'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION APPEAL CAUSE No. E002 OF 2020
IN THE MATTER OF THE ESTATE OF THE LATE KITHUVA MAINGI (DECEASED)
MASAI KITHUVA ...........................................APPELLANT/APPLICANT
-VERSUS-
NICHOLAS NDOLO KITHUVA ...................................1ST RESPONDENT
THOMAS KITHUVA KITONGA ..................................2ND RESPONDENT
RULING
1. For determination is the Notice of Motion application dated 6th November 2020 through which the applicant seeks the following orders:
1.Spent;
2.Spent;
3.That the court be pleased to grant an order of stay of execution of the contents of the certificate of confirmation of grant issued in Kangundo Senior Principal Magistrate Court Succession Cause No. 128 of 2019 pending the hearing and determination of the appeal
4. The costs of this application be in the cause.
2. The applicant being dissatisfied by the ruling of Kangundo Senior Principal Magistrate Court in Succession Cause No. 128 of 2019 delivered on 4th November 2020, wishes to challenge the decision before this court. The application is supported by the applicant’s supporting affidavit sworn on 6th November 2020. The application is based on the grounds that:-
a) the ruling under challenge relates to the distribution of the assets of the Estate of wherein the Applicant herein had sought to revoke the certificate of confirmation of grant issued on the 13.9.2019 totally disinheriting him.
b) the trial court failed to appreciate the fact that succession entails a two steps procedure where the first step comprises of appointment of an administrator while the second step entails confirmation of a grant.
c) the trial court failed to follow the known procedures in confirmation of grant and in particular filing of summons for confirmation of grant.
d) the eleven beneficiaries of the Estate of the late Kithuva Maingi did not attend court for confirmation of grant nor were any summons for confirmation grant ever filed or served upon the applicant.
e) the certificate of confirmation of grant was issued in a very Opaque process unknown to the law of succession without involvement of all the parties or their consent.
f) the applicant was neither consulted nor involved in the process of confirmation and distribution of the assets of the estate.
g) although the Applicant''s earlier Application dated 31.8.2016 challenging the appointment of the respondents as the administrators of the estate had been dismissed that fact alone did not entitle the trial court and the respondents to lock him out of a fair hearing before confirming the grant and considering the distribution of the assets.
h) the trial court in its ruling dated 4th November 2020 erred both in fact and in law in failing to distinguish that succession is a two-tier process and thus arrived a wrong conclusion eventually disinheriting the applicant.
3. The applicant also seeks stay of execution of the contents of the certificate of confirmed grant which, if not granted, the subject matter will be extinguished as the properties will be adversely alienated and he stands to be evicted and disinherited.
3. In opposition to the application, the respondents filed a joint replying affidavit sworn on 12th November 2020 and aver that the application is an afterthought and a waste of the court’s time for the reasons that the applicant filed the Memorandum of Appeal to the Kangundo Senior Principal Magistrate’s finding without giving notice of appeal to the same which is a mandatory requirement and further that the applicant had consented to the making of the Grant of Administration as per annexure marked “NT2” and .
4. Directions were given for the application to be canvassed by way of written submissions. The applicant’s submissions dated 3rd December 2024 were uploaded on the CTS whereas a copy of the respondents’ physical submissions dated 19th March 2025 are in the court file.
Analysis
5. I have considered the application, the joint replying affidavit, the trial court’s record and the parties’ counsel submissions on the application. In my view the only issue for determination is whether the application has merit.
Applicant’s submissions
6. The applicant in his written submissions, states that the essence of this application lies in his claim that the two administrators who are his siblings fraudulently procured a grant of representation and subsequently disinherited him. The process leading to the issuance of the Certificate of Confirmation of Grant was marred by procedural impropriety, as no proper proceedings were conducted, and no summons for the confirmation of the grant were heard.
7. The applicant seeks preservatory orders to safeguard the deceased’s Estate properties as listed in the Certificate of Confirmation of Grant. The applicant relies on the decision in Re Estate of Simon Kimendero [2020] eKLR where the court defined preservatory orders as follows:
"Preservatory orders restrain a person from destroying, dissipating, or wasting property. These orders are akin to freezing orders or Mareva injunctions and require different thresholds from ordinary interlocutory injunctions. "
8. The applicant submits further that in this context, he satisfies the test for preservatory orders, as established in the Kimendero case (supra) that:
a) The applicant has an arguable case.
b) The property in question forms part of the deceased''s estate.
c) There is a real risk of dissipation or wastage.
