REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
SUCCESSION APPEAL NO E002 OF 2025
IN THE MATTER OF THE ESTATE OF NOAH OMUMBWA (DECEASED)
SARAH NYAHELA MUKOYA………………………..….…………..1 ST APPELLANT
NIFA ATEKA OMUMBWA……….………………………………….2 ND APPELLANT
BOAZ NYAKHA OYUGI……..……………………………………….3 RD APPELLANT
VERSUS
ALICE OKISA………………………………………..…...….…….1 ST RESPONDENT
NASHON OBIERO OMUMBWA……………………….….…….2 ND RESPONDENT
JONATHAN ETALE OMUMBWA………………………..…….…3 RD RESPONDENT
RULING
INTRODUCTION
1. In their Notice of Motion application dated on 14 th February 2025 and filed on 28 th February 2025, the Appellants herein sought an order for stay of execution of the Ruling and Order delivered by Honourable J.A. Agonda, Principal Magistrate, in Vihiga MCSUCC Cause No. E131 of 2022 on 7 th February 2025, pending the hearing and determination of the appeal. They also sought costs of the application.
2. The 1 st Appellant swore an Affidavit in support of the application on behalf of the 2 nd and 3 rd Appellants herein on 14 th February 2025. She averred that she, the 2 nd and 3 rd Appellants and the Respondents were beneficiaries of the deceased’s estate in which the 3 rd Respondent applied for Grant in Vihiga MC Succession Cause No E131 of 2022 . She stated that the Grant was issued and subsequently confirmed in the presence of all beneficiaries, who raised no objection.
3. She averred that upon receiving her share of the estate, which devolved into her name by registration, she proceeded to dispose of the same, an action which annoyed the Respondents who thereafter sought revocation of the Grant. She stated that on 7 th February 2025, the Learned Trial Magistrate, Hon. J. A. Agonda, Principal Magistrate revoked the said Grant of Letters of Administration and declared subsequent activities undertaken after its issuance null and void.
4. She averred that she had preferred an appeal against the said ruling, which was arguable with a high probability of success. She stated that the revocation proceedings were instigated because she disposed of her share of the estate as a widow and that the Trial Court’s finding that she ought to have sought permission from her in-laws before disposing of her share was backward and discriminatory.
5. She maintained that there was no objection to the 3 rd Respondent being the administrator or to the mode of distribution, but only to her decision to dispose of her share. She stated that she and the 2 nd and 3 rd Appellants had an arguable appeal with a high probability of success and, therefore, sought stay of execution pending appeal, stating that failure to grant the same would render the appeal nugatory. She added that the Respondents would not suffer prejudice if the present application was allowed.
6. The 1 st Respondent swore a Replying Affidavit on behalf of herself and the 2 nd Respondent, denying the Applicants’ allegations and putting them to strict proof. The 1 st and 2 nd Respondents contended that the 1 st Appellant lacked locus standi as the Trial Court had found that she did not adduce any evidence to prove that she was a wife to their brother, Zephaniah Omumbwa, who was deceased.
7. They asserted that the 1 st Appellant participated in a process that she knew was unlawful. They further stated the Appellants did not have an arguable appeal, having admitted that they did not consent to, sign, or see the mode of distribution in the impugned Petition. They stated that, due to forged signatures and lack of consent from beneficiaries, the court could not endorse an illegality. They maintained that the beneficiaries’ names were included merely as a formality without their proper consent.
8. It was their further contention that the Appellants harassed anyone who expressed discomfort with the lack of service, despite having informed the court that there was no service, even there was an opportunity during the family meeting on 22 nd June 2023. They stated that they proceeded to the Registrar to place a caution on the confirmation of the Grant before filing the objection, as directed by the Registrar. They reiterated the that the lack of consent from the beneficiaries endorsing the 3 rd Respondent as administrator was fatal to the impugned Petition.
9. They stated the appeal and application were defective because the 1 st Appellant procured her inheritance as a priority beneficiary to deceased’s estate. They further contended that the conflict among the beneficiaries of Zephaniah Omumbwa was spurred by the 1 st Appellant and the buyer, one Patrick Odemba who she brought into the home. They stated that, since the transaction involving Patrick Odemba arose from a flawed process, and he was not an innocent and diligent purchaser, his recourse was against the 1 st Appellant herein in a civil action but not in the Succession Cause. They stated that Patrick Odemba was aware of the risks involved as a result of the 1 st Appellant but nonetheless hurried the quashed sale along (sic) .
