Republic v County Surveyor Vihiga Cunty; Agama (Being Administrator of the Estate of Tom Mahagwa Egosagwa) (Exparte Applicant); Ludenyo (Being Administrator to the Estate of Matia Ludenyo Luhunza - Deceased) (Interested Party) (Environment and Land Judicial Review Case E004 of 2021) [2025] KEELC 4607 (KLR)
The bottom line
#The High Court confirmed that a personal representative must pay court costs awarded against a deceased person's estate, and attachment of property can proceed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether execution herein against Kennedy Agama should be set aside on the basis that he is not a party in this matter but a mere personal representative of the estate of the late Tom Mahagwa Egosagwa
- 2.Whether the Certificate of Costs should be corrected to be issued against the Estate of Tom Mahagwa Egosagwa and not Kennedy Agama
- 3.Whether the estate of the late Tom Mahagwa Egosagwa should be allowed to settle the taxed costs by monthly instalments of Kshs. 15,000/=
Key legal issues
#Whether a personal representative is liable for costs awarded in proceedings prosecuted on behalf of the deceased's estate
Yes; the personal representative has powers and duties under sections 82 and 83 of the Law of Succession Act, including paying debts of the estate, and costs in a suit filed by or against the estate are such debts
Sections 82 and 83 of the Law of Succession Act confer powers and impose duties on personal representatives, including paying out of the estate all debts. Costs in a suit filed by or against a deceased person's estate are such a debt. The applicant freely chose to represent the estate and cannot both represent it and disown liability for its costs.
Whether the certificate of costs should be rectified due to alleged alteration/distortion of party names
No; the naming reflected proper judicial review nomenclature and any misspellings were inconsequential
In judicial review, proceedings are brought in the name of the Republic, the respondent is ordinarily a government officer or quasi-judicial body, and the affected person is the interested party. Thus the taxing officer exhibited no malice. The court should not perpetuate a party's basic error in citing parties, and misspellings do not change the substance of the certificate.
Whether instalment payment of the taxed costs should be allowed
Refused; no justification and it would defeat expeditious access to justice
Costs were assessed at Kshs. 268,658/=. Payment of Kshs. 15,000/= per month would span about 18 months, which the court found unjustified and inconsistent with the right of a successful litigant to enjoy the fruits of judgment expeditiously. The applicant offered no basis for the proposal.
Legal principles established
#- A personal representative who takes over proceedings on behalf of a deceased litigant stands in the place of the deceased and is bound to satisfy costs awarded against the estate
- A judicial review application is ordinarily made in the name of the Republic though filed by the ex parte applicant; the respondent is ordinarily a government officer or person exercising quasi-judicial powers, and the person affected is the interested party
- Misspellings or omissions of parties' names are inconsequential and do not change the substance of a certificate of costs
Court orders
#- 1.The Notice of Motion dated 24th March 2025 is dismissed
- 2.Costs of the application to the Interested party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 22 Rule 51 of the Civil Procedure Rules (objection to attachment in execution)
Relief refused
#Setting aside warrants of attachment against the applicant's movable property
Applicant, as personal representative who stood in the place of the deceased, is bound to settle costs awarded against the estate; no justification for setting aside attachment
Correction of the Certificate of Costs to issue against the estate of the deceased and not Kennedy Agama
The naming of parties in the certificate followed the ordinary nomenclature of judicial review proceedings and misspellings were inconsequential
Payment of taxed costs by instalments of Kshs. 15,000/= per month
No justification given and instalments over 18 months would be inconsistent with expeditious access to justice
Costs
Application dismissed with costs to the Interested party
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find and hold that the applicant is party to this suit and orders issued against the estate of the deceased including the certificate of costs are to be complied by him as there is no basis for rectifying the certificate of costs for the same to be in regard to the estate of the deceased and exclude the applicant.
The upshot is that the application herein dated 24th March 2025 lacks merit and the same is hereby dismissed with costs to the Interested party.
allowing payment of Kshs 15, 000/= per month will result is payment for a period of 18 months which is unjustified and which will not be in tandem with the right to access to expeditious justice.
Issues in the judgment
#The applicant is described in the notice of motion and affidavit as the Ex parte Applicant while the decree holder Beatrice Ludenyo is described at various points as the interested party and once as 'the respondent in person' in the appearance note
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Surveyor Vihiga Cunty; Agama (Being Administrator of the Estate of Tom Mahagwa Egosagwa) (Exparte Applicant); Ludenyo (Being Administrator to the Estate of Matia Ludenyo Luhunza - Deceased) (Interested Party) (Environment and Land Judicial Review Case E004 of 2021) [2025] KEELC 4607 (KLR)", Case Analysis (2025). Judicial Review application (Notice of Motion dated 24th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4607/eng@2025-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.