1. Before the court is an Application dated 14th July 2025 brought by way of Notice of Motion by the Appellant/Applicant seeking orders:-
1. THAT the Honourable Court be pleased to stay execution of the judgment/decision issued by Honourable Sandra Achieng’ Ogot on 30th May 2025 in Othaya MELC E008 of 2021 pending the hearing and determination of this application and the appeal.
2. THAT the Honourable Court be pleased to order that the judgment issued on 30th May 2025 in Othaya MELC E008 of 2021 does not prevent the court case Othaya Magistrate’s Succession Cause E025 of 2023 from continuing and LR. Othaya/KIAHAGU/67 distributed among the rightful beneficiaries of the Deceased Person, Githaiga Wambugu.
3. THAT the Honourable Court be pleased to issue any other order that it may deem just and fit to grant in the interest of justice.
4. The costs of this application are provided for.
2. The Supporting Affidavit thereto is sworn by the Applicant, who deposed that, being dissatisfied with the decision of Honourable Sandra Achieng’ Ogot on 30th May 2025 in Othaya MELC E008 of 2021, he filed a Memorandum of Appeal dated 5th June 2025.
3. On 11th February 2022, Hon. Munyendo in the trial court had cancelled all title deeds that had emerged from LR, OTHAYA/KIAHAGU/67, which forms the estate of his late father, Githaiga Wambugu. After these cancellations, the Deceased’s family initiated Othaya Magistrate’s Succession Cause E025 of 2023 and agreed on the mode of distribution for the estate.
4. The Applicant states that prior to this, there had been no other Succession initiated on the deceased’s estate and that the 4th - 7th Respondents, who are not beneficiaries, obtained the said title deeds through corruption and unprocedurally.
5. The Applicant states that after the trial court heard the suit, they were shocked at the Court’s decision that the 4th, 5th, 6th, and 7th Respondents had acquired the title deeds through legal process.
6. On 10th July 2025, the Othaya Succession Court informed the beneficiaries and dependants of the deceased that the estate will be distributed as per the orders of Hon. Sandra Achieng’ Ogot in the trial court.
7. The Applicant was therefore apprehensive that if the decision of the trial court is implemented, then 5 of the estate’s beneficiaries will lose their inheritance, which will go to persons who had intermeddled and obtained the said portions of land through corruption, misrepresentation and fraud, as no court Succession had been undertaken prior to subdivision. The Applicant therefore prayed that the application be allowed.
The 1st and 2nd Respondents’ Replying Affidavit
8. The 1st and 2nd Respondents herein jointly swore an affidavit in response to the instant application on the 28th of July 2025, deposing that the Applicant is their brother. Their late father, Githaiga Wambugu, died on 26th July 1990, and he was the registered proprietor of LR. OTHAYA/KIAHAGU/67, in which succession has not been completed to date.
9. They depose that the 4th - 7th respondents are not the beneficiaries or dependents of the estate of their father. Around May 2006, the 4th respondent informed them that the Applicant had sold a portion of their father''s land to him. He also informed them that he had transferred his land in the Waichakehiri area in Laikipia to their brother, the Applicant, where he lived for about 14years. The Applicant came back in 2020, denying that he sold any portion of the suit land, as succession had not been undertaken prior to the illegal subdivision of land.
10. In the 1st and 2nd Respondents’ position that the title deeds nos. 2332 and 2330 that came into their possession were obtained unprocedurally at the Lands Office by the 4th Respondent. The Applicant filed Othaya MELC E008 of 2021, and on 11th February 2022, Hon. Monica Munyendo cancelled all the resultant title deeds from the suit land.
11. The 1st and 2nd Respondents depose that these subdivisions of their father''s land have caused enmity and a long-standing dispute among the family members who are the genuine beneficiaries, stating that none of the transfer documents show that the Applicant was involved during the transactions at the lands office.
12. The 1st and 2nd Respondents expressed that the decision of the trial court came as a shock to them, as the court was aware that the grant in succession cause E025 of 2023 was to be confirmed on 13th March 2024, so that the estate of Githaiga Wambugu (Deceased) could be distributed. They are therefore in support of the instant application.
The 4th Respondent’s replying affidavit
13. The 4th Respondent swore an affidavit in opposition to the instant application on the 24th of July 2025, deposing that the Succession Cause was stayed pending the hearing and determination of the ELC case before the trial court; therefore, the succession cause cannot proceed until the appeal is heard and determined fully, since part of the Estate is the subject of this appeal.