10. They stated that granting stay would create an opportunity for the 2 nd Appellant to rope other unsuspecting buyers and possible unlawful disposal of portions of the estate, including the one for Dan Omumbwa, unlawfully disinheriting his ten (10) siblings, therefore, compounding the problems already facing the estate and additional disputes among the beneficiaries, including the.
11. They maintained that the urgency was on a lawful succession process and that granting stay would cause more harm than good, amount to an abuse of the court process, and that the priority was to commence a lawful succession process that would protect all beneficiaries and regularise the succession process for good titles. They prayed that the application be dismissed with costs, that the 1 st Appellant’s affidavits and attachments be struck out for lack of locus standi , and that the Trial Court’s orders be upheld.
12. The 3 rd Respondent filed a response dated 30 th May ( sic ) and stated that he was the deceased’s son. He denied the allegations against him and contended that the 1 st Appellant, in collusion with Patrick Odemba, were the driving force behind the impugned Petition to circumvent the rightful beneficiaries’ consent. He averred that his name was included to create legitimacy while the 1 st and 3 rd Appellants unconstitutionally and unlawfully expedited the Succession Cause.
13. He stated that he attended the proceedings where the Appellants denied signing the mode of distribution. He said that he was perplexed as to the motive of the instant appeal and application and the fact that the 1 st Appellant and the said Patrick Odemba proceeded with impugned transaction and registered a caution with the Registrar. He said that he had disassociated himself from the Petition and the proceedings that were conducted in his name.
14. He averred that the appeal was driven by the 1 st Appellant’s interests and that it was an attempt to misuse the names of the legitimate beneficiaries for her interests. He pointed out that her locus standi was questioned before the Trial Court. He further stated that Patrick Odemba had an opportunity to assert his interests during the objection proceedings but failed to do so. He contended that any dispute concerning his alleged interests fell within the jurisdiction of the Environment and Land Court (ELC).
15. He stated that he intended to commence a fresh succession process to rectify the defective root of title and resolve the family disputes arising from the invalidated confirmation process. He maintained that no lawful beneficiary would suffer prejudice by maintaining the estate in its current state. He averred that the 1 st Appellant had failed to demonstrate that the lawful and inclusive process would prejudice her when the objective was securing valid and proper title.
16. He stated that there was undue delay, that the appeal served to delay initiation of fresh petition, and that he was aware of the 3 rd Appellant’s intention to sell his portion under the invalidated title, disregarding his siblings’ rightful interests. He added that there was a risk of potential interference by the 1 st Appellant if orders were lifted and that Patrick Odemba remained a hostile occupant through the invalidated title. He therefore urged the court to dismiss the application and appeal for lack of merit.
17. The Appellant’s Written Submissions dated 30 th June 2025 were filed on 1 st July 2025. Although the 1 st Respondent had sworn the response to the present application on her own behalf and on behalf of the 2 nd Respondent herein, she did not file Written Submissions on behalf of the 2 nd Respondent herein. Her Written Submissions dated and filed on 26 th January 2026. Both the 2 nd nor the 3 rd Respondents did not file any Written Submissions. This Ruling is based on the parties’ affidavits, responses and Written Submissions on record, which they relied upon in their entirety.
LEGAL ANALYSIS
18. The Appellants relied on the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010 and submitted that under the said provision, no appeal or second appeal operated as a stay of execution unless the court orders otherwise and that no order for stay of execution shall be made unless the court was satisfied that substantial loss might result to the applicant unless the order was made, that the application had been made without unreasonable delay, and that such security as the court orders for the due performance of the decree had been given by the applicant.
19. They explained that the three (3) conditions that were to be fulfilled were that substantial loss might result to the applicant unless the order was made, that the application had been made without unreasonable delay, and that security as the court orders for the due performance had been given.