9. On the first test, the applicant contends that the grant was obtained fraudulently, with the respondents failing to involve other beneficiaries in the confirmation process. They now threaten to evict him from the only home he has ever known. Reliance is placed on African Banking Corporation Limited v Netsatar Limited & 6 Others (Nairobi Milimani HCC No. 299 of 2009), where the court defined an arguable case as:
"One that is more than barely capable of serious argument, though not necessarily with a probability of success."
10. The applicant submits that he has clearly demonstrated a bona fide grievance. The appeal raises substantial questions, particularly the exclusion of beneficiaries and the inequitable distribution of the estate, which makes the appeal arguable and highly likely to succeed.
11. On the second test, the applicant submits that there is no dispute that the properties in question belong to the deceased, as evidenced by the Certificate of Confirmation of Grant and this has not been challenged by the respondents.
12. On the third test, the applicant submits that the estate faces imminent risk of dissipation as the respondents have been threatening to evict the applicant and sell the property to third parties. Such actions undermine the substratum of the appeal and would render the proceedings nugatory. The applicant cited the decision in Niazsons (K) Ltd v China Road & Bridge Corporation (Kenya) [2001] eKLR held that:
"Where the appeal may have serious effects on the case, so much so that the result of the appeal may render the orders sought nugatory, a stay should be granted."
13. The applicant contends that if the respondents are allowed to continue with their actions, the applicant and the estate will suffer irreparable harm that cannot be remedied even if the appeal succeeds.
14. The applicant referred to Order 42 Rule 6 of the Civil Procedure Rules which empowers the court to grant a stay of execution to prevent irreparable harm and preserve the subject matter of the appeal. Reliance was made to the decision Port Florence Community Health Care v Crown Health Care Limited [2022] eKLR where the court emphasized that:
“The underlying principle for granting stay orders is to ensure that the appeal is not rendered nugatory. "
15. Also cited was the case of Mahendra Chandulal Patel v Nita Hasmukhi Patel [2023] eKLR where the court reiterated that:
"Whether or not an appeal will be rendered nugatory depends on whether the orders sought are reversible or compensable by damages. "
16. The applicant submits that he faces eviction and the potential loss of ancestral property, outcomes that cannot be reversed and hence invites this court to act to protect the estate and ensure justice prevails.
Respondents’ submissions
17. The respondents submit that the applicant''s application is an afterthought and a well calculated move to waste the courts time and deny the beneficiaries of the estate to enjoy the fruits of the judgment. They further submit that the applicant herein has never filed any Notice of Appeal and which is a mandatory document while appealing.
18. The respondents also submit that the applicant herein has failed to disclose to this court that he executed a consent to the making of the grant of administration and have attached the said consent in the replying affidavit as annexure “NT2”.
19. The respondents also submit that generally, a stay of execution should only be granted where sufficient cause is shown. They place reliance on the case of Antoine Ndiave v African Virtual University (2015) eKLR where Gikonyo J opined that:
"...stay of execution should only be granted where sufficient cause has been shown by the applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under order 42 rule 6 of the Civil Procedure Rules...”
20. That the principles guiding the grant of a stay of execution pending appeal are well settled under Order 42 rule 6 (2) of the Civil Procedure Rules which provides:
“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.”
21. The respondents submit that it is the duty of the applicant in an application for stay of execution to establish that he/she will suffer substantial loss if the orders sought are not granted. They refer to the case of Machira t/a Machira & Co. Advocates v East African Standard (No.2) (2002) KLR 63 where the Court of Appeal considered what amounts to substantial loss and held that:-
"No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because 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 care of the applicant as the successful party in the appeal..."
22. The respondents further submit that the applicant has not demonstrated that he will suffer any loss, leave alone substantial loss, if the orders sought are not granted.
