[1] Before court is a Notice of Motion application dated 19 th May 2025, filed by the applicants, Kirwa Kemboi, Hellen Jepkemoi and Daniel Kemboi, through the firm of Kipkosgei Choge & Co. Advocates. It is brought under Sections 3A, 95 and 96 of the Civil Procedure Act, and Order 42 of the Civil Procedure Rules. The application seeks the following orders:
[a] That the Court be pleased to grant leave to the applicants to file an appeal out of time against the ruling delivered by Hon. J. Aringo (PM) on 19 th February, 2025 in Kapsabet Chief Magistrate's Succession Cause No. E245 of 2022.
[b] That the Court be pleased to issue an order for stay of execution of the ruling delivered herein against the applicants on 19 th February, 2025 in Kapsabet Chief Magistrate's Succession Cause No. E245 of 2022 pending the hearing and determination of the application and the intended appeal.
[c] That the costs of the application be in the cause.
[2] The application is predicated on the grounds that failure to file an appeal in time was due to the delay in typing of the proceedings. They also averred that the intended appeal is arguable and has overwhelming chances of success and will therefore be rendered nugatory if stay of execution is not granted. They added that the respondents will not suffer any prejudice if this application is allowed.
[3] The application is supported by an affidavit of the 1 st applicant, Kirwa Kemboi, sworn on 19 th May 2025. He averred that the applicants were protestors in Kabsabet Magistrates Court Succession No. E245 of 2022: In the Matter of the Estate of Tapyanga arap Keter (Deceased); and that their Protest was dismissed on 19 th February 2025. They averred that they would like to appeal from that decision but were unable to obtain copies of the typed proceedings in time. They explained that the delay in filing the appeal was neither intentional nor deliberate.
[4] The applicants further averred that the intended appeal has high chances of success; and that unless the orders sought are granted they are likely to suffer irreparable loss and damage. They also mentioned that, from a copy of Register of the Estate Property, the Certificate of Confirmation of Grant has not been presented for Registration.
[5] The application was opposed by the respondent, Rose Russy Jelagat. She relied on her Replying Affidavit sworn on 15 th November 2025 in which she averred that the 1 st and 3 rd applicants are her siblings while the 2 nd respondent is her sister-in-law. Contrary to the averments made by the applicants, it was her posturing that the Certificate of Confirmation has been presented for registration, and that all but four beneficiaries have been issued with title deeds. It was therefore her assertion that the application has been overtaken by events as the suit parcel land NANDI/KOYO/361 no longer exists. According to her, the asset has already been subdivided into new parcels bearing new title numbers ranging between NANDI/KOYO/1547 to NANDI/KOYO/1561.
[6] The respondent further averred that an order for stay of execution of the ruling delivered on 19 th February 2025 will cause her undue hardship and frustrate the majority of the beneficiaries. She further deposed that the reason given by the applicants for their failure to file an appeal in time, namely, delay in typing of the proceedings, is not sufficient excuse to warrant the issuance of the orders sought.
[7] The application was canvassed by way of written submissions, pursuant to the directions given herein on 3 rd March 2026. The applicants relied on written submissions dated 5 th May 2026, filed on their behalf by the firm of M/s Cheruiyot Melly & Associates, while the respondent relied on her written submissions dated 4 th June 2026, filed through the firm of M/s Korir Jepleting and Co. Advocates. There is no indication that there was change of advocates or leave to cease acting on the part of the firm of Kipkosgei Choge & Co. Advocates. Hence, the question to pose is whether the written submissions filed by M/s Cheruiyot Melly & Associates ought to be expunged from the record for having been filed irregularly, thereby visiting the Advocate’s misdeed on his client, the applicant
[8] An analogous situation played out in National Bank of Kenya Ltd v Anaj Waherehousing Ltd [2015] eKLR where an advocate acted on behalf of a client without a current practicing certificate. The Supreme Court had the following to say:
58.In these circumstances, how does the citizen’s position rest? If he or she were to walk into an advocate’s office, for a conveyancing service at a fee, would there be an initial obligation resting on him or her to demand the advocate’s practising certificate? Would he or she be in breach of the law if after the service, it turned out that the advocate lacked a certificate? The transgressor, in our view, is the advocate, and not the client. The illegality is the assumption of the task of preparing the conveyancing document, by the advocate, and not the seeking and receiving of services from that advocate. Likewise, a financial institution that calls upon any advocate from among its established panel to execute a conveyance, commits no offence if it turns out that the advocate did not possess a current practising certificate at the time he or she prepared the conveyance documents. The spectre of illegality lies squarely upon the advocate, and ought not to be apportioned to the client.