20. They relied on the case of Tropical Commodities Suppliers Ltd & Others vs International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 , where the court stated that substantial loss did not represent any particular mathematical formula but it was a qualitative concept referring to any loss, great or small, that was of real worth or value as distinguished from a loss without value or a loss that was merely nominal.
21. They stated that they were likely to suffer substantial loss because the 1 st Appellant had received her portion of the estate and disposed it to a 3 rd party. They contended that revocation of the Grant of Letters of Administration exposed the 1 st Appellant to claims by a third party and was likely to cause hardship to them as the said Grant had been lawfully obtained and confirmed with the consent of all the beneficiaries.
22. They averred that they were ready to comply with the security terms that might be set by the court to be deposited in a joint interest earning account despite being a non-monetary decree. They relied on the case of Gianfranco Manenthi & Another vs Africa Merchant Assurance Co. Ltd [2019] eKLR , where it was held that the applicant had to meet the condition of payment of security for due performance of the decree.
23. They further contended that the application had been made without inordinate delay, the ruling having been delivered on 7 th February 2025 and the Memorandum of Appeal and the application having been filed on 28 th February 2025. They therefore submitted that they were deserving of the orders sought and urged the court to grant the same.
24. The 1 st Respondent termed the present application as misconceived, legally untenable, and meant to frustrate a lawful succession process that would protect all beneficiaries and the estate of the deceased herein. She further submitted that the Appellant’s had failed to meet the threshold for stay and were instead seeking to preserve an illegal and fraudulent process. She maintained that the application was made in bad faith and reiterated the facts that were set out in her Replying Affidavit.
25. The 1 st Respondent was emphatic that the court lacked jurisdiction to determine the issues that had been raised in the application. She submitted that the 1 st Appellant had raised concerns arising from a hurried sale to Patrick Odemba using the revoked Grant, whereas Section 82(b)(ii) of the Law of Succession Act prohibited the sale of immovable property before a grant issue through a lawful process. She further submitted that purchasers who acquired estate property through unlawful processes were not protected under Section 93 of the Law of Succession Act and that the alleged purchaser's remedy lay in a civil claim against the seller, rather than in seeking to preserve the succession proceedings through an order for stay. She maintained that the issues raised were best determined by the court with the requisite jurisdiction.
26. In support of that submission, she placed reliance on the case of In re Estate of Obedi Ndwiga Rubarita (Deceased) [2021] eKLR , where the court held that the primary duty of the probate court was to distribute the estate of the deceased to the rightful beneficiaries and that matters touching on title to and occupation of land ought to be determined by the Environment and Land Court. She also referred this court to the case of In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR , where the court therein stated that claims to ownership of alleged estate property as between the estate and a third party should be resolved through the civil process before a civil court. She further relied on In re Estate of Mathew Liluma Shinjili alias Mathew Lilimi [2022] eKLR , where the court therein cautioned against pursuing civil issues before the probate court. She submitted that the interests she had raised would be better addressed by a civil court before being presented to any succession proceedings.
27. She further averred that for the Appellants to meet the legal threshold for the grant of stay, they were required to demonstrate an arguable appeal, substantial loss, that the application had been made promptly and in good faith . She was also emphatic that the appeal was not arguable.
28. She contended that the Appellants' own sworn testimonies before the Trial Court irretrievably undermined the appeal. She submitted that both the 1 st and 2 nd Appellants testified that they had not signed the Mode of Distribution and that the signatures therein were forgeries. She further submitted that, having admitted that the process was tainted by such serious illegality, the Appellants could not seek a stay to preserve a process they themselves had disowned. She also submitted that all the beneficiaries, including the Petitioner, the 3 rd Respondent, had abandoned the entire process and attested to the existence of fraud.
29. She pointed out that there was no question that both the 1 st Appellant and any parties she had roped in were present in court throughout the proceedings. She submitted that the 1 st Appellant participated in the process she tainted as fraudulent during the objection proceedings. She further submitted that the buyer repeatedly ferried the 1 st Appellant to and from the proceedings from the outset, thereby affording her sufficient opportunities to inform him of the forged signatures.
30. She argued that there was no lawful basis for granting stay pending appeal. She stated that the Appellants had failed to demonstrate an arguable appeal or the loss they would suffer from a fresh, open and non-fraudulent succession process. She further submitted that granting stay would expose the estate to further harm and reward an illegality and that the issues raised did not fall within the jurisdiction of a succession court.
