation as a decree and the same was allowed despite opposition from the Applicants. 19. He deposed that, a decree dated 26/03/2026 **(SKM 5)** was duly served upon the Applicants who failed to settle hence the auctioneer legally proclaimed and attached their property. 20. That, no right of appeal lies against the ruling of the Honorable Judge to the Court of Appeal on the issue of costs as the same is final. That, the Applicants cannot therefore purport to stay execution of a decree pending a non-existent and incompetent appeal. 21. It was further that, the Applicants have not annexed a draft Memorandum of Appeal for this court to appreciate whether there is any arguable point on appeal which is a most defining consideration in an application of this nature. 22. That, according to Paragraph 3 of the Applicants’ affidavit, they seem to hold the position that it is the estate which should bear the burden of settling the costs and not themselves. That, that is an obvious admission that the costs are due and owing to the Advocate and a clear demonstration that the Applicants will not suffer any prejudice if execution proceeds as the costs can still be recovered by themselves from the estate. 23. It was deposed that; the instructions were received from the Applicants in their capacity as Administrators and there was no agreement whatsoever that the legal fees would be paid from the estate and the Applicants are put to strict proof on the existence of such an agreement. 24. That, the issue of whether the Advocate’s fees was initially paid was settled several times by the Taxing Master during taxation and at the hearing of the application for review and subsequently, by the Honorable Judge who found that such allegations were baseless. That, the Applicants cannot sneak the same issue in this application. 25. That, the application is for dismissal because from the chronology of events and conduct of the Applicants, it is evident that they are keen on frustrating the Advocate’s attempts of recovering his costs and the same should be frowned upon. 26. The application was canvassed orally wherein parties reiterated their respective Affidavits. 27. Having looked at the application, response and rival submissions, the only issue for determination is whether the application is merited; 28. The ruling by the Taxing Master dated **27/09/2024** shows that the Respondent’s Bill of Costs dated 07/10/2021 was taxed at Kshs. 537,570/=, with the participation of the Applicants. The Applicants sought a review of the ruling in order to give credit for fees already paid prior to taxation. The Applicants averred that the Taxing Master failed to factor in Kshs. 1,600,000/= received by the Advocate from sale of land. In declining the Application for Review, *via* a ruling delivered on **03/03/2025**, the Taxing Master stated as follows; **“9. The Applicant introduced a schedule of payment listing the monies allegedly paid to the Respondent herein. I have used the word allegedly because there is nothing placed on record to evidence that indeed the money was paid to the Respondent herein. Further, the Applicant has not demonstrated or advanced why the evidence that he now wishes to produce was not availed or the challenge that he had in availing the same prior to taxation of the Bill of Costs.”** 1. Subsequently, the Applicant moved this court seeking that judgment be entered and decree be issued for the taxed costs of Kshs. 537,570/=. In opposing the said application, the Applicants herein raised the same issue of having overpaid the Respondent and they attached a document titled **“Schedule of Payments to M/S B.M Mung’ata & Company Advocates”.** This Court (Matheka J), in its ruling delivered on **05/03/2026**, made the following observations with regard to the objections raised; **“12. The only reason why the Respondents are objecting to the Application is that they have overpaid the Applicant. It is their position that the schedule attached to the Replying Affidavit is proof of the alleged over payment. The Taxing Master had this to say about the Schedule…** **13. I have anxiously considered the Replying Affidavit and I note that the Schedule lists certain payments by specific persons named therein…** **14. None of these alleged payments is supported by evidence of either a receipt, bank transfer or any document to establish that the same was paid as alleged.** **15. In addition, the objectors have not placed before the court the particulars of the said properties e.g. LR numbers/ and any documentation e.g. search certificates to show that they exist. There is no evidence of any sale agreements or their values or any instructions to sell, evidence of the sale and evidence of receipt of the proceeds by the Applicant. There is nothing placed before the court to support these averments.”** 1. It is evident that the issues of overpayment to the Respondent have already been determined by the Taxing Master and by my sister Matheka J, hence I am inclined to agree with the Respondent that the said issues cannot be sneaked again in the current application. The annexture marked EMK1 is a letter dated 25/01/2022 where the Respondent herein allegedly acknowledged receipt of Kshs. 1,600,000/= as sale proceeds of Parcel Nos 1276 & 1535 at Malili Ranch. 2. The date of the said letter being 25/01/2022 means that it was in the Applicants’ possession at the time the matter came up for taxation of Bill of Costs, during the application for review of the Tax Master’s ruling and during the application before this court for entry of judgment and issuance of decree yet it was never produced in evidence. 