REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
FAMILY DIVISION HCP&A. E004 OF 2023
IN THE MATTER OF THE ESTATE OF THE LATE SHADRACK KIBET
BARTENGE (DECEASED)
VIBIAN JEPKURUI BARTENGE……PETITIONER/ADMINISTRATOR VERSUS
TIMOTHY KIPRUTO BARTENGE………1 ST OBJECTOR/APPLICANT TITUS KIPCHUMBA BARTENGE………2 ND OBJECTOR/APPLICANT RULING
1. The Objectors/Applicants have moved the court vide a Notice of motion dated 8 th April,2026 brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Section 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules seeking for orders:
i. Spent.
ii. THAT an expedited hearing date and/or directions be given with respect to the hearing and determination of this Application.
iii. THAT this Honourable Court be pleased to stay the execution of decree or order in respect of the judgment entered for the Respondent against the Objectors/Applicants on 25 th March 2026 by Hon. Justice J. R. Wananda together with all consequential orders and any further proceedings, pending inter-parties hearing and determination of this application.
iv. THAT Honorable Court be pleased to grant a stay of execution of the judgment delivered on 25 th March 2026 by Hon. Justice J. R. Wananda, together with all consequential orders and any further proceedings, pending the hearing and determination of the appeal filed herein to preserve the estate of the deceased pending appeal.
v. THAT the costs of this application be provided for.
2. The application is supported by the affidavit of Timothy Kipruto Bartenge, the 1 st Objector/Applicant, on the grounds that the Respondent obtained judgment dated 25 th March 2026, by Hon. Justice J. R. Wananda holding that the Respondent is the administrator to the estate of the deceased and the one to oversee the distribution of the estate. That the e judgment was against the Objector/Applicants.
3. That the Objector/Applicants intends to appeal against the whole decision and unless a stay of execution is granted, the Objector/Applicants will suffer irreparable loss and damage, hence the urgency of this application.
4. That it is in the interests of justice and fairness that this application be certified as urgent and considered for orders of stay of execution and be set for inter-parties hearing on a priority basis and unless there is a stay of execution pending the hearing and determination of the Applicants’ intended Appeal against the whole of the Judgment issued on 25 th March 2026, the Applicants’ Appeal will be overtaken by events and rendered an academic exercise.
5. That the Objector/Applicants are ready, able and willing to abide by any orders of this Honourable Court.
6. That the Objectors/Applicants are currently out of the country in the United States of America and are duly listed as beneficiaries of the estate of the deceased and there is a real risk that the estate property may be distributed or transferred before the intended Appeal is heard and determined.
7. That there is a likelihood that the estate assets, particularly land, may be sold, subdivided or otherwise alienated to third parties and such distribution or transfer would render the intended Appeal nugatory and it would be difficult to reverse the same even if the Appeal succeeds.
8. The Objectors/Applicants are ready and willing to provide such security as this Honourable Court may order for the due performance of the decree and it is in the interest of justice that this Honourable Court grants an order of stay of execution to preserve the estate of the deceased pending appeal.
9. The Objector/Applicants have an arguable Appeal with a high chance of success and if the orders sought in this Application are not granted, the same will be rendered an exercise in futility as the subject matter will have been dissipated.
10. The application is opposed by the Petitioner/Respondent through a replying affidavit sworn by herself Vibian Jepkurui Bartenge. She depones that she is duly appointed administrator of the estate of the deceased; that the Application dated the 8 th April,2026 by the objectors is misleading, misconceived and premised on factual inaccuracies intended to mislead this Honourable Court; that contrary to the applicants' assertions, the Judgement sought to be stayed was not delivered on the 12 th of March,2026,but was in fact delivered on the 25 th March, 2026 by the High Court at Kabarnet and the records will show.
11. The Respondent contends that the said Judgement was lawful, fair and in strict conformity with the applicable laws of Kenya particularly the Law of Succession Act and the Constitution of Kenya.
12. THAT this Honourable Court correctly upheld the principle of equal distribution of the estate among all beneficiaries without discrimination. That the assets of the deceased as listed in paragraph 30 is to be distributed equally to all of the deceased heirs; that the Shares of the deceased's children who are now deceased to go to their children and any prior occupation or development on estate land may be accommodated at the implementation stage without undermining substantive equality.
13. She contends that the applicants/objectors dissatisfaction with the courts affirmation of equality, is that it is opposed to their preferred discriminatory mode of distribution which sought to disadvantage the daughters of the deceased being herself and her sisters; that the applicants are effectively seeking to undermine the constitutional principles of equality and non-discrimination and simply, the orders sought would perpetuate discrimination and offend the rights of the daughters as rightful beneficiaries of the estate as guaranteed under Article 27 of the Constitution of Kenya.
14. She depones that the applicants/objectors have not demonstrated any substantial loss they stand to suffer if the orders for stay are not granted and that they have merely made generalized allegations of potential loss without specifying any actual loss or harm. That there is absolutely no evidence that they will suffer any irreparable harm and damage if the deceased estate is shared equally as ordered by the court; that the estate remains intact and under lawful administration and there is no credible evidence that the same is at risk of dissipation as alleged.