31. The principles governing an application for stay of execution pending appeal are set out in Order 42 Rule 6(2) of the Civil Procedure Rules , 2010, which provides: -
“2. 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.”
32. The Appellants filed the Memorandum of Appeal dated 14 th February 2025 on 28 th February 2025 following delivery of the impugned ruling on 7 th February 2025, and filed the present application on the same date. The application was, therefore, made without unreasonable delay.
33. The central consideration was whether the Appellants had demonstrated that substantial loss might result unless stay was granted. In the case of Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KECA 94 (KLR) , the Court of Appeal held that there had to be evidence of substantial loss and that such loss could not be inferred. The Appellants herein were, therefore, required to demonstrate, on the material before the court, the specific loss that would result if the impugned orders remained in force.
34. The Appellants did not demonstrate the specific prejudice they would suffer from maintaining the Trial Court’s orders pending appeal or allowing the fresh succession process to commence.
35. The Appellants further failed to demonstrate that implementation of the impugned ruling would render the appeal nugatory by causing the subject matter to be lost or irreversibly altered before its determination. Substantial loss was therefore not established.
36. The requirement for security did not arise in any practical terms in the circumstances of this case, as the impugned orders concerned the revocation of the Grant and the nullification of subsequent activities undertaken pursuant to it, rather than any monetary obligation. In any event, the Appellant’ willingness to furnish security did not cure their failure to establish substantial loss.
37. Having said so, a pertinent question that arose was whether or not this court could have granted the orders in the event the Appellants had satisfied the ingredients of being granted an order of stay of execution pending appeal as they had sought in their application. the order the Trial Court was capable of execution to enable the court grant the order for stay of execution. To understand this, it was necessary to look at the definition of the word “execution.” Notably, the said word has not been defined in Section 2 of the Civil Procedure Act Cap 21 (Laws of Kenya). It only appeared within the definitions of a decree holder and judgment debtor as follows:-
“"decree holder" means any person in whose favour a decree has been passed or an order capable of execution (emphasis court) has been made, and includes the assignee of such decree or order;
"judgment-debtor" means any person against whom a decree has been passed or an order capable of execution (emphasis court) has been made;”
38. It was for that reason that this court looked at Black’s Law Dictionary 10 th Edition to explain what execution was. It was defined as a:-
“ Judicial enforcement of a money judgement usually by seizing and selling the judgment debtor’s property.”
39. It was, therefore, clear that the order that the Trial Court issued was not of the nature that could be stayed as it was not a monetary decree.
40. This court also considered Rule 63(1) of the Probate & Administration Rules Legal Notice 104 of 1980 states as follows:-
“Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 ( Cap. 21 , Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.”
41. It was evident from the aforesaid Rule 63(1) of the Probate and Administration Rules that Order 46 Rule 2 of the Civil Procedure Rules was not applicable in probate and administration matters. Indeed, the provisions of the Civil Procedure Rules that were applicable therein were well set out in the said Rule.
This court, therefore, found and held that as the order that was issued by the Trial Court was not one that could be stayed by virtue of it being a negative order This very court addressed its mind to the issue of negative orders in the case of Milcah Jeruto Tallam T/A Milcah Faith Enterprises V Fina Bank Ltd & Another [2013] KEHC 4483 (KLR) and held that negative orders were incapable of being stayed.
42. Having evaluated all the Written Submissions that were placed before this court, this court came to the firm conclusion that the Appellants’ application was improperly before it and could not be granted as drafted.
DISPOSITION
43. For the foregoing reasons, the upshot of this court’s decision was that the Appellants’ Notice of Motion dated 14 th February 2025 and filed on 28 th February 2025 was not merited and the same be and is hereby dismissed.
44. As this was a family matter and to avoid escalating the dispute between the parties herein, this court deviated from the general principal that costs follow the event and hereby directs that each party will bear its own costs of the said application.