3. The letter has been produced for the first time in the application herein hence begging the question as to why the Applicants have been prosecuting their case in installments. It is actually untidy and a waste of precious judicial time to keep taking the court back to the drawing board by failing to present the entire case at the first instance. Such conduct is not without a remedy as it is barred by the doctrine of *res judicata* which is codified in **Section 7** of the **Civil Procedure Act** as follows; **“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” (emphasis mine)** 1. The conduct of prosecuting a case in installments is also addressed by what is commonly known as the rule in **Henderson -vs-Henderson [1843] 67 ER 313** where **Sir James Wigram V-C** stated; **“… where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward the whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of the case. A plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”** 1. Consequently, it is my considered view that the annexture marked EMK1 - a letter dated 25/01/2022 goes to no issue in the Application currently under consideration. However, if such sale of land took place and the sale proceeds never remitted or accounted for by the firm of Mung’ata, the same is recoverable from the said law firm. 2. The procedure for objecting to the decision of the taxing master is provided for in **Rule 11 of the Advocates Remuneration Order (ARO) [L.N. 8/1965,** **Sch.]** as follows; **“11. Objection to decision on taxation and appeal to Court of Appeal** **(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.** **(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.** **(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.** **(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.”** 1. The Taxing Master’s decision on the Bill Costs contains reasons for the decision hence the Applicants should have filed a reference to this court as per Paragraph 11 (2)-*supra*- but they did not do that. Upon being dissatisfied with the outcome of the reference, Paragraph 11 (3) permits a party to move to the Court of Appeal **BUT ONLY** with the leave of the Judge who determined the reference. In the persuasive case of **Wambugu Kariuki & Associates -vs- Invesco Insurance Company Limited (2018) eKLR,** the Court stated as follows; **“I have considered the application, Rule 11 (3) of the Advocates (Remuneration) Order requires a party to obtain leave from the Judge to appeal against the ruling on the taxation of the bill of costs. The court is called upon to exercise discretion. The discretion of the Court must be exercised fairly and judiciously in the interest of justice. This is more so because a party is at the mercy of the court as what he seeks from the Court is not available as of right. One of the considerations a Court has is whether the adverse party would be prejudiced and whether a just cause has been shown by the applicant to deserve the exercise of the Courts discretion.”** 1. As to whether the threshold for grant of temporary injunction or stay of execution has been met, the test for granting of an interlocutory injunction was considered in the American **Cyanamid Co. -vs- Ethicom Limited** **(1975) A AER 504** where three elements were noted to be of great importance namely; **i. There must be a serious/fair issue to be tried,** **ii. Damages are not an adequate remedy &** **iii. The balance of convenience lies in favour of granting or refusing the application.** 1. In the case of **Charter House Investments Ltd -vs- Simon K. Sang & 3 Others (2010) eKLR,** the Court of Appeal stated; **“Injunction is an equitable and discretionary remedy, given when the subject matter of the case before the Court requires protection and maintenance of the *status quo*. The award of a temporary injunction by Courts of equity has never been regarded as a matter of right even where irreparable injury is likely to result to the Applicant. It is a matter of sound judicial discretion, in the exercise of which the Court balances the convenience of the parties and possible injuries to them and to third parties.”** 1. The Applicants herein are seeking stay orders ‘pending determination of the intended Appeal’ against this court’s ruling which entered judgment and issued decree for the taxed costs of Kshs. 537,570/=. In my view, this is clearly a circumvention of the Applicant’s failure to follow the prescribed procedure in **Rule 11** *(supra).* The Applicants did not exhibit a draft Memorandum of Appeal to show that they have an arguable appeal. Consequently, it is my view that there is really no serious issue to be tried in the intended Appeal, that damages are an adequate remedy and that the balance of convenience lies in refusing the Application. 2. In any case, I am inclined to agree with the Respondent that, the implication of paragraph 3 of the Applicants’ affidavit is that it is the estate which should bear the burden of settling the costs and not themselves. The said paragraph is worded as follows; **“I am informed by my Advocates on record which information I believe to be true that the total taxed costs on the two matters, HC E076 and E065 of 2021 are to be paid by the estate and not Administrators in their personal capacity.”** 1. It is trite law that Administrators are legally bound to bear the blunt of litigation in a probate dispute. They cannot run away from litigation and liability. They can only be indemnified by the estate. 2. Consequently, there is really no substantial loss that has been demonstrated as the Applicants are able to recover from the estate in the event that execution is done and execution succeeds. Dated, signed and delivered virtually this **21st** day of **July 2026** …………......….. J.N.ONYIEGO **JUDGE**