23. As regards whether the instant application was filed without unreasonable delay, the respondents submit that the certificate of grant was issue on 13/09/2019 and the present application was filed a year later on 6/11/2020 and therefore the present application for stay was not filed timeously.
24. The respondents also submit that another consideration for an application of stay pending appeal is security and that the applicant in this matter has not offered any security. Reference is made to the case of Focin Motor vehicle Co. Limited v Ann Wambui Wangui & another [2018] eKLR where the court observed as follows;
“Where the applicant proposes to provide security as the applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgement. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security."
25. The respondents argue that generally, the objective of the application of stay of execution pending appeal is to prevent substantial loss from befalling the applicant and the appeal from being rendered nugatory. They submit that the applicant must furnish in court a lawful and reasonable reason to limit the respondent''s right to immediate realisation of the fruits of judgment in this case implementation of the certificate of confirmation of grant. Reliance was placed on the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR where the court observed that;
“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."
26. The respondents submit that seeking for a stay of the enforcement of the certificate of grant is prejudicial to the other beneficiaries as the applicant has not demonstrated substantial loss warranting this court to issue orders staying the implementation of the certificate of grant.
Determination
27. The respondents contend that the applicant did not file any Notice of Appeal which is a mandatory document while appealing. However, the respondents did not say much on this issue or refer to the applicable provision of the law for the court’s consideration.
28. A perusal of the documents filed from the trial court’s record in Kangundo Senior Principal Magistrate Court Succession Cause No. 128 of 2019 do not reveal any application for confirmation of grant filed in the cause, the consent executed by the applicant to confirmation of the grant and the proceedings thereof. This is what the applicant is equally faulting in his appeal and for which he seeks a stay of execution pending appeal. I have read the consent referred to by the respondents in their joint replying affidavit dated 31st July 2015, (Annexure“NT2” to the joint replying affidavit) and I note that the same was executed by the applicant to the making of the grant of administration. I have not come across the consent signed by the applicant to the application for confirmation of grant.
29. The applicant contends that he will suffer substantial loss if the orders sought are not granted as the respondents will execute the confirmed grant. The respondents on the other hand contend that there is no loss to be suffered as the mode of distribution as espoused in the confirmed grant is fair.
30. Applications for stay of execution are governed by Order 42 rule 6(2) of the Civil Procedure Rules which provides:
“No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
31. Stay of execution may be granted where the court is satisfied that substantial loss will result if the order is not granted, the application has been brought without delay. In the instant application, the judgment was delivered on 4th November 2020 and the instant application is dated 6th November 2020 and filed on the same date. There is therefore no delay in bringing the application. The case is one of succession thus there is no need for provision of security. Even though the respondent has argued that the court has become functus officio, the issue of stay may be determined by this court in light of the relevant provisions of the Civil Procedure Rules which are applicable in succession causes.
32. Given the nature of the case, and the ruling being challenged, it would be unfair and unjust to deny the orders since the subject matter will be extinguished for purposes of the appeal.
33. Rules 49 and 73 of the Probate & Administration Rules empowers the court to make any orders in furtherance of justice even where an application is not provided for by the succession law. Such orders may be made on the strength of the court’s discretion. This is also provided for under Section 47 of the Law of Succession Act.
34. Rule 73 of the Probate and Administration Rules provides as follows:
“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.”
Disposition
35. In the upshot, I make the following orders:
a) There shall be an order of stay of execution of the contents of the certificate of confirmation of grant issued in Kangundo Senior Principal Magistrate’s Court Succession Cause No. 128 of 2019 pending the hearing and determination of the appeal herein.
b) The appeal filed vide the Memorandum of Appeal dated 5th November 2020 is hereby admitted for hearing.
c) The applicant will compile file and serve the record of appeal within 30 days of this ruling and in default the appeal to stand dismissed.
d) A Mention date to be fixed for further directions on the appeal.
