' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 88 AS CONSOLIDATED WITH 87 OF 2016
IN THE MATTER OF THE ESTATE OF JULIUS OTULIA IMONGURA
(DECEASED)
AND
PATRICK OMUTIA OTULIA …………. PETITIONER/APPLICANT
VERSUS
JUMA ENOCK IMONGURA ……………………… 1 ST RESPONDENT
EVERLYNE IKWAP OTULIA ………………………. 2 nd RESPONDENT
RULING
The application before me is dated 6th May 2025. The applicant requests that this court grant a stay of execution of the Ruling and Orders issued on 26th July 2024 by this Honorable Court, pending the hearing and determination of the intended appeal. This Court is also asked to stay the execution of the Ruling and Orders delivered on 26th July 2024 by this Honorable Court. Additionally, the applicant seeks a stay of all further proceedings in Bungoma High Court P& A No. 88, as consolidated with No. 87 of 2016, including but not limited to the filing of any application for confirmation of grant as directed by the court. If such an application for confirmation of a grant is filed, the hearing and determination of the same should also be stayed. Costs of this application are to be provided for.
The application is supported by the annexed affidavit of Patrick Omutia on the grounds of the face of the application that: -
The trial court, in its ruling delivered on 26th July 2024, declared that the deceased, Julius Otulia Imongura, died intestate and appointed new administrators, directing them to file summons for the confirmation of grant within 30 days from the date of the ruling.
The Applicant is aggrieved by the said ruling and intends to file an appeal which has a high chance of success.
The Applicant is apprehensive that unless an order of stay of execution and stay of proceedings is granted, the respondents will proceed with the confirmation of the grant intestate, rendering the appeal nugatory. The Respondents have already filed the summons for confirmation of grant dated 10 th February, 2025 and the same is set for hearing on 7 th May, 2025.
The Applicant stands to suffer substantial and irreparable loss if the orders sought are not granted as the estate of the deceased may be distributed under rules of intestacy before the appeal is heard and determined.
. The application has been made without unreasonable delay.
The applicant states in his affidavit that he filed a Petition for the grant of probate, P& A No. 88 of 2016, seeking to execute the Last Will and Testament of his late father (the Deceased) dated 12th April, 2002. The Respondents objected to the said grant, arguing that the Will was invalid on various grounds, none of which included the ownership of the properties mentioned in the Will. After hearing the parties, the court on 26th July 2024 delivered a ruling. Despite finding that the contested Will was duly executed and attested to by the Deceased, the court invalidated it because there was no evidence that the properties in the Will were free properties of the Deceased capable of distribution under the Will. The court further, by order, appointed him and the Respondents as administrators of the estate of the Deceased, having declared that he died intestate. Additionally, the court directed that a grant of letters of administration intestate shall issue immediately, and the administrators, or any of them with notice to the others, may file an application to confirm the grant within 30 days from the date of the ruling. He is aggrieved by this ruling, has filed a notice of appeal, and has requested to be supplied with typed proceedings through a letter dated 31st July 2024. He is prepared to lodge the appeal immediately once the court supplies him with the typed proceedings to facilitate compiling the record of appeal. He has been informed by his advocates that the said notice of appeal and the letter were duly filed and served upon the Respondents'' Advocates on 2nd August 2024. He firmly believes that the intended appeal against the ruling invalidating the Will is arguable and has a high likelihood of success. He is concerned that unless this Honourable Court grants a stay of execution of the ruling and orders delivered on 26th July 2024, as well as a stay of proceedings in Bungoma High Court P & A No. 88 of 87 of 2016, the Respondents will proceed with the confirmation of the grant as directed by the court, which would render his appeal moot and nugatory. The Respondents have already filed the summons for confirmation of grant dated 10th February 2025, set for hearing on 7th May 2025. He would suffer substantial and irreparable loss if the stay is not granted, as the deceased''s estate might be distributed according to the rules of intestacy before the appeal is heard and decided, leading to irreversible consequences. Given that a will exists and its invalidation is subject to appeal, any distribution of the estate other than under the Will would disenfranchise him and all those bequeathed assets in the Will. This application has been made without undue delay and is brought in the interests of justice. The balance of convenience favour granting the orders sought, to preserve the status quo and prevent his appeal from becoming nugatory. He is ready and willing to provide any security for costs as this Honourable Court may deem fit to direct.
The application was opposed. The respondent contends that the application lacks merit and should be dismissed. It is merely an academic exercise and a waste of the court’s time. There has been an excessive delay in filing the application, which has taken approximately ten (10) months. The application appears to be an afterthought. The beneficiaries of the estate have waited many years for the estate to be distributed. The application was only filed when they were in the process of submitting the application to confirm the grant. The applicant is deliberately attempting to delay the resolution of the matter by engaging in perpetual litigation.
