Background
1. Before the Court is the Applicant’s Notice of Motion dated 29th October 2025. It is expressed to be brought under Orders 42 rule 6, 50 rule 6 and 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B, 3A, 63(e) and 79G of the Civil Procedure Act.
2. The Applicant seeks the following substantive orders:
a) Enlargement of time within which to lodge an appeal against the ruling delivered on 25th July 2025 in Eldoret Chief Magistrate’s Court Succession Cause No. E355 of 2023;
b) Leave to lodge the intended appeal out of time;
c) Stay of further proceedings in Eldoret Chief Magistrate’s Court Succession Cause No. E355 of 2023 pending the hearing and determination of the intended appeal; and
d) Costs of the application.
3. The application is supported by the affidavit of Hosea Kipkosgei Kiboset. The Applicant deposes that the subordinate court delivered a ruling on 25th July 2025 revoking the confirmed grant previously issued in his favour and directing the parties to file fresh summons for confirmation containing an inclusive mode of distribution within 90 days.
4. The Applicant states that he was dissatisfied with the ruling and instructed his advocates to appeal. By the time those instructions were given, however, the period prescribed for lodging an appeal had expired.
5. He further deposes that, following several deliberations with members of his family, he decided to challenge the ruling. He maintains that the intended appeal has good prospects of success and that he will suffer irreparable prejudice if the orders of the subordinate court are implemented before his grievances are heard on appeal.
6. Annexed to the supporting affidavit is a draft memorandum of appeal containing five grounds. In substance, the proposed appeal challenges the subordinate court’s treatment of the estate of Kiboset Chumo as connected to the estate of Tarkok Chumo. The Applicant also contends that the subordinate court failed to consider the evidence and his submissions and improperly directed the inclusion of persons whom he describes as strangers to the estate of Kiboset Chumo.
The response
7. The Respondent opposed the application through a replying affidavit sworn by Lilian Jeruto Lagat.
8. The Respondent contends that the application is misconceived, devoid of merit and an abuse of the court process. She maintains that the Applicant fraudulently obtained the grant by concealing beneficiaries, failing to disclose material facts and presenting an unfair mode of distribution.
9. According to the Respondent, the impugned ruling properly revoked the grant because the Applicant had omitted persons beneficially entitled to the estate and had failed to obtain the requisite consents.
10. The Respondent argues that the Applicant has not established an arguable appeal or given a satisfactory explanation for filing the application more than 90 days after delivery of the ruling. She maintains that extension of time is an equitable remedy that should not be granted to an indolent litigant.
11. The Respondent further contends that continued delay will prevent her from obtaining her lawful share of the estate. She therefore asks the Court to dismiss the application with costs.
12. The record shows that, following the impugned ruling, the Respondent filed summons for confirmation of grant dated 24th October 2025, proposing a fresh mode of distribution of Uasin Gishu/Kaptagat/113.
Parties’ submissions
13. The application was canvassed through written submissions.
14. The Applicant submits that this Court has discretion under section 79G of the Civil Procedure Act, section 95 of the Act and Order 50 rule 6 of the Civil Procedure Rules to enlarge time upon such terms as the justice of the case may require.
15. Counsel argues that the delay was not inordinate because the subordinate court had granted the parties 90 days within which to file fresh summons for confirmation. It is submitted that the Applicant spent that period considering whether to comply with the ruling or challenge it on appeal and filed the present application immediately after expiry of the 90 days.
16. The Applicant relies, among other authorities, upon Leo Sila Mutiso v Rose Hellen Wangari Mwangi , Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others , Mukora Mwangi v Charles Gichina and Joseph Muriithi Ngotho v Rashid Hamisi Mdoe .
17. The Respondent submits that extension of time is not a right but a discretionary and equitable remedy. She argues that the Applicant bears the burden of satisfactorily explaining the entire period of delay and that no sufficient explanation has been offered.