45. It is so ordered.
DATED and DELIVERED at VIHIGA this 17 th day of September 2026
J. KAMAU
JUDGE
HcfA NO E002 OF 20252
IN THE HIGH COURT OF KENYA AT VIHIGA
SUCCESSION APPEAL NO E002 OF 2025
IN THE MATTER OF THE ESTATE OF NOAH OMUMBWA (DECEASED)
SARAH NYAHELA MUKOYA………………………..….…………..1 ST APPELLANT
NIFA ATEKA OMUMBWA……….………………………………….2 ND APPELLANT
BOAZ NYAKHA OYUGI……..……………………………………….3 RD APPELLANT
VERSUS
ALICE OKISA………………………………………..…...….…….1 ST RESPONDENT
NASHON OBIERO OMUMBWA……………………….….…….2 ND RESPONDENT
JONATHAN ETALE OMUMBWA………………………..…….…3 RD RESPONDENT
RULING
INTRODUCTION
1. In their Notice of Motion application dated on 14 th February 2025 and filed on 28 th February 2025, the Appellants herein sought an order for stay of execution of the Ruling and Order delivered by Honourable J.A. Agonda, Principal Magistrate, in Vihiga MCSUCC Cause No. E131 of 2022 on 7 th February 2025, pending the hearing and determination of the appeal. They also sought costs of the application.
2. The 1 st Appellant swore an Affidavit in support of the application on behalf of the 2 nd and 3 rd Appellants herein on 14 th February 2025. She averred that she, the 2 nd and 3 rd Appellants and the Respondents were beneficiaries of the deceased’s estate in which the 3 rd Respondent applied for Grant in Vihiga MC Succession Cause No E131 of 2022 . She stated that the Grant was issued and subsequently confirmed in the presence of all beneficiaries, who raised no objection.
3. She averred that upon receiving her share of the estate, which devolved into her name by registration, she proceeded to dispose of the same, an action which annoyed the Respondents who thereafter sought revocation of the Grant. She stated that on 7 th February 2025, the Learned Trial Magistrate, Hon. J. A. Agonda, Principal Magistrate revoked the said Grant of Letters of Administration and declared subsequent activities undertaken after its issuance null and void.
4. She averred that she had preferred an appeal against the said ruling, which was arguable with a high probability of success. She stated that the revocation proceedings were instigated because she disposed of her share of the estate as a widow and that the Trial Court’s finding that she ought to have sought permission from her in-laws before disposing of her share was backward and discriminatory.
5. She maintained that there was no objection to the 3 rd Respondent being the administrator or to the mode of distribution, but only to her decision to dispose of her share. She stated that she and the 2 nd and 3 rd Appellants had an arguable appeal with a high probability of success and, therefore, sought stay of execution pending appeal, stating that failure to grant the same would render the appeal nugatory. She added that the Respondents would not suffer prejudice if the present application was allowed.
6. The 1 st Respondent swore a Replying Affidavit on behalf of herself and the 2 nd Respondent, denying the Applicants’ allegations and putting them to strict proof. The 1 st and 2 nd Respondents contended that the 1 st Appellant lacked locus standi as the Trial Court had found that she did not adduce any evidence to prove that she was a wife to their brother, Zephaniah Omumbwa, who was deceased.
7. They asserted that the 1 st Appellant participated in a process that she knew was unlawful. They further stated the Appellants did not have an arguable appeal, having admitted that they did not consent to, sign, or see the mode of distribution in the impugned Petition. They stated that, due to forged signatures and lack of consent from beneficiaries, the court could not endorse an illegality. They maintained that the beneficiaries’ names were included merely as a formality without their proper consent.
8. It was their further contention that the Appellants harassed anyone who expressed discomfort with the lack of service, despite having informed the court that there was no service, even there was an opportunity during the family meeting on 22 nd June 2023. They stated that they proceeded to the Registrar to place a caution on the confirmation of the Grant before filing the objection, as directed by the Registrar. They reiterated the that the lack of consent from the beneficiaries endorsing the 3 rd Respondent as administrator was fatal to the impugned Petition.