ANALYSIS AND DETERMINATION
I have considered the application. I am guided by the provisions of Order 42 Rule 6 (2) of the Civil Procedure Rules. There are three conditions for granting of stay order pending Appeal under Order 42 Rule 6 (2) of the Civil Procedure Rules as follows : The Court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered, the application is brought without undue delay and, 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.
The ruling, which is the subject of this application, was read on 26.7.2024. The application was filed in May 2025. The ten-month delay is excessive; the applicant has failed to explain why it took him ten months to submit this application. The applicant claims that his appeal will become nugatory. However, his statement is merely a bald assertion and lacks supporting reasons. Regarding substantial loss, he simply states that he will suffer loss. This case has been before the court since 2016—an entire nine years. The applicant again failed to explain the nature of the loss he will incur. As correctly stated, litigation must come to an end. Concerning security, the applicant again failed to provide any reasonable security.
On the issue of stay of the proceedings.The principles to be considered when granting an order for stay of execution were discussed by Ringera J. (as he then was) in Global Tours &Travels Limited ; Nairobi HC Winding Up Cause No 43 of 2000 where he stated :-“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis mine).
The court is required to exercise judicial discretion in the interest of justice. In Christopher Ndolo Mutuku & another v Cfc Stanbic Bank Limited (2015) EKLR Gikonyo J. observed that:-
“What matters in an application for stay of proceedings pending appeal is the overall impression the court makes out of the total sum of the circumstances of each, which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice” (emphasis mine)
The court has to consider the pros and cons and take all the circumstances of each case before granting a stay of proceedings. The matter has been in court since 2016. This court has guided the way forward. The applicant is an administrator. What is left is the distribution of the estate. Staying the proceedings will prejudice the other beneficiaries who have waited for almost 10 years to get their inheritance. The balance of convenience does not tilt in the applicant’s favor. I will not comment on the intended appeal . I find no merit in the application. It is dismissed. Each party to bear its own costs.
Dated, signed and delivered at Bungoma this 14 th day of October 2025.
R.E.OUGO
JUDGE
In the presence of:
Applicant – Absent
Juma Enock Imongura - Respondent
Wilkister - C/A
'
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 88 AS CONSOLIDATED WITH 87 OF 2016
IN THE MATTER OF THE ESTATE OF JULIUS OTULIA IMONGURA
(DECEASED)
AND
PATRICK OMUTIA OTULIA …………. PETITIONER/APPLICANT
VERSUS
JUMA ENOCK IMONGURA ……………………… 1 ST RESPONDENT
EVERLYNE IKWAP OTULIA ………………………. 2 nd RESPONDENT
RULING
The application before me is dated 6th May 2025. The applicant requests that this court grant a stay of execution of the Ruling and Orders issued on 26th July 2024 by this Honorable Court, pending the hearing and determination of the intended appeal. This Court is also asked to stay the execution of the Ruling and Orders delivered on 26th July 2024 by this Honorable Court. Additionally, the applicant seeks a stay of all further proceedings in Bungoma High Court P& A No. 88, as consolidated with No. 87 of 2016, including but not limited to the filing of any application for confirmation of grant as directed by the court. If such an application for confirmation of a grant is filed, the hearing and determination of the same should also be stayed. Costs of this application are to be provided for.
The application is supported by the annexed affidavit of Patrick Omutia on the grounds of the face of the application that: -
The trial court, in its ruling delivered on 26th July 2024, declared that the deceased, Julius Otulia Imongura, died intestate and appointed new administrators, directing them to file summons for the confirmation of grant within 30 days from the date of the ruling.
The Applicant is aggrieved by the said ruling and intends to file an appeal which has a high chance of success.
The Applicant is apprehensive that unless an order of stay of execution and stay of proceedings is granted, the respondents will proceed with the confirmation of the grant intestate, rendering the appeal nugatory. The Respondents have already filed the summons for confirmation of grant dated 10 th February, 2025 and the same is set for hearing on 7 th May, 2025.
The Applicant stands to suffer substantial and irreparable loss if the orders sought are not granted as the estate of the deceased may be distributed under rules of intestacy before the appeal is heard and determined.
. The application has been made without unreasonable delay.