14. He deposed that he proved before the trial court that he lawfully bought the said plot from the Applicant and acquired the ownership documents legally. He prayed that the Court dismiss the application, specifically prayer (2) with costs and have the appeal determined on merit.
The 5th Respondent’s replying affidavit
15. The 5th Respondent herein swore an Affidavit in response to the instant application on the 25th of July 2025, opposing the same and terming it as a non-starter, fatally and incurably defective, because the Applicant has not annexed a certified copy of the Decree in which he is seeking a stay of execution.
16. He denied that their titles were obtained fraudulently, and that the argument that they are not beneficiaries is irrelevant and immaterial to the legality of their registered titles, which were acquired procedurally and lawfully.
17. Further, he deposed that the Applicant has not demonstrated that he is willing to furnish such security for the due performance of the decree pending the outcome of the intended appeal and has failed to demonstrate what substantial or irreparable loss may result to him if the orders of stay are not granted and how the appeal will be rendered nugatory.
18. The 5th Respondent deposed that they are in lawful possession of the properties in question and shall suffer great prejudice if this Court grants the stay sought, which will deny them the enjoyment of the land rightfully and lawfully acquired, and urged the Court to dismiss the instant application.
The Appellant/Applicant’s further affidavit
19. The Applicant filed a further Affidavit in response to the Respondents’ Replying Affidavits, and deposed that the 4th -7th Respondents have not adduced any documentary proof as to when his father transferred the suit properties to them, and how the titles thereto were obtained.
20. He added that another question for the Court to consider is whether Hon. Sandra Achieng had any mandate to overturn the decision of her fellow Principal Magistrate Hon. Munyendo, cancelling the title deeds on 11th February 2022, yet she was not acting as an appellate judge.
Appellant/Applicant’s written submissions
21. The Appellant/Applicant submitted extensively on the merit of the appeal, which is not yet the subject for determination at this stage, so I will refrain from summarising the same here.
22. Regarding the instant application, the Applicant submitted that the Honourable Court should allow the Succession Cause Number E025 of 2023 at Othaya Magistrate''s Court to continue, as he believes that there was no legal basis to halt the same, as the beneficiaries should be allowed to benefit from the estate of the deceased.
The 1st and 2nd Respondents Submissions
23. The 1st and 2nd Respondents reiterated that the resultant title deeds from the suit property were obtained through a flawed process and are a nullity, stating that the trial court’s judgment of 30th May 2025 appears to validate what had been obtained illegally. That, with basic due diligence, the 4th-7th Respondents would have established that their father’s estate had not been subjected to the succession process.
24. They submit that the 4th Respondent took advantage of their illiteracy and informed them that it was the Applicant who helped him procure the title deeds that had not conformed to the law. They denied that their late father had subdivided the estate and gifted it to his family members.
25. The 1st and 2nd Respondents concluded that if the orders of the trial court of 30th May 2025 are implemented, it means the true dependants of the estate of Githaiga Wambugu(Deceased) will be rendered homeless and their rights will be trampled on. They therefore support the application dated 14th July 2025 that the judgment be stayed and the lawful succession process should not be halted, as there is no legal basis for the same.
The 4th Respondent’s submissions
26. Counsel for the 4th Respondent submitted that the succession cause was duly stayed pending hearing and determination of the ELC Case vide the order dated 5th July 2024, a copy of which is annexed to their Affidavit as “AMW 2”, thus the succession case can only proceed, excluding the portion for the 4th Respondent, being Othaya/Kiahagu/2333. He sought the Court''s intervention to hold the said portion in abeyance, pending the hearing and determination of the Appeal herein on ownership.
27. The 4th Respondent relied on the inherent jurisdiction of the Court regarding the ends of justice in Section 3A of the Civil Procedure Act, stating that if the Succession Suit proceeds, he is at risk of being evicted from the said portion which he has been in occupation of for the last 21 years, thus causing irreparable damage, despite an existing judgment in his favour. He urged the Court to disallow this application with costs and order that the status quo be maintained.
The 5th, 6th and 7th Respondents’ written submissions
28. Counsel for the 5th, 6th and 7th Respondents submitted that the only issue for determination is whether the applicant has met the threshold for granting the stay orders pending appeal and quoted from Order 42 rule 6(2) of the Civil Procedure Rules.