[9] Guided by the above reasoning it is my finding that, since the applicants are not to blame for the omission on the part of counsel, the written submissions filed on their behalf are valid for consideration, the anomaly notwithstanding. No prejudice will be occasioned to the respondent as she had occasion to consider and respond to the submissions.
[10] In their written submissions, the applicants proposed the following two issues for determination:
[a] Whether the Appeal out of time can be granted.
[b] Whether stay of execution of the Ruling can be granted
[11] On whether the appeal out of time can be admitted, the applicants relied on Section 79G and 95 of the Civil Procedure Act and submitted that the Court has the discretionary power to enlarge time for doing any act prescribed or allowed by the Act. They also relied on the overriding objective enshrined in Section 3A which mandates the Court to exercise its powers so as to ensure that justice is not sacrificed on the altar of procedural technicalities.
[12] The applicants also relied on Article 48 of the Constitution which guarantees every person the right of access to justice, and Article 50(1) which guarantees the right to a fair hearing. Article 159(2) (d) was also cited for the precept directs that justice be administered without undue regard to procedural technicalities.
[13] In terms of case law, the applicants relied on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, Hassan Nyanje Charo v Khatib Mwashetani & 3 Others [2014] eKLR , Fakir Mohammed v Joseph Mugambi & 2 Others [2005] eKLR and Ngei v Kibe & Another (Civil Appeal E359 of 2021) eKLR in which the applicable principles were discussed.
[14] As for stay of execution, the applicants made reference to Order 42 Rule 6 of the Civil Procedure Rules and the cases of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR, RWW v EKW [2019] eKLR , Butt v Rent Restriction Tribunal [1982] KLR 417 and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR and submitted that they have met the prerequisites for stay pending appeal. They pointed out that this is not a money decree and therefore the condition for security is not applicable. They urged the Court to allow the application in the interest of justice.
[15] In the respondent’s written submissions dated 4 th June 2026, she reiterated the agreed facts and added that after the Court rendered itself on the applicants’ Protest, the matter proceeded to confirmation of grant and the estate was distributed equally among the beneficiaries. She therefore proposed the following issues for determination:
[a] Whether the applicants have met the prerequisites for enlargement of time to lodge and appeal.
[b] Whether the applicants have met the prerequisites for grant of stay of execution pending the intended appeal
[c] To whom shall the costs be awarded?
[16] The Respondent cited Section 79G of the Civil Procedure Act and the Court of Appeal decision in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR on the guiding principles that aid courts in the exercise of discretion in applications of this nature; one of them being that the delay, which should not be inordinate, must be satisfactorily explained. In the submission of the respondent no evidence was presented by the applicants to support their assertion that they were not supplied with typed proceedings in time; and therefore they have not met the threshold for leave to appeal out of time
[17] On stay of execution, the respondent submitted that the applicants were duty-bound to satisfy the conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules. They relied on the case of Antoine Ndiaye v African Virtual University [2015] eKLR and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR in which the three conditions were discussed, namely, substantial loss, security for costs and the requirement that the application be made without unreasonable delay. The respondent also relied on the cases of Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR and Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR on the requirement for security. She urged the Court to find that the applicants have not demonstrated their willingness and deposit such security.
