The application before the court for determination is the Notice of Motion dated 19th September, 2025. The application seeks orders that;
(i) The matter be certified as urgent,
(ii) There be an interim order of stay of execution of the Warrant of Arrest issued on 17th September, 2025, pending the hearing and determination of the application.
(iii) Upon hearing the application inter partes, the said warrant be lifted.
(iv) The Decree Holders be directed to restrict the execution of the decree to the assets of the Estate of Cornel Ogola Ondiege and be further restrained from attaching the personal assets of the applicant or executing against him in person.
(v) The costs of this application be paid to the applicant.
The application was supported by the contents of the Supporting Affidavit sworn by Jacob Ogola Ondiege and the annexures thereto.
The Applicant’s case is that he is the administrator of the estate of the late Cornel Ondiege Ogola and that he filed the suit on behalf of the said estate.
That the suit was determined against the said estate, which was ordered to pay costs to the Defendants. That the judgement did not order that he pay the costs personally.
That he was served with a Notice to show cause on account of the party and party costs of Kshs.1,581,085,51 (Kenya Shillings One Million, Five hundred Eighty One Thousand, Eighty Five and Fifty Cents). That he showed cause by way of an Affidavit, which explained that the estate has been fully distributed and there are no assets capable of liquidation left in the estate that could satisfy the decretal sum claimed.
That his liability in the estate is only limited to the assets of the estate, that he does not stand in a position of personal guarantor to the estate or its creditors, and liability for the estate's debts cannot therefore extend to his property or his person.
That warrants of arrest and detention in civil jail are restricted to cases where the judgment–debtor can pay but is deliberately refusing to do so.
The application was opposed vide the contents of the Replying Affidavit sworn on 20th September, 2025. The Respondent also filed a list of authorities dated 1st October, 2025. The case of the Respondent is that, as per the judgment of the court, it was the Plaintiff who had failed to prove his case against the Defendants, and the same was dismissed with costs to the Defendant, and that there was no determination against the estate but against the Plaintiff who had instituted the case in court. That the Applicant’s argument that it is the estate of the deceased which ought to pay the costs was raised before the Deputy Registrar, and that the Deputy Registrar ruled that it is the Plaintiff who is liable to pay the costs.
That the Plaintiff, through his Counsel on record, requested time to put forth a proposal on how he will pay the costs.
The application was heard orally on 4th May, 2026. It was submitted on behalf of the Applicant that the Respondent cannot proceed to seek personal liability of the Plaintiff at the execution stage. That sections 79, 82, and 83 of the Law of Succession Act provide that the Administrator acts on behalf of the estate. That lifting of the veil should not happen.
That execution cannot proceed against the Plaintiff personally. That order 49 Rule 5 of the Civil Procedure Rules sets procedural boundaries on the role of the Deputy Registrar. That the warrants were contrary to the provisions of Order 49 Rule 1of the Civil Procedure Rules.
That the Plaintiff only acted in good will. That civil jail ought to be a last resort. That the Respondent has not demonstrated any act of the Applicant’s refusal to pay.
Counsel urged the court to allow the application and set aside the warrants.
On behalf of the Respondent, it was submitted that the application was misconceived. That the proceedings before the Deputy Registrar handled the same issues raised in the application. That there has been no appeal against the orders of the Deputy Registrar as provided under Order 47 Rule 8 Civil Procedure Rules.
That there is no legal basis for the court to shift liability to pay the costs to the estate of the deceased. That Sections 79, 82, and 83 of the Law of Succession Act are not applicable herein as the matter before the court is not a succession matter.
That the Applicant is a man of means and has not proved otherwise. Counsel urged the court to dismiss the application with costs.
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 the present suit, the Plaintiff undertook the full consequences of the suit, namely the success or failure of the suit.
In the course of his administration of the estate, the applicant ought to have factored the costs of the suit in case the suit fails.
No evidence has been exhibited that the administration of the estate has been concluded.
The Applicant has not made any attempts to have the costs paid. It was claimed by the Respondent that the Applicant is a person of regular income.
I find that the application lacks merit. The application is dismissed. Each party to bear its own costs thereof.
Orders accordingly.
Ruling dated and signed at Kisumu and delivered this 2nd day of July 2026 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Atika - Court Assistant.
No appearance for the Applicant.
P. D. Onyango for the Respondents.
| ELC 823/2016 RULING Page 2 |