https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5268

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI** **ELCLC NO. E250 OF 2024** **MONICAH WANJIKU GlCHUKI (Suing as** **one of the administrators of the estate of** **JAIRUS GICHUKI PETER)…...........................................PLAINTIFF/APPLICANT** **-VERSUS-** **PETER WAMBUGU GICHUKI.....................................................1ST DEFENDANT** **MWANANCHl CREDIT LIMITED...............................................2ND DEFENDANT** **ABDIRASHID ISMAIL DAUD.............................3RD DEFENDANT/RESPONDENT** **THE DISTRICT LAND REGISTRAR, NAIROBI............................4TH DEFENDANT** **THE ATTORI IEY GENERAL.......................................................5TH DEFENDANT** **RULING** 1. Before this court for determination is the notice of motion dated 23rd October, 2025 filed by the plaintiff/applicant and it is expressed to be brought under **Sections 1B,3A, 37(2)** and **63 (e)** of the **Civil Procedure Act**, **Order 51 rule 1**, **Order 21 rule 12(2)** and **Order 22 rule 25** seeking the following orders:- 2. ***Spent.*** 3. ***Spent.*** 4. ***That this honorable court be pleased to*** ***grant a stay of execution of the judgement entered by Justice Charles Mbogo on 6th October, 2025 and the resultant decree therein for payment of c******osts of Kshs.356,300/- to the 3rd defendant/respondent, pending the hearing and determination of the related suit ELC EO28 of 2025-Monica Wanjiku Gichuki vs Peter Wambugu Gichuki & 4 others.*** 5. ***That, in the alternative to prayer 3 above, and pursuant to Section 37(2) of the Civil Procedure Act, this honourable court be pleased to order that the judgement entered by Justice Charles Mbogo on 6th October, 2025 and the resultant decree in favour of the 3rd defendant/respondent be satisfied from the estate of the late*** ***Jairus Gichuki Peter in Nairobi Succession Cause No. 1043 of 2018, the present suit having been instituted solely in favour of, and on behalf of, the said estate.*** 6. ***That, in the further alternative to Prayer 4 above, and only if the court is not inclined to grant the same, the plaintiff/applicant be granted leave to liquidate the said costs award of Kshs.356,300/- by way of monthly instalments of Kshs.6,000/-, in consideration of her advanced age and limited means, so as to avert undue hardship and in the interests of justice.*** 7. ***That the honorable court be pleased to issue any other orders that it may deem fair and just.*** 8. ***That the cost of this application be in the cause.*** 9. The application is premised on the grounds on its face. It is further supported by the affidavit of the plaintiff/applicant sworn on even date. She deposed that she instituted the present suit, solely and exclusively in her representative capacity as an administrator of the estate of Jairus Gichuki Peter (Deceased), as is evident from her pleadings. On 27th June 2025, this court issued a certificate of taxation awarding costs of Kshs.356.300/- to the 3rd defendant/respondent which can be executed against her. 10. As advised by her advocates on record, **Section** **37(2)** of the **Civil Procedure Act** empowers this court to direct that costs incurred in a representative capacity be paid from the estate. That it is therefore just and equitable that this discretion be exercised to order the estate of Jairus Gichuki Peter in succession 1045 of 2018, Nairobi to bear this liability as the litigation was undertaken for its benefit and not for her personal gain. The plaintiff/applicant deposed that holding her personally liable for costs arising from the bona fide execution of her fiduciary duties as an administrator would be manifestly unjust and would set a dangerous precedent, potentially deterring future administrators from undertaking necessary actions to protect estate assets. 11. She deposed that subsequent to the striking out of this suit, the administrators of the estate have, in the proper discharge of their fiduciary duties, filed a fresh and competent suit, namely ELCLC No. E028 of 2025, concerning the identical subject matter and parties, thereby regularizing the prosecution of the estate’s claim. That in the interests of justice, this court is empowered under **Order 22, Rule 25** of the **Civil Procedure Rules** to grant a stay of execution where, as it is in this case, there are pending related proceedings whose outcome may be compromised. The plaintiff/applicant deposed that stay of execution pending the determination of ELC Case No. E028 of 2025 will occasion no prejudice to the 3rd defendant/respondent and allowing him to levy execution at this juncture would permit a technical costs award to undermine a substantive, pending claim over the same subject matter. 12. She further deposed that this would visit irreparable harm upon the estate and frustrate the administration of justice in ELCLC No. E028 of 2025. She pleaded that as a 73-year-old woman with no independent assets of her own, her basic subsistence is entirely reliant on the small stipend she receivesfrom the government's Inua Jamii Senior Citizens’ Scheme, combined with the crucial support she receivesfrom her children. 13. In response thereto, the 3rd defendant/respondent filed grounds of opposition dated 18th November 2025, opposing the instant application on the following grounds:- 14. ***The application is frivolous, vexatious and an abuse of the court process.*** 15. ***The application lacks a foundational basis and is therefore fatally defective.*** 16. ***It is trite law that stay cannot be granted in respect of costs.