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

parcel number Kisumu/Pandpieri/3105 registered in the name of the Respondent herein until further orders of this Honourable Court. (c) That the Honourable Court do allow the Applicants to sell land parcel number Kisumu/Pandpieri/3105 to satisfy the costs and interest in this matter. (d) That the Appellant/Respondent be ordered to grant free and unlimited access to the subject property for the purposes of inspection and valuation. (e) That the costs of valuation, auctioneers’ fees and any other related expenses be recovered from the proceeds of the sale herein. (f) That the Deputy Registrar and/or Court Administrator do sign the transfer forms and all documents relating to the sale of the land on behalf of the Appellant/Respondent. (g) 2. That the costs of this application be provided for. The application is premised on the grounds set out on its face, namely: that the Appellant’s appeal against the Applicants was dismissed with costs on 26th September 2024; that the Applicants’ costs were assessed at Kshs. RULING ELCA NO. E049 OF 2022 2

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73,290/- on 17th April 2025; that the Appellant has failed and/or ignored to pay the said costs; that it would only be just that land parcel No. Kisumu/Pandpieri/3105, registered in the Appellant’s name, be sold to recover the costs; that the Appellant has curtailed the Applicants’ enjoyment of the costs; and that the application has been brought in good faith and within a reasonable time. 3. By way of background, the appeal arose from the judgment delivered on 17th November 2022 in Kisumu CMC ELC Case No. 200 of 2018, in which the trial court dismissed, with costs, the suit which the Appellant had instituted in his capacity as the administrator of the estate of Musa Mbadi Philipo alias Musa Mbadi Bwodo (deceased). In that suit the Appellant had contended that the deceased purchased land parcel No. Kisumu/Pandpieri/207 and that the 1st Respondent had fraudulently caused the land to be subdivided and portions thereof transferred to the 2nd and 3rd Respondents. By a judgment delivered on 26th September 2024, this Court (E. Asati, J) dismissed the appeal and awarded the costs to the Respondents. RULING ELCA NO. E049 OF 2022 3

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The Applicants’ case 4. The application is supported by the affidavit of Pauline Atieno Arum, the 2nd Applicant, sworn on 26th June 2026 with the authority of her co-Applicants. She deposes that the costs awarded have not been paid despite the issuance of a notice to show cause and a warrant of arrest; that the Appellant has gone into hiding and is not willing to satisfy the costs unless his property is attached; that she has conducted a search which confirms that land parcel No. Kisumu/Pandpieri/3105 is registered in his name; and that, as the Applicants are not aware of the Appellant’s sources of income, the sale of that land is the only means by which they may enjoy the fruits of their certificate of costs. Annexed to the affidavit are copies of the judgment of 26th September 2024, the certificate of costs, the notice to show cause, the warrant of arrest and the certificate of official search. 5. The certificate of costs records that the bill of costs dated 29th October 2024 was taxed by Hon. Maureen Nyigei (PM), Deputy Registrar, on 20th February 2025 in the sum of Kshs. 73,290/-. The certificate of official search dated RULING ELCA NO. E049 OF 2022 4

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18th March 2026 shows that land parcel No. Kisumu/Pandpieri/3105 is a subdivision of parcel No. 1228, measures approximately 0.1 hectares, and is registered in the name of Ephrahim Otieno Mbadi, to whom a title deed was issued in 2016. I note at this stage that paragraphs (c) and (d) of the supporting affidavit refer to a judgment delivered “sometime in November 2022” dismissing the “Plaintiff/Respondent’s” suit and to costs assessed on 23rd April 2023 at Kshs. 107,000/-. Those particulars do not relate to this appeal. I shall return to this aspect later in this ruling. The Appellant’s response 6. The application is opposed by the Appellant through his replying affidavit sworn on 24th July 2026. His principal contention is that the application is incompetent because the orders sought are directed against him personally, notwithstanding that he litigated, and was taxed, only in his representative capacity as the administrator of the estate of the deceased. He deposes that the certificate of costs was issued against him solely in that capacity; that he is not personally liable for the taxed costs of Kshs. RULING ELCA NO. E049 OF 2022 5