[18] I have given due consideration to the application dated 19 th May 2025, the affidavits filed in respect thereof and the written submissions presented by learned counsel on behalf of the parties. The documents annexed to the parties’ affidavits confirm that before the lower court, the respondent filed Kapsabet Magistrate’s Succession Cause No. E245 of 2022 in respect of the estate of Tapyanga Arap Keter (Deceased). She was issued with Grant of Letters of Administration. The applicants filed a Protest to the respondent’s proposed mode of distribution; which Protest was dismissed on 19 th February 2025 and a Certificate of Confirmation issued. The respondent thereafter proceeded with distribution as sanctioned by the Court in terms of the Schedule appended to the Certificate of Confirmation.
[19] It was not until 19 th May 2025 or thereabout that the applicants filed the instant application for leave to appeal out of time and for stay of execution, contending that they are aggrieved by the ruling dated 19 th May 2025 and that they have valid grounds of appeal but cannot file the appeal without the leave of the Court in view of the time lapse of about three months.
[20] Although the application is expressed to have been brought under Sections 3A, 95 and 96 of the Civil Procedure Act, and Order 42 of the Civil Procedure Rules, Section 2(1) of the Law of Succession Act provides that:
“Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.”
[21] Additionally, Rule 63 of Probate and Administration Rules provides as follows:
(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.
(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.
[22] Sections 3A, 95 and 96 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules are not among the provisions imported by the Rule 63 aforementioned. Nevertheless, Section 47 of the Law of Succession Act is explicit that:
“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:”
[23] Rule 49 of the probate and Administration Rules provides that all application not provided for in the Rules shall be by way of Summons. It provides as follows:
A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported if necessary by affidavit.
[24] Moreover, Rule 73 of the Probate and Administration Rules is explicit that:
Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
[25] It is my finding therefore that the Court has the jurisdiction to entertain the application. From the prayers, the parties’ respective averments and the submissions filed, the issues for consideration and determination are:
[a] Whether the applicants have demonstrated sufficient grounds for extension of time.
[b] Whether justification has been made for the issuance of an order of stay of execution.
[c] What orders ought to issue on costs
A On whether the applicants have demonstrated sufficient grounds for extension of time:
[26] In Nicholas Kiptoo arap Salat v Independent Electoral and Boundaries Commission and 7 Others (supra) the Supreme Court set out the factors for consideration when determining an application for extension of time as follows:
“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:
1) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5) Whether there will be any prejudice suffered by the respondents if the extension is granted;
6) Whether the application has been brought without undue delay; and
7) Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
[27] Therefore, the applicants were under obligation to demonstrate the following prerequisites :
[a] Whether there is a good and reasonable explanation for the delay;
[b] Whether the application has been brought without undue delay;
[c] Whether the appeal is arguable, and
[c] whether any prejudice will be suffered by respondent.
[28] The Applicant herein states that the delay in filing the appeal is attributed to delay in typing proceedings. It is notable however that the impugned ruling, having been delivered on the 19 th February 2025, was uploaded in the CTS portal on the 20 th February 2025 for the benefit of all the parties. No reason was advanced as to the failure by the applicants to lodge their Memorandum of Appeal pending the typing of proceeding. No evidence was given to back up the applicants’ assertions that they applied and paid for the proceedings on the 26 th February 2025 or the exact date when the same were availed to them. More importantly, there was no Certificate of Delay is filed in acknowledgment that the delay was attributable to the typing of the proceedings as alleged.
[29] It is therefore my finding that the delay of about 3 months between 19 th February 2025 and 19 th May 2025 when the instant application was filed has not been satisfactorily explained and therefore no useful purposes would be served by pay attention to the other prerequisites for extension of time.
B. On whether an order of stay of execution is warranted:
[30] The applicants approached the Court under Order 42 Rule 6 of the Civil Procedure Rules. The provision states:
“(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.
[31] It is trite therefore that an applicant seeking stay of execution must demonstrate the following key elements:
[a] Substantial loss unless stay is granted
[b] That the application has been brought without undue delay; and
[c] Security for the due performance of such decree or order as may ultimately be binding on such applicant.