*** 17. ***Further, the issue of costs is res judicata, having already been conclusively determined by Justice Charles Mbogo in the reference application by the applicant herein, Nairobi ELC Misc. (Reference) Application No. E073 of 2025: vide a ruling dated 16th June, 2025.*** 18. ***Pursuant to a ruling delivered on 16th June, 2025 in Nairobi ELC Misc. (Reference) Application No. E073 of 2025 and the subsequent judgment delivered on 6th October, 2025 on the 3rd Respondent's Application to enter judgment on the amount certified on the Certificate of Taxation dated 27th June, 2025, this honourable court has been rendered functus officio.*** 19. ***Section 37(2) of the Civil Procedure Act applies only where a judgment-debtor dies before the decree has been fully satisfied. This provision is inapplicable to the present case, as the suit herein was instituted from the outset by an administrator on behalf of the deceased's estate.*** 20. ***In the premises, the application herein is incompetent, misconceived, and otherwise an abuse of the court process, and the same ought to be dismissed with costs.*** 21. Lilly Umazi, the learned counsel for the 3rd defendant/respondent also filed a replying affidavit sworn on even date and deposed that following taxation by Hon. Judith Omollo on 19th March 2025, the plaintiff/applicant proceeded to file a reference dated 28th March 2025, which was dismissed in its entirely by this court vide a ruling delivered on 16th June, 2025. Thereafter, the 3rd defendant/respondent proceeded and filed an application to enter judgment on the certificate of costs, which application was allowed on 6th October, 2025. The learned counsel deposed that the court of appeal has observed that stay cannot be granted in respect of costs. 22. Further, that the applicable law in matters involving enforcement of a decree against legal representatives of a deceased’s estate is **Section 39** of the **Civil Procedure Act** which provides that a decree for the payment of money out of the property of a deceased’s person may be enforced by the attachment and sale of any such property. Thus, the plaintiff/applicant is misguided in alleging that the 3rd defendant/respondent is poised to execute against the administrator, personally and not against the deceased’s estate. That in any event, there is no threat of execution as the 3rd defendant/respondent has not yet secured the decree from the court and prayed that the application be struck out with costs. 23. The application was canvassed through written submissions. The plaintiff/applicant filed written submissions dated 20th February, 2026. The 3rd defendant/respondent did not file written submissions. Be that as it may, I have considered the application, the replies thereof and the written submissions filed. The issue for determination is *whether the application has merit.* 24. The plaintiff/applicant has sought a number of prayers, the first being a grant a stay of execution of the judgment entered by this court on 6th October, 2025 and the resultant decree therein for payment of costs of Kshs.356,300/- to the 3rd defendant/respondent, pending the hearing and determination of the related suit ELCLC no. E028 of 2025-Monica Wanjiku Gichuki vs Peter Wambugu Gichuki & 4 others. 25. Stay is provided under **Order 42 Rule 6(1)** of the **Civil Procedure Rules** which states thus:- ***“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”*** 1. On whether the plaintiff/applicant has established sufficient cause to warrant stay of execution, it is notable that the stay sought is conditional to the conclusion of ELCLC no. E028 of 2025-Monica Wanjiku Gichuki vs Peter Wambugu Gichuki & 4 others, which the plaintiff/applicant filed after the court struck out the suit herein. The plaintiff/applicant argued that she did not file this suit in her own capacity but as a representative of the estate of the deceased. For this reason and based on the quoted provisions of the **Civil Procedure Rules**, the court ought to exercise discretion considering her age and income. On the other hand, the 3rd defendant/respondent argued that the plaintiff/applicant is misguided in filing the instant application since the law allows for costs to be payable by the representatives of the estate of the deceased. 1. I have evaluated both arguments and I note that the costs issued were not dependent on the filing or substantive determination of the subsequent suit i.e. ELCLC no. E028 of 2025. As such, this prayer cannot be granted. The costs issued were for this suit and not another. 2. Further, it has been held that the mere threat of execution of costs is not a sufficient reason to grant stay. The Learned judges of the court of appeal in the case of **Francis Kabaa v Nancy Wambui & another [1996] KECA 1 (KLR)** held that: ***“Furthermore, we do not think that stay can be granted in respect of costs. The appellant has also not given any cogent reason why he should be granted stay.*** 1. Similarly, in the case of **James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR** it was held that:- ***“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal. This is what substantial loss would entail.”*** 1. Thus, and for the reasons stated above, the court declines to grant the prayer for stay pending determination of ELCLC no. E028 of 2025. 2. Secondly, the plaintiff/applicant argued that the execution of costs should be against the estate of Jairus Gichuki Peter (Deceased), which she represented in court. She relied on **Section 37(2)** of the **Civil Procedure Act**, which provides that:- ***“(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of such deceased, or against any person who has intermeddled with the estate of such deceased.