https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12382

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL & TAX DIVISION** **MISC APPL NO 255 OF 2012** **TONY MARK TUNOI...................................................CLAIMANT/ DECREE HOLDER** **VERSUS** **ANDREW STUART ........................................................................... 1ST RESPONDENT** **YVONNE ISABELLA WACERA KIBERA** **DINA GRACE KIBERA** **JOSEPH EDWIN KARANJA KIBERA (Legal Representatives of the Estate of** **DOROTHY SEYANOI MOSCHION................................................2ND RESPONDENTS** **RULING** 1. The decree holder/ applicant filed the notice of motion dated 1.4.2025 seeking: - **5) Leave be granted to execute the Decree of the Court issued on 3rd July 2012 against the 2nd Respondent/ Judgment Debtor herein before taxation or ascertainment of costs arising therefrom.** **6) the Decree issued on 3.7.2012 against the Judgment Debtor to pay KES. 2,800,000 plus interest at court rates from 1.9.2011 until payment in full and costs be satisfied by attachment and sale of the Judgment Debtor’s property known as Title Number Nairobi/Block 137/1127 (formerly LR. No. 5892/22).** **7) an order prohibiting the Legal Representatives of the deceased Judgment Debtor’s Estate, their agents, servants or anyone acting under their instructions from selling, transferring, charging, receiving any proceeds from the aforesaid and or in any manner dealing in the Judgment Debtors property known as Title Number Nairobi/Block 137/1127 (formerly LR. No. 5892/22).** 1. The application is made under **Sections 1A, 1B, 3A, 37, 38(b)(f), 63** and **94 of the Civil Procedure Act**, and **Order 22 Rule 7(2) (j) (ii), 9, 26, 48, Order 24 Rule 5** and **10 of the Civil Procedure Rules**. 2. The application is supported by an affidavit sworn by **Tony Mark Tunoi** on 1.4.2025. 3. The 2nd respondents opposed the application through a replying affidavit sworn by **Yvonne Isabella Wachera Kibera**, **Diana Grace Kibera** and **Joseph Edwin Karanja Kibera** on 23.6.2025. 4. The application was canvassed through written submissions. The applicant and the 2nd respondents filed written submissions dated 4.6.2025 and 2.7.2025 respectively. **Applicant's case** 1. The grounds are that a decree was issued by this court dated 25.6.2012, adopting an arbitral award which ordered the judgment debtor to pay the applicant a sum of KES 2,800,000/- with interest at court rates from 1.9.2011. 2. Subsequently, on 8.8.2018, the judgment debtor applied for review the decree but the review application was dismissed by the ruling of 27.4.2020 and subsequent efforts to locate the court file to progress with execution have been futile. 3. The late **Dorothy Seyanoi Moschion** passed on intestate on 20.12.2023. The Family Division of this Court issued a Grant of Letters of Administration intestate of her estate on 10.9.2024 in **Milimani, HCF P & A No. E447/2024** to **Yvonne Isabella Wacera Kibera, Dina Grace Kibera and Joseph Edwin Karanja Kibera**. The Grant was due for confirmation on 27.5.2025. 4. The only assets of the deceased known to the applicant and declared in the said pending **Succession Cause No. E477/2024** Estate of **Florence Seyanoi Kibera** is the property known as **Title Number Nairobi/Block 137/1127 (formerly LR. No. 5892/22)**. 5. The applicant discovered that the subject property is under the process of sub-division and disposal at any time after confirmation of grant. 6. The 1st respondent who is a co-decree holder with the applicant and was awarded costs in the decree has not taxed his costs to date and which inaction has inhibited execution of the decree by the applicant. 7. Unless this application is urgently heard, leave is granted to execute the decree herein before assessment of costs flowing therefrom and other reliefs sought herein, the administrators of the estate of the judgment debtor will obtain confirmation of the grant of letters of administration of the deceased estate on 27.5.2025 or any time before, dispose off or deal with the deceased assets thereby defeat execution of the decree and the applicant will suffer irreparable and substantial loss. 8. The applicant submitted that it is just and fair that the application be granted. He also asserted that no prejudice will be suffered by the judgment debtor’s estate if the application is granted. 9. The applicant submitted that **Order 22 Rule 48 of the Civil Procedure Rules** and **Section 68 of the Land Registration Act** allow courts to prohibit dealings in property to preserve it for execution. He relied on **Gichuki King'ara & Co Advocates v Emperium Estate Ltd [2018] eKLR** and **Ogembo Ondieki v Samwel Bosire Angwenyi [2020] eKLR**, where courts issued prohibitory orders to prevent frustration of decrees noting that there were no other known assets of the judgment debtor. 10. The applicant argued that given that the judgment debtor's only known estate asset is at risk of disposal, issuing a prohibitory or inhibition order is necessary to preserve the property pending full execution of the decree. 11. The applicant submitted that it has demonstrated compelling necessity for grant of leave for execution prior to taxation under **Section 94 of the Act** and has established urgency in issuing the prohibitory orders. **Response** 1. The 2nd respondents urged the court to dismiss the application as it emanates from a 13-year-old decree adopting an arbitration award dated 1.9.2011. They contended that there has been no attempt by the applicant to execute the same within that period. 2. They submitted that the applicant has not shown any evidence to substantiate his alleged frustrations to execute the decree. They also submitted that there is no order produced setting aside the execution of the said decree in any of the subsequent applications allegedly filed by the 2nd respondents. 