Background
1. The Applicant, the law firm of Patricks Law Associates , filed an Advocate-Client Bill of Costs dated 20 th June 2022 following legal services rendered to the Respondent in consolidated succession proceedings. The Bill was taxed and allowed by the Taxing Master at Kshs. 7,866,870 on 28 th July 2023. A Certificate of Taxation was subsequently issued on 10 th August 2023.
2. The Respondent, aggrieved by the taxation, filed a Reference to the High Court. However, in a Ruling delivered on 19 th December 2024, the High Court (Ogola, J.) dismissed the Reference and upheld the Taxing Master’s decision. The Applicant now seeks the entry of judgment for the taxed sum and authorization for execution against the Respondent and the assets of the Estate.
3. Based on the rival submissions and the legal principles cited, this Court identifies the following core issues:
(i) Whether judgment should be entered against the Respondent under Section 51(2) of the Advocates Act.
(ii) Whether the Respondent acts in a personal or representative capacity.
(iii) Whether execution can lawfully issue against the assets of an unconfirmed estate.
4. On w hether judgment should be entered against the Respondent under Section 51(2) of the Advocates Act?
The law is settled that once costs have been taxed and a Certificate of Taxation issued, and in the absence of a pending Reference or an order setting it aside, the certificate is final.
5. Under Section 51(2) of the Advocates Act , where the retainer is not in dispute, the court has the power to enter judgment for the certified sum. In the present case, the High Court has already dismissed the Respondent's challenge to the taxation. The Respondent does not dispute the retainer, having admitted to instructing the Applicant in the primary succession cause.
6. Following the precedents in Waiganjo Wachira & Co. Advocates v Trident Insurance Company Limited [2021] KEHC 3095 (KLR) , an advocate is entitled to judgment once the taxation process is concluded so as to enjoy the fruits of their labour. The threshold for entry of judgment has been met. Judgment is hereby entered for the Applicant for the sum of Kshs 7,866,870.
7. On whether the Respondent acts in a personal or representative capacity?
The Respondent is sued in her capacity as a co-administrator of the Estate of the late Ruga Gituku. Under the Law of Succession Act, estate property vests in the personal representatives as trustees. Binding authority in Kothari v Qureshi and another ([1967] EA 564 establishes that a decree against a legal representative is enforceable only to the extent of the deceased’s property that has come into their hands. The Respondent is not personally liable for this debt. The judgment shall be enforceable against her strictly in her representative capacity as co-administrator.
8. On whether execution can lawfully issue against the assets of an unconfirmed estate.
The Respondent argues that execution is premature and constitutes unlawful intermeddling because the grant of letters of administration has not yet been confirmed. This Court disagrees.
Under Section 86 of the Law of Succession Act, debts enforceable at law must be paid before any legacy is distributed to beneficiaries. While Section 82(b)(ii) prohibits the sale of immovable property (land) before confirmation, this restriction does not apply to movable assets.
9. This Court finds persuasive the reasoning in Moi & another v Joshua Kipkemoi Mutai (Miscellaneous Application 83 of 2019) [2023] KEHC 1265 (KLR) , where the High Court allowed the execution of a decree for taxed costs against the movable property (motor vehicles and livestock) of an estate despite pending succession proceedings. Furthermore, execution authorized by a court under the Civil Procedure Act is an act authorized by law and does not constitute intermeddling.
10. The Applicant is at liberty to proceed with execution against the movable assets of the Estate. Execution against immovable assets shall remain stayed pending confirmation of the grant.
Disposition
11. In the end the court makes the following orders: -
i Judgment be and is hereby entered for the Applicant against the Respondent in her capacity as co-administrator for Kshs 7,866,870.
ii Interest is awarded on the said sum at 14% per annum from the date of the taxation certificate (10 th August 2023) until payment in full.
iii The Applicant is authorized to execute this decree against the movable assets of the Estate of Ruga Gituku.
iv Execution against immovable assets of the Estate is stayed pending the confirmation of the grant of letters of administration.
v The costs of this application are awarded to the Applicant.
Orders accordingly.
Right of appeal 28 days.
Dated, signed and delivered via TEAMS platform at Nairobi on this 29 th day of July, 2026.
…………………………
Hon R. A. Oganyo, Mrs.
JUDGE.