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73,290/-; that under Section 37 of the Civil Procedure Act a legal representative is answerable only to the extent of the assets of the deceased which remain undisposed of; and that the Applicants have neither sought orders under that section nor established that any assets of the estate remain available to satisfy the costs. 7. Without prejudice to the foregoing, the Appellant contends that there is pending before the subordinate court in Kisumu CMC ELC Case No. 200 of 2018 an application seeking prohibitory orders and orders for the sale of the same parcel, which was listed for hearing on the same date as the present application, with the attendant risk of conflicting orders; that the application has not been brought in the prescribed Form No. 14 of Appendix A as required by Order 22 Rule 6 of the Civil Procedure Rules; that the Applicants have not shown that the value of the property sought to be attached corresponds, as nearly as practicable, to the taxed costs as required by Order 22 Rule 13(4); and that the Applicants have sought prohibitory orders and an order for sale simultaneously, RULING ELCA NO. E049 OF 2022 6

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contrary to the sequential procedure governing execution against immovable property. 8. The Appellant further deposes that he was never served with, nor made aware of, the certificate of costs or any notice to show cause; that he has never been called upon to disclose or account for any assets of the estate; that no inquiry has been undertaken under Section 37 of the Civil Procedure Act; and that the application is, in the circumstances, premature, procedurally defective and an abuse of the process of the Court. The Applicants’ further affidavit 9. In a further affidavit sworn on 3rd August 2026, the 2nd Applicant deposes that it was the Appellant who went to court and against whom the costs were awarded, and that he has neither appealed against the judgment nor challenged the taxation. She states that she has been advised that Section 37 of the Civil Procedure Act applies only where a judgment-debtor dies before the decree is fully satisfied, and that since the deceased was never a party to the proceedings, the Appellant is the judgmentdebtor who must satisfy the costs occasioned by his own RULING ELCA NO. E049 OF 2022 7

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action. As regards the application before the subordinate court, she deposes that it relates to the costs of the suit before that court, whereas the present application relates to the costs of the appeal, so that there is no abuse of process. She further states that Order 22 imposes no requirement that the property be valued first, and that the bill of costs and the notice of taxation were served upon the Appellant’s advocates, while the notice to show cause was served upon the Appellant by email. Copies of the bill of costs, the court’s notice of taxation, the notice to show cause and an affidavit of service are annexed. The Applicants’ submissions 10. The application was canvassed by way of written submissions. The Applicants’ submissions are dated 7th August 2026. Counsel identified a single issue for determination, namely whether the Applicants should be allowed to attach and sell land parcel No. Kisumu/Pandpieri/3105 to satisfy the costs and interest in this matter. It was submitted that it is not in dispute that the appeal was dismissed with costs on 26th September 2024, that the costs were assessed at Kshs. 73,290/- on RULING ELCA NO. E049 OF 2022 8

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20th February 2025, that they remain unpaid notwithstanding the issuance of a warrant of arrest, and that the search annexed to the application shows the parcel to be registered in the Appellant’s name. 11. On the contention that the Appellant is not personally liable, Counsel submitted that it was the Appellant, and not the estate, who filed the appeal and who took the decision to litigate; that the costs were awarded against him; and that he challenged neither the order on costs nor the taxation. Reliance was placed on the ruling of E. Asati, J in Jacob Ogola Ondiege v The Commissioner of Lands & 75 others (Kisumu ELC Case No. 823 of 2016, ruling delivered on 2nd July 2026), where the Court held as follows: “I have considered the application. It is true from the proceedings that it is the Applicant who initiated the suit herein, describing himself as the personal representative of the estate of Cornel Ondiege Agola. The Applicant has not demonstrated that he has ceased to be such a personal representative of the deceased. Under the provisions of Section 82 of the Law of Succession Act, a personal representative has wide powers to administer the estate of the deceased, including the power to enforce, by suit or otherwise, all causes of action, which by virtue of any law survive the deceased or arise out of his death. Having exercised the power to enforce a right of the deceased through filing of RULING ELCA NO. E049 OF 2022 9