29. On substantial loss, it was submitted that the Applicant has not demonstrated any substantial loss that he is likely to suffer if stay is not granted and that successful litigants are entitled to enjoy the fruits of their judgment in an expedient way. Counsel relied on the authorities of:
James Wagalwa & Another vs Agnes Naliaka Cheseto(2012)eKLR
RWW vs EKW(2019)eKLR, Kenya Shell Ltd vs Kibiru(1986)KLR 410.
30. On the matter of security for the due performance of the decree, they submitted that no security has been offered in the event that the appeal is not successful. On this point, Counsel cited the following authorities:
Mwaura Karuga T/A Limit Enterprises v. Kenya Bus Services Ltd & 4 others(2015)eKLR, Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd(2019)eKLR, Mohammed Salim T/A Choice Butchery vs Nasserpuria Memon Jamat(2013)eKLR
31. They concluded that the Respondents have not met the 3 conditions necessary to satisfy before a stay pending appeal is granted.
Analysis and Determination
32. Having considered the Application dated 14th July 2025, the responses and rival submissions thereto, the court is of the view that the following matters arise for determination:
1) Whether the Appellant/Applicant’s failure to attach the decree of the trial court renders the application fatally defective.
2) Whether the Court ought to grant an order to stay the execution of the trial court''s judgment.
3) Whether this Court ought to order that the judgment issued on 30/5/2025 in Othaya MELC E008 of 2021 does not prevent the court case Othaya Magistrate’s Succession Cause E025 of 2023 from continuing, and LR. Othaya/KIAHAGU/67.
1) Whether the Appellant/Applicant’s failure to attach the decree of the trial court renders the application fatally defective.
33. The 5th Respondent objected to the application, stating that the Appellant/Applicant did not attach a copy of the Decree that was to be appealed from, making the application fatally defective. Indeed, the Applicant has only attached a copy of the judgment appealed from. The only Decree attached is that issued on 11th February 2022, revoking the resultant subdivisions of the suit property, which was later set aside.
34. In the court’s view, failure to attach the decree does not render the application fatally defective, as a copy of the decision that he appeals from is readily available, printed directly from the CTS system. No law was referred to for the requirement to attach a Decree to the application under consideration.
2) Whether the Court ought to grant an order to stay the execution of the trial court''s judgment.
35. Order 42(6) of the Civil Procedure Rules provides for the stay of execution of a Decree pending appeal and states that:-
(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless—
(a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.”
36. Counsel for the 5th -7th Respondents submitted that the purpose of stay of execution is to preserve the subject matter in dispute while balancing the interests of the parties and considering the circumstances of the case. Counsel cited the Court of Appeal decision in RWW vs. EKW (2019) eKLR, where the court addressed itself on this as follows:-
“The purpose of an Application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the Court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her Judgment. The Court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an Application for stay of execution pending appeal is discretionary. The Court, when granting the stay, however, must balance the interests of the Appellant with those of the Respondent."
37. Further, the Court of Appeal in Vishram Ravji Halai vs.Thornton & Turpin Civil Application No. Nairobi 15 of 1990 [1990] KLR 365, outlined the requirements for granting stay of execution pending appeal. It held that, whereas the Court of Appeal''s power to grant a stay pending appeal is unfettered, the High Court''s jurisdiction to do so under Order 41 rule 6 (as it then was) of the Civil Procedure Rules is fettered by three conditions, namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security.
38. Substantial loss was explained in the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, to the following effect;
" No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, it does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The Applicant must establish other factors which show that the execution will create a state of affairs that will irreparably act or negate the very essential core of the Applicant as the successful party in the appeal... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory."
39. Looking at the Supporting Affidavit, one can decipher the Applicant''s claim to substantial loss as he claims that he is apprehensive that if the decision of the trial court is implemented, then five of the estate’s beneficiaries of Githaiga. Wambugu (deceased), being himself (son), Felista Wangui Gichuki (daughter), Jenelica Wangari Nderitu (daughter), Stanley Githaiga Kariuki (grandson) and Samuel Kariuki Wangechi (grandson) will lose their inheritance, and the same will go to persons who had intermeddled and obtained portions of land through corruption, misrepresentation and fraud. He supports this claim by stating that the legal Succession process had not been undertaken before the subdivision of land parcel OTHAYA/KIAHAGU/67.