18. The Respondent also submits that stay of proceedings is a grave intervention that disrupts the ordinary progress of litigation and should therefore be granted only in exceptional circumstances.
19. Reliance is placed upon Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others , Paul Musili Wambua v Attorney General & 2 Others , Leo Sila Mutiso v Rose Hellen Wangari Mwangi , Christopher Ndolo Mutuku & another v CFC Stanbic Bank Ltd , Karsan Ramji & Son Ltd v Athuman & another and African Safari Club Ltd v Safe Rentals Ltd .
Issues for determination
20. Having considered the application, affidavits, annexures and written submissions, the following issues arise for determination:
a) Whether the Applicant has established sufficient cause for enlargement of time;
b) Whether further proceedings in the subordinate court should be stayed pending the intended appeal; and
c) Who should bear the costs of the application.
Whether time should be enlarged
21. Section 50(1) of the Law of Succession Act provides that an appeal lies to the High Court from an order or decree made by a resident magistrate in respect of an estate, and that the decision of the High Court on such an appeal shall be final.
22. The Law of Succession Act and the Probate and Administration Rules do not prescribe a specific period within which an appeal from a subordinate court to the High Court must be lodged. Such succession appeals have, however, been treated as civil appeals to which the 30-day period prescribed by section 79G of the Civil Procedure Act applies.
23. This approach was adopted in David Njuguna Njoroge v Mary Njeri Njoroge [2015] eKLR, where the Court held that although the right of appeal is donated by section 50(1) of the Law of Succession Act, the applicable period is that prescribed by section 79G of the Civil Procedure Act.
24. Section 79G of the Civil Procedure Act provides: “Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
25. The power to enlarge time is discretionary. It must be exercised judicially upon consideration of the circumstances of each case.
26. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. Nai. 255 of 1997 , the Court of Appeal identified the relevant considerations as the length of the delay, the reason for the delay, the possible chances of the appeal succeeding and the degree of prejudice likely to be suffered by the respondent.
27. The Supreme Court restated and expanded those principles in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR. It held that extension of time is not a right but an equitable remedy available to a deserving party at the Court’s discretion; that the applicant bears the burden of laying a satisfactory basis for extension; and that the explanation for delay, prejudice, promptness and the particular circumstances of the case must be considered.
28. In Thuita Mwangi v Kenya Airways Ltd [2003] eKLR , the Court of Appeal emphasized that the relevant considerations are not exhaustive. Apart from the length and explanation of delay, arguability and prejudice, the Court may consider the importance of compliance with prescribed timelines and the effect of its decision upon the administration of justice.
29. The impugned ruling was delivered on 25th July 2025. The ordinary period for lodging the appeal expired in August 2025. The present application was filed on 30th October 2025, approximately 67 days after expiry of the prescribed period.
30. The Applicant explains that he held several consultations with members of his family before deciding to appeal. His counsel further submits that the Applicant understood the 90 days granted by the subordinate court as allowing him time to decide whether to comply with the ruling or appeal against it.
31. That explanation is not entirely satisfactory. The 90-day period related to compliance with the subordinate court’s direction to file fresh summons for confirmation containing an inclusive mode of distribution. It neither suspended nor enlarged the statutory period for appealing. The Applicant was not precluded from appealing within time while seeking appropriate interim relief.
32. Further, the alleged belief that the Applicant could await expiry of the 90 days does not appear in his supporting affidavit. It was introduced through counsel’s submissions. Submissions, however forcefully made, cannot take the place of evidence or cure a material omission in an affidavit.
33. The inadequacy of the explanation is an important consideration. It is not, however, necessarily determinative. The Court must consider the circumstances cumulatively and determine whether justice is better served by permitting the appeal upon strict terms or permanently closing the appellate door.
34. In Joseph Muriithi Ngotho v Rashid Hamisi Mdoe, Miscellaneous Civil Application No. 24 of 2010, the Court granted leave notwithstanding that the applicant had not given particularly strong reasons for the delay. The Court considered that the application had been brought within a reasonable period, that the parties should be afforded an opportunity to ventilate their cases, and that the respondent’s prejudice could be addressed through an award of costs.