The applicant states in his affidavit that he filed a Petition for the grant of probate, P& A No. 88 of 2016, seeking to execute the Last Will and Testament of his late father (the Deceased) dated 12th April, 2002. The Respondents objected to the said grant, arguing that the Will was invalid on various grounds, none of which included the ownership of the properties mentioned in the Will. After hearing the parties, the court on 26th July 2024 delivered a ruling. Despite finding that the contested Will was duly executed and attested to by the Deceased, the court invalidated it because there was no evidence that the properties in the Will were free properties of the Deceased capable of distribution under the Will. The court further, by order, appointed him and the Respondents as administrators of the estate of the Deceased, having declared that he died intestate. Additionally, the court directed that a grant of letters of administration intestate shall issue immediately, and the administrators, or any of them with notice to the others, may file an application to confirm the grant within 30 days from the date of the ruling. He is aggrieved by this ruling, has filed a notice of appeal, and has requested to be supplied with typed proceedings through a letter dated 31st July 2024. He is prepared to lodge the appeal immediately once the court supplies him with the typed proceedings to facilitate compiling the record of appeal. He has been informed by his advocates that the said notice of appeal and the letter were duly filed and served upon the Respondents'' Advocates on 2nd August 2024. He firmly believes that the intended appeal against the ruling invalidating the Will is arguable and has a high likelihood of success. He is concerned that unless this Honourable Court grants a stay of execution of the ruling and orders delivered on 26th July 2024, as well as a stay of proceedings in Bungoma High Court P & A No. 88 of 87 of 2016, the Respondents will proceed with the confirmation of the grant as directed by the court, which would render his appeal moot and nugatory. The Respondents have already filed the summons for confirmation of grant dated 10th February 2025, set for hearing on 7th May 2025. He would suffer substantial and irreparable loss if the stay is not granted, as the deceased''s estate might be distributed according to the rules of intestacy before the appeal is heard and decided, leading to irreversible consequences. Given that a will exists and its invalidation is subject to appeal, any distribution of the estate other than under the Will would disenfranchise him and all those bequeathed assets in the Will. This application has been made without undue delay and is brought in the interests of justice. The balance of convenience favour granting the orders sought, to preserve the status quo and prevent his appeal from becoming nugatory. He is ready and willing to provide any security for costs as this Honourable Court may deem fit to direct.
The application was opposed. The respondent contends that the application lacks merit and should be dismissed. It is merely an academic exercise and a waste of the court’s time. There has been an excessive delay in filing the application, which has taken approximately ten (10) months. The application appears to be an afterthought. The beneficiaries of the estate have waited many years for the estate to be distributed. The application was only filed when they were in the process of submitting the application to confirm the grant. The applicant is deliberately attempting to delay the resolution of the matter by engaging in perpetual litigation.
ANALYSIS AND DETERMINATION
I have considered the application. I am guided by the provisions of Order 42 Rule 6 (2) of the Civil Procedure Rules. There are three conditions for granting of stay order pending Appeal under Order 42 Rule 6 (2) of the Civil Procedure Rules as follows : The Court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered, the application is brought without undue delay and, 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.
The ruling, which is the subject of this application, was read on 26.7.2024. The application was filed in May 2025. The ten-month delay is excessive; the applicant has failed to explain why it took him ten months to submit this application. The applicant claims that his appeal will become nugatory. However, his statement is merely a bald assertion and lacks supporting reasons. Regarding substantial loss, he simply states that he will suffer loss. This case has been before the court since 2016—an entire nine years. The applicant again failed to explain the nature of the loss he will incur. As correctly stated, litigation must come to an end. Concerning security, the applicant again failed to provide any reasonable security.
On the issue of stay of the proceedings.The principles to be considered when granting an order for stay of execution were discussed by Ringera J. (as he then was) in Global Tours &Travels Limited ; Nairobi HC Winding Up Cause No 43 of 2000 where he stated :-“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis mine).
The court is required to exercise judicial discretion in the interest of justice. In Christopher Ndolo Mutuku & another v Cfc Stanbic Bank Limited (2015) EKLR Gikonyo J. observed that:-
“What matters in an application for stay of proceedings pending appeal is the overall impression the court makes out of the total sum of the circumstances of each, which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice” (emphasis mine)
The court has to consider the pros and cons and take all the circumstances of each case before granting a stay of proceedings. The matter has been in court since 2016. This court has guided the way forward. The applicant is an administrator. What is left is the distribution of the estate. Staying the proceedings will prejudice the other beneficiaries who have waited for almost 10 years to get their inheritance. The balance of convenience does not tilt in the applicant’s favor. I will not comment on the intended appeal . I find no merit in the application. It is dismissed. Each party to bear its own costs.
Dated, signed and delivered at Bungoma this 14 th day of October 2025.
R.E.OUGO
JUDGE
In the presence of:
Applicant – Absent
Juma Enock Imongura - Respondent
Wilkister - C/A
'