JOICE NYAMBURA NJOROGE VS FRANCIS WANYANGE AND ANOTHER

2. The application is supported by the annexed affidavits of Catherine Wairimu Wanyange and John Kiarie Njuguna, both sworn on 9th January, 2025. Catherine Wairimu Wanyange deponed that on 19th November, 2024,  she saw a document sent through her phone and learnt that it was a Notice to Show Cause coming up on 21st November, 2024. She stated that  she tried to reach M/S Rumba Kinuthia & Co Advocates without success and  then instructed M/S Kiarie Njuguna & Co Advocates to take up the matter and find out the position. It was her deposition that she was shocked to be advised that the judgment against the estate of the deceased and a Bill of costs taxed and  was due for execution. She  urged the court to give her time to move to the  Court of Appeal as they have been greatly prejudiced on account of the mistakes of their advocates.

3. Joyce Nyambura Njoroge, the Plaintiff filed Grounds of Opposition and a Replying Affidavit both dated 20th January, 2025, where she  deponed that the Applicants were served with two notices to show cause issued by this Honourable Court on 22nd October and 12th November 2024 respectively on 14th November, 2024 and they did not take any immediate action until 9th January, 2025 when they filed this application which shows laxity.

4.  The Plaintiff stated that the application is an abuse of the court process as the Applicant’s right of appeal was extinguished as the same was dismissed by the Court of Appeal in its ruling of 23rd February, 2024, in Civil Application E096 of 2022.

5. The second application is the Plaintiff’s Notice of Motion application dated 24th February, 2025, seeking the following orders:

6. The application is supported by the annexed affidavit of Joyce Nyambura Njoroge, sworn on 24th February, 2025, where she deponed that  this court issued a judgment dated 29th September, 2022, and her claim was allowed. It was her deposition that the 1st Defendant’s Personal Representatives and/or the said Francis Mwangi are now constructing a  petrol station hurriedly so as to defeat the orders issued by this Court. The Plaintiff deponed that the police declined to intervene and urged the court to allow the application.

7. The third application is the 1st Defendant’s Notice of Motion dated 20th March, 2025, which seeks the following orders:

a) Spent

8. The application is supported by the annexed affidavit of James Mwangi Wanyange, sworn on 20th March, 2025, and deponed that he is the second personal representative of the 1st Defendant/Applicant. He further  deponed that they understand the circumstances pertaining to the decree issued on 29th September, 2022, and 25th February, 2025, by this court, and they will execute the orders accordingly. James Mwangi Wanyange asked the court for ninety days to execute the orders effectively, and that the  personal representatives should be excused from immediate repayment of the decretal sum pending the confirmation of the Grant in Case No 297 of 2019 at Naivasha Magistrates Court.

9. Joyce Nyambura Njoroge, the Plaintiff, filed a Replying Affidavit sworn on 29th April, 2025, and stated that the application lacks merit and ought to be dismissed with costs. She deponed that the application is premature as warrants of arrest are yet to issue in the matter, and further that the  proposal on payment by  instalments does not state the specific amount to be paid and when the said amounts will be available and the applicant’s offer is not genuine.

10. The fourth application is the 1st Defendant’s Notice of Motion application dated 4th June, 2025, seeking the following orders:

11. The application is supported by the annexed affidavit of Catherine Wairimu Wanyange, sworn on 4th June, 2025, and  deponed that they were made parties on the strength of a Grant of Letters of Administration made in Naivasha Succession Cause No 297 of 2019, which were revoked on 8th March 2023, instigated by the Plaintiff. She deponed that the parties had recorded a consent order preserving the status quo and restraining the parties from interfering with the suit property until all applications pending are disposed of. She deponed that the Plaintiff, in defiance of the consent order, has now moved into the suit property and erected a fence thereon.

12. It was also her deposition that the revocation of the Grant was instigated by the Plaintiff, and she was under a duty to inform the court that they were no longer authorized to represent the estate.

13. Joyce Nyambura Njoroge, the Plaintiff, filed a Replying Affidavit sworn on 11th July, 2025, and opposed the application and stated that the revocation of the grant was made on 8th March, 2023,  pursuant to an application by the applicants made on 16th November, 2022. She deponed that she did not instigate the revocation, and she only filed an affidavit of protest in the Succession Cause and took no other step in the matter.