e) The costs of this application will be in the cause.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 16TH SEPTEMBER 2025
NOEL I. ADAGI
JUDGE
DELIVERED AT MACHAKOS THIS 16TH SEPTEMBER 2025
In the presence of:
Mr. Munguta..................... for Applicant
Mr. Nyamai hb for Mr. Munyasia...................for the Respondents
Milly.................... Court Assistant
'
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION APPEAL CAUSE No. E002 OF 2020
IN THE MATTER OF THE ESTATE OF THE LATE KITHUVA MAINGI (DECEASED)
MASAI KITHUVA ...........................................APPELLANT/APPLICANT
-VERSUS-
NICHOLAS NDOLO KITHUVA ...................................1ST RESPONDENT
THOMAS KITHUVA KITONGA ..................................2ND RESPONDENT
RULING
1. For determination is the Notice of Motion application dated 6th November 2020 through which the applicant seeks the following orders:
1.Spent;
2.Spent;
3.That the court be pleased to grant an order of stay of execution of the contents of the certificate of confirmation of grant issued in Kangundo Senior Principal Magistrate Court Succession Cause No. 128 of 2019 pending the hearing and determination of the appeal
4. The costs of this application be in the cause.
2. The applicant being dissatisfied by the ruling of Kangundo Senior Principal Magistrate Court in Succession Cause No. 128 of 2019 delivered on 4th November 2020, wishes to challenge the decision before this court. The application is supported by the applicant’s supporting affidavit sworn on 6th November 2020. The application is based on the grounds that:-
a) the ruling under challenge relates to the distribution of the assets of the Estate of wherein the Applicant herein had sought to revoke the certificate of confirmation of grant issued on the 13.9.2019 totally disinheriting him.
b) the trial court failed to appreciate the fact that succession entails a two steps procedure where the first step comprises of appointment of an administrator while the second step entails confirmation of a grant.
c) the trial court failed to follow the known procedures in confirmation of grant and in particular filing of summons for confirmation of grant.
d) the eleven beneficiaries of the Estate of the late Kithuva Maingi did not attend court for confirmation of grant nor were any summons for confirmation grant ever filed or served upon the applicant.
e) the certificate of confirmation of grant was issued in a very Opaque process unknown to the law of succession without involvement of all the parties or their consent.
f) the applicant was neither consulted nor involved in the process of confirmation and distribution of the assets of the estate.
g) although the Applicant''s earlier Application dated 31.8.2016 challenging the appointment of the respondents as the administrators of the estate had been dismissed that fact alone did not entitle the trial court and the respondents to lock him out of a fair hearing before confirming the grant and considering the distribution of the assets.
h) the trial court in its ruling dated 4th November 2020 erred both in fact and in law in failing to distinguish that succession is a two-tier process and thus arrived a wrong conclusion eventually disinheriting the applicant.
3. The applicant also seeks stay of execution of the contents of the certificate of confirmed grant which, if not granted, the subject matter will be extinguished as the properties will be adversely alienated and he stands to be evicted and disinherited.
3. In opposition to the application, the respondents filed a joint replying affidavit sworn on 12th November 2020 and aver that the application is an afterthought and a waste of the court’s time for the reasons that the applicant filed the Memorandum of Appeal to the Kangundo Senior Principal Magistrate’s finding without giving notice of appeal to the same which is a mandatory requirement and further that the applicant had consented to the making of the Grant of Administration as per annexure marked “NT2” and .
4. Directions were given for the application to be canvassed by way of written submissions. The applicant’s submissions dated 3rd December 2024 were uploaded on the CTS whereas a copy of the respondents’ physical submissions dated 19th March 2025 are in the court file.
Analysis
5. I have considered the application, the joint replying affidavit, the trial court’s record and the parties’ counsel submissions on the application. In my view the only issue for determination is whether the application has merit.
Applicant’s submissions
6. The applicant in his written submissions, states that the essence of this application lies in his claim that the two administrators who are his siblings fraudulently procured a grant of representation and subsequently disinherited him. The process leading to the issuance of the Certificate of Confirmation of Grant was marred by procedural impropriety, as no proper proceedings were conducted, and no summons for the confirmation of the grant were heard.
7. The applicant seeks preservatory orders to safeguard the deceased’s Estate properties as listed in the Certificate of Confirmation of Grant. The applicant relies on the decision in Re Estate of Simon Kimendero [2020] eKLR where the court defined preservatory orders as follows:
"Preservatory orders restrain a person from destroying, dissipating, or wasting property. These orders are akin to freezing orders or Mareva injunctions and require different thresholds from ordinary interlocutory injunctions. "
8. The applicant submits further that in this context, he satisfies the test for preservatory orders, as established in the Kimendero case (supra) that:
a) The applicant has an arguable case.
b) The property in question forms part of the deceased''s estate.
c) There is a real risk of dissipation or wastage.
