Mwambura & another v Baiya (Civil Appeal E072 of 2025) [2026] KEHC 12284 (KLR) (30 July 2026) (Ruling)

Mwambura & another v Baiya (Civil Appeal E072 of 2025) [2026] KEHC 12284 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12284 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E072 of 2025 MS Shariff, J July 30, 2026 Between Rose Njoki Mwambura 1st Appellant Haron Githinji Mwambura 2nd Appellant and Njenga Baiya Respondent (An appeal from the Ruling of the Senior Resident Magistrate's Court at Bungoma delivered on 24/04/2025 in Bungoma CMCC No. 277 of 2019 by Hon. T.A Odawo SRM) Ruling Introduction 1.The appellant being dissatisfied by the Ruling of Hon. T.A Odawo SRM, in Bungoma CMCC No.277 of 2019 delivered on 24TH April, 2025, in which the trial court dismissed the Appellants' objection to a Notice to Show Cause and proceeded to issue warrants of arrest against them. The appellants subsequently filed the instant appeal dated 2nd May, 2025. 2.The Appellants, Rose Njoki Mwambura (1st Appellant) and Haron Githinji Mwambura (2nd Appellant), are the widow and son respectively of the late Henry Gitonga Mwambura, and were sued as legal representatives of his estate. They raise six grounds of appeal, which can be grouped into three broad complaints:A.Grounds 1 and 6: that the trial magistrate failed to consider their response and submissions in opposition to the Notice to Show Cause, and acted with bias in making "punitive orders."B.Grounds 2, 4 and 5: that the trial magistrate failed to apply Section 37 of the Civil Procedure Act correctly and ignored that the deceased died intestate leaving no estate to administer, and failed to appreciate the prejudice of a personal liability for Kshs. 670,719 arising from a judgment entered against the deceased's estate.C.Ground 3: that the trial magistrate issued warrants of arrest without regard to Section 39 of the Civil Procedure Act. 3.The Respondent, Njenga Baiya, opposes the appeal in its entirety and additionally raises a threshold objection: that the appeal is an abuse of the court's process because it seeks to re-litigate matters already determined by this same court in the earlier Bungoma High Court Civil Appeal No. E025 of 2022. Background 3.In 2019, the Respondent instituted CMCC No. 277 of 2019 against the estate of Henry Gitonga Mwambura (deceased), pleading a 2014 loan of Kshs. 400,000 advanced to the deceased, which remained unpaid at the time of his death in 2018. 4.The Appellants were sued as legal representatives/administrators of the estate, holding a limited grant taken out for the purpose of defending the suit. Judgment was entered against the estate for Kshs. 400,000 plus costs and interest. 5.In execution, the Respondent attached certain household goods on 21st November 2021. The 1st Appellant raised objector proceedings, contending that the attached goods were her personal property and did not form part of the estate of the deceased. The trial court (Hon. A. Odawo, SRM) dismissed that objection on 7th February 2022, applying a presumption that household goods belong to the deceased in the absence of evidence rebutting that presumption. 6.The Appellants appealed that dismissal in Bungoma High Court Civil Appeal No. E025 of 2022. This Court considered Sections 37 and 39 of the Civil Procedure Act, held that the Appellants, having taken out a limited grant to defend the suit, were deemed to have the capacity to sue and be sued on behalf of the estate. Accordingly, the court found no fault in the trial magistrate's treatment of the objector proceedings, and held that execution could proceed against the Appellants to the extent of the property of the estate that had come into their hands. 7.Subsequently, the Respondent took out a fresh Notice to Show Cause against the Appellants in execution of the decree. The Appellants filed a replying affidavit sworn on 10th February 2025 objecting to it. The Respondent filed a further affidavit in rejoinder. On 24th April 2025, the trial court (Hon. T.A. Madowo, SRM) dismissed the objection and directed that the Notice to Show Cause hearing to proceed, with warrants to issue only if the Appellants failed to attend. The present appeal, E072 of 2025, is against that ruling. 8.An analysis of the record reveals the following uncontested issues by either party and the same can properly be treated as settled for purposes of this appeal:i)That Henry Gitonga Mwambura is deceased and the Appellants are the legal representatives of his estate, holding a limited grant taken out for purposes of the suit.ii)That a monetary decree was entered against the estate of the deceased Gitonga Mwambura in Bungoma CMCC No. 277 of 2019, with a decretal sum now stated as Kshs. 670,719.iii)That this Court, in Bungoma HC Civil Appeal No. E025 of 2022, already adjudicated on the Appellants' capacity to sue and be sued as legal representatives of the estate of the deceased, and the application of Sections 37 and 39 of the Civil Procedure Act to their liability in the context of the objector proceedings over the attached household goods.iv)That the trial court had already ruled on the Appellants' resistance to execution once before, on 19th December 2024, before the ruling of 24th April 2025 now impugned.v)That the ruling of 24th April 2025 did not itself issue a warrant of arrest; it directed the Notice to Show Cause hearing to proceed, with a warrant to issue only if the Appellants failed to attend that hearing, which is the ruling now under appeal. Issue for Determination 1. Whether the appeal is barred as an abuse of process because of the earlier decision in HC Civil Appeal No. E025 of 2022 9.The Respondent's main submission is, in substance, that this Court is functus officio, or that the matter is res judicata, by virtue of High Court Civil Appeal No. E025 of 2022. 10.On the issue of “functus officio” the Court of Appeal in Telkom Kenya Limited v John Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited), Civil Appeal No. 60 of 2013; [2014] eKLR, held that:“The doctrine of “functus officio” is not to be understood to bar any engagement by a Court with a case that it has already decided or pronounced itself on. What it bars is a merit-based decisional re-engagement with a matter that has already been finally and conclusively determined.” 