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the present suit, the Plaintiff undertook the full consequences of the suit, namely the success or failure of the suit.” 12. Counsel also cited Anna Wanjiru Kimani & another v Mary Muthoni & another (Nyeri High Court Succession Miscellaneous Application No. 142 of 2000), in which the Court reproduced the principles enunciated by the Supreme Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR on the award of costs, and urged that the Appellant, having instituted the appeal which failed, must bear its costs. 13. On Section 37 of the Civil Procedure Act, Counsel submitted that the provision applies only where a judgment-debtor dies before satisfying the decree, and that in the present case the judgment-debtor is the Appellant and not the deceased. On the complaint of noncompliance with Order 22, Counsel submitted that the application is founded upon that Order; that it seeks a prohibitory order as the law requires; that the law does not require a valuation to be undertaken before attachment, the Court being empowered to give directions RULING ELCA NO. E049 OF 2022 10

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on valuation; and that the Applicants have demonstrated, through the undisputed search, that the parcel belongs to the Appellant. Counsel lastly submitted that the Appellant has offered no proposal for payment, has evaded committal, and opposes the application in bad faith, and urged that the application be allowed with costs. The Appellant’s submissions 14. The Appellant’s submissions dated 16th September 2026 were filed by the firm of AEJ Advocates. Counsel framed two issues: whether the application is premature and procedurally defective, and whether the Appellant is personally liable for the costs notwithstanding that he instituted the appeal as administrator of the estate of the deceased. 15. On the first issue, Counsel submitted that Order 49 Rule 7 of the Civil Procedure Rules provides for applications under Order 22 Rules 9, 48, 55, 56, 57 and 68, being the very provisions invoked by the Applicants, to be heard by the Registrar; that under Order 49 Rule 7(2) the jurisdiction of the Judge in such matters is appellate rather than original; and that the application is therefore RULING ELCA NO. E049 OF 2022 11

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improperly before the Judge. Counsel relied on Ruto (Suing as the Legal Personal Representative of the Estate of Kibiwott Arap Mwolomet Deceased) v Maina & another (Environment and Land Case 19 of 2018) [2025] KEELC 7168 (KLR), in which, it was submitted, the Court found that an applicant who had brought a similar application had “jumped the gun”. It was further submitted that jurisdiction may be raised at any stage, including in written submissions. 16. Counsel reiterated the complaints regarding Form No. 14, the requirement of Order 22 Rule 13(4) that the value of the property attached correspond as nearly as may be to the amount due, and the seeking of prohibitory orders and an order for sale in a single application. It was submitted that the application is further defective in that it seeks to proceed against the Appellant personally without complying with Sections 37 and 39 of the Civil Procedure Act, which, Counsel urged, are not confined to the death of a judgment-debtor but regulate the enforcement of any liability involving a legal representative. Ruto v Maina & another (Supra) [2025] KEELC 7168 (KLR) was said to RULING ELCA NO. E049 OF 2022 12

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have affirmed proceedings to the applicability recover of Section costs arising from 37 to litigation instituted on behalf of a deceased person. 17. Counsel advanced a further and independent objection, that the Applicants seek to execute upon a certificate of costs rather than a decree. Reliance was placed on Rubo Kimngetich Arap Cheruiyot v Peter Kiprop Rotich [2006] KEHC 413 (KLR), where the Court stated: “As far as the parties in a suit are concerned, a certificate of costs is not an executable legal instrument. A certificate of costs is not capable of being ‘executed’. Warrants of attachment and sale cannot in law be issued on the basis of a certificate of costs. There must be a decree first.” 18. Counsel also cited Muyuma v Kaveva & another (Environment & Land Case No. 7 of 2021) [2025] KEELC 680 (KLR), where the Court held that the certificate of costs is only for the ascertainment of the payable costs and is not the decree, and found that the execution for costs and the warrants of attachment and sale issued in that matter were irregular. It was further submitted that the notice to show cause dated 3rd June 2025 was not properly served, the service having been effected by email to addresses whose source was not RULING ELCA NO. E049 OF 2022 13