[32] The perquisites for stay of execution have been discussed in a plethora of decisions. For instance, i n Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) as follows:
“ It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ inWilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
[33] Similarly, in Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), the Court of Appeal held that: -
“ If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money.”
[34] Before engaging in a merit consideration of the application as to whether the three conditions for stay have been satisfied by the applicant, a pertinent question to pose is whether an order of stay of execution can validly issue where no appeal has been filed. This is because the Court of Appeal pronounced itself on this in Abubakar Mohamed Al-Amin v Firdaus Siwa Somo and held:
…the learned Judge was correct in holding that in the absence of the appeal there was nothing upon which the stay orders sought under Order 42 of the Civil Procedure Rules could be anchored. Towards that end, we concur and adopt the observations made by Meoli, J. in Rosalindi Wanjiku Macharia vs. James Kiingati Kimani (Suing as the Legal Representative of the Estate of Martin Muiruri (Deceased )) [2017] eKLR where she stated;
“In my view, even if the prayer to appeal out of time had been granted, and the said prayer for stay pleaded in the Motion, it would still have failed for the reason that the existence of an appeal is a condition precedent to the exercise of this court’s discretion under Order 42 Rule 6 (1) of the Civil Procedure Rules.
…
It would seem that the invocation of the jurisdiction of this court under Order 42 Rule 6 (1) or 6 (6) of the Civil Procedure Rules must be preceded by the filing of an appeal, or compliance with the procedure for filing appeal, in this case a memorandum of appeal (See Order 42 Rule 1 of the Civil Procedure Rules). Until the memorandum of appeal is filed, the court would be acting in vacuo by granting a stay of execution pending appeal.”
31. The prayer for stay of execution could only be canvassed after the appeal had been filed pursuant to the leave granted by the court. The two prayers should not have been lumped together in one application.
[35] In the premises, it is manifest that the applicants’ prayer for stay of execution is misconceived.
[36] In the result, I find no merit in the application dated 19 th May 2025. The same is hereby dismissed with no order as to costs, noting that the parties are related.
It is so ordered.
DATED, SIGNED AND DELIVERED AT KAPSABET THIS 30 TH DAY OF JULY 2026.
[a] That the Court be pleased to grant leave to the applicants to file an appeal out of time against the ruling delivered by Hon. J. Aringo (PM) on 19 th February, 2025 in Kapsabet Chief Magistrate's Succession Cause No. E245 of 2022.
[b] That the Court be pleased to issue an order for stay of execution of the ruling delivered herein against the applicants on 19 th February, 2025 in Kapsabet Chief Magistrate's Succession Cause No. E245 of 2022 pending the hearing and determination of the application and the intended appeal.
[c] That the costs of the application be in the cause.
[2] The application is predicated on the grounds that failure to file an appeal in time was due to the delay in typing of the proceedings. They also averred that the intended appeal is arguable and has overwhelming chances of success and will therefore be rendered nugatory if stay of execution is not granted. They added that the respondents will not suffer any prejudice if this application is allowed.
[3] The application is supported by an affidavit of the 1 st applicant, Kirwa Kemboi, sworn on 19 th May 2025. He averred that the applicants were protestors in Kabsabet Magistrates Court Succession No. E245 of 2022: In the Matter of the Estate of Tapyanga arap Keter (Deceased); and that their Protest was dismissed on 19 th February 2025. They averred that they would like to appeal from that decision but were unable to obtain copies of the typed proceedings in time. They explained that the delay in filing the appeal was neither intentional nor deliberate.
[4] The applicants further averred that the intended appeal has high chances of success; and that unless the orders sought are granted they are likely to suffer irreparable loss and damage. They also mentioned that, from a copy of Register of the Estate Property, the Certificate of Confirmation of Grant has not been presented for Registration.
