REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CASE NO. E004 OF 2023
IN THE MATTER OF THE ESTATE OF ADRIAN WEKESA MAKOKHA-DCD
CHRISPINUS WEKESA MAKOKHA……………1ST PETITIONER/RESPONDENT
FELISTUS NEKESA ODANGA…………………..2ND PETITIONER/RESPONDENT
VERSUS
CAMILUS PETER WEKESA………………………..OBJECTOR/APPLICANT
RULING
1. The 1st Petitioner has approached this court vide a chamber summon dated 31.7.2025 wherein he craves for the following orders: -
a) Spent
b) Spent
c) That this honorable court be pleased to stay the execution/or implementation of the Ruling dated 10th July, 2025 pending appeal.
d) That this honorable court be pleased to grant leave to the Applicant to file an appeal against the Ruling of this honorable court delivered on 10th July 2025.
e) That upon grant of prayer (d) hereinabove, this honorable court be pleased to admit the Notice of Appeal annexed hereto dated 19th July, 2025 as duly filed and properly on record.
f) That the costs of the application to abide by the Appeal.
2. The 1st Petitioner’s application is supported his affidavit sworn on 31.7.2025 and is premised on the grounds set out in the face of the application; that he has filed a notice of appeal dated 19.7.2025 and that he now craves for leave to lodge an appeal against the decision of this court delivered on 10.7.2025 and he also prays for orders of stay of execution pending the hearing of his intended appeal.
3. The application is resisted by way of a replying affidavit sworn by Felistus Nekesa Odanga 2nd Petitioner on 10.12.2025. It is her position that the 1st Petitioner and his advocates were present when the judgement was delivered and never sought for leave or appeal wherefore the current application is an afterthought. Further, that the intended appeal is a non-starter as it challenges the right of daughter to inherit from their father viz-a-viz sons.
4. The 2nd Petitioner is also opposed to the grant of orders of stay of execution as she maintains that such orders will deny the beneficiaries of the deceased and especially the daughter, the opportunity of enjoying the fruits of judgement.
5. The application was canvassed by way of oral submissions and I have duly considered the same. It is indeed true that the 1st Petitioner and his advocate were present in court during the delivery of the ruling that he now wants to challenge. That his advocate did not seek for court’s leave to appeal wherefore this application is an afterthought.
6. I have duly considered the application herein, the affidavit in reply thereto and the oral submissions of Mr Masiga for the Applicant. Indeed, no reasons have been adduced for the failure by the applicant to seek for leave instantaneously after the delivery of the ruling that he now wants to impugn. That, notwithstanding, this court appreciates the fact that the applicant has a right of appeal and did file a notice of his intention to appeal. I will therefore in the interest of justice grant him leave to appeal and I thus deem his notice of appeal dated 19.7.2025 as properly filed.
7. As regards the prayer for stay of execution pending appeal, it is incumbent upon the applicant to demonstrate that he has duly complied with the provisions of order 42 Rule 6 which provides as follows: -
I. 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.
II. 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.
III. 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.
IV. For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
V. An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
VI. Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.
8. The applicant has annexed a draft memorandum of appeal and it is not open for this court to gauge it’s probability of success save to say that this court distributed a large portion of the estate of the deceased to the applicant as compared to the respondent yet the applicant is aggrieved by that decision. It is his position that he would prefer that daughters do not get to inherit from their fathers.
9. Having made the above observation, I do find that the applicant has failed to demonstrate that he stands to suffer substantiated loss if orders of stay are not granted.
10. Whereas the applicant moved this court with speed and has intimated that he is ready and willingly to offer security, he has not addressed the plight of his ailing mother, the widow who urgently needs financial assistance for her medical needs and upkeep nor has he addressed his mind to the rights of the respondents who have not been benefitting from the estate of the deceased. The history of this case reveals a clear case of discrimination on gender basis hence a violation of the Rights of the respondents not to be discriminated against as enshrined in the article 27 of the Constitution of Kenya 2010. I therefore do find that the respondent and the other female beneficiaries stand to suffer prejudice if orders of stay are granted.
11. On the balance I do find that the balance of convenience tilts towards the respondents. I thus disallow his prayer for stay of execution pending appeal.
12. Each party shall bear its own costs.
Delivered, signed and dated at Bungoma this 2nd day of February, 2026.