In the presence of: -
Court Asst…. E, Sana
Miss Inyanje for Applicant
Miss Muthoni h/b for Ashley Osman for Respondent
1. The Applicant, the law firm of Patricks Law Associates , filed an Advocate-Client Bill of Costs dated 20 th June 2022 following legal services rendered to the Respondent in consolidated succession proceedings. The Bill was taxed and allowed by the Taxing Master at Kshs. 7,866,870 on 28 th July 2023. A Certificate of Taxation was subsequently issued on 10 th August 2023.
2. The Respondent, aggrieved by the taxation, filed a Reference to the High Court. However, in a Ruling delivered on 19 th December 2024, the High Court (Ogola, J.) dismissed the Reference and upheld the Taxing Master’s decision. The Applicant now seeks the entry of judgment for the taxed sum and authorization for execution against the Respondent and the assets of the Estate.
3. Based on the rival submissions and the legal principles cited, this Court identifies the following core issues:
(i) Whether judgment should be entered against the Respondent under Section 51(2) of the Advocates Act.
(ii) Whether the Respondent acts in a personal or representative capacity.
(iii) Whether execution can lawfully issue against the assets of an unconfirmed estate.
4. On w hether judgment should be entered against the Respondent under Section 51(2) of the Advocates Act?
The law is settled that once costs have been taxed and a Certificate of Taxation issued, and in the absence of a pending Reference or an order setting it aside, the certificate is final.
5. Under Section 51(2) of the Advocates Act , where the retainer is not in dispute, the court has the power to enter judgment for the certified sum. In the present case, the High Court has already dismissed the Respondent's challenge to the taxation. The Respondent does not dispute the retainer, having admitted to instructing the Applicant in the primary succession cause.
6. Following the precedents in Waiganjo Wachira & Co. Advocates v Trident Insurance Company Limited [2021] KEHC 3095 (KLR) , an advocate is entitled to judgment once the taxation process is concluded so as to enjoy the fruits of their labour. The threshold for entry of judgment has been met. Judgment is hereby entered for the Applicant for the sum of Kshs 7,866,870.
7. On whether the Respondent acts in a personal or representative capacity?
The Respondent is sued in her capacity as a co-administrator of the Estate of the late Ruga Gituku. Under the Law of Succession Act, estate property vests in the personal representatives as trustees. Binding authority in Kothari v Qureshi and another ([1967] EA 564 establishes that a decree against a legal representative is enforceable only to the extent of the deceased’s property that has come into their hands. The Respondent is not personally liable for this debt. The judgment shall be enforceable against her strictly in her representative capacity as co-administrator.
8. On whether execution can lawfully issue against the assets of an unconfirmed estate.
The Respondent argues that execution is premature and constitutes unlawful intermeddling because the grant of letters of administration has not yet been confirmed. This Court disagrees.
Under Section 86 of the Law of Succession Act, debts enforceable at law must be paid before any legacy is distributed to beneficiaries. While Section 82(b)(ii) prohibits the sale of immovable property (land) before confirmation, this restriction does not apply to movable assets.
9. This Court finds persuasive the reasoning in Moi & another v Joshua Kipkemoi Mutai (Miscellaneous Application 83 of 2019) [2023] KEHC 1265 (KLR) , where the High Court allowed the execution of a decree for taxed costs against the movable property (motor vehicles and livestock) of an estate despite pending succession proceedings. Furthermore, execution authorized by a court under the Civil Procedure Act is an act authorized by law and does not constitute intermeddling.
10. The Applicant is at liberty to proceed with execution against the movable assets of the Estate. Execution against immovable assets shall remain stayed pending confirmation of the grant.
Disposition
11. In the end the court makes the following orders: -
i Judgment be and is hereby entered for the Applicant against the Respondent in her capacity as co-administrator for Kshs 7,866,870.
ii Interest is awarded on the said sum at 14% per annum from the date of the taxation certificate (10 th August 2023) until payment in full.
iii The Applicant is authorized to execute this decree against the movable assets of the Estate of Ruga Gituku.
iv Execution against immovable assets of the Estate is stayed pending the confirmation of the grant of letters of administration.
v The costs of this application are awarded to the Applicant.
Orders accordingly.
Right of appeal 28 days.
Dated, signed and delivered via TEAMS platform at Nairobi on this 29 th day of July, 2026.
…………………………
Hon R. A. Oganyo, Mrs.
JUDGE.
In the presence of: -
Court Asst…. E, Sana
Miss Inyanje for Applicant
Miss Muthoni h/b for Ashley Osman for Respondent