[5] The application was opposed by the respondent, Rose Russy Jelagat. She relied on her Replying Affidavit sworn on 15 th November 2025 in which she averred that the 1 st and 3 rd applicants are her siblings while the 2 nd respondent is her sister-in-law. Contrary to the averments made by the applicants, it was her posturing that the Certificate of Confirmation has been presented for registration, and that all but four beneficiaries have been issued with title deeds. It was therefore her assertion that the application has been overtaken by events as the suit parcel land NANDI/KOYO/361 no longer exists. According to her, the asset has already been subdivided into new parcels bearing new title numbers ranging between NANDI/KOYO/1547 to NANDI/KOYO/1561.
[6] The respondent further averred that an order for stay of execution of the ruling delivered on 19 th February 2025 will cause her undue hardship and frustrate the majority of the beneficiaries. She further deposed that the reason given by the applicants for their failure to file an appeal in time, namely, delay in typing of the proceedings, is not sufficient excuse to warrant the issuance of the orders sought.
[7] The application was canvassed by way of written submissions, pursuant to the directions given herein on 3 rd March 2026. The applicants relied on written submissions dated 5 th May 2026, filed on their behalf by the firm of M/s Cheruiyot Melly & Associates, while the respondent relied on her written submissions dated 4 th June 2026, filed through the firm of M/s Korir Jepleting and Co. Advocates. There is no indication that there was change of advocates or leave to cease acting on the part of the firm of Kipkosgei Choge & Co. Advocates. Hence, the question to pose is whether the written submissions filed by M/s Cheruiyot Melly & Associates ought to be expunged from the record for having been filed irregularly, thereby visiting the Advocate’s misdeed on his client, the applicant
[8] An analogous situation played out in National Bank of Kenya Ltd v Anaj Waherehousing Ltd [2015] eKLR where an advocate acted on behalf of a client without a current practicing certificate. The Supreme Court had the following to say:
58.In these circumstances, how does the citizen’s position rest? If he or she were to walk into an advocate’s office, for a conveyancing service at a fee, would there be an initial obligation resting on him or her to demand the advocate’s practising certificate? Would he or she be in breach of the law if after the service, it turned out that the advocate lacked a certificate? The transgressor, in our view, is the advocate, and not the client. The illegality is the assumption of the task of preparing the conveyancing document, by the advocate, and not the seeking and receiving of services from that advocate. Likewise, a financial institution that calls upon any advocate from among its established panel to execute a conveyance, commits no offence if it turns out that the advocate did not possess a current practising certificate at the time he or she prepared the conveyance documents. The spectre of illegality lies squarely upon the advocate, and ought not to be apportioned to the client.
[9] Guided by the above reasoning it is my finding that, since the applicants are not to blame for the omission on the part of counsel, the written submissions filed on their behalf are valid for consideration, the anomaly notwithstanding. No prejudice will be occasioned to the respondent as she had occasion to consider and respond to the submissions.
[10] In their written submissions, the applicants proposed the following two issues for determination:
[a] Whether the Appeal out of time can be granted.
[b] Whether stay of execution of the Ruling can be granted
[11] On whether the appeal out of time can be admitted, the applicants relied on Section 79G and 95 of the Civil Procedure Act and submitted that the Court has the discretionary power to enlarge time for doing any act prescribed or allowed by the Act. They also relied on the overriding objective enshrined in Section 3A which mandates the Court to exercise its powers so as to ensure that justice is not sacrificed on the altar of procedural technicalities.
[12] The applicants also relied on Article 48 of the Constitution which guarantees every person the right of access to justice, and Article 50(1) which guarantees the right to a fair hearing. Article 159(2) (d) was also cited for the precept directs that justice be administered without undue regard to procedural technicalities.
[13] In terms of case law, the applicants relied on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, Hassan Nyanje Charo v Khatib Mwashetani & 3 Others [2014] eKLR , Fakir Mohammed v Joseph Mugambi & 2 Others [2005] eKLR and Ngei v Kibe & Another (Civil Appeal E359 of 2021) eKLR in which the applicable principles were discussed.
