REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION APPEAL NO. E150 OF 2024
IN THE MATTER OF THE ESTATE OF THE LATE TISMAS NYONGESA WAMBAWA
AND
MORRIS WAFULA NYONGESA……………………………........................................................................................................…APPELLANT
VERSUS
DANIEL WAFULA WAMALWA…………………..…....................................................................................................................….1ST RESPONDENT
HENRY MANDILA WABWAYI……………………..….......................................................................................................................2ND RESPONDENT
JOYCE CHEBET KIBOI………………………………........................................................................................................................3RD RESPONDENT
FRED NYONGESA MANG’ARA MAUNDA……..….........................................................................................................................4TH RESPONDENT
SIMON KHAEMBA WANAONI…………………..……........................................................................................................................5TH RESPONDENT
RULING
1. The significant orders sought in the Motion application dated 14th October 2024, are six, namely:
a. This Honourable Court be pleased to certify this application “urgent” so that service thereof be dispensed within the first instance.
b. This Honourable Court be pleased to grant leave to the Appellant/Applicant to file the appeal as well as the application to stay execution of judgement and decree out of time in respect to the Bungoma Chief Magistrate’s Court Succession Cause No. E033 of 2021.
c. This Honourable Court be pleased to extend time for filing the appeal in respect of Bungoma Chief Magistrate’s Court Succession Cause No. E033 of 2021.
d. Upon granting prayers (b) and (c) above, this Honourable Court be pleased to provide timelines for filing the application and appeal.
e. Costs of and incidental to this application be borne by the Respondents.
f. Costs of this appeal be borne by the Respondents.
2. The application is expressed to be brought under Sections 1, 1A, 1B, & 3A of the Civil Procedure Act, Order 40 Rule 1(a), Order 50 Rule 6a, Order 51 Rule 1, Article 159 (2) (d) of the Kenyan Constitution and all other enabling provisions of law, and is supported by the Affidavit sworn by the Appellant/Applicant, Morris Wafula Nyongesa, on his own behalf.
3. The Appellant/Applicant’s graveman is that the subject matter herein involves land and the Appellant/Applicant herein and other beneficiaries to the estate of the deceased shall suffer irreparable loss if the application is denied, given that the land in contest is ancestral land wherein they have been in residence from time immemorial while the Respondents are mere alleged purchasers. This, according to him is a major disruption to their lives.
4. The Respondents filed a Replying Affidavit sworn by the 1st Respondent, Daniel Wafula Wamalwa, on his own behalf and on behalf of the other 4 Respondents.
5. According to the Respondent the Motion application is frivolous, ambiguous, lack merit, is bad in law and the same ought to be dismissed.
6. They further argued that the purported Appellant has decided to file an appeal after two years since the trial Court’s judgement and that the failure to disclose when the said judgement was delivered was only to conceal material facts and mislead the Court. The Respondents formed an overall impression that the Appellant has not convinced the Court as to why he should be granted the sought prayers as tangible and/or no reasons were given as to why he delayed in filing his respective appeal. They insisted that they are liabilities to the estate of the deceased herein by virtue of being purchasers of portion of land comprised in land parcel No. Bokoli/Mukuyuni/135 thus beneficiaries. They availed their respective land sale agreements in Court as VWW-2. They concluded that the Motion application before this Court by the Appellant/Applicant is just a move to obstruct them from enjoying the fruits of their successful litigation.
7. In response to the Respondents Replying Affidavit, the Appellant/Applicant swore his Supplementary Affidavit herein he averred that the Respondents Replying Affidavit is marred with falsehoods and that there will be no prejudice occasioned to the Respondents if the application is allowed.
8. In response to the Appellant/Applicant’s Supplementary Affidavit, the 1st Respondent, Daniel Wafula Wamalwa, on his own behalf and on behalf of the other 4 Respondents swore a Further Affidavit wherein they averred that the 2nd Respondent herein is deceased and that the Motion application before this Court has been filed close to one year from the date of the ruling. They also argued that should this Court grant the orders sought by the Appellant/Applicant herein, the Appellant/Applicant should be compelled to deposit in Court Kshs. 100,000/= for anticipated costs. Finally, they reiterated that the Motion application herein lacks merit, its frivolous, vexatious and bad in law, and that it ought to be dismissed.
