[1] The Notice of Motion dated 18 th July 2025 was filed herein by the appellant, Wycliffe Onyango Onuko and Judith Atieno Onuko . They are the petitioners in the Petition for Grant of Letters of Administration Intestate filed before the lower court as Homa Bay MCSUCC/E90/2023 . They approached the Court pursuant to Article 159 and 160 of the Constitution, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 for the following orders:
[a] That the Court be pleased to stay the entire proceedings in Homa Bay MCSUCC/E90/2023 pending the outcome and determination of this appeal.
[b] That, in the alternative, there be stay of any further orders in Homa Bay MCSUCC/E90/2023 pending the hearing and determination of this appeal.
[d] the costs of the application be in the cause.
[2] The application was supported by the joint affidavit of the two appellants, sworn on 18 th July 2025 in which they averred that they filed this appeal because they were aggrieved by the ruling and orders made by the lower court on 3 rd April 2025. They complained that the Grant of Letters of Administration Intestate issued to them in that matter was revoked and new administrators appointed with instructions that a new bank account be opened in the joint names of the new administrators. They further averred that the matter was pending the rendering of accounts and therefore it is in the interest of justice that the impugned order and further proceedings in the lower court matter be stayed pending the hearing and determination of the appeal.
[3] The 1 st respondent, Kepha Ochieng Onuko , opposed the application vide his Replying Affidavit sworn on the 27 th July 2025. He averred that the 2 nd respondent, Kenneth Otieno Onuko , passed on in the course of the lower court proceedings and before testifying in court; and therefore he single-handedly prosecuted the application for revocation of grant. He therefore questioned why the applicants joined Kenneth Otieno Onuko as the 2 nd respondent in this appeal yet they are fully aware that he is deceased.
[4] The 1 st respondent confirmed that by an application dated the 18 th April 2024, they applied for revocation of the grant issued and confirmed in the names of the appellants on the ground that the appellants failed to disclose material facts to the court as regards the beneficiaries and the assets of the deceased. He added that the appellants also failed to seek consent of the other beneficiaries regarding the filing of the Petition and the proposed mode of distribution of the estate of their deceased father. He relied on a bundle of documents annexed to his affidavit and marked Annexure "KOO-I ".
[5] The 1 st respondent further averred that the application for revocation of grant proceeded by way of viva voce evidence and was determined in their favour on the 3 rd May 2025. He annexed a copy of the Ruling to his Replying Affidavit and added that in compliance with the orders made by the lower court, and as the administrators duly appointed by the court, they proceeded to Equity Bank with the 3 rd administrator and executed account opening forms. He further deposed that the account opening documents were duly served upon the erstwhile Advocate for the appellants, M/S Mimba & Company Advocates , to ensure that the 2 nd administrator, who is the 2 nd appellant herein, had an opportunity to sign them. He explained that the account was intended for collection of rent pending final distribution of the deceased estate.
[6] He further averred that the 2 nd administrator/2 nd appellant openly refused to sign the account opening forms and instead verbally informed the previous Advocate that she had hired another Advocate to take over the conduct of the matter and therefore the unsigned account opening forms were returned to his Advocate. He annexed them to his Replying Affidavit as Annexure "KOO-3. The 1 st respondent pointed out that, as a result of the stalemate, the rental income due to the estate has not been collected for a period of over a year as the estate continues to go to waste.
[7] Likewise, the 1 st interested party, Mary Akinyi Otieno also filed a Replying Affidavit sworn on 23 rd July 2025. She essentially supported the position taken by the 1 st respondent and reiterated that the decision of the lower court was anchored on the law, and in particular Section 76 of the Law of Succession Act. She further deposed that the appellants have deliberately set out on a pattern of deliberate misinformation as the estate continues to suffer dissipation. Accordingly, the interested party prayed for the dismissal of the application for stay.
[8] Directions were thereafter given on 4 th August 2025 that the application be canvassed by way of written submissions. The appellants relied on their written submissions dated 7 th August 2025. They submitted that all they seek is to stay further directions in the lower court cause as their appeal will otherwise be rendered nugatory. In particular, the appellants submitted that:
[a] The grant issued on 19 th August 2023 and confirmed on 20 th February 2024 was revoked on 3 rd April 2025, and therefore all the proceedings and paperwork and applications filed by the appellants pertaining to the said estate were declared a nullity. In their submission no further implementation on the strength of the revoked grant, such as account opening or management of the said estate was permissible as that would be akin to intermeddling of the said estate.
[b] The trial court lacked the basis for giving directions on the rendering of accounts pursuant to a revoked grant, and therefore the subsequent orders were being implemented in a vacuum.
[9] The appellants relied on the case of Machira t/a Machira & Co. v East Africa Standard No. 2 (2002) 2 KLR 63 and added that they shall suffer substantial loss and the estate will suffer damages as new strangers and persons who had never been part of the day to day activities of the estate had been forcefully imposed upon the estate. They accordingly submitted that, having filed a Memorandum of Appeal, they are clothed with the locus standi to apply for stay pending appeal with reference to Homa Bay Magistrate’s Succession Cause No E90 of 2023 . The appellants also underscored their dissatisfaction with the order to open a new account contending that the effect thereof was to strip them of their administrative roles as administrators.
[10] In response to the 1 st respondent’s assertion that their appeal is incompetent for want of leave, the appellants submitted that the Law of Succession Act is a special Act of Parliament and therefore its provisions ought to be strictly construed and applied as was intended by Parliament. They relied on Section 50(1) of the Law of Succession Act and the decision of the Court of Appeal in Julius Kamau Kithaka Vs Waruguru Kithaka Nyaga & 2 Others [2013] eKLR and Hafswa Omar Abdalla Taib & 2 Others v Swaleh Abdalla Taib [2015] eKLR, to bolster this argument.