9. They stated the appeal and application were defective because the 1 st Appellant procured her inheritance as a priority beneficiary to deceased’s estate. They further contended that the conflict among the beneficiaries of Zephaniah Omumbwa was spurred by the 1 st Appellant and the buyer, one Patrick Odemba who she brought into the home. They stated that, since the transaction involving Patrick Odemba arose from a flawed process, and he was not an innocent and diligent purchaser, his recourse was against the 1 st Appellant herein in a civil action but not in the Succession Cause. They stated that Patrick Odemba was aware of the risks involved as a result of the 1 st Appellant but nonetheless hurried the quashed sale along (sic) .
10. They stated that granting stay would create an opportunity for the 2 nd Appellant to rope other unsuspecting buyers and possible unlawful disposal of portions of the estate, including the one for Dan Omumbwa, unlawfully disinheriting his ten (10) siblings, therefore, compounding the problems already facing the estate and additional disputes among the beneficiaries, including the.
11. They maintained that the urgency was on a lawful succession process and that granting stay would cause more harm than good, amount to an abuse of the court process, and that the priority was to commence a lawful succession process that would protect all beneficiaries and regularise the succession process for good titles. They prayed that the application be dismissed with costs, that the 1 st Appellant’s affidavits and attachments be struck out for lack of locus standi , and that the Trial Court’s orders be upheld.
12. The 3 rd Respondent filed a response dated 30 th May ( sic ) and stated that he was the deceased’s son. He denied the allegations against him and contended that the 1 st Appellant, in collusion with Patrick Odemba, were the driving force behind the impugned Petition to circumvent the rightful beneficiaries’ consent. He averred that his name was included to create legitimacy while the 1 st and 3 rd Appellants unconstitutionally and unlawfully expedited the Succession Cause.
13. He stated that he attended the proceedings where the Appellants denied signing the mode of distribution. He said that he was perplexed as to the motive of the instant appeal and application and the fact that the 1 st Appellant and the said Patrick Odemba proceeded with impugned transaction and registered a caution with the Registrar. He said that he had disassociated himself from the Petition and the proceedings that were conducted in his name.
14. He averred that the appeal was driven by the 1 st Appellant’s interests and that it was an attempt to misuse the names of the legitimate beneficiaries for her interests. He pointed out that her locus standi was questioned before the Trial Court. He further stated that Patrick Odemba had an opportunity to assert his interests during the objection proceedings but failed to do so. He contended that any dispute concerning his alleged interests fell within the jurisdiction of the Environment and Land Court (ELC).
15. He stated that he intended to commence a fresh succession process to rectify the defective root of title and resolve the family disputes arising from the invalidated confirmation process. He maintained that no lawful beneficiary would suffer prejudice by maintaining the estate in its current state. He averred that the 1 st Appellant had failed to demonstrate that the lawful and inclusive process would prejudice her when the objective was securing valid and proper title.
16. He stated that there was undue delay, that the appeal served to delay initiation of fresh petition, and that he was aware of the 3 rd Appellant’s intention to sell his portion under the invalidated title, disregarding his siblings’ rightful interests. He added that there was a risk of potential interference by the 1 st Appellant if orders were lifted and that Patrick Odemba remained a hostile occupant through the invalidated title. He therefore urged the court to dismiss the application and appeal for lack of merit.
17. The Appellant’s Written Submissions dated 30 th June 2025 were filed on 1 st July 2025. Although the 1 st Respondent had sworn the response to the present application on her own behalf and on behalf of the 2 nd Respondent herein, she did not file Written Submissions on behalf of the 2 nd Respondent herein. Her Written Submissions dated and filed on 26 th January 2026. Both the 2 nd nor the 3 rd Respondents did not file any Written Submissions. This Ruling is based on the parties’ affidavits, responses and Written Submissions on record, which they relied upon in their entirety.
LEGAL ANALYSIS
18. The Appellants relied on the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010 and submitted that under the said provision, no appeal or second appeal operated as a stay of execution unless the court orders otherwise and that no order for stay of execution shall be made unless the court was satisfied that substantial loss might result to the applicant unless the order was made, that the application had been made without unreasonable delay, and that such security as the court orders for the due performance of the decree had been given by the applicant.
19. They explained that the three (3) conditions that were to be fulfilled were that substantial loss might result to the applicant unless the order was made, that the application had been made without unreasonable delay, and that security as the court orders for the due performance had been given.