35. That authority does not relieve an applicant of the duty to explain delay. It illustrates that the sufficiency of the explanation must be considered together with the length of delay, the nature of the dispute, arguability, prejudice and the broader interests of justice.
36. In the present case, although the delay is significant, it is not so prolonged as to be incapable of remedy through appropriate terms.
37. The draft memorandum of appeal raises an identifiable issue concerning the character and beneficial ownership of Uasin Gishu/Kaptagat/113 . The intended appellant maintains that the property forms part of the estate of Kiboset Chumo. The Respondent contends that it originated from Tarkok Chumo and was held for the benefit of the wider family.
38. At this stage, the Court is not called upon to determine that controversy or predict the ultimate outcome of the appeal. The test is whether the proposed appeal raises a bona fide issue deserving appellate consideration. An arguable appeal is not necessarily one that must ultimately succeed.
39. The Respondent’s assertion that no draft memorandum of appeal was supplied is contradicted by the record. A draft memorandum is annexed to the supporting affidavit and marked HKK-02.
40. The Respondent has not demonstrated that enlargement of time will occasion prejudice incapable of compensation by costs or suitable case-management directions. Her principal prejudice is further delay in the administration and distribution of the estate. That concern is legitimate, but it can be addressed through firm timelines and automatic lapse of the stay upon default.
41. Consequently, while the Court neither approves of the Applicant’s delay nor finds the explanation compelling, the relevant considerations, taken cumulatively, favour conditional enlargement of time.
Whether proceedings should be stayed
42. Stay of proceedings is distinct from stay of execution. It constitutes a serious interruption of a party’s right to have proceedings brought to an expeditious conclusion and must therefore be exercised sparingly.
43. In Global Tours & Travels Limited; Nairobi High Court Winding Up Cause No. 43 of 2000 , the Court held that the central question is whether it is in the interests of justice to stay proceedings and, if so, upon what terms. The Court must weigh the advantages and disadvantages of granting or refusing stay, bearing in mind the need for expeditious disposal, the prima facie merits of the intended appeal, proper use of judicial time and the promptness of the application.
44. That approach was applied in Kenya Power & Lighting Company Ltd v Esther Wanjiru Wokabi [2014] eKLR, where the Court emphasized that the intended appeal need only disclose an arguable issue and that the Court must balance the competing consequences of continuing or halting the proceedings.
45. Similarly, in Christopher Ndolo Mutuku & another v CFC Stanbic Bank Ltd [2015] eKLR, the Court observed that the determination depends upon the overall circumstances and whether those circumstances present a compelling basis for stay in the interests of justice.
46. The impugned ruling revoked the confirmed grant and directed the parties to commence a fresh confirmation and distribution process. The Respondent has already filed fresh summons proposing a mode of distribution of Uasin Gishu/Kaptagat/113.
47. Continuation of those proceedings may result in confirmation of a fresh grant and the subdivision or transmission of the estate property before the intended appeal is heard. If that occurs, success in the appeal may require reversal of completed transactions and generate further proceedings involving persons who may have acquired interests under the fresh grant.
48. The intended appeal would not necessarily become legally impossible merely because the succession proceedings continued. Its practical utility could, however, be substantially diminished and the estate exposed to avoidable complexity.
49. Conversely, an indefinite stay would prejudice the Respondent and the other beneficiaries by delaying administration of the estate. The appropriate balance is a limited stay, coupled with preservation of the estate, strict timelines for filing and progressing the appeal and automatic lapse in the event of default.
50. The stay is therefore not granted merely because the Applicant intends to appeal. It is justified by the particular risk that confirmation, subdivision or transmission undertaken pursuant to the impugned ruling may materially alter the subject matter of the intended appeal before it is determined.