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disclosed, and the annexed correspondence not establishing that the deponent of the affidavit of service effected it. 19. On the second issue, Counsel submitted that in instituting the appeal the Appellant was exercising the powers conferred on a personal representative by Section 82(a) of the Law of Succession Act, and not acting in his personal capacity or for his personal benefit; that under Section 83(c) and (d) of that Act reasonable expenses of administration and the debts of the deceased are payable out of the estate; and that in Gachigi & another v Evans & 11 others; Mburu & 3 others (Cross Appellant) (Civil Appeal 221 of 2007) [2014] KECA 150 (KLR) the Court of Appeal held that the costs of litigation concerning an estate are to be ascertained and paid in the same manner as liabilities owed by the estate to third parties. Reliance was also placed on Patricia Gitiri Mugushu v Dickson Muriuki Karigi [2017] KEELC 3323 (KLR), where the Court, citing W.M. Musyoka, A Casebook on the Law of Succession (LawAfrica, 2010), observed that an administrator does not have to incur any RULING ELCA NO. E049 OF 2022 14

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personal expense or burden in that capacity and held that the applicant was not required to satisfy the decree from her own pocket but from the assets of the estate of her deceased husband. Counsel urged that the mere fact that proceedings were instituted by a legal representative does not convert an estate liability into a personal one, and prayed that the application be dismissed with costs. Issues for determination 20. I have carefully considered the application, the affidavits and annexures on record, the parties’ respective submissions and the applicable law. In my view, the following four issues arise for determination: (i) Whether this Court is properly seized of the application, having regard to Order 49 Rule 7 of the Civil Procedure Rules; (ii) Whether the Appellant is answerable for the costs of the appeal, and whether Sections 37 and 39 of the Civil Procedure Act confine the Applicants to the assets of the estate of the deceased; RULING ELCA NO. E049 OF 2022 15

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(iii) Whether the application is competent and whether the orders of prohibition and sale sought may issue; and (iv) What orders should issue, including as to costs. Analysis and determination Issue No. (i): Whether this Court is properly seized of the application, having regard to Order 49 Rule 7 of the Civil Procedure Rules 21. The Appellant’s objection under this head is couched as one of jurisdiction, and I accept that a question of jurisdiction may be raised at any stage of the proceedings. Its importance cannot be overstated. As Nyarangi JA observed in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1: “Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 22. The Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others RULING ELCA NO. E049 OF 2022 16

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[2012] eKLR added that a court’s jurisdiction flows from either the Constitution or legislation or both, and that a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. The inquiry, therefore, is what jurisdiction the law confers upon this Court in the execution of its own decrees. 23. This Court is established under Article 162(2)(b) of the Constitution and is vested by Section 13 of the Environment and Land Court Act with original and appellate jurisdiction to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. The order for costs sought to be enforced was made by this Court in the exercise of that appellate jurisdiction. Order 22 Rule 6 of the Civil Procedure Rules directs that a decree-holder who desires to execute a decree “shall apply to the court which passed the decree”, and Section 34(1) of the Civil Procedure Act provides that all questions arising between the parties and relating to the execution, discharge or satisfaction of a decree “shall be determined by the court executing the decree and not by a separate suit”. RULING ELCA NO. E049 OF 2022 17

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24. Order 49 Rule 7 of the Civil Procedure Rules, upon which the objection rests, provides in the relevant part as follows: “(1) The Registrar may … (b) hear and determine an application made under the following Orders and rules … (x) Order 22 other than under rules 28, and 75; … (2) An appeal from a decision of the registrar under the Orders referred to in subrule (1) shall be to a judge in chambers.” 25. The operative word in subrule (1) is “may”. The Rule confers upon the Registrar a power to hear and determine the applications listed; it does not, in terms or by necessary implication, withdraw from the Court the jurisdiction which the Registrar is thereby permitted to exercise. The Registrar does not exercise a jurisdiction separate from, or superior to, that of the Court. He exercises the jurisdiction of the Court to the extent that the Rules permit. Subrule (2) regulates the route of challenge where the Registrar has in fact made a decision; it says nothing about the competence of a Judge to entertain such an application where it is placed before the Judge in the first instance. In any event, a rule of procedure made under the Civil Procedure Act cannot cut RULING ELCA NO. E049 OF 2022 18