20. They relied on the case of Tropical Commodities Suppliers Ltd & Others vs International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 , where the court stated that substantial loss did not represent any particular mathematical formula but it was a qualitative concept referring to any loss, great or small, that was of real worth or value as distinguished from a loss without value or a loss that was merely nominal.
21. They stated that they were likely to suffer substantial loss because the 1 st Appellant had received her portion of the estate and disposed it to a 3 rd party. They contended that revocation of the Grant of Letters of Administration exposed the 1 st Appellant to claims by a third party and was likely to cause hardship to them as the said Grant had been lawfully obtained and confirmed with the consent of all the beneficiaries.
22. They averred that they were ready to comply with the security terms that might be set by the court to be deposited in a joint interest earning account despite being a non-monetary decree. They relied on the case of Gianfranco Manenthi & Another vs Africa Merchant Assurance Co. Ltd [2019] eKLR , where it was held that the applicant had to meet the condition of payment of security for due performance of the decree.
23. They further contended that the application had been made without inordinate delay, the ruling having been delivered on 7 th February 2025 and the Memorandum of Appeal and the application having been filed on 28 th February 2025. They therefore submitted that they were deserving of the orders sought and urged the court to grant the same.
24. The 1 st Respondent termed the present application as misconceived, legally untenable, and meant to frustrate a lawful succession process that would protect all beneficiaries and the estate of the deceased herein. She further submitted that the Appellant’s had failed to meet the threshold for stay and were instead seeking to preserve an illegal and fraudulent process. She maintained that the application was made in bad faith and reiterated the facts that were set out in her Replying Affidavit.
25. The 1 st Respondent was emphatic that the court lacked jurisdiction to determine the issues that had been raised in the application. She submitted that the 1 st Appellant had raised concerns arising from a hurried sale to Patrick Odemba using the revoked Grant, whereas Section 82(b)(ii) of the Law of Succession Act prohibited the sale of immovable property before a grant issue through a lawful process. She further submitted that purchasers who acquired estate property through unlawful processes were not protected under Section 93 of the Law of Succession Act and that the alleged purchaser's remedy lay in a civil claim against the seller, rather than in seeking to preserve the succession proceedings through an order for stay. She maintained that the issues raised were best determined by the court with the requisite jurisdiction.
26. In support of that submission, she placed reliance on the case of In re Estate of Obedi Ndwiga Rubarita (Deceased) [2021] eKLR , where the court held that the primary duty of the probate court was to distribute the estate of the deceased to the rightful beneficiaries and that matters touching on title to and occupation of land ought to be determined by the Environment and Land Court. She also referred this court to the case of In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR , where the court therein stated that claims to ownership of alleged estate property as between the estate and a third party should be resolved through the civil process before a civil court. She further relied on In re Estate of Mathew Liluma Shinjili alias Mathew Lilimi [2022] eKLR , where the court therein cautioned against pursuing civil issues before the probate court. She submitted that the interests she had raised would be better addressed by a civil court before being presented to any succession proceedings.
27. She further averred that for the Appellants to meet the legal threshold for the grant of stay, they were required to demonstrate an arguable appeal, substantial loss, that the application had been made promptly and in good faith . She was also emphatic that the appeal was not arguable.
28. She contended that the Appellants' own sworn testimonies before the Trial Court irretrievably undermined the appeal. She submitted that both the 1 st and 2 nd Appellants testified that they had not signed the Mode of Distribution and that the signatures therein were forgeries. She further submitted that, having admitted that the process was tainted by such serious illegality, the Appellants could not seek a stay to preserve a process they themselves had disowned. She also submitted that all the beneficiaries, including the Petitioner, the 3 rd Respondent, had abandoned the entire process and attested to the existence of fraud.
29. She pointed out that there was no question that both the 1 st Appellant and any parties she had roped in were present in court throughout the proceedings. She submitted that the 1 st Appellant participated in the process she tainted as fraudulent during the objection proceedings. She further submitted that the buyer repeatedly ferried the 1 st Appellant to and from the proceedings from the outset, thereby affording her sufficient opportunities to inform him of the forged signatures.
30. She argued that there was no lawful basis for granting stay pending appeal. She stated that the Appellants had failed to demonstrate an arguable appeal or the loss they would suffer from a fresh, open and non-fraudulent succession process. She further submitted that granting stay would expose the estate to further harm and reward an illegality and that the issues raised did not fall within the jurisdiction of a succession court.