15. That on the contrary, the objectors themselves have previously engaged in conduct aimed at frustrating the rightful beneficiaries, including: attempting to unlawfully exclude the daughters from accessing the estate property and erecting barriers, including a fence which has denied some of them basic access, including access to sanitation facilities, which conduct demonstrates bad faith and an intention to oppress and marginalize other beneficiaries.
16. She contends that the objectors/applicants' assertion that their absence from the jurisdiction (being that they are in the United States of America) justifies a stay is untenable in that this is not a legal bar to administration or distribution of the estate as they are at liberty to, appoint legal representatives or participate through other lawful means available under Kenyan law and the application therefore is a calculated attempt to delay administration and distribution of the estate and to unjustifiably tie the hands of the administrator; further that the applicants have not demonstrated compliance with the mandatory procedural requirements for instituting an appeal, including filing and serving a Notice of Appeal within the prescribed timelines and taking steps towards the preparation of the Record of Appeal.
17. That the intended appeal is therefore speculative and does not meet the threshold required to warrant orders of stay and that they have simply failed to satisfy the conditions for grant of Stay under Order 42 Rule 6 of the Civil Procedure Rules.
18. She depones that the applicant will not suffer any prejudice if the estate is distributed equally. That indeed in their counsel’s letter dated the 6 th April,2026 addressed to their lawyers on record, the applicants at paragraph 7 of the letter clearly stated that their lawyer could act as their legal representative to ensure transparency, fairness and compliance with court directives and they are not opposed to their lawyer acting in that capacity.
19. She avers that the application therefore lacks merit, is frivolous and vexatious and therefore amounts to an abuse of court process thus granting the orders sought in the instant application will cause further injustice by delaying the rightful beneficiaries from enjoying their lawful entitlement to the estate.
20. The application is canvassed by way of written submissions. The applicants on their part submit set out the following issues as arising for determination:-
i. whether the Applicants satisfied conditions for stay pending appeal
ii. whether the intended appeal is arguable.
21. On whether the applicants satisfied conditions for stay pending appeal, they submit that stay of execution is provided for under Order 42 Rule 6 of the Civil Procedure Rules.
22. They submit that 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.
23. That the court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
24. They submit that to grant or refuse an application for stay of execution pending appeal is discretionary and the Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.
25. They rely on the court of Appeal in Halai & Another vs Thornton & Turpin (1963) Ltd [1990] eKLR where the concept of stay pending Appeal was discussed and it was held that for the court to grant a stay of execution, the applicant must establish a sufficient cause, the court must be satisfied that the substantial loss would ensue from a refusal to grant a stay and lastly the applicant must furnish security.
26. That the question of how the court should exercise this discretion was extensively discussed by the Court of Appeal in Butt vs Rent Restriction Tribunal [1982] KLR 417 .
27. They submit that as to what constitutes sufficient cause in this regard, the decision by the Court in Antoine Ndiaye vs African Virtual University [2015]eKLR , is instructive.
28. The Applicant/Objectors submit that the Application for stay has been brought without unreasonable delay. They submit that judgment was delivered on 25 th March 2026 and the Notice of Motion Application was filed on 10 th April 2026.
29. That the question of what constitutes unreasonable delay was discussed in Jaber Mohsen Ali & Another vs Priscillah Boit & Another [2014] eKLR where the court stated that what is unreasonable delay is dependent on the surrounding circumstances of each case. That even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter.
30. The Applicant/Objectors submit that they stand to suffer irreparable loss if stay of execution pending appeal is not granted considering the subject matter herein is a succession cause involving estate property, including land.
31. The Applicants submit that they have deponed that unless stay is granted, there is a real risk that the estate may be distributed, transferred, subdivided or alienated before the intended appeal is heard.
32. That once succession property is distributed to beneficiaries or third parties, reversal becomes difficult, costly, and in some instances impossible.
33. That courts have consistently held that where land or estate property is at risk of dissipation, substantial loss is established and if execution proceeds and distribution is undertaken , the intended appeal shall be rendered nugatory and merely academic.
34. They rely on the Court of Appeal in Rhoda Mukuma vs John Abuoga[1988] eKLR on what constitutes substantial loss.
35. Further that in Tropical Commodities Suppliers Limited & Others vs International Credit Bank Ltd (in liquidation) (2004) 2 E.A 331 , the Court persuasively defined the aspect of substantial loss thus;
“Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value is a loss that is merely nominal.”
36. That in considering whether the Appellant will suffer substantial loss unless an order of stay of execution is granted, they rely on Kenya Shell Limited vs Benjamin Karuga Kibiru & Another [1986] eKLR .
37. That they have expressly stated that they are ready, willing and able to abide by any conditions this Honourable Court may impose, including provision of security and that they have ability to provide security as will be ordered by the Court.
38. That in a succession matter such as this, the more appropriate safeguard is preservation of the estate rather than monetary security. They rely on Arun C Sharma -V- Ashana Raikundalia T/A Rairundalia & Co. Advocates where the court stated that:
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…….Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”
39. It is submitted that it is sufficient for an applicant to express willingness to provide security, the nature and quantum thereof being within the discretion of the Court. They submit that they have offered to provide security and has therefore satisfied this ground for stay.