9. Pursuant to directions by the Court, parties filed written submissions in support of their respective positions in the matter.
10. I have considered the application, the grounds thereof, the Affidavits sworn in support of and against the Motion application before this Court, the rival submissions and the law. Arising therefrom in my view, the main issue for determination is whether the application has any merit and therefore whether the orders sought should be granted.
11. The Law of Succession Act does not provide specific timelines for filing of appeals from decisions of the lower Court to the High Court. However, as Succession Appeals are considered to be Civil Appeals, the provisions of Section 79G of the Civil Procedure Act is applicable.
12. Under Section 79G of the Civil Procedure Act, time for filing an appeal from judgment or decree of the subordinate Court to the High Court is thirty days.
13. In this case, on perusal of the Court record this Court is unable to give the tentative date when the Ruling sought to be challenged was delivered by the trial Court. In their rival Affidavits the Respondents swore that the decision that the Appellant/Applicant seeks to appeal against was delivered almost one year ago.
14. Section 79G of the Civil Procedure Act states:-
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
15. It is clear from the wording of Section 79G of the Civil Procedure Act that before the Court considers extension of time, the Applicants must satisfy the Court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
16. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat v IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.”
17. The Court of Appeal held that whenever an application for extension of time is before a Court, the Court ought to take into account several factors as observed by Odek JJA in Edith Gichungu Koine v Stephen Njagi Thoithi [2014] eKLR thus:
“Nevertheless, it ought to be guided by consideration of factors stated in many previous decision of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”
18. The Court of Appeal further guided that there is also a duty imposed on Courts to ensure that the factors considered are in consonance with the overriding objective of civil proceedings litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.
19. I have perused the intended Memorandum of Appeal and noted that the Appellant purposely failed to indicate when exactly the ruling he aims to appeal against was delivered and even failed to attached the alleged impugned ruling. The Appellant/Applicant herein has not shown this Court he has a good cause for extension of time. It is clear that the Appellant/Applicant failed to satisfy this Court that that he has good and sufficient cause for filing the appeal out of time.
20. Be that as it may, In Kamlesh Mansukhalal Damki Pattni v Director of Public Prosecution & 3 Others [2015] eKLR, the Court of Appeal pronounced that:
“It must be realized that courts exist for the purpose of dispensing justice. Judicial officers derive their judicial power from the people, or as we are wont to say in Kenya, from Wanjiku, by dint of Article 159 (1) of the Constitution which succinctly states that “judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Judicial officers are also state officers, and consequently, are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity, are upheld.
21. For these reasons, decisions of the courts must be redolent of fairness and reflect the best interests of the people whom the law is intended to serve. Such decisions may involve only parties inter se (and hence only parties’ interests) and while others may transcend the interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the court in exercising its judicial authority to ensure dispensation of justice as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.” (emphasis added).
22. The Court of Appeal in the above case agreed with the pronouncement by the learned Judge of the High Court that:
“It suffices to comment that a court of law should be hesitant at closing the door to the corridors of justice prior to a litigant being heard on his complaint. So far the applicant did not have a chance to file a defence. He sought to set aside that default judgment and that application was dismissed on a date he contents the same was not due for hearing and when he had no notice...”
23. Article 48 of the Constitution guarantees every person access to justice. In addition, under Article 50(1) of the Constitution, every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body.
24. The ultimate goal and purpose of the justice system is to hear and determine disputes fully. It follows that no person who has approached the Court seeking an opportunity to ventilate their grievances fully should be locked out. In the instant case, the Appellant/Applicant has approached this Court for extension of time as stipulated in Section 79G of the Civil Procedure Act, the proviso thereof. It is clear that this Court cannot ascertain the exact period of delay. Reasons or no reasons for that delay, the Appellant/Applicant is before the Court seeking to be granted a chance to agitate his appeal challenging the ruling of the Magistrate’s Court the distribution of the state of the deceased Tismas Nyongesa Wambawa.
25. There is no evidence that the application is an afterthought or that it is intended to abuse Court process. Further, it is not uncommon for clients to procrastinate on filing Court proceedings and only wake up when time for such filing has lapsed. Furthermore, there is no evidence to demonstrate what prejudice the Respondents will suffer if the Appellant/Applicant is granted extension of time
26. On whether stay of execution is merited, the conditions which a party must establish in order for the Court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates: -
“1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.