3. The 2nd respondents asserted that the Estate is large and has assets other than the property Title Number Nairobi/Block 137/1127 as alluded to by the applicant. They stated that the Estate has liabilities running into millions which can only be settled by disposing of assets of the Estate. 4. They therefore submitted that inhibiting dealings with the property in any way will significantly cripple all our efforts to offset impending obligations against the Estate and greatly prejudice the *bonafide* creditors. 5. They contended that the 1st respondent’s failure to tax his awarded costs does not in any way bar the applicant from exercising his right to execute the decree. 6. They submitted that the time of 12 years is computed from the date of the judgment and decree and not from the date of commencement of interlocutory applications for execution. They contended that the decree issued on 3.7.2012 is not available for execution as 12 years have lapsed having lapsed on 2.7.2024. 7. The 2nd respondents argued that the decree is statute barred hence cannot be executed outside the 12 years by virtue of **section 4 (4) of the Limitations of Actions Act**. In this respect, they relied on **Wills Onditi Odhiambo v Gateway Insurance Co. Ltd [2014] eKLR, Hudson Moffat Mbue v Settlement Fund Trustees & 3 Others, ELC No. 5704 of 1992 (OS) and Celestine Nyaga v Minister for Finance & 3 others [2017] KEHC 569 (KLR)**. 8. They argued that the issue of limitation is substantive and affects the court’s jurisdiction over a matter. On this, they relied on **Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others [2012] eKLR, Wilson Nyabuto Areri v Postal Corporation of Kenya [2018] eKLR; James Muriithi Ngotho v Judicial Service Commission [2012] eKLR and Nyanamba O. Steve v Teachers Service Commission [2016] eKLR** 9. They relied on **East African Court of Justice Appeal Case No. 2 of 2012, Attorney General of Uganda & Another v Omar Awadh & 6 Others [2013] eKLR**on the rationale for barring the enforcement of a stale judgment. **Analysis and determination** 1. I have considered the application, the parties’ respective affidavits, submissions and authorities. 2. A preliminary issue is whether the present application is statute barred. If it survives the hangman’s noose, what orders can the court grant? **Limitation of actions** 1. An action may not be brought upon a judgment after the end of **twelve years** from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due. **Section 4 (4) of the Limitation of Actions Act** 2. The judgment was delivered on 25.6.2012. 12 years from that date falls on 25.6.2024. The right to bring an action upon the judgment expired on 25.6.2024. 3. The 2nd respondents argued that the present application is time barred because it has been brought outside the 12-year window. 4. They contended that the window begins from the date of delivery of the judgment. They again contended that the applicant had not filed any application for enforcement of the judgment within the statutory window. 5. They relied on the **Hudson Moffat Mbue case [supra]** where **Mutungi J.** observed that **"...once a judgment has been rendered, execution of that judgment must be commenced prior to the 12-year period..."** 6. The position was affirmed by **Majanja J.** in **Godfrey Ajuang Okumu v Nicholas Odera Opinya [2017] KEHC 3288 (KLR)**. He expounded that **if the decree holder can demonstrate that execution has commenced, the computation of time ought to take this into account.** 7. In this case, the record shows that prior to the filing of the instant application, the claimant was represented by **Oluoch Olunya Advocates**. The erstwhile advocates wrote a letter dated 21.2.2025 to the Deputy Registrar (DR) seeking a decree regarding orders issued on 25.6.2012 by **Musinga J.** (as he then was). 8. On 8.8.2018, the judgment debtor applied to this court to review the decree of this court but the same was dismissed by a ruling of the court on 27.4.2020. 9. Subsequently, the 2nd respondents' advocates on various dates between 19.5.2020 and 31.3.2022 wrote various letters to the DR seeking certified copies of proceedings seeking certified typed copies of the ruling of 8.8.2018, order, a certificate of delay and proceedings to enable them to lodge an appeal. 10. The applicant’s explanation for delay in taking steps to execute the decree is that after the ruling of 27.4.2020, subsequent efforts to locate the court file to progress with execution have been futile. 11. In my considered view, the explanation offered by the applicant are plausible. A decree holder has limited control over the custody and availability of a court file. Yet, a missing court file may prevent a decree holder from taking steps to execute the decree. 12. In the circumstances, the period during which the court file was missing cannot be fairly attributed to the applicant’s indolence. 13. The applicant also took steps to review and appeal the judgment except the efforts were thwarted by the missing file. These steps are significant and are relevant in this case. 14. Similarly, their argument that they could not execute before taxation of costs also make sense under the law. Apt exception has been established. 15. In sum, I find that the application is not statute barred. **Leave to execute** 1. The applicant seeks leave to execute the subject decree before taxation or ascertainment of costs. 2. The 2nd respondents conceded that the 1st respondent’s failure to tax his awarded costs does not in any way bar the applicant from exercising his right to execute the decree. 3. But it bears repeating that in law execution before taxation of costs can only be by the leave of the court. 