40. That in view of the foregoing, the Applicant/Objectors have fully satisfied the legal threshold for grant of stay of execution pending appeal. That the application was filed promptly without delay, the Applicants have demonstrated that they stand to suffer substantial loss if the estate is distributed before the appeal is heard, and they have expressed willingness to comply with any conditions on security that this Honourable Court may impose.
41. On whether the intended appeal is arguable, the Applicants submit that they have demonstrated that the intended appeal is arguable and raises serious issues deserving consideration by the appellate court.
42. That at this stage, the Court is not called upon to determine the merits of the appeal conclusively. They argue that the Applicants need only show that the intended appeal is not frivolous and that it raises bona fide points of law or fact worthy of judicial interrogation on appeal.
43. They submit that they have expressed dissatisfaction with the whole judgment delivered on 25 th March 2026, wherein the Respondent was affirmed as the administrator of the estate and vested with authority to oversee distribution of the estate.
44. That it is settled that an arguable appeal is not one that must necessarily succeed, but one that raises at least a single triable issue deserving determination by the appellate court. They rely on Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR) in support of their argument.
45. They argue that they are beneficiaries of the estate and contend that unless the appellate court reconsiders the impugned decision, their beneficial entitlement and participation in the succession process may be prejudiced.
46. They submit that in the present case, the challenge to the manner of administration and distribution of the estate, and the effect of the judgment on the Applicants’ rights as beneficiaries , constitutes a serious and arguable basis for appeal.
47. That unless preservatory orders are granted, the intended appeal risks being rendered nugatory before those issues are heard and determined.
48. The Applicant/Objectors therefore submit that they have demonstrated that the intended appeal raises substantial and bona fide issues regarding administration and distribution of the estate, and that they have satisfied the threshold for grant of preservatory relief pending appeal.
49. The Petitioner/ Respondent on her part submits that under Order 42 Rule 6(2) of the Civil Procedure Rules, a stay is not a right but a discretionary relief. That the issues for determination are:
a) Whether the applicants have demonstrated that substantial loss will result unless the stay is granted.
b) Whether the application was made without unreasonable delay.
c) Whether the applicants have furnished or offered sufficient security.
d) Whether the conduct and discriminatory motives of the applicants disentitle them to equitable relief.
50. On Whether the applicants have demonstrated that substantial loss will result unless the stay is granted, they submit that the cornerstone of the court's jurisdiction to grant a stay is the demonstration of substantial loss. That the Court of Appeal in Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986]eKLR held that the court must address its collective mind to whether refusal of a stay would render the appeal nugatory.
51. That the Court further established that two parallel propositions must be balanced first, that a litigant if successful, should not be deprived of the fruits of a Judgement in his favour without just cause and secondly, that execution should not render the proposed appeal nugatory.
52. They also rely on James Wangalwa & Another v Agnes Naliaka Cheseto [2012]eKLR , where the court held that the fact that execution has been put in motion, or is likely to be put in motion, by itself does not amount to substantial loss. 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 affect or negate the very essential core of the applicant as the successful party in the appeal.
53. They submit that the applicants offer only generalized assertions of "irreparable loss" without specific evidence or financial data. They argue that they have not discharged the burden of proving substantial loss as required by law.
54. That in the present case, the converse is true. That it is the respondent and all the other beneficiaries specifically the daughters of the Deceased who stand to suffer substantial ongoing and irreversible loss if a stay is granted.
55. They submit that the applicants have not made a concrete proposal for security. That in John Mwangi Kiiru v Salome Njeri Mwangi [2016]eKLR , the court granted a stay only on condition that the entire decretal sum be deposited in an interest bearing account in the joint names of the parties' Advocates.
56. That the applicants have offered no such undertaking and that mere "readiness to abide by orders" is insufficient and militates against granting a stay.
57. That given their demonstrated conduct of waste, destruction of crops by tractor and attempted burning of livestock, there is every reason to believe that if a stay is granted without security the applicants will continue to diminish and waste the estate assets to the irreversible prejudice of the other beneficiaries and hence it is in the interest of justice that the Estate of the deceased is distributed equally now as ordered by the court.
58. That for the respondent's part, the applicants have not told the court by any cogent evidence as to what prejudice they will suffer if the estate is shared equally among all the beneficiaries and the applicants herein can be represented by their lawyer or by any other representative that they shall appoint.
59. On whether the conduct and discriminatory motives of the Applicants disentitle them to equitable relief, they submit that a stay of execution is an equitable remedy and the applicants must come with clean hands. That the applicants' conduct detailed extensively in above, falls far short of this standard and can only be described as an egregious abuse of the court process.
60. They argue that the applicants seek to revive a discriminatory customary mode of distribution that excludes daughters offending Article 27 of the Constitution and Section 38 of the Law of Succession Act, which mandate equal ranking for all children. They rely on Mungai v Attorney General [2025]eKLR , where the High Court declared Section 29(c) of the Law of Succession Act unconstitutional for discriminating against widowers, reaffirming that the Constitution prohibits differential treatment based on gender in succession matters.