14. Catherine Wairimu Wanyange filed a Supplementary Affidavit sworn on 7th August, 2025, and   deponed that she never instructed any advocate to apply for Revocation of Grant, and that the  revocation of grant issued on 8th March, 2023,  means that no further action should have taken place against the estate or against themselves until a fresh grant is issued. It was her deposition that the decree issued against them is invalid because they are not the legal representative of the estate of Francis John Wanyange.

15. Mr. Njuguna, counsel for the Defendant,  filed submissions dated 11th August, 2025, on  the Notice of Motion dated 9th January, 2025,  and  submitted that the application is overtaken by events and asked the court to mark it as abandoned. On the Notice of Motion dated 20th March, 2025, counsel submitted that it is presented by a firm of advocates that had already ceased acting for the parties and it should be struck out  with  costs, which should be  borne by the advocates.

16. On the Notice of Motion dated 4th June, 2025, counsel submitted that the moment the grant was revoked, the administrators lost their capacity to represent the estate, and relied on the cases of In the Estate of William Mbogo Njunu (deceased) Succession Cause No 5 of 1999 KEHC 16613 [KLR], Estate of Njuguna Thagicu (Deceased) [2018] eKLR and P & A Appeal No 1 of 2019 [2022] KEHC 1322 KLR.

17. On the application dated 24th February, 2025, counsel urged the court to  strike out  the application as the  parties against whom it is brought are not in any position to be sued on behalf of the estate, having lost their capacity. Counsel submitted that the Judgment herein is null and void as the persons against whom it was entered have no capacity in law.

18. Mr. Kimondo, counsel for the Plaintiff, filed submissions dated 15th August 2025, and  submitted that all the applications brought on behalf of the 1st Defendant by the Judgment debtors are incompetent for lack of capacity and relied on the  case of Getrude Chao Waita & another vs Agnes Wamaitha Kibuchi & another [2020] KEELC 2578 (KLR).

19. Counsel submitted that the Applicants remained the legitimate personal representatives of the estate of the deceased until 8th March 2023, when the grant was revoked. Counsel submitted that judgment in this matter was delivered on 29th September, 2022, at which time the applicants were seized with the power to represent the estate.

20. It was counsel’s submission that the appointment of an administrator is not a necessity at the execution stage and there exists a valid decree against the estate of the 1st Defendant in favour of the Plaintiff, and relied on the  case of Re Estate of Johanna Kariuki (Deceased) Succession Cause 647 of 2015) [2025] KEHC 8412 (KLR).

21. On the Judgment’s debtor application dated 9th January, 2025, counsel submitted that there is no appeal that is pending before the Court of Appeal, as the application for  leave to file an Appeal out of time was heard and dismissed  by the Court of Appeal vide civil Appeal No E096 of 2022 in a Ruling dated  23rd February 2024. Counsel relied on the case of  Nairobi West Hospital vs Kithinji & another (Miscellaneous Civil Application E266 of 2023) [2024] KEHC 3784 {KLR}.

22. On the judgment debtor’s application dated 20th March, 2025, counsel submitted that the orders sought are untenable and that the  application should be dismissed to pave the way for execution as the applicants have no intention of complying with the decree, having declared the same invalid, and were thus not genuine in their offer to liquidate the decretal amount in installments. On the judgment debtor’s application dated 4th June, 2025,  counsel submitted that the same has  not been brought timeously.

23. Counsel submitted that the Honourable Court directed that the applicants were to give vacant possession of the suit property within ninety days, failing which they should be evicted. Counsel relied on Order 45 Rule 1 of the Civil Procedure Rules and the  cases of  Jaber Mohsen Ali & another vs Priscillah Boit & another [2014] KEELC 132 (KLR), John Muhoro Mwangi vs James Kamau Mwangi & Another [2012] KEHC 4469 (KLR), Isaac Olang Solongo vs Gladys Nanjekho Makokha (Being the administrator of the Estate of Antonina Makokha (Deceased) & another [2021] eKLR and Benson Manani Mahinye vs Waiganagana A. Kendi [2016] KECA 491 (KLR).

