Gichuki (Suing as on of the administrators of Estate of Jairus Gichuki Peter) v Mwananchi Credit Ltd (Environment and Land Miscellaneous Case E193 of 2025) [2026] KEELC 5270 (KLR)

5. That, in the further alternative to Prayer 4 above, and only if the court is not inclined to grant the same, the plaintifi/applicant be granted leave to liquidate the said costs award of Kshs.367,025/- 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. 6. That the honourable court be pleased to issue any other orders that it may deem fair and just. 7. That the cost of this application be in the cause. 2. The application is premised on the grounds on its face. It is further supported by the afidavit of the applicant sworn on even date. She deposed that she instituted ELCLC no. E250 of 2024, 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.367,025/- to the respondent. 3. 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 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. 4. She deposed that subsequent to the striking out of the 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 applicant deposed that stay of execution pending the determination of ELC Case No. E028 of 2025 will occasion no prejudice to the respondent and allowing it to levy execution at this juncture would permit a technical costs award to undermine a substantive, pending claim over the same subject matter. 5. 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 receives from the government's Inua Jamii Senior Citizens’ Scheme, combined with the crucial support she receives from her children. 6. Saleh Jackline, the legal oficer of the respondent filed the replying afidavit sworn on 27th January, 2026 in response and opposition to the instant application. She deposed that the application is brought solely to delay execution of the Kshs.367,025/= costs in favor of the respondent as directed by the court in ELCLC No. E250 of 2024 which remains unpaid. 7. It was deposed that granting the applicant stay of execution would be detrimental to the respondent since they will be denied the fruits of the ruling delivered in their favor and would reward indolence as it is nothing more than a delay tactic intended to frustrate execution, and a waste of the court’s time. The respondent also accused the applicant of bringing this application in bad faith, because if the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5270/eng@2026-08-12 2

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applicant intended to have the said costs paid in instalments and/or by the estate of the deceased, the same ought to have been brought out at the time when the parties were negotiating and incorporated in the consent. 8. Further, that the respondent contends that costs cannot issue against the estate, because as Hon. Justice Oguttu Mboya determined that the suit as initiated could not bind the estate since the applicant did not involve all the administrators as plaintifis hence the prayers sought in this application cannot stand. 9. The applicant filed a supplementary afidavit and a further supplementary afidavit sworn on 16th February, 2026 in response thereto. She deposed that the core dispute over the suit property, L.R. No. 36/2/321, is still alive and is the subject of a fresh, competent, and properly constituted suit, namely ELCLC No. E028 of 2025, which is a substantive legal action with high prospects of success, alleging fraud and illegality. She deposed that the procedural defect in her earlier suit did not magically convert costs incurred in a representative litigation into her personal debt, and that the purpose of the litigation was solely to benefit the estate. With regard to the consent, the applicant deposed that the consent was not an admission that she would pay the entire sum within 30 days but rather a good-faith agreement. 10. The application was canvassed through written submissions. The applicant filed written submissions dated 16th February 2026, while the respondent filed written submissions dated 27th February, 2026. I have considered the application, the replies thereof and the written submissions filed. The issue for determination is whether the application has merit. It is important to state that whereas the applicant through the learned counsel argued that the application is similar to the one filed in ELCLC no. E250 of 2024, I note that the issues for determination are materially difierent. 11. At the centre of this case is the consent dated 27th October, 2025 which was adopted as an order of the court. The applicant has not sought any prayer to set aside or vary this consent in terms of order 1 of the said consent. Even if the court were to consider the instant application, it would be a serious miscarriage of justice to ignore this fact, as there is need to justify the setting aside or variation of this consent. 12. Therefore, this court is unable to determine the merits or otherwise of the instant application. 13. In my view, allowing payment by instalments would be contrary to the consent dated 27th October, 2025 which was entered into by the parties and adopted as an order of the court. 14. Therefore, I find no merit in the notice of motion dated 21st January 2026, and the same is hereby dismissed. Each party to bear its own 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. Namukuru holding brief for the Applicant/Respondent No appearance for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5270/eng@2026-08-12 3

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