61. That an appeal seeking to enforce unconstitutional discrimination against female beneficiaries is not "arguable" but is frivolous and an abuse of court process. That the court in re Estate of Kiragu Ngigie(supra) dismissed a similar application where the applicant sought to delay distribution through an appeal that did not have chances of success, noting that the application was not brought in good faith but to delay the execution of the grant.
62. They contend that the applicants' flagrant violation of status quo court orders by erecting a fence last year during the pendency of the proceedings demonstrates their contempt for the rule of law. That a party who has deliberately disobeyed court orders cannot be heard to seek the court's discretionary relief.
63. They submit that the applicants' residence abroad does not justify a stay. That their own counsel's letter dated 6 th April,2026 confirms they can be represented legally during distribution.
64. On the issue of urgency and the need for immediate distribution, they submit that this matter is urgent and cannot await the leisurely prosecution of an appeal whose foundation is discrimination and its bonafide wanting but above a groundless appeal.
65. They submit that this court should not turn a blind eye to the ongoing discrimination by granting a stay. They argue that if the applicants wish to appeal, they may pursue their appeal while distribution proceeds. That the law does not require the victims of discrimination to wait indefinitely while the perpetrators exhaust appellate processes especially whereas here, the applicants have shown no respect for court orders, no regard for the welfare of other beneficiaries and no willingness to preserve the estate.
66. They argue that the status quo that the applicants seek to freeze is an illegally constructed status quo of occupation, harassment and waste. That this court should instead allow the Judgement of the 12 th March,2026 to be executed without further delay so that all the beneficiaries can receive their equal share.
67. They humbly pray that this Honourable Court to dismiss the application for stay dated the 8 th April,2026 with costs to the respondent and order/direct that the Judgement delivered on the 12 th March,2026 be executed forthwith in the interest of justice.
Analysis and Determination
68. I have carefully considered the application, the supporting affidavit and annexures thereto, the response and the submissions by the applicant as well as that by the Respondent dated 28 th April, 2026 and 6 th May, 2026 respectively. The main issue for determination is whether the orders of stay of execution should issue to the Objectors/Applicants.
69. I have read judgment of this court dated 12 th March 2026 (Ngetich J as she then was) which pointed out that the was deep seated mistrust, conflict and acrimony among the siblings/beneficiaries ( Petitioners and objectors) . There had been an application to arrest the Judgment which the court declined . The court further observed that from the evidence the objections were premised on the exclusion of daughters, and reliance on customary allocations which the court found unstainable. The court held the estate shall be administered & distributed strictly in accordance with the law of succession Act, equal treatment of all the beneficiaries and representation of the estates of deceased children
70. While the purpose of an order of stay of execution is to preserve the subject matter pending appeal see RWW –vs- EKW [2019] eKLR , what subject matter is being preserved herein? What prejudice will the applicants suffer if the order is not granted ? Do they have an arguable appeal?
71. The court of Appeal in Joseph Gitahi Gachau & Another –vs- Pioneer Holdings (A) Limited & 2 Others [2009] eKLR on arguable appeals held:-
“…On our part, after considering the rival submissions by the parties, the ruling of the learned Judge below together with pleadings we are satisfied that the appeal is indeed arguable. This, in essence, does not mean an appeal which must necessarily succeed, but of course, one which ought to be argued fully before the Court.”
72. Nothing has been bestowed to the respondent/administrator to the detriment of the applicants or the estate. There is no judgment in favour of the respondent against the applicants. The Judgment is in favour of all the children of the deceased who are to have equal shares of the estate. The applicants have not joined the other beneficiaries who are not opposed to the equal distribution of the estate who would themselves suffer prejudice if there is stay of execution.
73. Each of the beneficiaries gets a tenth of the estate. The applicants share is two tenths of the entire estate. Those that are not opposed to the distribution get the exact shares as the applicants. That is the law.
74. The allegation that the estate may dissipate or be alienated to their detriment is untenable. Their being outside the country is not a reason . If they feel that their presence is utterly necessary for the distribution of the estate then it is upon themselves to avail their presence . The fact that they have proposed an alternative their presence being the presence of their lawyers is an indication that there is no good reason to stay the distribution of the estate.
75. I have not seen any grounds of appeal attached to the supporting affidavit. I have not seen anything in the supporting affidavit of the applicant to demonstrate that there any reason to stay the distribution of the estate. The administrator is accountable to the court to act in accordance with the grant failure to which the administrator can be censored.
76. Rule 73. of the P&A Rules states
Saving of inherent powers of court
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 .
77. It is my view that allowing this application would not serve the ends of justice .In the circumstances, though the application was filed in good time there is no demonstration that the applicants will suffer any prejudice if stay is not granted.
78. The application is denied and dismissed with costs to the estate to be borne by the applicants .
79. A certificate of confirmation of grant to issue in accordance with the Judgment of this court dated 12 th March 2026.