4. The applicant has now applied for leave. No valid or lawful reason exists to deny the application. 5. **Guided by, section 94 of the Civil Procedure Act**, I find that prayer 5 of the application is merited. **Attachment and sale of the JD’s property** 1. The applicant seeks that the subject decree be satisfied by way of attachment and sale of the JD’s property, **Title Number Nairobi/Block 137/1127**. 2. The 2nd respondents confirmed that they were issued with the grant of letters of administration intestate. They indicated that the JD’s Estate is large and has assets other than the subject property. They also indicated that the Estate has liabilities running into millions which can only be settled by disposing of assets of the Estate. 3. In the same breath, the 2nd respondents argued that inhibiting dealings with the property in any way will significantly cripple all our efforts to offset impending obligations against the Estate and greatly prejudice the *bonafide* creditors. 4. The applicant expressed apprehension that the subject property was under the process of subdivision and disposal at any time after confirmation of grant, which was scheduled on 27.5.2025. **Administrators’ fiduciary duty** 1. Estate administrators hold a fiduciary duty to administer the Estate diligently, in good faith, and in line with the Law of Succession Act. This includes the duty to ascertain and pay out of the estate all debts of the deceased. 2. The administrators also have a duty to produce to the court a full and accurate inventory of assets and liabilities of the deceased within specified timelines when applying for a grant of representation. **Section 83 of the Law of Succession Act and Rule 7 of the Probate and Administration Rules.** 3. Failure to list liabilities may be prejudicial to creditors who have a right to be paid before distribution. Such concealment materially detracts from any propriety in the implementation of the grant of representation. **Section 76 (b) of the Law of Succession Act** 4. However, on the basis of the material presented before the court, the respondents claim to be keen on paying the bona fide creditors is tinctured with concealment. 5. The late **Dorothy Seyanoi Moschion** passed on intestate on 20.12.2023. The Family Division of this Court issued a Grant of Letters of Administration intestate of her estate on 10.9.2024 in **Milimani, HCF P & A No. E447/2024** to **Yvonne Isabella Wacera Kibera, Dina Grace Kibera and Joseph Edwin Karanja Kibera**. The Grant was due for confirmation on 27.5.2025. 6. At the time of death, this judgment was already in existence against the deceased and it was within the statutory period. The contradiction is that there was no indication by the 2nd respondents that the decree herein was listed as a liability of the estate or not. It appears they had made up their minds not to pay this debt. 7. In view of the foregoing, the 2nd respondents are reminded that the existence of the decree herein ought to be disclosed to the succession court and addressed during administration. 8. **Order 22 Rule 48 (1) of the Civil Procedure Rules** provides that: - ***“Where the property to be attached in immovable, the attachment shall be made by an order prohibiting the judgement – debtor from transferring or charging the property in any way, and all persons from taking any benefit from the purported transfer or charge, and the attachment shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property.”*** 1. The guiding principles are that the decree holder ought to establish that it has a *prima facie* case with probability of success, irreparable injury that cannot be compensated by damages and that the balance of convenience tilts in their favour. **Giella v Cassman Brown [1973] EA 358** 2. Further, the decree holder ought to show that the judgment debtor intends to steal a march. **Slok Construction Limited v Beverly Lilonde Holdings Limited; Development Bank of Kenya Limited (Proposed Interested Party) [2025] KEHC 12658 (KLR)** 3. In the circumstances, I find that the administrators of the deceased intend to steal a match on the decree holder. Thus, the decree holder has established the requisite conditions for the grant of the orders sought. **Disposal** 1. In the upshot, the decree holder’s application dated 1.4.2025 is allowed in terms of prayers 5, 6 and 7. More specifically: - **1) Leave is hereby granted to execute the Decree of the Court issued on 3rd July 2012 against the 2nd Respondent/ Judgment Debtor herein before taxation or ascertainment of costs arising therefrom.** **2) The Decree issued on 3.7.2012 against the Judgment Debtor to pay KES. 2,800,000 plus interest at court rates from 1.9.2011 to 30.8.2017 and costs be satisfied by attachment and sale of the Judgment Debtor’s property known as Title Number Nairobi/Block 137/1127 (formerly LR. No. 5892/22). Any issues of priority or preference of debtors to be addressed during settlement of terms of sale.** **3) An order is issued prohibiting the Legal Representatives of the deceased Judgment Debtor’s Estate, their agents, servants or anyone acting under their instructions from selling, transferring, charging, receiving any proceeds from the aforesaid and or in any manner dealing in the Judgment Debtors (estate of the deceased’s) property known as Title Number Nairobi/Block 137/1127 (formerly LR. No. 5892/22) until the decree is paid.** **4) Parties are at liberty to apply.** 1. Costs of the application to be borne by the 2nd respondents. **Dated, signed and delivered through Microsoft Teams online application this 23rd day of July, 2026** **-----------------** **F. Gikonyo M** **Judge** **In the presence of: -** Ms. Sharamo for respondent Kinyanjui for Applicant CA- Aggrey