40. The Applicant further claims that brokers in Othaya town have confided to some family members that they had been asked by the 4th to 7th Respondents to look for potential buyers for their portions of the suit land, so that immediately the portions are transferred to them, they will dispose of them. He further states that he has consulted extensively and has been advised that under no circumstances can people who are not beneficiaries of a deceased person get a share from the estate.
41. The court has considered the orders made by the trial court in its judgment of 30th May 2025 and noted that with regard to all Respondents, the suit was dismissed with costs. A further order was made with regard to the 4th Respondent that the current status quo be maintained.
42. In the court’s view, the order dismissing the Appellants'' suit is a negative order which is incapable of execution; there can be no stay of execution of such an order. In Kanwal Sarjlt Singh Dhiman vs Keshav vs Juvral Shah [2008] eKLR, the Court of Appeal, while dealing with a similar Application for stay of a negative order, held as follows:-
“The 2nd prayer in the Application is for stay (of execution) of the order of the superior Court made on 18th December 2006. The order of 18th December 2006 merely dismissed the Application for setting aside the judgment with costs. By the order, the superior Court did not order any of the parties to do anything or refrain from doing anything or pay any sum. It was thus a negative order which is incapable of execution save in respect of costs only”.
43. With regard to the orders granted in favour of the 4th Respondent, the court notes that the said order is for the maintenance of the status quo. The court has gone through the judgment of the trial court in Karatina PMELC No.E008 of 2024 and the Judgment in the Appeal Nyeri ELCA No. E031 of 2022. It is noted that the Applicant has submitted and argued as though the initial judgment by Hon. M.N. Munyendo delivered on 11th February 2024 was still in force. He has ignored the fact that the said judgment was set aside on Appeal in Nyeri ELCA No.E031 of 2022.
44. The Hon. Justice Olola, in the judgment delivered on 15th February 2024, set aside the judgment by the Hon M. N. Munyendo in Othaya. The Appellate Court further issued an order of injunction against the 1st Respondent in that appeal, Daniel Ngatia Githaiga, the Appellant/Applicant in this Appeal. In the Court''s view, after reviewing the documents presented by the parties, the status quo with regard to the 4th Respondent is that he is in possession and has a title to the portion of the suit land that was said to have been sold to him.
45. The court finds that the Applicant has not shown what substantial loss will accrue to him if the same status quo were to continue. In the Court’s view, substantial loss is actually likely to occur to the Respondents herein if the stay is granted, for the reason that they state that they have been residing on the suit properties and are likely to be evicted by the Applicant if the stay pending appeal is granted.
46. With regard to the orders issued in favour of the 5th, 6th and 7th Respondents, herein, the court is satisfied that for purposes of preserving the land subject matter of the appeal herein pending hearing and determination of the Appeal, the titles to the said parcels of land should remain in the names of the Respondents and not change hands. As stated earlier, the purpose of an order of stay of execution is to preserve the suit property pending appeal.
47. In the Court’s view, an order of status quo would better serve the parties to this appeal by preserving the subject matter pending appeal so as not to render the appeal nugatory. This would be an order specifically prohibiting any further dealings, such as sale or alienation, subdivision charge and/or changes to the proprietorship of the suit parcels of land. The High Court sitting at Mombasa in the case of Classic Building Works Limited v Pansons Construction Co. Limited [2021] eKLR granted the Applicant orders of status quo pending appeal and pronounced itself as follows:
"Having considered all the pleadings and written submissions by the parties, the only issue for determination arising from the application is whether the status quo can be maintained pending the hearing and determination of the Appeal against the Ruling of Hon. E. Makori delivered on 10th December, 2020. In the case of Ujagar Singh vs Runda Coffee Estates Limited [1966] EA 263, the court therein invoked its inherent jurisdiction and ordered for the preservation of the status quo pending the hearing and determination of the appeal”
3) Whether this Court ought to order that the judgment issued on 30/5/2025 in Othaya MELC E008 of 2021 does not prevent the court case Othaya Magistrate’s Succession Cause E025 of 2023 from continuing, and LR. Othaya/KIAHAGU/67.
48. On whether the Othaya Succession Cause should proceed to confirm the grant notwithstanding the Judgment in MELC E008/21, the court has considered the fact that when in Succession matters an ownership dispute arises, Rule 41 (3) of the Probate Administration Rules (under the law of succession Act) provides that:-
“Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71 (2) of the Act, proceed to confirm the grant”.