80. Orders accordingly
RULING Dated, signed and delivered on 5 th Jube 2026
Mumbua T Matheka
Judge
Ruling KBT HC P&A E004 of 2023 Page 2 of 2
IN THE HIGH COURT OF KENYA AT KABARNET
FAMILY DIVISION HCP&A. E004 OF 2023
IN THE MATTER OF THE ESTATE OF THE LATE SHADRACK KIBET
BARTENGE (DECEASED)
VIBIAN JEPKURUI BARTENGE……PETITIONER/ADMINISTRATOR VERSUS
TIMOTHY KIPRUTO BARTENGE………1 ST OBJECTOR/APPLICANT TITUS KIPCHUMBA BARTENGE………2 ND OBJECTOR/APPLICANT RULING
1. The Objectors/Applicants have moved the court vide a Notice of motion dated 8 th April,2026 brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Section 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules seeking for orders:
i. Spent.
ii. THAT an expedited hearing date and/or directions be given with respect to the hearing and determination of this Application.
iii. THAT this Honourable Court be pleased to stay the execution of decree or order in respect of the judgment entered for the Respondent against the Objectors/Applicants on 25 th March 2026 by Hon. Justice J. R. Wananda together with all consequential orders and any further proceedings, pending inter-parties hearing and determination of this application.
iv. THAT Honorable Court be pleased to grant a stay of execution of the judgment delivered on 25 th March 2026 by Hon. Justice J. R. Wananda, together with all consequential orders and any further proceedings, pending the hearing and determination of the appeal filed herein to preserve the estate of the deceased pending appeal.
v. THAT the costs of this application be provided for.
2. The application is supported by the affidavit of Timothy Kipruto Bartenge, the 1 st Objector/Applicant, on the grounds that the Respondent obtained judgment dated 25 th March 2026, by Hon. Justice J. R. Wananda holding that the Respondent is the administrator to the estate of the deceased and the one to oversee the distribution of the estate. That the e judgment was against the Objector/Applicants.
3. That the Objector/Applicants intends to appeal against the whole decision and unless a stay of execution is granted, the Objector/Applicants will suffer irreparable loss and damage, hence the urgency of this application.
4. That it is in the interests of justice and fairness that this application be certified as urgent and considered for orders of stay of execution and be set for inter-parties hearing on a priority basis and unless there is a stay of execution pending the hearing and determination of the Applicants’ intended Appeal against the whole of the Judgment issued on 25 th March 2026, the Applicants’ Appeal will be overtaken by events and rendered an academic exercise.
5. That the Objector/Applicants are ready, able and willing to abide by any orders of this Honourable Court.
6. That the Objectors/Applicants are currently out of the country in the United States of America and are duly listed as beneficiaries of the estate of the deceased and there is a real risk that the estate property may be distributed or transferred before the intended Appeal is heard and determined.
7. That there is a likelihood that the estate assets, particularly land, may be sold, subdivided or otherwise alienated to third parties and such distribution or transfer would render the intended Appeal nugatory and it would be difficult to reverse the same even if the Appeal succeeds.
8. The Objectors/Applicants are ready and willing to provide such security as this Honourable Court may order for the due performance of the decree and it is in the interest of justice that this Honourable Court grants an order of stay of execution to preserve the estate of the deceased pending appeal.
9. The Objector/Applicants have an arguable Appeal with a high chance of success and if the orders sought in this Application are not granted, the same will be rendered an exercise in futility as the subject matter will have been dissipated.
10. The application is opposed by the Petitioner/Respondent through a replying affidavit sworn by herself Vibian Jepkurui Bartenge. She depones that she is duly appointed administrator of the estate of the deceased; that the Application dated the 8 th April,2026 by the objectors is misleading, misconceived and premised on factual inaccuracies intended to mislead this Honourable Court; that contrary to the applicants' assertions, the Judgement sought to be stayed was not delivered on the 12 th of March,2026,but was in fact delivered on the 25 th March, 2026 by the High Court at Kabarnet and the records will show.
11. The Respondent contends that the said Judgement was lawful, fair and in strict conformity with the applicable laws of Kenya particularly the Law of Succession Act and the Constitution of Kenya.
12. THAT this Honourable Court correctly upheld the principle of equal distribution of the estate among all beneficiaries without discrimination. That the assets of the deceased as listed in paragraph 30 is to be distributed equally to all of the deceased heirs; that the Shares of the deceased's children who are now deceased to go to their children and any prior occupation or development on estate land may be accommodated at the implementation stage without undermining substantive equality.
13. She contends that the applicants/objectors dissatisfaction with the courts affirmation of equality, is that it is opposed to their preferred discriminatory mode of distribution which sought to disadvantage the daughters of the deceased being herself and her sisters; that the applicants are effectively seeking to undermine the constitutional principles of equality and non-discrimination and simply, the orders sought would perpetuate discrimination and offend the rights of the daughters as rightful beneficiaries of the estate as guaranteed under Article 27 of the Constitution of Kenya.
14. She depones that the applicants/objectors have not demonstrated any substantial loss they stand to suffer if the orders for stay are not granted and that they have merely made generalized allegations of potential loss without specifying any actual loss or harm. That there is absolutely no evidence that they will suffer any irreparable harm and damage if the deceased estate is shared equally as ordered by the court; that the estate remains intact and under lawful administration and there is no credible evidence that the same is at risk of dissipation as alleged.