Costs
51. Costs are discretionary but ordinarily follow the event. Although the application has succeeded, it became necessary because the Applicant failed to lodge his appeal within time and did not provide a fully satisfactory explanation for that failure.
52. The Respondent should not be burdened with the costs occasioned by the Applicant’s delay. The Applicant shall therefore bear the costs of the application.
Disposition
53. In the result, the Notice of Motion dated 29th October 2025 is conditionally allowed upon the following terms:
a) Time for lodging an appeal against the ruling delivered on 25th July 2025 in Eldoret Chief Magistrate’s Court Succession Cause No. E355 of 2023 is hereby enlarged.
b) The Applicant shall file and serve the memorandum of appeal within fourteen (14) days from the date of this ruling.
c) Further proceedings in Eldoret Chief Magistrate’s Court Succession Cause No. E355 of 2023 are stayed pending the hearing and determination of the intended appeal.
d) The Applicant shall file and serve the record of appeal within sixty (60) days from the date of this ruling.
e) The Applicant shall take the necessary steps to have the appeal admitted and placed before the Court for directions within thirty (30) days after filing the record of appeal.
f) Pending the hearing and determination of the appeal, no party shall sell, transfer, subdivide, charge, lease or otherwise alienate Uasin Gishu/Kaptagat/113 or any subdivision arising from it.
g) Should the Applicant fail to comply with order (b), the leave to appeal out of time and the stay of proceedings shall lapse automatically.
h) Should the Applicant comply with order (b) but fails to comply with order (d), the stay of proceedings shall lapse automatically unless extended by the Court upon sufficient cause being shown.
i) The Applicant shall bear the Respondent’s costs of the application.
54. It is so ordered.
DELIVERED, DATED, AND SIGNED ON THIS 18 TH DAY OF SEPTEMBER, 2026.
RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU-JUDGE.
In the presence of: -
Mr. Okira for the Appellant
No appearance for Respondent
Court Assistant- Miss Lydia.
1 | Page ELDORET P& A MISC APP NO.E037 OF 2025
1. Before the Court is the Applicant’s Notice of Motion dated 29th October 2025. It is expressed to be brought under Orders 42 rule 6, 50 rule 6 and 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B, 3A, 63(e) and 79G of the Civil Procedure Act.
2. The Applicant seeks the following substantive orders:
a) Enlargement of time within which to lodge an appeal against the ruling delivered on 25th July 2025 in Eldoret Chief Magistrate’s Court Succession Cause No. E355 of 2023;
b) Leave to lodge the intended appeal out of time;
c) Stay of further proceedings in Eldoret Chief Magistrate’s Court Succession Cause No. E355 of 2023 pending the hearing and determination of the intended appeal; and
d) Costs of the application.
3. The application is supported by the affidavit of Hosea Kipkosgei Kiboset. The Applicant deposes that the subordinate court delivered a ruling on 25th July 2025 revoking the confirmed grant previously issued in his favour and directing the parties to file fresh summons for confirmation containing an inclusive mode of distribution within 90 days.
4. The Applicant states that he was dissatisfied with the ruling and instructed his advocates to appeal. By the time those instructions were given, however, the period prescribed for lodging an appeal had expired.
5. He further deposes that, following several deliberations with members of his family, he decided to challenge the ruling. He maintains that the intended appeal has good prospects of success and that he will suffer irreparable prejudice if the orders of the subordinate court are implemented before his grievances are heard on appeal.
6. Annexed to the supporting affidavit is a draft memorandum of appeal containing five grounds. In substance, the proposed appeal challenges the subordinate court’s treatment of the estate of Kiboset Chumo as connected to the estate of Tarkok Chumo. The Applicant also contends that the subordinate court failed to consider the evidence and his submissions and improperly directed the inclusion of persons whom he describes as strangers to the estate of Kiboset Chumo.
