Ephrahim Otieno Mbadi (Suing as the Administrator of the Estate of Musa Mbadi Philipo alias Musa Mbadi Bwodo – Deceased) v Margaret Achieng Odinga & 2 others
The bottom line
#A Kenyan court ruled that an estate administrator who loses a lawsuit must pay the legal costs personally, but the winning side's attempt to seize his land was struck out for skipping required steps.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Judge to hear the execution application notwithstanding Order 49 Rule 7
The Court is properly seized; Order 49 Rule 7(1) is permissive ('may') and does not withdraw the Court's jurisdiction, which flows from the Constitution and statute.
The Registrar exercises the Court's jurisdiction only to the extent the Rules permit; subrule (2) governs appeals from Registrar decisions actually made, not the competence of a Judge hearing the application first. A procedural rule cannot cut down constitutionally and statutorily conferred jurisdiction. The objection founded on Order 49 Rule 7 fails.
Personal liability of the Appellant for the costs of the appeal
The Appellant is personally answerable; Sections 37 and 39 of the Civil Procedure Act do not confine the Applicants to the assets of the estate.
Section 37 applies only where a judgment-debtor dies before satisfaction of a decree; the deceased was never a party or judgment-debtor. Section 39 requires the decree to be for payment out of the deceased's property, and the judgment of 26th September 2024 contained no such direction. Following Jasbir Singh Rai and Jacob Ogola Ondiege, a personal representative who sues undertakes the full consequences of the suit, including costs. His right of indemnity under Section 83 of the Law of Succession Act is preserved.
Competence of the execution application
The application is premature and incompetent: no decree was exhibited, execution was sought on a certificate of costs, and attachment, valuation and sale were compressed into one step.
It is a decree that is executed; the certificate of costs only ascertains quantum. No decree had been drawn up, and the decree is precisely the instrument that should state by whom costs are payable. The application also sought sale before attachment and without valuation material, preventing compliance with the proviso to Order 22 Rule 13(4). Defects of form could not be cured by amendment given these foundational defects.
Parallel execution proceedings before the subordinate court
Not an abuse of process since they concern different decrees, but future applications must disclose the status of the other proceedings to avoid conflicting orders.
The subordinate court application relates to the costs of the suit in Kisumu CMC ELC Case No. 200 of 2018, while the present application relates to the costs of the appeal. Each decree-holder may pursue execution of his own decree, but both target the same parcel, so disclosure and directions are required.
Legal principles established
#- A personal representative who institutes and prosecutes litigation on behalf of an estate bears the ordinary incidents of litigation, including liability for costs if the suit fails, unless the decree directs payment out of the estate.
- Section 37 of the Civil Procedure Act applies only where a judgment-debtor dies before the decree is fully satisfied; it does not apply to costs arising from litigation commenced by a legal representative after the deceased's death.
- Section 39 of the Civil Procedure Act is engaged only where the decree is for payment of money out of the property of the deceased, as the decree itself must express.
- A certificate of costs ascertains quantum but is not an executable instrument; execution lies on a decree, and applications for execution must be in Form No. 14 to the court which passed the decree.
- Order 49 Rule 7(1) confers a permissive power on the Registrar and does not oust the Judge's jurisdiction to entertain an execution application in the first instance.
- Execution against immovable property proceeds sequentially: attachment by prohibitory order, valuation, then sale of only so much as is necessary to satisfy the decree.
Court orders
#- 1.The Notice of Motion dated 26th June 2026 is struck out for being premature
- 2.It is determined that the Appellant, Ephrahim Otieno Mbadi, is liable to pay to the Respondents the costs of the appeal awarded in the judgment delivered on 26th September 2024, and that Sections 37 and 39 of the Civil Procedure Act do not confine the satisfaction of those costs to the assets of the estate of the deceased, without prejudice to any right of indemnity against the estate
- 3.The Respondents are at liberty to extract the decree of the Court, which shall state that the costs of the appeal are payable by the Appellant, and shall state, or be accompanied by a certificate of, the costs as taxed in accordance with Order 21 Rule 9
- 4.Upon extraction of the decree, the Respondents are at liberty to apply for execution in accordance with Order 22, and any application for execution against land parcel No. Kisumu/Pandpieri/3105 shall disclose the status of the execution proceedings pending in Kisumu CMC ELC Case No. 200 of 2018 in respect of the same parcel
- 5.Each party shall bear its own costs of the application
- On appeal from
- Chief Magistrate's Court at Kisumu
- Kisumu CMC ELC Case No. 200 of 2018
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; Sections 3, 3A, 38 and 44 of the Civil Procedure Act and Order 22 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ephrahim Otieno Mbadi (Suing as the Administrator of the Estate of Musa Mbadi Philipo alias Musa Mbadi Bwodo – Deceased) v Margaret Achieng Odinga & 2 others", Case Analysis (2026). ELC Appeal No. E049 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6262/eng@2026-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.