15. That on the contrary, the objectors themselves have previously engaged in conduct aimed at frustrating the rightful beneficiaries, including: attempting to unlawfully exclude the daughters from accessing the estate property and erecting barriers, including a fence which has denied some of them basic access, including access to sanitation facilities, which conduct demonstrates bad faith and an intention to oppress and marginalize other beneficiaries.
16. She contends that the objectors/applicants' assertion that their absence from the jurisdiction (being that they are in the United States of America) justifies a stay is untenable in that this is not a legal bar to administration or distribution of the estate as they are at liberty to, appoint legal representatives or participate through other lawful means available under Kenyan law and the application therefore is a calculated attempt to delay administration and distribution of the estate and to unjustifiably tie the hands of the administrator; further that the applicants have not demonstrated compliance with the mandatory procedural requirements for instituting an appeal, including filing and serving a Notice of Appeal within the prescribed timelines and taking steps towards the preparation of the Record of Appeal.
17. That the intended appeal is therefore speculative and does not meet the threshold required to warrant orders of stay and that they have simply failed to satisfy the conditions for grant of Stay under Order 42 Rule 6 of the Civil Procedure Rules.
18. She depones that the applicant will not suffer any prejudice if the estate is distributed equally. That indeed in their counsel’s letter dated the 6 th April,2026 addressed to their lawyers on record, the applicants at paragraph 7 of the letter clearly stated that their lawyer could act as their legal representative to ensure transparency, fairness and compliance with court directives and they are not opposed to their lawyer acting in that capacity.
19. She avers that the application therefore lacks merit, is frivolous and vexatious and therefore amounts to an abuse of court process thus granting the orders sought in the instant application will cause further injustice by delaying the rightful beneficiaries from enjoying their lawful entitlement to the estate.
20. The application is canvassed by way of written submissions. The applicants on their part submit set out the following issues as arising for determination:-
i. whether the Applicants satisfied conditions for stay pending appeal
ii. whether the intended appeal is arguable.
21. On whether the applicants satisfied conditions for stay pending appeal, they submit that stay of execution is provided for under Order 42 Rule 6 of the Civil Procedure Rules.
22. They submit that 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.
23. That the court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
24. They submit that to grant or refuse an application for stay of execution pending appeal is discretionary and the Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.
25. They rely on the court of Appeal in Halai & Another vs Thornton & Turpin (1963) Ltd [1990] eKLR where the concept of stay pending Appeal was discussed and it was held that for the court to grant a stay of execution, the applicant must establish a sufficient cause, the court must be satisfied that the substantial loss would ensue from a refusal to grant a stay and lastly the applicant must furnish security.
26. That the question of how the court should exercise this discretion was extensively discussed by the Court of Appeal in Butt vs Rent Restriction Tribunal [1982] KLR 417 .
27. They submit that as to what constitutes sufficient cause in this regard, the decision by the Court in Antoine Ndiaye vs African Virtual University [2015]eKLR , is instructive.
28. The Applicant/Objectors submit that the Application for stay has been brought without unreasonable delay. They submit that judgment was delivered on 25 th March 2026 and the Notice of Motion Application was filed on 10 th April 2026.
29. That the question of what constitutes unreasonable delay was discussed in Jaber Mohsen Ali & Another vs Priscillah Boit & Another [2014] eKLR where the court stated that what is unreasonable delay is dependent on the surrounding circumstances of each case. That even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter.
30. The Applicant/Objectors submit that they stand to suffer irreparable loss if stay of execution pending appeal is not granted considering the subject matter herein is a succession cause involving estate property, including land.
31. The Applicants submit that they have deponed that unless stay is granted, there is a real risk that the estate may be distributed, transferred, subdivided or alienated before the intended appeal is heard.
32. That once succession property is distributed to beneficiaries or third parties, reversal becomes difficult, costly, and in some instances impossible.
33. That courts have consistently held that where land or estate property is at risk of dissipation, substantial loss is established and if execution proceeds and distribution is undertaken , the intended appeal shall be rendered nugatory and merely academic.
34. They rely on the Court of Appeal in Rhoda Mukuma vs John Abuoga[1988] eKLR on what constitutes substantial loss.
35. Further that in Tropical Commodities Suppliers Limited & Others vs International Credit Bank Ltd (in liquidation) (2004) 2 E.A 331 , the Court persuasively defined the aspect of substantial loss thus;
“Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value is a loss that is merely nominal.”
36. That in considering whether the Appellant will suffer substantial loss unless an order of stay of execution is granted, they rely on Kenya Shell Limited vs Benjamin Karuga Kibiru & Another [1986] eKLR .
37. That they have expressly stated that they are ready, willing and able to abide by any conditions this Honourable Court may impose, including provision of security and that they have ability to provide security as will be ordered by the Court.
38. That in a succession matter such as this, the more appropriate safeguard is preservation of the estate rather than monetary security. They rely on Arun C Sharma -V- Ashana Raikundalia T/A Rairundalia & Co. Advocates where the court stated that:
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…….Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”
39. It is submitted that it is sufficient for an applicant to express willingness to provide security, the nature and quantum thereof being within the discretion of the Court. They submit that they have offered to provide security and has therefore satisfied this ground for stay.