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down jurisdiction conferred upon this Court by the Constitution and by statute. 26. As to Ruto v Maina & another (Supra), the decision was presented by Counsel as one in which the applicant was found to have “jumped the gun”. I have not been referred to any passage in it holding that a Judge of this Court lacks jurisdiction to entertain an application for execution of the Court’s own decree, and I would, with respect, be unable to accept such a proposition in the face of the permissive language of Order 49 Rule 7(1). To the extent that the decision turned on the prematurity of the execution there sought, it is a matter which I address under the third issue rather than as a question of jurisdiction. 27. I accordingly find and hold that this Court is properly seized of the application and that the objection founded on Order 49 Rule 7 fails. I add only that the ordinary and convenient practice is for applications for execution in Form No. 14 to be presented to the Deputy Registrar, who is best placed to superintend the successive stages of attachment, valuation, notification and sale which Order RULING ELCA NO. E049 OF 2022 19

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22 prescribes. That practice is sound, but it is a matter of procedure and not of jurisdiction. Issue No. (ii): Whether the Appellant is answerable for the costs of the appeal, and whether Sections 37 and 39 of the Civil Procedure Act confine the Applicants to the assets of the estate of the deceased 28. This is the principal ground upon which the application is opposed. Its premise is that, because the Appellant litigated as administrator, the costs awarded against him are a liability of the estate which may be enforced only in the manner prescribed by Sections 37 and 39 of the Civil Procedure Act, and only to the extent of the assets of the estate. 29. Section 37 of the Civil Procedure Act provides as follows: “(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 RULING ELCA NO. E049 OF 2022 20

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representative to produce such accounts as it thinks fit.” 30. The provision is clear in its terms. The event which brings it into operation is the death of a judgment-debtor before the decree against him has been fully satisfied. It provides the means by which a decree-holder may pursue the legal representative of the deceased judgment-debtor, and, by subsection (2), it limits the liability of that legal representative to the property of the deceased which has come to his hands. The limitation is the corollary of the fact that the liability being enforced was that of the deceased and not of the legal representative. 31. No such event has occurred in this case. The deceased, Musa Mbadi Philipo alias Musa Mbadi Bwodo, was never a party to these proceedings, still less a judgment-debtor. He had died before the Appellant commenced the suit in the year 2016. The liability for costs did not exist in his lifetime. It arose out of the litigation which the Appellant elected to institute and thereafter to pursue on appeal, and it was imposed by the judgment of 26th September 2024 dismissing that appeal. There is no decree-debt of a deceased judgment-debtor to devolve upon a legal RULING ELCA NO. E049 OF 2022 21

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representative. I agree with the Applicants that Section 37 has no application to the present case. The complaints that no inquiry was undertaken under that section, and that the Appellant was not called upon to account for the assets of the estate, fall away with it. 32. Section 39 of the Civil Procedure Act, which the Appellant reads together with Section 37, 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.” 33. Section 39 is engaged where two conditions are met: the decree must have been passed against a party as the legal representative of a deceased person, and the decree must be “for the payment of money out of the property of the deceased”. The second condition is decisive. It is not enough that a party litigated in a representative capacity; the decree itself must direct that the money be paid out of RULING ELCA NO. E049 OF 2022 22

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the property of the deceased. Order 21 Rule 7(2) of the Civil Procedure Rules requires the decree to “state by whom or out of what property or in what proportion the costs incurred in the suit are to be paid”, so that, where the court intends that costs be borne by an estate, that intention is expressed in the adjudication itself. 34. The judgment of 26th September 2024 concluded in the following terms: “The appeal is therefore hereby dismissed. Costs to the Respondents.” It contains no direction that the costs be paid out of the estate of the deceased. The Appellant did not, at the hearing of the appeal or at any time thereafter, invite the Court to so direct; he sought neither a review of the judgment nor an appeal against it, and he did not challenge the taxation by way of reference. The second condition of Section 39 is therefore not satisfied on the face of the judgment. 35. This conclusion accords with the settled principle governing the award of costs. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others (Supra), the Supreme Court stated at paragraph 18: RULING ELCA NO. E049 OF 2022 23

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“It emerges that the award of costs would normally be guided by the principle that ‘costs follow the event’: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the Respondent or respondent will bear the costs.” 36. The party who called forth the event in this matter was the Appellant. The representative description in the title of the proceedings identifies the capacity in which he asserted the claim of the estate; it does not render the estate, which acts only through its personal representative, a separate litigant answerable in his stead. Section 82(a) of the Law of Succession Act empowers a personal representative to enforce by suit the causes of action which survive the deceased. That power carries with it the ordinary incidents of litigation, including exposure to an order for costs if the suit fails. This is the view taken by E. Asati, J in Jacob Ogola Ondiege v The Commissioner of Lands & 75 others (Supra), where the Court held that a personal representative who had exercised the power to enforce a right of the deceased through suit “undertook the full consequences of the suit, namely the success or failure of the suit”. I respectfully agree. RULING ELCA NO. E049 OF 2022 24