The response
7. The Respondent opposed the application through a replying affidavit sworn by Lilian Jeruto Lagat.
8. The Respondent contends that the application is misconceived, devoid of merit and an abuse of the court process. She maintains that the Applicant fraudulently obtained the grant by concealing beneficiaries, failing to disclose material facts and presenting an unfair mode of distribution.
9. According to the Respondent, the impugned ruling properly revoked the grant because the Applicant had omitted persons beneficially entitled to the estate and had failed to obtain the requisite consents.
10. The Respondent argues that the Applicant has not established an arguable appeal or given a satisfactory explanation for filing the application more than 90 days after delivery of the ruling. She maintains that extension of time is an equitable remedy that should not be granted to an indolent litigant.
11. The Respondent further contends that continued delay will prevent her from obtaining her lawful share of the estate. She therefore asks the Court to dismiss the application with costs.
12. The record shows that, following the impugned ruling, the Respondent filed summons for confirmation of grant dated 24th October 2025, proposing a fresh mode of distribution of Uasin Gishu/Kaptagat/113.
Parties’ submissions
13. The application was canvassed through written submissions.
14. The Applicant submits that this Court has discretion under section 79G of the Civil Procedure Act, section 95 of the Act and Order 50 rule 6 of the Civil Procedure Rules to enlarge time upon such terms as the justice of the case may require.
15. Counsel argues that the delay was not inordinate because the subordinate court had granted the parties 90 days within which to file fresh summons for confirmation. It is submitted that the Applicant spent that period considering whether to comply with the ruling or challenge it on appeal and filed the present application immediately after expiry of the 90 days.
16. The Applicant relies, among other authorities, upon Leo Sila Mutiso v Rose Hellen Wangari Mwangi , Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others , Mukora Mwangi v Charles Gichina and Joseph Muriithi Ngotho v Rashid Hamisi Mdoe .
17. The Respondent submits that extension of time is not a right but a discretionary and equitable remedy. She argues that the Applicant bears the burden of satisfactorily explaining the entire period of delay and that no sufficient explanation has been offered.
18. The Respondent also submits that stay of proceedings is a grave intervention that disrupts the ordinary progress of litigation and should therefore be granted only in exceptional circumstances.
19. Reliance is placed upon Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others , Paul Musili Wambua v Attorney General & 2 Others , Leo Sila Mutiso v Rose Hellen Wangari Mwangi , Christopher Ndolo Mutuku & another v CFC Stanbic Bank Ltd , Karsan Ramji & Son Ltd v Athuman & another and African Safari Club Ltd v Safe Rentals Ltd .
Issues for determination
20. Having considered the application, affidavits, annexures and written submissions, the following issues arise for determination:
a) Whether the Applicant has established sufficient cause for enlargement of time;
b) Whether further proceedings in the subordinate court should be stayed pending the intended appeal; and
c) Who should bear the costs of the application.
Whether time should be enlarged
21. Section 50(1) of the Law of Succession Act provides that an appeal lies to the High Court from an order or decree made by a resident magistrate in respect of an estate, and that the decision of the High Court on such an appeal shall be final.
22. The Law of Succession Act and the Probate and Administration Rules do not prescribe a specific period within which an appeal from a subordinate court to the High Court must be lodged. Such succession appeals have, however, been treated as civil appeals to which the 30-day period prescribed by section 79G of the Civil Procedure Act applies.
23. This approach was adopted in David Njuguna Njoroge v Mary Njeri Njoroge [2015] eKLR, where the Court held that although the right of appeal is donated by section 50(1) of the Law of Succession Act, the applicable period is that prescribed by section 79G of the Civil Procedure Act.
24. Section 79G of the Civil Procedure Act provides: “Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
25. The power to enlarge time is discretionary. It must be exercised judicially upon consideration of the circumstances of each case.
26. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. Nai. 255 of 1997 , the Court of Appeal identified the relevant considerations as the length of the delay, the reason for the delay, the possible chances of the appeal succeeding and the degree of prejudice likely to be suffered by the respondent.