2. No order for stay of execution shall be made under sub rule 1 unless:-
a. The Court is satisfied that substantial loss may result to the 1st 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.”
27. Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an Appellant/Applicant should satisfy the Court that:
1.Substantial loss may result to him/her unless the order is made;
2.That the application has been made without unreasonable delay; and
3.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
28. Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-
“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 core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
29. The Appellant/Applicant in his Supporting Affidavit argued that the issue herein is concerns ancestral land and that him and the other beneficiaries to the estate of the deceased will suffer irreparable loss if his application is denied given that the land in question is ancestral land which they are in occupation of since time immemorial.
30. Whereas Rule 63 (1) of the Probate and Administration Rules has not cited Order 42 Rule 6 of the Civil Procedure Rules as one of the orders of the Civil Procedure Rules which apply to Succession causes, Rule 49 which is not among the provisions invoked by the Appellant/Applicant herein, is in my view wide enough to cover the present application and entertain a remedy of stay of execution of a judgment or decree in succession proceedings. Rule 49 of the Probate and Administration Rules provides that:
“A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported, if necessary, by affidavit.”
31. In addition, the Court may draw upon the wide powers in Section 47 of the Law of Succession Act to entertain any application and to determine any dispute under the Law of Succession Act.
32. I need not state that, the Court may, in appropriate instances, draw upon its inherent jurisdiction to grant appropriate orders under Rule 73 of the Probate and Administration Rules in order to meet the ends of justice and to prevent abuse of process of the Court. These elegant provisions of ‘’existing law’’, are in perfect conformity with the Constitution especially the strict command in Article 159 of the Constitution that Courts of law should strive to administer substantive justice. As such the application is properly before the Court.
33. Apt borrowing from the Civil Procedure Rules. The Appellant/Applicant herein has filed an intended memorandum of appeal thus, clothed with the locus standi to apply for stay pending appeal.
34. Stay of execution pending appeal is a discretionary power but, which must not be exercised on whims, but judiciously; on defined principles and the facts of the case. The objective of stay of execution is to prevent substantial loss from befalling the Applicant; ordinarily, it is to prevent the appeal from being rendered nugatory. Such is lawful and reasonable reason to limit the Respondents right to immediate realization of the fruits of judgment. See James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR: -
“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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
35. The Appellant/Applicant herein has stated that him and the other beneficiaries to the estate of the deceased herein will suffer substantial loss if the stay is not granted, for they will be displaced from their homes resulting in rude and irreparable disruption to their lives. The Respondents on the other hand averred that the mode of distribution of the estate is proper and fair as the trial Court recognized them as liabilities to the estate of the deceased herein and they availed the requisite sale agreements to show that they proposed their respective portions in land parcel No. Bokoli/Mukuyuni/135.
36. This Court has not had the privilege of going through the impugned ruling and I note that the Appellant/Applicant herein is strictly interested in guarding the deceased’s ancestral land and protection from interrupted enjoyment of the said asset while the Respondents wish that this Court recognizes that they are liabilities to the estate of the deceased subject to them purchasing portions of land in land parcel No. Bokoli/Mukuyuni/135.
37. I am persuaded that implementation of the Grant herein will cause a displacement which may occasion substantial loss to the Appellant/Applicant and the other beneficiaries to the estate of the deceased as their residence on the estate property would be greatly interrupted.
38. In light of the foregoing, I shall stay implementation of the Grant herein pending determination of this appeal.
39. In the upshot the application herein succeeds in whole. Accordingly:
a. I direct that the Appellant shall prepare, file and serve upon the Respondents a complete record of appeal within the next twenty-one (21) days from the date of this ruling together with written submissions to canvass the appeal, upon which the Respondents shall have 14 days of the date of service to file and serve written submissions;
b. I grant the request for stay of execution or implementation of the judgment/ruling and grant herein, respectively;
c. The Appellant/Applicant shall deposit Kshs. 100,000/= for anticipated costs in court, within 15 days of this ruling;
d. No Order as to Costs.
It is hereby so ordered.
Delivered, Signed and Dated at Bungoma this 27th day of June 2025.