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37. The authorities relied upon by the Appellant do not, in my view, displace that position. Section 83(c) and (d) of the Law of Succession Act, and the decision in Gachigi & another v Evans & 11 others (Supra), are concerned with the administration of the estate and with the incidence, as between the estate and those beneficially entitled to it, of expenses and liabilities properly incurred in the course of administration. They speak to whether an administrator who has met the costs of litigation properly undertaken on behalf of the estate may recoup them out of the estate. That is a question between the administrator and the estate. It does not regulate the rights of a successful opposing litigant who holds an order for costs against the party who sued him. 38. Similarly, the passage relied upon from Patricia Gitiri Mugushu v Dickson Muriuki Karigi (Supra) speaks of the satisfaction of a decree “from the assets of the estate of her deceased husband”. As presented, it concerned a decree for the satisfaction of which the estate was answerable, which is the situation contemplated by Sections 37 and 39. It does not address the position of an RULING ELCA NO. E049 OF 2022 25

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administrator who, having elected to institute and prosecute litigation, is ordered to pay the costs of his unsuccessful appeal without any direction that those costs be borne by the estate. To the extent that Ruto v Maina & another (Supra) is relied upon for the proposition that Section 37 applies to costs incurred in litigation commenced by a personal representative after the death of the deceased, I would, with respect, decline to follow it, that proposition being irreconcilable with the express terms of the section. 39. It is also instructive that the Explanation to Section 34 of the Civil Procedure Act provides that, for the purposes of that section, “a plaintiff whose suit has been dismissed, and a defendant against whom a suit has been dismissed, are parties to the suit”. The Appellant, whose suit was dismissed and whose appeal failed, is therefore a party to the proceedings for the purposes of the questions arising in execution, and it is against him that the order for costs operates. 40. I accordingly find and hold that the Appellant, as the party who instituted and prosecuted the appeal and against RULING ELCA NO. E049 OF 2022 26

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whom costs were awarded, is answerable to the Applicants for those costs, and that Sections 37 and 39 of the Civil Procedure Act do not confine the Applicants to the assets of the estate of the deceased. This finding is without prejudice to any right of indemnity which the Appellant may have against the estate under Section 83 of the Law of Succession Act, a matter between him and those beneficially entitled to the estate in which the Applicants have no part. I note, further, that the Appellant has not suggested that land parcel No. Kisumu/Pandpieri/3105 is held by him otherwise than as its registered proprietor, and I make no finding as to that parcel beyond what the register discloses. 41. Before leaving this issue, I should address the Appellant’s complaint that he was not served with the certificate of costs or the notice to show cause. The regularity of the notice to show cause and of the warrant of arrest that followed it is not the subject of the present application, and no application has been made to set aside either of them. I therefore make no finding on that question. It suffices to observe that the Appellant is, through these RULING ELCA NO. E049 OF 2022 27

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proceedings, fully aware of the judgment, the taxation and the certificate of costs, and that he has not disputed the amount taxed. Issue No. (iii): Whether the application is competent and whether the orders of prohibition and sale sought may issue 42. That the Appellant is answerable for the costs does not dispose of the application. Execution is the coercive process of the Court; where it is levied against land, it culminates in the compulsory divesting of the judgmentdebtor’s title. A decree-holder who invokes it must do so in the manner which the law prescribes. Three aspects of the present application call for consideration. 43. The first concerns the instrument upon which execution is sought. Order 22 Rule 6 of the Civil Procedure Rules provides that “where the holder of a decree desires to execute it, he shall apply to the court which passed the decree … and applications under this rule shall be in accordance with Form No. 14 of Appendix A”. It is a decree that is executed. Order 21 Rule 7(1) requires the decree to agree with the judgment and to specify clearly the relief RULING ELCA NO. E049 OF 2022 28