31. The principles governing an application for stay of execution pending appeal are set out in Order 42 Rule 6(2) of the Civil Procedure Rules , 2010, which provides: -
“2. 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.”
32. The Appellants filed the Memorandum of Appeal dated 14 th February 2025 on 28 th February 2025 following delivery of the impugned ruling on 7 th February 2025, and filed the present application on the same date. The application was, therefore, made without unreasonable delay.
33. The central consideration was whether the Appellants had demonstrated that substantial loss might result unless stay was granted. In the case of Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KECA 94 (KLR) , the Court of Appeal held that there had to be evidence of substantial loss and that such loss could not be inferred. The Appellants herein were, therefore, required to demonstrate, on the material before the court, the specific loss that would result if the impugned orders remained in force.
34. The Appellants did not demonstrate the specific prejudice they would suffer from maintaining the Trial Court’s orders pending appeal or allowing the fresh succession process to commence.
35. The Appellants further failed to demonstrate that implementation of the impugned ruling would render the appeal nugatory by causing the subject matter to be lost or irreversibly altered before its determination. Substantial loss was therefore not established.
36. The requirement for security did not arise in any practical terms in the circumstances of this case, as the impugned orders concerned the revocation of the Grant and the nullification of subsequent activities undertaken pursuant to it, rather than any monetary obligation. In any event, the Appellant’ willingness to furnish security did not cure their failure to establish substantial loss.
37. Having said so, a pertinent question that arose was whether or not this court could have granted the orders in the event the Appellants had satisfied the ingredients of being granted an order of stay of execution pending appeal as they had sought in their application. the order the Trial Court was capable of execution to enable the court grant the order for stay of execution. To understand this, it was necessary to look at the definition of the word “execution.” Notably, the said word has not been defined in Section 2 of the Civil Procedure Act Cap 21 (Laws of Kenya). It only appeared within the definitions of a decree holder and judgment debtor as follows:-
“"decree holder" means any person in whose favour a decree has been passed or an order capable of execution (emphasis court) has been made, and includes the assignee of such decree or order;
"judgment-debtor" means any person against whom a decree has been passed or an order capable of execution (emphasis court) has been made;”
38. It was for that reason that this court looked at Black’s Law Dictionary 10 th Edition to explain what execution was. It was defined as a:-
“ Judicial enforcement of a money judgement usually by seizing and selling the judgment debtor’s property.”
39. It was, therefore, clear that the order that the Trial Court issued was not of the nature that could be stayed as it was not a monetary decree.
40. This court also considered Rule 63(1) of the Probate & Administration Rules Legal Notice 104 of 1980 states as follows:-
“Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 ( Cap. 21 , Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.”
41. It was evident from the aforesaid Rule 63(1) of the Probate and Administration Rules that Order 46 Rule 2 of the Civil Procedure Rules was not applicable in probate and administration matters. Indeed, the provisions of the Civil Procedure Rules that were applicable therein were well set out in the said Rule.
This court, therefore, found and held that as the order that was issued by the Trial Court was not one that could be stayed by virtue of it being a negative order This very court addressed its mind to the issue of negative orders in the case of Milcah Jeruto Tallam T/A Milcah Faith Enterprises V Fina Bank Ltd & Another [2013] KEHC 4483 (KLR) and held that negative orders were incapable of being stayed.
42. Having evaluated all the Written Submissions that were placed before this court, this court came to the firm conclusion that the Appellants’ application was improperly before it and could not be granted as drafted.
DISPOSITION
43. For the foregoing reasons, the upshot of this court’s decision was that the Appellants’ Notice of Motion dated 14 th February 2025 and filed on 28 th February 2025 was not merited and the same be and is hereby dismissed.
44. As this was a family matter and to avoid escalating the dispute between the parties herein, this court deviated from the general principal that costs follow the event and hereby directs that each party will bear its own costs of the said application.
45. It is so ordered.
DATED and DELIVERED at VIHIGA this 17 th day of September 2026
J. KAMAU
JUDGE
HcfA NO E002 OF 20252