[14] As for stay of execution, the applicants made reference to Order 42 Rule 6 of the Civil Procedure Rules and the cases of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR, RWW v EKW [2019] eKLR , Butt v Rent Restriction Tribunal [1982] KLR 417 and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR and submitted that they have met the prerequisites for stay pending appeal. They pointed out that this is not a money decree and therefore the condition for security is not applicable. They urged the Court to allow the application in the interest of justice.
[15] In the respondent’s written submissions dated 4 th June 2026, she reiterated the agreed facts and added that after the Court rendered itself on the applicants’ Protest, the matter proceeded to confirmation of grant and the estate was distributed equally among the beneficiaries. She therefore proposed the following issues for determination:
[a] Whether the applicants have met the prerequisites for enlargement of time to lodge and appeal.
[b] Whether the applicants have met the prerequisites for grant of stay of execution pending the intended appeal
[c] To whom shall the costs be awarded?
[16] The Respondent cited Section 79G of the Civil Procedure Act and the Court of Appeal decision in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR on the guiding principles that aid courts in the exercise of discretion in applications of this nature; one of them being that the delay, which should not be inordinate, must be satisfactorily explained. In the submission of the respondent no evidence was presented by the applicants to support their assertion that they were not supplied with typed proceedings in time; and therefore they have not met the threshold for leave to appeal out of time
[17] On stay of execution, the respondent submitted that the applicants were duty-bound to satisfy the conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules. They relied on the case of Antoine Ndiaye v African Virtual University [2015] eKLR and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR in which the three conditions were discussed, namely, substantial loss, security for costs and the requirement that the application be made without unreasonable delay. The respondent also relied on the cases of Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR and Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another [2018] eKLR on the requirement for security. She urged the Court to find that the applicants have not demonstrated their willingness and deposit such security.
[18] I have given due consideration to the application dated 19 th May 2025, the affidavits filed in respect thereof and the written submissions presented by learned counsel on behalf of the parties. The documents annexed to the parties’ affidavits confirm that before the lower court, the respondent filed Kapsabet Magistrate’s Succession Cause No. E245 of 2022 in respect of the estate of Tapyanga Arap Keter (Deceased). She was issued with Grant of Letters of Administration. The applicants filed a Protest to the respondent’s proposed mode of distribution; which Protest was dismissed on 19 th February 2025 and a Certificate of Confirmation issued. The respondent thereafter proceeded with distribution as sanctioned by the Court in terms of the Schedule appended to the Certificate of Confirmation.
[19] It was not until 19 th May 2025 or thereabout that the applicants filed the instant application for leave to appeal out of time and for stay of execution, contending that they are aggrieved by the ruling dated 19 th May 2025 and that they have valid grounds of appeal but cannot file the appeal without the leave of the Court in view of the time lapse of about three months.
[20] Although the application is expressed to have been brought under Sections 3A, 95 and 96 of the Civil Procedure Act, and Order 42 of the Civil Procedure Rules, Section 2(1) of the Law of Succession Act provides that:
“Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.”
[21] Additionally, Rule 63 of Probate and Administration Rules provides as follows:
(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.
(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.
[22] Sections 3A, 95 and 96 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules are not among the provisions imported by the Rule 63 aforementioned. Nevertheless, Section 47 of the Law of Succession Act is explicit that:
“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:”
[23] Rule 49 of the probate and Administration Rules provides that all application not provided for in the Rules shall be by way of Summons. It provides as follows:
A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported if necessary by affidavit.
[24] Moreover, Rule 73 of the Probate and Administration Rules is explicit that:
Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
[25] It is my finding therefore that the Court has the jurisdiction to entertain the application. From the prayers, the parties’ respective averments and the submissions filed, the issues for consideration and determination are:
[a] Whether the applicants have demonstrated sufficient grounds for extension of time.
[b] Whether justification has been made for the issuance of an order of stay of execution.