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granted, and Rule 7(2), as I have already noted, requires it to state by whom or out of what property or in what proportion the costs are to be paid. Order 21 Rule 9 then provides as follows: “(1) Where the amount of costs has been; (a) agreed between the parties; (b) fixed by the judge or magistrate before the decree is drawn; (c) certified by the registrar under section 68A of the Advocates (Remuneration) Order (Sub. Leg. Cap. 16); or (d) taxed by the court, the amount of costs may be stated in the decree or order. (2) In all other cases, and where the costs have not in fact been stated in the decree or order in accordance with subrule (1), after the amount of the costs has been taxed or otherwise ascertained, it shall be stated in a separate certificate to be signed by the taxing officer, or, in a subordinate court, by the magistrate.” 44. The scheme of the Rules is therefore that the certificate of costs ascertains the quantum, while the decree embodies the adjudication and identifies the person by whom, or the property out of which, the costs are payable. The certificate supplements the decree; it does not stand in its place. That is the principle stated in Rubo Kimngetich Arap Cheruiyot v Peter Kiprop Rotich (Supra) and applied in Muyuma v Kaveva & another (Supra), and I respectfully agree with it. RULING ELCA NO. E049 OF 2022 29

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45. The Applicants have exhibited the judgment of 26th September 2024 and the certificate of costs. No decree in this appeal has been exhibited, and neither the application, the supporting affidavit, the further affidavit nor the Applicants’ submissions assert that one has been drawn up and signed. The notice to show cause on record is expressed to have been issued “in the execution of the Order in the above case”. I appreciate that the Applicants did not have an opportunity to respond to this point, which was taken in the Appellant’s submissions filed after their own. It is, however, a point of law which is apparent on the face of the record and which goes to the foundation of the execution sought. 46. Nor is the absence of a decree a mere formality in the circumstances of this case. The very question which divides the parties in this application, namely whether the costs are payable by the Appellant or out of the estate of the deceased, is precisely what Order 21 Rule 7(2) requires the decree to state. The record also discloses inconsistencies which a properly drawn decree is designed to resolve. The certificate of costs certifies the taxed costs RULING ELCA NO. E049 OF 2022 30

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at Kshs. 73,290/- and describes the bill as “the Appellant’s” bill, although it was the Respondents’ bill; the notice to show cause and the warrant of arrest demand Kshs. 76,290/-; the grounds of the application state that the costs were assessed on 17th April 2025, while the certificate records that the taxation took place on 20th February 2025; and, as I have observed, paragraphs (c) and (d) of the supporting affidavit refer to a judgment of November 2022 and to costs of Kshs. 107,000/- assessed on 23rd April 2023, which are particulars of the proceedings before the subordinate court. A court that is asked to authorise the sale of land must be certain of the decree, of the judgment-debtor and of the sum due. On the present record it cannot be. 47. The second aspect concerns the sequence in which execution against immovable property proceeds. Order 22 Rule 48(1) of the Civil Procedure Rules provides as follows: “Where the property to be attached is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such purported transfer or charge, and the attachment shall be complete and effective upon registration of a copy RULING ELCA NO. E049 OF 2022 31

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of the prohibitory order or inhibition against the title to the property.” 48. Order 22 Rule 55 then empowers the court executing a decree to order that “any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold”, and the proviso to Order 22 Rule 13(4) requires that, in the case of a decree for the payment of money, “the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree”. Sale is thus a stage that follows a completed attachment, and it is directed to so much of the attached property as is necessary to satisfy the decree. 49. The present application seeks, in a single motion, a prohibitory order pending its hearing, an outright order for the sale of the whole parcel, access for the purpose of valuation, the recovery of the costs of valuation and auctioneers’ fees from the proceeds of sale, and an order that the Deputy Registrar execute the instruments of transfer. It thus seeks to compress attachment, valuation, notification of sale and sale into one step, before any attachment has been made and before any valuation has RULING ELCA NO. E049 OF 2022 32