11.The doctrine therefore operates issue-by-issue, not suit-by-suit. It prevents the same Court from re-deciding a point it has already finally decided, not from engaging with a genuinely new question arising in the same underlying dispute. 12.On the closely related doctrine “estoppel”, the Court of Appeal in Trade Bank Limited v Engineering Construction Limited [2001] EA 266, as adopted in George Kamau Kimani & 4 Others v County Government of Trans-Nzoia & Another [2016] eKLR, held:“Issue estoppel may arise where a plea of res judicata could not be established because the causes of action are not the same, and operates to preclude a party from re‑contesting any precise point which having once already been distinctly put in issue, has been solemnly and with certainty determined against him.” 13.Applying these two authorities to the present appeal, grounds 2, 4 and 5 (application of Section 37 of the Civil Procedure Act, the extent of the deceased's estate, and the Appellants' exposure to personal liability for the decretal sum) substantially restate the question this Court already determined in High Court Civil Appeal No. E025 of 2022 delivered by Hon. Justice D.Kemei as he then was. 114.The court expressed itself as thus: That the Appellants, having taken out a limited grant to defend the suit, are liable as legal representatives to the extent of the property of the estate that has come into their hands, and that execution could accordingly proceed against them. These grounds are difficult to sustain on functus officio/issue estoppel grounds alone. 15.That said, ground 4 (that the deceased died intestate leaving no estate at all) is capable of being a materially new factual assertion rather than a mere re-argument. This is only possible if it is supported by evidence not before the court in HCCA E025 of 2022. A bare assertion of "no estate" is not itself new evidence, and nothing in the record of appeal shows that such evidence was tendered. 2. Whether the trial magistrate erred in the conduct of the 2025 Notice to Show Cause proceedings (Grounds 1, 3 and 6) 16.Grounds 1, 3 and 6 concern the conduct of the 2025 Notice to Show Cause proceedings. On Ground 1 (failure to consider the objection "in totality"), the ruling itself records that the court considered the Defendants' submissions of 3rd April 2025. What it flags is that those submissions referred to an underlying response dated 10th February 2025 which was not on record before the court. From the face of the ruling, the omission (if there was one) lay in the response itself not having been properly filed or exhibited, not in the trial court declining to engage with what was before it. 17.The ruling also records that the court had already dealt with the Appellants' resistance to execution in an earlier ruling of 19th December 2024. On the record, I find that ground 1 is difficult to sustain as pleaded. The trial court did not ignore the Appellants' position, at most, a document referred to in their submissions was missing from the file. Whether that missing document ought to have been chased down by the court of its own motion, or whether the omission is attributable to the Appellants' own filing, is not an endeavour that this court is tasked with unraveling. 18.Turning on the ground that warrants of arrest were issued without regard to Section 39 CPA, I find as already noted above, the ruling did not issue a warrant of arrest. It directed the Notice to Show Cause hearing to proceed and provided that a warrant would issue only in the event of the Appellants' absence from that hearing. Ground 3 mischaracterizes the order actually made. 19.There are two separate points worth distinguishing for the appeal; As a matter of fact, no warrant had issued as at the date of the ruling or the date of filing the appeal, which undermines ground 3 as framed. 20.I also find that as a matter of law, the trial court applied Order 22 rule 34(1), (2) of the Civil Procedure Rules the specific procedural provision governing committal to civil jail rather than Section 39 of the Civil Procedure Act, which governs execution against a legal representative more generally. These two provisions serve related but distinct purposes: Order 22 rule 34 protects against imprisonment for genuine inability to pay; Section 39 addresses the extent of a legal representative's liability by reference to property of the estate in their hands. 21.The ruling's silence on Section 39 is arguably correct rather than an oversight, since the committal question before the court on 24th April 2025 was governed by Order 22 rule 34, and the extent-of-liability question under Section 39 had already been settled in High Court Civil Appeal E025 of 2022. 22.In totality, I am of the view that on the material available, the ruling by Hon. T.A Odawo engaged with the substance before it (the 3rd April 2025 submissions), applied the correct procedural provision for committal, and reached a reasoned conclusion that no tangible settlement proposal or demonstrated inability to pay had been shown. Nothing in the ruling itself discloses animus; the order made was, if anything, more measured than the Appellants' memorandum of appeal suggests, since it did not commit them to jail or issue an outright warrant of arrest. 23On the general question of the safeguards attending arrest and committal in execution, Kenyan courts have consistently held that committal is permissible only where the safeguards in Order 22 rule 34 Civil Procedure Rules are observed, since the process deprives a person of liberty. Disposition 24.Based upon the foregoing reasons, the orders that commend themselves to this court are as follows:1.This Court finds that it is “Functus Officio” in light of the decision of Justice D.K.Kemei in Civil Appeal No. E025 of 2025;2.The Appeal dated 2nd May, 2025 is hereby dismissed; 3.The Respondent shall have the costs of the appeal. It is so ordered. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 30TH DAY OF July 2026.MWANAISHA. S. SHARIIFJUDGE