M.S.Shariff
Judge
In the presence of:
MUKHOOLI FOR APPELLANT/APPLICANT
ALL RESPONDENTS SAVE FOR 3RD RESPONDENT PRESENT
PETER COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION APPEAL NO. E150 OF 2024
IN THE MATTER OF THE ESTATE OF THE LATE TISMAS NYONGESA WAMBAWA
AND
MORRIS WAFULA NYONGESA……………………………........................................................................................................…APPELLANT
VERSUS
DANIEL WAFULA WAMALWA…………………..…....................................................................................................................….1ST RESPONDENT
HENRY MANDILA WABWAYI……………………..….......................................................................................................................2ND RESPONDENT
JOYCE CHEBET KIBOI………………………………........................................................................................................................3RD RESPONDENT
FRED NYONGESA MANG’ARA MAUNDA……..….........................................................................................................................4TH RESPONDENT
SIMON KHAEMBA WANAONI…………………..……........................................................................................................................5TH RESPONDENT
RULING
1. The significant orders sought in the Motion application dated 14th October 2024, are six, namely:
a. This Honourable Court be pleased to certify this application “urgent” so that service thereof be dispensed within the first instance.
b. This Honourable Court be pleased to grant leave to the Appellant/Applicant to file the appeal as well as the application to stay execution of judgement and decree out of time in respect to the Bungoma Chief Magistrate’s Court Succession Cause No. E033 of 2021.
c. This Honourable Court be pleased to extend time for filing the appeal in respect of Bungoma Chief Magistrate’s Court Succession Cause No. E033 of 2021.
d. Upon granting prayers (b) and (c) above, this Honourable Court be pleased to provide timelines for filing the application and appeal.
e. Costs of and incidental to this application be borne by the Respondents.
f. Costs of this appeal be borne by the Respondents.
2. The application is expressed to be brought under Sections 1, 1A, 1B, & 3A of the Civil Procedure Act, Order 40 Rule 1(a), Order 50 Rule 6a, Order 51 Rule 1, Article 159 (2) (d) of the Kenyan Constitution and all other enabling provisions of law, and is supported by the Affidavit sworn by the Appellant/Applicant, Morris Wafula Nyongesa, on his own behalf.
3. The Appellant/Applicant’s graveman is that the subject matter herein involves land and the Appellant/Applicant herein and other beneficiaries to the estate of the deceased shall suffer irreparable loss if the application is denied, given that the land in contest is ancestral land wherein they have been in residence from time immemorial while the Respondents are mere alleged purchasers. This, according to him is a major disruption to their lives.
4. The Respondents filed a Replying Affidavit sworn by the 1st Respondent, Daniel Wafula Wamalwa, on his own behalf and on behalf of the other 4 Respondents.
5. According to the Respondent the Motion application is frivolous, ambiguous, lack merit, is bad in law and the same ought to be dismissed.
6. They further argued that the purported Appellant has decided to file an appeal after two years since the trial Court’s judgement and that the failure to disclose when the said judgement was delivered was only to conceal material facts and mislead the Court. The Respondents formed an overall impression that the Appellant has not convinced the Court as to why he should be granted the sought prayers as tangible and/or no reasons were given as to why he delayed in filing his respective appeal. They insisted that they are liabilities to the estate of the deceased herein by virtue of being purchasers of portion of land comprised in land parcel No. Bokoli/Mukuyuni/135 thus beneficiaries. They availed their respective land sale agreements in Court as VWW-2. They concluded that the Motion application before this Court by the Appellant/Applicant is just a move to obstruct them from enjoying the fruits of their successful litigation.
7. In response to the Respondents Replying Affidavit, the Appellant/Applicant swore his Supplementary Affidavit herein he averred that the Respondents Replying Affidavit is marred with falsehoods and that there will be no prejudice occasioned to the Respondents if the application is allowed.
8. In response to the Appellant/Applicant’s Supplementary Affidavit, the 1st Respondent, Daniel Wafula Wamalwa, on his own behalf and on behalf of the other 4 Respondents swore a Further Affidavit wherein they averred that the 2nd Respondent herein is deceased and that the Motion application before this Court has been filed close to one year from the date of the ruling. They also argued that should this Court grant the orders sought by the Appellant/Applicant herein, the Appellant/Applicant should be compelled to deposit in Court Kshs. 100,000/= for anticipated costs. Finally, they reiterated that the Motion application herein lacks merit, its frivolous, vexatious and bad in law, and that it ought to be dismissed.
9. Pursuant to directions by the Court, parties filed written submissions in support of their respective positions in the matter.