40. That in view of the foregoing, the Applicant/Objectors have fully satisfied the legal threshold for grant of stay of execution pending appeal. That the application was filed promptly without delay, the Applicants have demonstrated that they stand to suffer substantial loss if the estate is distributed before the appeal is heard, and they have expressed willingness to comply with any conditions on security that this Honourable Court may impose.
41. On whether the intended appeal is arguable, the Applicants submit that they have demonstrated that the intended appeal is arguable and raises serious issues deserving consideration by the appellate court.
42. That at this stage, the Court is not called upon to determine the merits of the appeal conclusively. They argue that the Applicants need only show that the intended appeal is not frivolous and that it raises bona fide points of law or fact worthy of judicial interrogation on appeal.
43. They submit that they have expressed dissatisfaction with the whole judgment delivered on 25 th March 2026, wherein the Respondent was affirmed as the administrator of the estate and vested with authority to oversee distribution of the estate.
44. That it is settled that an arguable appeal is not one that must necessarily succeed, but one that raises at least a single triable issue deserving determination by the appellate court. They rely on Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR) in support of their argument.
45. They argue that they are beneficiaries of the estate and contend that unless the appellate court reconsiders the impugned decision, their beneficial entitlement and participation in the succession process may be prejudiced.
46. They submit that in the present case, the challenge to the manner of administration and distribution of the estate, and the effect of the judgment on the Applicants’ rights as beneficiaries , constitutes a serious and arguable basis for appeal.
47. That unless preservatory orders are granted, the intended appeal risks being rendered nugatory before those issues are heard and determined.
48. The Applicant/Objectors therefore submit that they have demonstrated that the intended appeal raises substantial and bona fide issues regarding administration and distribution of the estate, and that they have satisfied the threshold for grant of preservatory relief pending appeal.
49. The Petitioner/ Respondent on her part submits that under Order 42 Rule 6(2) of the Civil Procedure Rules, a stay is not a right but a discretionary relief. That the issues for determination are:
a) Whether the applicants have demonstrated that substantial loss will result unless the stay is granted.
b) Whether the application was made without unreasonable delay.
c) Whether the applicants have furnished or offered sufficient security.
d) Whether the conduct and discriminatory motives of the applicants disentitle them to equitable relief.
50. On Whether the applicants have demonstrated that substantial loss will result unless the stay is granted, they submit that the cornerstone of the court's jurisdiction to grant a stay is the demonstration of substantial loss. That the Court of Appeal in Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986]eKLR held that the court must address its collective mind to whether refusal of a stay would render the appeal nugatory.
51. That the Court further established that two parallel propositions must be balanced first, that a litigant if successful, should not be deprived of the fruits of a Judgement in his favour without just cause and secondly, that execution should not render the proposed appeal nugatory.
52. They also rely on James Wangalwa & Another v Agnes Naliaka Cheseto [2012]eKLR , where the court held that the fact that execution has been put in motion, or is likely to be put in motion, by itself does not amount to substantial loss. 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 affect or negate the very essential core of the applicant as the successful party in the appeal.
53. They submit that the applicants offer only generalized assertions of "irreparable loss" without specific evidence or financial data. They argue that they have not discharged the burden of proving substantial loss as required by law.
54. That in the present case, the converse is true. That it is the respondent and all the other beneficiaries specifically the daughters of the Deceased who stand to suffer substantial ongoing and irreversible loss if a stay is granted.
55. They submit that the applicants have not made a concrete proposal for security. That in John Mwangi Kiiru v Salome Njeri Mwangi [2016]eKLR , the court granted a stay only on condition that the entire decretal sum be deposited in an interest bearing account in the joint names of the parties' Advocates.
56. That the applicants have offered no such undertaking and that mere "readiness to abide by orders" is insufficient and militates against granting a stay.
57. That given their demonstrated conduct of waste, destruction of crops by tractor and attempted burning of livestock, there is every reason to believe that if a stay is granted without security the applicants will continue to diminish and waste the estate assets to the irreversible prejudice of the other beneficiaries and hence it is in the interest of justice that the Estate of the deceased is distributed equally now as ordered by the court.
58. That for the respondent's part, the applicants have not told the court by any cogent evidence as to what prejudice they will suffer if the estate is shared equally among all the beneficiaries and the applicants herein can be represented by their lawyer or by any other representative that they shall appoint.
59. On whether the conduct and discriminatory motives of the Applicants disentitle them to equitable relief, they submit that a stay of execution is an equitable remedy and the applicants must come with clean hands. That the applicants' conduct detailed extensively in above, falls far short of this standard and can only be described as an egregious abuse of the court process.
60. They argue that the applicants seek to revive a discriminatory customary mode of distribution that excludes daughters offending Article 27 of the Constitution and Section 38 of the Law of Succession Act, which mandate equal ranking for all children. They rely on Mungai v Attorney General [2025]eKLR , where the High Court declared Section 29(c) of the Law of Succession Act unconstitutional for discriminating against widowers, reaffirming that the Constitution prohibits differential treatment based on gender in succession matters.