MWANAISHA S. SHARIFF
JUDGE
In the presence of :
Mr Masiga for the 1st administrator
Ms Wakoli for the 2nd Administrator
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CASE NO. E004 OF 2023
IN THE MATTER OF THE ESTATE OF ADRIAN WEKESA MAKOKHA-DCD
CHRISPINUS WEKESA MAKOKHA……………1ST PETITIONER/RESPONDENT
FELISTUS NEKESA ODANGA…………………..2ND PETITIONER/RESPONDENT
VERSUS
CAMILUS PETER WEKESA………………………..OBJECTOR/APPLICANT
RULING
1. The 1st Petitioner has approached this court vide a chamber summon dated 31.7.2025 wherein he craves for the following orders: -
a) Spent
b) Spent
c) That this honorable court be pleased to stay the execution/or implementation of the Ruling dated 10th July, 2025 pending appeal.
d) That this honorable court be pleased to grant leave to the Applicant to file an appeal against the Ruling of this honorable court delivered on 10th July 2025.
e) That upon grant of prayer (d) hereinabove, this honorable court be pleased to admit the Notice of Appeal annexed hereto dated 19th July, 2025 as duly filed and properly on record.
f) That the costs of the application to abide by the Appeal.
2. The 1st Petitioner’s application is supported his affidavit sworn on 31.7.2025 and is premised on the grounds set out in the face of the application; that he has filed a notice of appeal dated 19.7.2025 and that he now craves for leave to lodge an appeal against the decision of this court delivered on 10.7.2025 and he also prays for orders of stay of execution pending the hearing of his intended appeal.
3. The application is resisted by way of a replying affidavit sworn by Felistus Nekesa Odanga 2nd Petitioner on 10.12.2025. It is her position that the 1st Petitioner and his advocates were present when the judgement was delivered and never sought for leave or appeal wherefore the current application is an afterthought. Further, that the intended appeal is a non-starter as it challenges the right of daughter to inherit from their father viz-a-viz sons.
4. The 2nd Petitioner is also opposed to the grant of orders of stay of execution as she maintains that such orders will deny the beneficiaries of the deceased and especially the daughter, the opportunity of enjoying the fruits of judgement.
5. The application was canvassed by way of oral submissions and I have duly considered the same. It is indeed true that the 1st Petitioner and his advocate were present in court during the delivery of the ruling that he now wants to challenge. That his advocate did not seek for court’s leave to appeal wherefore this application is an afterthought.
6. I have duly considered the application herein, the affidavit in reply thereto and the oral submissions of Mr Masiga for the Applicant. Indeed, no reasons have been adduced for the failure by the applicant to seek for leave instantaneously after the delivery of the ruling that he now wants to impugn. That, notwithstanding, this court appreciates the fact that the applicant has a right of appeal and did file a notice of his intention to appeal. I will therefore in the interest of justice grant him leave to appeal and I thus deem his notice of appeal dated 19.7.2025 as properly filed.
7. As regards the prayer for stay of execution pending appeal, it is incumbent upon the applicant to demonstrate that he has duly complied with the provisions of order 42 Rule 6 which provides as follows: -
I. 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.
II. 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.
III. 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.
IV. For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
V. An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
VI. Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.
8. The applicant has annexed a draft memorandum of appeal and it is not open for this court to gauge it’s probability of success save to say that this court distributed a large portion of the estate of the deceased to the applicant as compared to the respondent yet the applicant is aggrieved by that decision. It is his position that he would prefer that daughters do not get to inherit from their fathers.
9. Having made the above observation, I do find that the applicant has failed to demonstrate that he stands to suffer substantiated loss if orders of stay are not granted.
10. Whereas the applicant moved this court with speed and has intimated that he is ready and willingly to offer security, he has not addressed the plight of his ailing mother, the widow who urgently needs financial assistance for her medical needs and upkeep nor has he addressed his mind to the rights of the respondents who have not been benefitting from the estate of the deceased. The history of this case reveals a clear case of discrimination on gender basis hence a violation of the Rights of the respondents not to be discriminated against as enshrined in the article 27 of the Constitution of Kenya 2010. I therefore do find that the respondent and the other female beneficiaries stand to suffer prejudice if orders of stay are granted.
11. On the balance I do find that the balance of convenience tilts towards the respondents. I thus disallow his prayer for stay of execution pending appeal.
12. Each party shall bear its own costs.
Delivered, signed and dated at Bungoma this 2nd day of February, 2026.
MWANAISHA S. SHARIFF
JUDGE
In the presence of :
Mr Masiga for the 1st administrator
Ms Wakoli for the 2nd Administrator