10. I have considered the application, the grounds thereof, the Affidavits sworn in support of and against the Motion application before this Court, the rival submissions and the law. Arising therefrom in my view, the main issue for determination is whether the application has any merit and therefore whether the orders sought should be granted.
11. The Law of Succession Act does not provide specific timelines for filing of appeals from decisions of the lower Court to the High Court. However, as Succession Appeals are considered to be Civil Appeals, the provisions of Section 79G of the Civil Procedure Act is applicable.
12. Under Section 79G of the Civil Procedure Act, time for filing an appeal from judgment or decree of the subordinate Court to the High Court is thirty days.
13. In this case, on perusal of the Court record this Court is unable to give the tentative date when the Ruling sought to be challenged was delivered by the trial Court. In their rival Affidavits the Respondents swore that the decision that the Appellant/Applicant seeks to appeal against was delivered almost one year ago.
14. Section 79G of the Civil Procedure Act states:-
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
15. It is clear from the wording of Section 79G of the Civil Procedure Act that before the Court considers extension of time, the Applicants must satisfy the Court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
16. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat v IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.”
17. The Court of Appeal held that whenever an application for extension of time is before a Court, the Court ought to take into account several factors as observed by Odek JJA in Edith Gichungu Koine v Stephen Njagi Thoithi [2014] eKLR thus:
“Nevertheless, it ought to be guided by consideration of factors stated in many previous decision of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”
18. The Court of Appeal further guided that there is also a duty imposed on Courts to ensure that the factors considered are in consonance with the overriding objective of civil proceedings litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.
19. I have perused the intended Memorandum of Appeal and noted that the Appellant purposely failed to indicate when exactly the ruling he aims to appeal against was delivered and even failed to attached the alleged impugned ruling. The Appellant/Applicant herein has not shown this Court he has a good cause for extension of time. It is clear that the Appellant/Applicant failed to satisfy this Court that that he has good and sufficient cause for filing the appeal out of time.
20. Be that as it may, In Kamlesh Mansukhalal Damki Pattni v Director of Public Prosecution & 3 Others [2015] eKLR, the Court of Appeal pronounced that:
“It must be realized that courts exist for the purpose of dispensing justice. Judicial officers derive their judicial power from the people, or as we are wont to say in Kenya, from Wanjiku, by dint of Article 159 (1) of the Constitution which succinctly states that “judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Judicial officers are also state officers, and consequently, are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity, are upheld.
21. For these reasons, decisions of the courts must be redolent of fairness and reflect the best interests of the people whom the law is intended to serve. Such decisions may involve only parties inter se (and hence only parties’ interests) and while others may transcend the interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the court in exercising its judicial authority to ensure dispensation of justice as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.” (emphasis added).
22. The Court of Appeal in the above case agreed with the pronouncement by the learned Judge of the High Court that:
“It suffices to comment that a court of law should be hesitant at closing the door to the corridors of justice prior to a litigant being heard on his complaint. So far the applicant did not have a chance to file a defence. He sought to set aside that default judgment and that application was dismissed on a date he contents the same was not due for hearing and when he had no notice...”
23. Article 48 of the Constitution guarantees every person access to justice. In addition, under Article 50(1) of the Constitution, every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body.
24. The ultimate goal and purpose of the justice system is to hear and determine disputes fully. It follows that no person who has approached the Court seeking an opportunity to ventilate their grievances fully should be locked out. In the instant case, the Appellant/Applicant has approached this Court for extension of time as stipulated in Section 79G of the Civil Procedure Act, the proviso thereof. It is clear that this Court cannot ascertain the exact period of delay. Reasons or no reasons for that delay, the Appellant/Applicant is before the Court seeking to be granted a chance to agitate his appeal challenging the ruling of the Magistrate’s Court the distribution of the state of the deceased Tismas Nyongesa Wambawa.
25. There is no evidence that the application is an afterthought or that it is intended to abuse Court process. Further, it is not uncommon for clients to procrastinate on filing Court proceedings and only wake up when time for such filing has lapsed. Furthermore, there is no evidence to demonstrate what prejudice the Respondents will suffer if the Appellant/Applicant is granted extension of time
26. On whether stay of execution is merited, the conditions which a party must establish in order for the Court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates: -
“1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.