49. In the case of Pricilla Ndubi and Zipporah Mutiga vs. Gerishon Gatobu Mbui, Meru Succession Cause No. 720 of 2013, the court was facing a more or less similar question for determination. It was held that:-
“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues on the ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation”.
50. It is thus clear from the foregoing that when a dispute regarding ownership in respect of the property of a deceased person arises, then the court can set aside the share in dispute to await the outcome of the resolution of the dispute from the court with jurisdiction.
51. In the present case, the court has considered the application for confirmation of grant exhibited by the Applicant dated 26th February 2024. Paragraph 5 of the Supporting Affidavit proposes to distribute LR.OTHAYA/KIAHAGU/67 to the beneficiaries set out at Paragraph 2. The ownership dispute over this parcel of land was referred by the Applicant to the Karatina Magistrates'' Court for hearing and determination. The Applicant relies on the initial determination of the dispute by the Hon. M.N. Munyendo, where the subdivision of the above parcel of land was cancelled and the parcel reverted to Stanley Githaiga Wambugu alias Githaiga S/O Wambugu (Deceased). As stated earlier, the Applicant ignored the judgment on Appeal of Hon. Justice Olola in Nyeri ELCA E031/2022, where the 1st Respondent’s application dated 6th September 2022 was allowed. In essence, the Appellate Court set aside the judgment of the trial court, Hon. M.N. Munyendo delivered on 11th February 2022 and issued an order of injunction as set out in the said application.
52. The court’s interpretation of the said Appellate Judgment was that the Land Parcel LR.Othaya/Kiahagu/67 reverted to its position or status prior to the said judgment. The trial court file was returned to Karatina for hearing afresh and for other parties to be added.
53. The suit proceeded for hearing, and the Hon. Sandra Ogot delivered judgment on 30th May 2025, giving rise to this Appeal. For the reason that this appeal has not been heard, the court is of the view that the judgment of the Hon. Sandra Ogot in Karatina MCELC No.E008/2021 remains the legally enforceable determination of the ownership dispute of former LR Othaya/Kiahagu/67 and all its subdivisions. In the circumstances, the Succession Cause can only proceed with confirmation of the grant to implement the said judgment and not proceed as though it did not exist, as proposed by the Applicant.
54. The court has further considered the issue of whether or not it has the legal mandate to issue the order sought. The Appellant/Applicant sought an order that the impugned judgment should not prevent his late father’s Succession Case from proceeding. This Court finds that it has no mandate to issue the orders sought regarding a Succession Case. The court observes that the ELC court does not supervise the court that deals with Succession Cases, whose powers lie with the High Court.
55. This court’s jurisdiction is provided for under Article 162 (2) of the Constitution, where it is provided that:-
“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land”.
56. The above jurisdiction is further stipulated under section 13 of the environment and land court Act where in subsection (1), it is provided that;
“The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2), (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land”.
57. Subsection (2) provides that in exercise of its jurisdiction, the court will have powers to hear and determine the following: Disputes;
a) Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
b) Relating to compulsory acquisition of land;
c) Relating to land administration and management;
d) Relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
e) Any other dispute relating to environment and land.”
58. From the foregoing, the ELC court exercises its supervisory role upon the magistrate’s court but only in matters stipulated under the aforementioned provisions of the Environment and Land Court Act. In Isaac Kinyua & 3 others V Hellen Kaigongi [2018] eKLR, the court held that;
"Succession matters do not fall under the ambit of the jurisdiction of the ELC court. If this court were to grant stay orders in respect of the succession cause, it would in essence amount to straying in a field where the court has no jurisdiction”.59. The court agrees with the above finding and thus makes the following orders in determination of the Notice of Motion dated 14th July 2025:
1. The status quo currently pertaining to the suit parcels of land being subdivisions of OTHAYA/KIAHAGU/67 be maintained pending hearing and final determination of this Appeal.
2. Prayer 2 of the application is hereby dismissed.
3. Costs shall be in the cause.
Dated, Signed and Delivered at Nyeri, this 16th day of October, 2025
In the Presence of:-
C. Kendi: Court Assistant
No attendance for the Appellant/Applicant
William Muraya Githaiga 2nd Respondent Present in Person
No attendance by the 1st Respondent
No attendance for the 4th Respondent
Njeri Magua for the 5th, 6th and 7th Respondents