27. The Supreme Court restated and expanded those principles in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR. It held that extension of time is not a right but an equitable remedy available to a deserving party at the Court’s discretion; that the applicant bears the burden of laying a satisfactory basis for extension; and that the explanation for delay, prejudice, promptness and the particular circumstances of the case must be considered.
28. In Thuita Mwangi v Kenya Airways Ltd [2003] eKLR , the Court of Appeal emphasized that the relevant considerations are not exhaustive. Apart from the length and explanation of delay, arguability and prejudice, the Court may consider the importance of compliance with prescribed timelines and the effect of its decision upon the administration of justice.
29. The impugned ruling was delivered on 25th July 2025. The ordinary period for lodging the appeal expired in August 2025. The present application was filed on 30th October 2025, approximately 67 days after expiry of the prescribed period.
30. The Applicant explains that he held several consultations with members of his family before deciding to appeal. His counsel further submits that the Applicant understood the 90 days granted by the subordinate court as allowing him time to decide whether to comply with the ruling or appeal against it.
31. That explanation is not entirely satisfactory. The 90-day period related to compliance with the subordinate court’s direction to file fresh summons for confirmation containing an inclusive mode of distribution. It neither suspended nor enlarged the statutory period for appealing. The Applicant was not precluded from appealing within time while seeking appropriate interim relief.
32. Further, the alleged belief that the Applicant could await expiry of the 90 days does not appear in his supporting affidavit. It was introduced through counsel’s submissions. Submissions, however forcefully made, cannot take the place of evidence or cure a material omission in an affidavit.
33. The inadequacy of the explanation is an important consideration. It is not, however, necessarily determinative. The Court must consider the circumstances cumulatively and determine whether justice is better served by permitting the appeal upon strict terms or permanently closing the appellate door.
34. In Joseph Muriithi Ngotho v Rashid Hamisi Mdoe, Miscellaneous Civil Application No. 24 of 2010, the Court granted leave notwithstanding that the applicant had not given particularly strong reasons for the delay. The Court considered that the application had been brought within a reasonable period, that the parties should be afforded an opportunity to ventilate their cases, and that the respondent’s prejudice could be addressed through an award of costs.
35. That authority does not relieve an applicant of the duty to explain delay. It illustrates that the sufficiency of the explanation must be considered together with the length of delay, the nature of the dispute, arguability, prejudice and the broader interests of justice.
36. In the present case, although the delay is significant, it is not so prolonged as to be incapable of remedy through appropriate terms.
37. The draft memorandum of appeal raises an identifiable issue concerning the character and beneficial ownership of Uasin Gishu/Kaptagat/113 . The intended appellant maintains that the property forms part of the estate of Kiboset Chumo. The Respondent contends that it originated from Tarkok Chumo and was held for the benefit of the wider family.
38. At this stage, the Court is not called upon to determine that controversy or predict the ultimate outcome of the appeal. The test is whether the proposed appeal raises a bona fide issue deserving appellate consideration. An arguable appeal is not necessarily one that must ultimately succeed.
39. The Respondent’s assertion that no draft memorandum of appeal was supplied is contradicted by the record. A draft memorandum is annexed to the supporting affidavit and marked HKK-02.
40. The Respondent has not demonstrated that enlargement of time will occasion prejudice incapable of compensation by costs or suitable case-management directions. Her principal prejudice is further delay in the administration and distribution of the estate. That concern is legitimate, but it can be addressed through firm timelines and automatic lapse of the stay upon default.
41. Consequently, while the Court neither approves of the Applicant’s delay nor finds the explanation compelling, the relevant considerations, taken cumulatively, favour conditional enlargement of time.
Whether proceedings should be stayed
42. Stay of proceedings is distinct from stay of execution. It constitutes a serious interruption of a party’s right to have proceedings brought to an expeditious conclusion and must therefore be exercised sparingly.