61. That an appeal seeking to enforce unconstitutional discrimination against female beneficiaries is not "arguable" but is frivolous and an abuse of court process. That the court in re Estate of Kiragu Ngigie(supra) dismissed a similar application where the applicant sought to delay distribution through an appeal that did not have chances of success, noting that the application was not brought in good faith but to delay the execution of the grant.
62. They contend that the applicants' flagrant violation of status quo court orders by erecting a fence last year during the pendency of the proceedings demonstrates their contempt for the rule of law. That a party who has deliberately disobeyed court orders cannot be heard to seek the court's discretionary relief.
63. They submit that the applicants' residence abroad does not justify a stay. That their own counsel's letter dated 6 th April,2026 confirms they can be represented legally during distribution.
64. On the issue of urgency and the need for immediate distribution, they submit that this matter is urgent and cannot await the leisurely prosecution of an appeal whose foundation is discrimination and its bonafide wanting but above a groundless appeal.
65. They submit that this court should not turn a blind eye to the ongoing discrimination by granting a stay. They argue that if the applicants wish to appeal, they may pursue their appeal while distribution proceeds. That the law does not require the victims of discrimination to wait indefinitely while the perpetrators exhaust appellate processes especially whereas here, the applicants have shown no respect for court orders, no regard for the welfare of other beneficiaries and no willingness to preserve the estate.
66. They argue that the status quo that the applicants seek to freeze is an illegally constructed status quo of occupation, harassment and waste. That this court should instead allow the Judgement of the 12 th March,2026 to be executed without further delay so that all the beneficiaries can receive their equal share.
67. They humbly pray that this Honourable Court to dismiss the application for stay dated the 8 th April,2026 with costs to the respondent and order/direct that the Judgement delivered on the 12 th March,2026 be executed forthwith in the interest of justice.
Analysis and Determination
68. I have carefully considered the application, the supporting affidavit and annexures thereto, the response and the submissions by the applicant as well as that by the Respondent dated 28 th April, 2026 and 6 th May, 2026 respectively. The main issue for determination is whether the orders of stay of execution should issue to the Objectors/Applicants.
69. I have read judgment of this court dated 12 th March 2026 (Ngetich J as she then was) which pointed out that the was deep seated mistrust, conflict and acrimony among the siblings/beneficiaries ( Petitioners and objectors) . There had been an application to arrest the Judgment which the court declined . The court further observed that from the evidence the objections were premised on the exclusion of daughters, and reliance on customary allocations which the court found unstainable. The court held the estate shall be administered & distributed strictly in accordance with the law of succession Act, equal treatment of all the beneficiaries and representation of the estates of deceased children
70. While the purpose of an order of stay of execution is to preserve the subject matter pending appeal see RWW –vs- EKW [2019] eKLR , what subject matter is being preserved herein? What prejudice will the applicants suffer if the order is not granted ? Do they have an arguable appeal?
71. The court of Appeal in Joseph Gitahi Gachau & Another –vs- Pioneer Holdings (A) Limited & 2 Others [2009] eKLR on arguable appeals held:-
“…On our part, after considering the rival submissions by the parties, the ruling of the learned Judge below together with pleadings we are satisfied that the appeal is indeed arguable. This, in essence, does not mean an appeal which must necessarily succeed, but of course, one which ought to be argued fully before the Court.”
72. Nothing has been bestowed to the respondent/administrator to the detriment of the applicants or the estate. There is no judgment in favour of the respondent against the applicants. The Judgment is in favour of all the children of the deceased who are to have equal shares of the estate. The applicants have not joined the other beneficiaries who are not opposed to the equal distribution of the estate who would themselves suffer prejudice if there is stay of execution.
73. Each of the beneficiaries gets a tenth of the estate. The applicants share is two tenths of the entire estate. Those that are not opposed to the distribution get the exact shares as the applicants. That is the law.
74. The allegation that the estate may dissipate or be alienated to their detriment is untenable. Their being outside the country is not a reason . If they feel that their presence is utterly necessary for the distribution of the estate then it is upon themselves to avail their presence . The fact that they have proposed an alternative their presence being the presence of their lawyers is an indication that there is no good reason to stay the distribution of the estate.
75. I have not seen any grounds of appeal attached to the supporting affidavit. I have not seen anything in the supporting affidavit of the applicant to demonstrate that there any reason to stay the distribution of the estate. The administrator is accountable to the court to act in accordance with the grant failure to which the administrator can be censored.
76. Rule 73. of the P&A Rules states
Saving of inherent powers of court
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 .
77. It is my view that allowing this application would not serve the ends of justice .In the circumstances, though the application was filed in good time there is no demonstration that the applicants will suffer any prejudice if stay is not granted.
78. The application is denied and dismissed with costs to the estate to be borne by the applicants .
79. A certificate of confirmation of grant to issue in accordance with the Judgment of this court dated 12 th March 2026.
80. Orders accordingly
RULING Dated, signed and delivered on 5 th Jube 2026
Mumbua T Matheka
Judge
Ruling KBT HC P&A E004 of 2023 Page 2 of 2