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been undertaken. There is no material on record as to the value of the parcel, which measures approximately 0.1 hectares within Kisumu, or as to whether the sale of the whole of it is necessary to satisfy taxed costs of Kshs. 73,290/-. On that state of the record the Court is unable to discharge the duty imposed by the proviso to Order 22 Rule 13(4), or to determine, as Order 22 Rule 55 contemplates, what portion of the property may need to be sold. The prayers for sale, valuation and the execution of transfer instruments are, in my view, premature. 50. The third aspect concerns form. Order 22 Rule 6 requires an application for execution to be in accordance with Form No. 14 of Appendix A, and Order 22 Rule 9 requires an application for the attachment of immovable property to contain at its foot a description of the property sufficient to identify it and a specification of the judgment-debtor’s share or interest in it. The application identifies the parcel by its registration number, and to that extent Rule 9(a) is substantially met. Standing alone, a defect of form would not ordinarily lead me to reject an application, having regard to Article 159(2)(d) of the Constitution and to Order RULING ELCA NO. E049 OF 2022 33

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22 Rule 13(1), which permits the court to allow a defect to be remedied. Taken together with the absence of a decree and the attempt to bypass the successive stages of execution, however, the defects in this application are not of a kind that can be cured by amendment. 51. As regards the application pending before the subordinate court, I am satisfied that it relates to a different decree, namely the costs of the suit in Kisumu CMC ELC Case No. 200 of 2018, whereas the present application relates to the costs of the appeal. Each decree-holder is entitled to pursue execution of his own decree, and the existence of the two applications does not by itself amount to an abuse of the process of the Court. Both, however, are directed at the same parcel of land. In order to avoid conflicting orders, any further application for execution against that parcel should disclose the status of the proceedings before the other court, so that the executing court may give appropriate directions. 52. I accordingly find and hold that the application, in the form in which it has been presented, is premature and that the orders of prohibition and sale sought cannot issue upon it. RULING ELCA NO. E049 OF 2022 34

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This finding does not deprive the Applicants of the fruits of the judgment in their favour. The path open to them is clear: to extract the decree of this Court in the appeal in conformity with Order 21 Rules 7 and 9 of the Civil Procedure Rules; thereafter to apply for execution in accordance with Order 22 Rule 6 and Form No. 14, with the particulars required by Order 22 Rule 9; and, upon attachment by prohibitory order under Order 22 Rule 48, to proceed to sale upon proper valuation and notification in the manner prescribed. Issue No. (iv): What orders should issue, including as to costs 53. The award of costs is in the discretion of the Court under Section 27 of the Civil Procedure Act, a discretion which, as the Supreme Court observed in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others (Supra), is to be exercised judiciously, having regard to the special circumstances of the case and to the conduct of the parties before, during and after the litigation. The application fails. The Appellant, however, has failed on the principal ground of his opposition, and he has neither paid RULING ELCA NO. E049 OF 2022 35

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any part of the costs taxed more than eighteen months ago nor offered any proposal for their payment. In those circumstances, the just order is that each party shall bear its own costs of the application. Disposition 54. In the end, and flowing from the findings above, the Court makes the following orders: i. The Notice of Motion dated 26th June 2026 is hereby struck out for being premature. ii. It is hereby determined that the Appellant, Ephrahim Otieno Mbadi, is liable to pay to the Respondents the costs of this 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 which the Appellant may have against the said estate. iii. The Respondents are at liberty to extract the decree of this Court in this appeal, which shall, RULING ELCA NO. E049 OF 2022 36

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in conformity with Order 21 Rule 7(2) of the Civil Procedure Rules, state that the costs of the appeal are payable by the Appellant, and which shall state, or be accompanied by a certificate of, the costs as taxed in accordance with Order 21 Rule 9. iv. Upon extraction Respondents are of at the liberty decree, the to for apply execution in accordance with Order 22 of the Civil Procedure Rules, and any application for execution against Kisumu/Pandpieri/3105 land parcel No. shall disclose the status of the execution proceedings pending in Kisumu CMC ELC Case No. 200 of 2018 in respect of the same parcel. v. Each party shall bear its own costs of the application. DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 8TH DAY OF OCTOBER, 2026. E. K. WABWOTO JUDGE RULING ELCA NO. E049 OF 2022 37

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In the presence of:Mr. P.D. Onyango for the Respondents/Applicants. Mr. Odek for the Appellant. Court Assistant; Joanne Omondi. RULING ELCA NO. E049 OF 2022 38

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