2. No order for stay of execution shall be made under sub rule 1 unless:-
a. The Court is satisfied that substantial loss may result to the 1st 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.”
27. Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an Appellant/Applicant should satisfy the Court that:
1.Substantial loss may result to him/her unless the order is made;
2.That the application has been made without unreasonable delay; and
3.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
28. Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR:-
“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 core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
29. The Appellant/Applicant in his Supporting Affidavit argued that the issue herein is concerns ancestral land and that him and the other beneficiaries to the estate of the deceased will suffer irreparable loss if his application is denied given that the land in question is ancestral land which they are in occupation of since time immemorial.
30. Whereas Rule 63 (1) of the Probate and Administration Rules has not cited Order 42 Rule 6 of the Civil Procedure Rules as one of the orders of the Civil Procedure Rules which apply to Succession causes, Rule 49 which is not among the provisions invoked by the Appellant/Applicant herein, is in my view wide enough to cover the present application and entertain a remedy of stay of execution of a judgment or decree in succession proceedings. Rule 49 of the Probate and Administration Rules provides that:
“A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported, if necessary, by affidavit.”
31. In addition, the Court may draw upon the wide powers in Section 47 of the Law of Succession Act to entertain any application and to determine any dispute under the Law of Succession Act.
32. I need not state that, the Court may, in appropriate instances, draw upon its inherent jurisdiction to grant appropriate orders under Rule 73 of the Probate and Administration Rules in order to meet the ends of justice and to prevent abuse of process of the Court. These elegant provisions of ‘’existing law’’, are in perfect conformity with the Constitution especially the strict command in Article 159 of the Constitution that Courts of law should strive to administer substantive justice. As such the application is properly before the Court.
33. Apt borrowing from the Civil Procedure Rules. The Appellant/Applicant herein has filed an intended memorandum of appeal thus, clothed with the locus standi to apply for stay pending appeal.
34. Stay of execution pending appeal is a discretionary power but, which must not be exercised on whims, but judiciously; on defined principles and the facts of the case. The objective of stay of execution is to prevent substantial loss from befalling the Applicant; ordinarily, it is to prevent the appeal from being rendered nugatory. Such is lawful and reasonable reason to limit the Respondents right to immediate realization of the fruits of judgment. See James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR: -
“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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
35. The Appellant/Applicant herein has stated that him and the other beneficiaries to the estate of the deceased herein will suffer substantial loss if the stay is not granted, for they will be displaced from their homes resulting in rude and irreparable disruption to their lives. The Respondents on the other hand averred that the mode of distribution of the estate is proper and fair as the trial Court recognized them as liabilities to the estate of the deceased herein and they availed the requisite sale agreements to show that they proposed their respective portions in land parcel No. Bokoli/Mukuyuni/135.
36. This Court has not had the privilege of going through the impugned ruling and I note that the Appellant/Applicant herein is strictly interested in guarding the deceased’s ancestral land and protection from interrupted enjoyment of the said asset while the Respondents wish that this Court recognizes that they are liabilities to the estate of the deceased subject to them purchasing portions of land in land parcel No. Bokoli/Mukuyuni/135.
37. I am persuaded that implementation of the Grant herein will cause a displacement which may occasion substantial loss to the Appellant/Applicant and the other beneficiaries to the estate of the deceased as their residence on the estate property would be greatly interrupted.
38. In light of the foregoing, I shall stay implementation of the Grant herein pending determination of this appeal.
39. In the upshot the application herein succeeds in whole. Accordingly:
a. I direct that the Appellant shall prepare, file and serve upon the Respondents a complete record of appeal within the next twenty-one (21) days from the date of this ruling together with written submissions to canvass the appeal, upon which the Respondents shall have 14 days of the date of service to file and serve written submissions;
b. I grant the request for stay of execution or implementation of the judgment/ruling and grant herein, respectively;
c. The Appellant/Applicant shall deposit Kshs. 100,000/= for anticipated costs in court, within 15 days of this ruling;
d. No Order as to Costs.
It is hereby so ordered.
Delivered, Signed and Dated at Bungoma this 27th day of June 2025.
M.S.Shariff
Judge
In the presence of:
MUKHOOLI FOR APPELLANT/APPLICANT
ALL RESPONDENTS SAVE FOR 3RD RESPONDENT PRESENT
PETER COURT ASSISTANT