9. On the first test, the applicant contends that the grant was obtained fraudulently, with the respondents failing to involve other beneficiaries in the confirmation process. They now threaten to evict him from the only home he has ever known. Reliance is placed on African Banking Corporation Limited v Netsatar Limited & 6 Others (Nairobi Milimani HCC No. 299 of 2009), where the court defined an arguable case as:
"One that is more than barely capable of serious argument, though not necessarily with a probability of success."
10. The applicant submits that he has clearly demonstrated a bona fide grievance. The appeal raises substantial questions, particularly the exclusion of beneficiaries and the inequitable distribution of the estate, which makes the appeal arguable and highly likely to succeed.
11. On the second test, the applicant submits that there is no dispute that the properties in question belong to the deceased, as evidenced by the Certificate of Confirmation of Grant and this has not been challenged by the respondents.
12. On the third test, the applicant submits that the estate faces imminent risk of dissipation as the respondents have been threatening to evict the applicant and sell the property to third parties. Such actions undermine the substratum of the appeal and would render the proceedings nugatory. The applicant cited the decision in Niazsons (K) Ltd v China Road & Bridge Corporation (Kenya) [2001] eKLR held that:
"Where the appeal may have serious effects on the case, so much so that the result of the appeal may render the orders sought nugatory, a stay should be granted."
13. The applicant contends that if the respondents are allowed to continue with their actions, the applicant and the estate will suffer irreparable harm that cannot be remedied even if the appeal succeeds.
14. The applicant referred to Order 42 Rule 6 of the Civil Procedure Rules which empowers the court to grant a stay of execution to prevent irreparable harm and preserve the subject matter of the appeal. Reliance was made to the decision Port Florence Community Health Care v Crown Health Care Limited [2022] eKLR where the court emphasized that:
“The underlying principle for granting stay orders is to ensure that the appeal is not rendered nugatory. "
15. Also cited was the case of Mahendra Chandulal Patel v Nita Hasmukhi Patel [2023] eKLR where the court reiterated that:
"Whether or not an appeal will be rendered nugatory depends on whether the orders sought are reversible or compensable by damages. "
16. The applicant submits that he faces eviction and the potential loss of ancestral property, outcomes that cannot be reversed and hence invites this court to act to protect the estate and ensure justice prevails.
Respondents’ submissions
17. The respondents submit that the applicant''s application is an afterthought and a well calculated move to waste the courts time and deny the beneficiaries of the estate to enjoy the fruits of the judgment. They further submit that the applicant herein has never filed any Notice of Appeal and which is a mandatory document while appealing.
18. The respondents also submit that the applicant herein has failed to disclose to this court that he executed a consent to the making of the grant of administration and have attached the said consent in the replying affidavit as annexure “NT2”.
19. The respondents also submit that generally, a stay of execution should only be granted where sufficient cause is shown. They place reliance on the case of Antoine Ndiave v African Virtual University (2015) eKLR where Gikonyo J opined that:
"...stay of execution should only be granted where sufficient cause has been shown by the applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under order 42 rule 6 of the Civil Procedure Rules...”
20. That the principles guiding the grant of a stay of execution pending appeal are well settled under Order 42 rule 6 (2) of the Civil Procedure Rules which provides:
“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.”
21. The respondents submit that it is the duty of the applicant in an application for stay of execution to establish that he/she will suffer substantial loss if the orders sought are not granted. They refer to the case of Machira t/a Machira & Co. Advocates v East African Standard (No.2) (2002) KLR 63 where the Court of Appeal considered what amounts to substantial loss and held that:-
"No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because 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 care of the applicant as the successful party in the appeal..."
22. The respondents further submit that the applicant has not demonstrated that he will suffer any loss, leave alone substantial loss, if the orders sought are not granted.