43. In Global Tours & Travels Limited; Nairobi High Court Winding Up Cause No. 43 of 2000 , the Court held that the central question is whether it is in the interests of justice to stay proceedings and, if so, upon what terms. The Court must weigh the advantages and disadvantages of granting or refusing stay, bearing in mind the need for expeditious disposal, the prima facie merits of the intended appeal, proper use of judicial time and the promptness of the application.
44. That approach was applied in Kenya Power & Lighting Company Ltd v Esther Wanjiru Wokabi [2014] eKLR, where the Court emphasized that the intended appeal need only disclose an arguable issue and that the Court must balance the competing consequences of continuing or halting the proceedings.
45. Similarly, in Christopher Ndolo Mutuku & another v CFC Stanbic Bank Ltd [2015] eKLR, the Court observed that the determination depends upon the overall circumstances and whether those circumstances present a compelling basis for stay in the interests of justice.
46. The impugned ruling revoked the confirmed grant and directed the parties to commence a fresh confirmation and distribution process. The Respondent has already filed fresh summons proposing a mode of distribution of Uasin Gishu/Kaptagat/113.
47. Continuation of those proceedings may result in confirmation of a fresh grant and the subdivision or transmission of the estate property before the intended appeal is heard. If that occurs, success in the appeal may require reversal of completed transactions and generate further proceedings involving persons who may have acquired interests under the fresh grant.
48. The intended appeal would not necessarily become legally impossible merely because the succession proceedings continued. Its practical utility could, however, be substantially diminished and the estate exposed to avoidable complexity.
49. Conversely, an indefinite stay would prejudice the Respondent and the other beneficiaries by delaying administration of the estate. The appropriate balance is a limited stay, coupled with preservation of the estate, strict timelines for filing and progressing the appeal and automatic lapse in the event of default.
50. The stay is therefore not granted merely because the Applicant intends to appeal. It is justified by the particular risk that confirmation, subdivision or transmission undertaken pursuant to the impugned ruling may materially alter the subject matter of the intended appeal before it is determined.
Costs
51. Costs are discretionary but ordinarily follow the event. Although the application has succeeded, it became necessary because the Applicant failed to lodge his appeal within time and did not provide a fully satisfactory explanation for that failure.
52. The Respondent should not be burdened with the costs occasioned by the Applicant’s delay. The Applicant shall therefore bear the costs of the application.
Disposition
53. In the result, the Notice of Motion dated 29th October 2025 is conditionally allowed upon the following terms:
a) Time for lodging an appeal against the ruling delivered on 25th July 2025 in Eldoret Chief Magistrate’s Court Succession Cause No. E355 of 2023 is hereby enlarged.
b) The Applicant shall file and serve the memorandum of appeal within fourteen (14) days from the date of this ruling.
c) Further proceedings in Eldoret Chief Magistrate’s Court Succession Cause No. E355 of 2023 are stayed pending the hearing and determination of the intended appeal.
d) The Applicant shall file and serve the record of appeal within sixty (60) days from the date of this ruling.
e) The Applicant shall take the necessary steps to have the appeal admitted and placed before the Court for directions within thirty (30) days after filing the record of appeal.
f) Pending the hearing and determination of the appeal, no party shall sell, transfer, subdivide, charge, lease or otherwise alienate Uasin Gishu/Kaptagat/113 or any subdivision arising from it.
g) Should the Applicant fail to comply with order (b), the leave to appeal out of time and the stay of proceedings shall lapse automatically.
h) Should the Applicant comply with order (b) but fails to comply with order (d), the stay of proceedings shall lapse automatically unless extended by the Court upon sufficient cause being shown.
i) The Applicant shall bear the Respondent’s costs of the application.
54. It is so ordered.
DELIVERED, DATED, AND SIGNED ON THIS 18 TH DAY OF SEPTEMBER, 2026.
RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU-JUDGE.
In the presence of: -
Mr. Okira for the Appellant
No appearance for Respondent
Court Assistant- Miss Lydia.
1 | Page ELDORET P& A MISC APP NO.E037 OF 2025