[c] What orders ought to issue on costs
A On whether the applicants have demonstrated sufficient grounds for extension of time:
[26] In Nicholas Kiptoo arap Salat v Independent Electoral and Boundaries Commission and 7 Others (supra) the Supreme Court set out the factors for consideration when determining an application for extension of time as follows:
“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:
1) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5) Whether there will be any prejudice suffered by the respondents if the extension is granted;
6) Whether the application has been brought without undue delay; and
7) Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
[27] Therefore, the applicants were under obligation to demonstrate the following prerequisites :
[a] Whether there is a good and reasonable explanation for the delay;
[b] Whether the application has been brought without undue delay;
[c] Whether the appeal is arguable, and
[c] whether any prejudice will be suffered by respondent.
[28] The Applicant herein states that the delay in filing the appeal is attributed to delay in typing proceedings. It is notable however that the impugned ruling, having been delivered on the 19 th February 2025, was uploaded in the CTS portal on the 20 th February 2025 for the benefit of all the parties. No reason was advanced as to the failure by the applicants to lodge their Memorandum of Appeal pending the typing of proceeding. No evidence was given to back up the applicants’ assertions that they applied and paid for the proceedings on the 26 th February 2025 or the exact date when the same were availed to them. More importantly, there was no Certificate of Delay is filed in acknowledgment that the delay was attributable to the typing of the proceedings as alleged.
[29] It is therefore my finding that the delay of about 3 months between 19 th February 2025 and 19 th May 2025 when the instant application was filed has not been satisfactorily explained and therefore no useful purposes would be served by pay attention to the other prerequisites for extension of time.
B. On whether an order of stay of execution is warranted:
[30] The applicants approached the Court under Order 42 Rule 6 of the Civil Procedure Rules. The provision states:
“(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.
[31] It is trite therefore that an applicant seeking stay of execution must demonstrate the following key elements:
[a] Substantial loss unless stay is granted
[b] That the application has been brought without undue delay; and
[c] Security for the due performance of such decree or order as may ultimately be binding on such applicant.
[32] The perquisites for stay of execution have been discussed in a plethora of decisions. For instance, i n Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) as follows:
“ It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ inWilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
[33] Similarly, in Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), the Court of Appeal held that: -
“ If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money.”
[34] Before engaging in a merit consideration of the application as to whether the three conditions for stay have been satisfied by the applicant, a pertinent question to pose is whether an order of stay of execution can validly issue where no appeal has been filed. This is because the Court of Appeal pronounced itself on this in Abubakar Mohamed Al-Amin v Firdaus Siwa Somo and held:
…the learned Judge was correct in holding that in the absence of the appeal there was nothing upon which the stay orders sought under Order 42 of the Civil Procedure Rules could be anchored. Towards that end, we concur and adopt the observations made by Meoli, J. in Rosalindi Wanjiku Macharia vs. James Kiingati Kimani (Suing as the Legal Representative of the Estate of Martin Muiruri (Deceased )) [2017] eKLR where she stated;
“In my view, even if the prayer to appeal out of time had been granted, and the said prayer for stay pleaded in the Motion, it would still have failed for the reason that the existence of an appeal is a condition precedent to the exercise of this court’s discretion under Order 42 Rule 6 (1) of the Civil Procedure Rules.
…
It would seem that the invocation of the jurisdiction of this court under Order 42 Rule 6 (1) or 6 (6) of the Civil Procedure Rules must be preceded by the filing of an appeal, or compliance with the procedure for filing appeal, in this case a memorandum of appeal (See Order 42 Rule 1 of the Civil Procedure Rules). Until the memorandum of appeal is filed, the court would be acting in vacuo by granting a stay of execution pending appeal.”
31. The prayer for stay of execution could only be canvassed after the appeal had been filed pursuant to the leave granted by the court. The two prayers should not have been lumped together in one application.
[35] In the premises, it is manifest that the applicants’ prayer for stay of execution is misconceived.
[36] In the result, I find no merit in the application dated 19 th May 2025. The same is hereby dismissed with no order as to costs, noting that the parties are related.
It is so ordered.
DATED, SIGNED AND DELIVERED AT KAPSABET THIS 30 TH DAY OF JULY 2026.