23. As regards whether the instant application was filed without unreasonable delay, the respondents submit that the certificate of grant was issue on 13/09/2019 and the present application was filed a year later on 6/11/2020 and therefore the present application for stay was not filed timeously.
24. The respondents also submit that another consideration for an application of stay pending appeal is security and that the applicant in this matter has not offered any security. Reference is made to the case of Focin Motor vehicle Co. Limited v Ann Wambui Wangui & another [2018] eKLR where the court observed as follows;
“Where the applicant proposes to provide security as the applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgement. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security."
25. The respondents argue that generally, the objective of the application of stay of execution pending appeal is to prevent substantial loss from befalling the applicant and the appeal from being rendered nugatory. They submit that the applicant must furnish in court a lawful and reasonable reason to limit the respondent''s right to immediate realisation of the fruits of judgment in this case implementation of the certificate of confirmation of grant. Reliance was placed on the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR where the court observed that;
“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."
26. The respondents submit that seeking for a stay of the enforcement of the certificate of grant is prejudicial to the other beneficiaries as the applicant has not demonstrated substantial loss warranting this court to issue orders staying the implementation of the certificate of grant.
Determination
27. The respondents contend that the applicant did not file any Notice of Appeal which is a mandatory document while appealing. However, the respondents did not say much on this issue or refer to the applicable provision of the law for the court’s consideration.
28. A perusal of the documents filed from the trial court’s record in Kangundo Senior Principal Magistrate Court Succession Cause No. 128 of 2019 do not reveal any application for confirmation of grant filed in the cause, the consent executed by the applicant to confirmation of the grant and the proceedings thereof. This is what the applicant is equally faulting in his appeal and for which he seeks a stay of execution pending appeal. I have read the consent referred to by the respondents in their joint replying affidavit dated 31st July 2015, (Annexure“NT2” to the joint replying affidavit) and I note that the same was executed by the applicant to the making of the grant of administration. I have not come across the consent signed by the applicant to the application for confirmation of grant.
29. The applicant contends that he will suffer substantial loss if the orders sought are not granted as the respondents will execute the confirmed grant. The respondents on the other hand contend that there is no loss to be suffered as the mode of distribution as espoused in the confirmed grant is fair.
30. Applications for stay of execution are governed by Order 42 rule 6(2) of the Civil Procedure Rules which provides:
“No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
31. Stay of execution may be granted where the court is satisfied that substantial loss will result if the order is not granted, the application has been brought without delay. In the instant application, the judgment was delivered on 4th November 2020 and the instant application is dated 6th November 2020 and filed on the same date. There is therefore no delay in bringing the application. The case is one of succession thus there is no need for provision of security. Even though the respondent has argued that the court has become functus officio, the issue of stay may be determined by this court in light of the relevant provisions of the Civil Procedure Rules which are applicable in succession causes.
32. Given the nature of the case, and the ruling being challenged, it would be unfair and unjust to deny the orders since the subject matter will be extinguished for purposes of the appeal.
33. Rules 49 and 73 of the Probate & Administration Rules empowers the court to make any orders in furtherance of justice even where an application is not provided for by the succession law. Such orders may be made on the strength of the court’s discretion. This is also provided for under Section 47 of the Law of Succession Act.
34. Rule 73 of the Probate and Administration Rules provides as follows:
“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.”
Disposition
35. In the upshot, I make the following orders:
a) There shall be an order of stay of execution of the contents of the certificate of confirmation of grant issued in Kangundo Senior Principal Magistrate’s Court Succession Cause No. 128 of 2019 pending the hearing and determination of the appeal herein.
b) The appeal filed vide the Memorandum of Appeal dated 5th November 2020 is hereby admitted for hearing.
c) The applicant will compile file and serve the record of appeal within 30 days of this ruling and in default the appeal to stand dismissed.
d) A Mention date to be fixed for further directions on the appeal.
e) The costs of this application will be in the cause.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 16TH SEPTEMBER 2025
NOEL I. ADAGI
JUDGE
DELIVERED AT MACHAKOS THIS 16TH SEPTEMBER 2025
In the presence of:
Mr. Munguta..................... for Applicant
Mr. Nyamai hb for Mr. Munyasia...................for the Respondents
Milly.................... Court Assistant
'