24. On the Decree holder’s application dated 24th February, 2025, counsel submitted that in the absence of an extension of time within which the Judgment debtors should deliver vacant possession of the suit property, the application succeeds as the scales tilt in favour of the decree holder.

25. Counsel for the 1st Defendant asked this court to disregard the following applications filed by their legal representatives: the  Notice of Motion applications dated 9th January, 2025 and  20th March, 2025. It therefore follows that the issues for determination are:

a. Whether the Plaintiff’s Notice of Motion application dated 24th February, 2025 is merited?

26.  This court delivered a judgment  dated  29th September, 2022, which is on record and is acknowledged by all the parties.  The 1st Defendant contends that as personal representatives of the deceased,  who were made parties on the strength of a Grant of Letters of Administration made in Naivasha Succession Cause No 297 of 2019,  was  revoked on 8th March 2023.

27. The  1st Defendant therefore submits that since the grant was revoked, the  administrators lost their capacity to represent the estate. The Plaintiff, on the other hand, contends that judgment in this matter was delivered on 29th September, 2022, at which time the 1st Defendant’s representatives were seized with the power to represent the estate.

28.  In the case of  Re Estate of Johanna Kariuki Githinji (Deceased) [2025] KEHC 8412 (KLR), the court pronounced as follows at paragraph 16:

“Generally, legitimate acts carried out by the administrator in good faith before the revocation of Grant are protected, especially if the third party had no knowledge of any defect. However, this protection is not absolute; fraudulent or collusive transactions, or those undertaken in bad faith by the administrator (even before revocation), or if the third party was aware of defects, may still be set aside by the court. Accordingly, while Section 93 protects purchasers, it does not shield a fraudulent or negligent administrator from accountability to the estate and beneficiaries…”

29.  By the time the Judgment  was delivered,  the  Administrators had the full and legal capacity to act on behalf of the estate of the deceased, having been appointed as such. The grant was revoked on 8th  March 2023,  after the judgment and decree had been issued, including an order for vacant possession /eviction within 90 days, which the Judgment Debtors did not comply with.

30. The court notes that the 1st Defendants are seeking substantive orders from this court in their Notice of Motion application dated 4th June, 2025, despite acknowledging that they currently do not have the capacity to represent the deceased.

31. The Judgment Debtors submitted that there should be stay of proceedings pending the appointment of new administrators. This is a case that was heard and determined, a judgment rendered, and an order issued for the defendants to give vacant possession within 90 days, which the Defendants did not comply with.

32. Similarly, it is on record that the Defendants filed an application in the Court of Appeal seeking leave  to extend the time within which to file an appeal out of time, which was dismissed on 23rd February 2024. It follows that there is no appeal pending hearing and determination.  Why would the court be hearing an application for stay if there is no appeal? What would be the end game of such an application? Would it be to buy time or to frustrate a successful litigant from enjoying the fruits of the judgment?

33. It is also surprising that the Applicant is asking  for time to pay the decretal amount by instalments, what instalments, and how much. The Applicants are also blowing hot and cold; on one hand, they state that they do not have the capacity to represent the estate, and on the other, they are filing applications to negotiate instalment payment and stay of execution and proceedings.

34. It is unfortunate that counsel filed a total of four applications, which they admit have been overtaken by events. This court finds that the revocation of the grant post-judgment is not a fetter to the Plaintiff to continue with the execution process. The 1st Defendant’s personal representatives had legal capacity during the trial, and they cannot now ask this court to set aside its judgment.

35.  Similarly, it is trite law that substitution is not a necessity where a judgment debtor dies, as  the Decree Holder can execute against the party  who intermeddles with  the estate.

36. I  have considered all four applications by the parties, the submissions by counsel, and  issue the following orders:

a) An eviction order is hereby issued against the 1st Defendant’s Personal Representatives, namely Catherine Wairimu Wanyange and James Issac Mwangi their agents, servants, employees or any person whomsoever claiming title through them from the said property known as Naivasha/Municipality Block 7/10 and which is also described in an annulled parallel title in which the property is described as L.R No 1144/695 in execution of the Decree of this Honourable Court made on 29th September, 2022.