*** ***(2) Where the decree is executed against such legal representative, or against any person as aforesaid, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability the court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”*** 1. On the other hand, the 3rd defendant/respondent argued that the above section only applies when a judgment-debtor dies before a decree is satisfied, and not an instance where a person instituted a suit in their personal representative capacity of a deceased person’s estate. The 3rd defendant/respondent contends that what is instead applicable is **Section 39** of the **Act**, which provides as follows:- ***“(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.*** ***(2)Where no such property remains in the possession of the judgment-debtor, and he fails to satisfy the court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the court in the same manner as if the decree had been against him personally.”*** 1. In the case of **Re Dismas Anduru Achar (Deceased) (Succession Cause 290 of 2007) [2022] KEHC 16349 (KLR) (14 December 2022) (Ruling),** it was held that*:-* ***“Under the***[***Law of Succession Act***](https://kenyalaw.org/akn/ke/act/1972/14)***, at the distribution of the estate the legal representatives are required to pay debts the known debts of the deceased. Hence can a creditor decide for himself which asset he wants, then proceed to instruct auctioneers to take it? That cannot be the correct position. That is the mayhem the***[***Law of Succession Act***](https://kenyalaw.org/akn/ke/act/1972/14)***addresses by making provision for the manner in which the creditor of a deceased person can be paid his debts from the estate. Indeed, that is one of the duties of the legal representatives. While it is true that the right place to determine the legality or otherwise of the decree in High Court Civil Case Number 41 of 1998 is in the civil court, this court is empowered to deal with all aspects of the estate of the deceased person as provided for in the***[***Law of Succession Act***](https://kenyalaw.org/akn/ke/act/1972/14)***. It is my view that the act by a creditor of picking for himself a specific asset, not connected to the debt and appropriating it to himself without the due process set out in the***[***Law of Succession Act***](https://kenyalaw.org/akn/ke/act/1972/14)***actually amounts to intermeddling, when he or she is aware that the owner of the said land is dead.”*** 1. In my view, without a court order in the succession cause, and without knowing the current status or the assets of the estate in the said succession matter, it would be perilous for the court to make an order that the costs herein should be satisfied out of the estate of the deceased. The proceedings in the succession cause are unknown to this court. Therefore, this prayer cannot issue. 2. Alternatively, the plaintiff/applicant offered to pay a sum of Kshs.6000/= per month to satisfy the decree of the costs of Kshs.356,300/-, making her case that she is an elderly lady with no steady income of her own, save for the small stipend she gets from the Inua Jamii Senior Citizens’ Scheme, and the support she receivesfrom her children. The plaintiff/applicant relied on the case of **Freight Forwarders Ltd vs Elsek & Elsek (K) Ltd [2012] KEHC 168 (KLR)** where the court cited with approval as follows about instalment payments:- ***“Keshavji Jethabhai & Bros Ltd vs Saleh Abdulla [1959] EA (J) 260 which held: that whilst creditors rights must be considered, each case must be considered on its own merits and discretion exercised accordingly -the mere inability of a debtor to pay in full at once is not a sufficient reason for exercise of the discretion.*** ***The debtor should be required to show his bona fides by arranging prompt payment of a fair proportion - Hardship of the debtor might be a factor, but it is a question in each case whether some indulgence can fairly be given to the debtor without prejudicing the creditor. A Rajabali Alidina vs Rehmatulla Alidina & Anor [1961] EA 565 which held:-*** ***– the court can consider the circumstances in which the debt was incurred; the conduct of the debtor; his financial position; and his bona fides.”*** 1. As was held in **Keshavji Jethabhai & Bros Ltd vs Saleh Abdulla(Supra)**, the debtor in this case, the plaintiff/ applicant, is required to show bona fides by arranging prompt payment of a fair proportion first before the court makes an order of payment in instalments. While I note the financial position of the plaintiff/ applicant, and her proposal to make instalments of Kshs.6,000/-, I do note that allowing the same would result in an unfair bargain on the 3rd defendant/respondent. In exercise of the court’s discretion, it would only be reasonable for the plaintiff/applicant to pay a lumpsum portion first, followed by the instalments. 2. Therefore, I find merit in the notice of motion dated 23rd October 2025 in terms of payment by instalments save for the proposed payment of Kshs.6,000/-. I will grant the following prayers:- 3. ***The plaintiff/applicant is hereby directed to make a lumpsum payment of Kshs.150,000/- within 45 days from the date hereof.*** 4. ***The balance of Kshs.206,300/- to be paid in instalments of Kshs.50,000/= every month until full and final satisfaction of the decretal amount.*** 5. ***I make no order as to costs.*** It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY THIS** **12TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **12/08/2026.** ***In the presence of:-*** *Mr. Benson Agunga – Court assistant* *Ms. Amonde for the 3rd Defendant/Respondent* *Ms. Vahid holding brief for Ms. Githogori for the Plaintiff/Applicant*