[11] The appellants were confident that they had met the conditions provided for in Order 42 Rule 6 of the Civil Procedure Rules 2010, They relied on Butt v Rent Restriction Tribunal [1979] eKLR and reiterated the applicable principles as hereunder:
[a] The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
[b] The general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, is that stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the impugned decision.
[c] Stay should not be refused if there are good grounds for granting it merely because a better remedy may become available to the applicant at the end of the proceedings.
[12] On the basis of the foregoing, the appellants urged the Court to find that they have made out a case to warrant issuance of the orders sought by them herein. They added that the application was brought without undue delay after the impugned ruling was made.
[13] The 1 st respondent relied on his submissions dated 17 th October 2025. His contention was that the a ppeal together with the application dated the 18 th July 2025 seeking stay of proceedings is incompetent, the appellants having failed to secure the leave of the Court to file an appeal against the interlocutory Ruling delivered on the 3 rd April 2025. In this regard, the 1st respondent cited Section 75(1) of the Civil Procedure Act as read with Order 43 Rule 1 of the Civil Procedure Rules and submitted that leave should have been sought from the lower court by way of either an oral application at the time the order was made or within 14 days from the day the order was made.
[14] The 1 st respondent also relied on Serephen Nyasani Menge v Rispah Onsase [2018] eKLR, in which it was held that where leave to appeal is a pre-requisite before an appeal can be lodged, failure to seek and obtain the leave is fatal and consequently no competent appeal can be lodged against such an order. He consequently submitted that, since the appellants failed to seek leave from the lower court to file the instant appeal, there is no competent appeal before the Court and therefore the application herein has wrongfully been presented for consideration under the said circumstances. He added that it would be futile for stay to be granted when the appeal itself is a non-starter.
[15] The 1 st respondent further argued that this appeal has not been filed against a final order or decree and ; and therefore leave of the lower court was not only necessary but mandatory. He further submitted that, having failed to seek such leave from the lower court, the appellants ought to have first applied for and obtained the leave of this Court pursuant to Section 75 of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules . He relied on Peter Nyaga Muvake v Joseph Mutunga [2015] eKLR, and Kariuki v Munyithya & 3 others (Civil Appeal E030 of 2021) [2023] KEHC 21856 (KLR) , this Court affirmed the same principle, citing Muyake with approval. The respondent also relied on Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1 as to the paramountcy of jurisdiction.
[16] On stay of proceedings, the 1 st respondent relied on Mbiti & another v Thome & another (Civil Appeal E010 of 2024) [2024] KEHC 5441 (KLR) , in which the Court observed:
“On the question of stay of proceedings, this court takes the position that a stay of proceedings is unlike stay of execution because it has serious ramifications. It has the effect to completely stall proceedings which in turn interferes with the right of a litigant to conduct litigation and access justice. A court can only issue a stay of proceedings in exceptional circumstances where such proceedings are likely to infringe on constitutional right of one of the parties or prejudice the interest of justice.”
[17] In the 1 st respondent’s view, the appellants have failed to demonstrate any exceptional circumstance warranting the issuance of stay of proceedings granted that they have not shown how the continuation of proceedings before the lower court will cause them prejudice. In his submission, the application for stay is nothing but an attempt by the appellants to avoid accountability. He pointed out that in the ruling dated 3 rd April 2025, the learned magistrate appointed administrators to the estate of the deceased upon revoking the grant earlier issued, and directed the administrators to open a joint account and render accounts of estate income within fixed timelines.
[18] The 1 st respondent added that the order for the opening a new account was necessary for the preservation of the estate pending distribution and was therefore made with the best interest of all the beneficiaries in view. In his view, the appellants have not shown any dispossession or prejudice. He consequently prayed for the striking out of the appeal and the interlocutory application for stay of execution and stay of proceedings.
[19] On her part, the 1 st interested party proposed the following issues for determination:
[a] Whether revocation of grant and addition of administrators renders the proceedings a nullity;
[b] Whether the Magistrates Court had jurisdiction to issue the impugned orders;
[c] Whether the appellants have met the legal threshold for grant of stay of execution;
[d] Whether substantial loss has been demonstrated.
[20] In her submissions, she reiterated the position taken by the 1 st respondent and contended that the learned magistrate had the power, under Section 76 of the Law of Succession Act, to revoke a grant where such an order is warranted. She further submitted that revocation of grant does not necessarily invalidate prior proceedings. The 1 st interested party relied on Re Estate of Susan Wakunyu Kahiu alias Maria Gathoni Macharia (Deceased) [2024] KEHC 4574 (KLR) to back up her arguments.
[21] The 1 st interested party also submitted, as did the 1 st respondent that the appellants fell far short of proving that they stand to suffer substantial loss if the orders prayed for are not granted; as they are still beneficiaries alongside other heirs of the deceased. She pointed out that the additional administrators are close members of the deceased family and cannot be considered strangers as the appellants suggested. In the premises, the 1 st interested party also prayed for the dismissal of the appellants’ application, contending that it is without merit.
[22] I have carefully considered the application in the light of the averments set out in the respective affidavits filed by the parties, as well as the written submissions filed by their counsel and the useful authorities relied on by them. The application seeks stay of the orders made by the lower court in Homa Bay MCSUCC/E90/2023 in which the Grant of Letters of Administration Intestate issued to the appellants was nullified and new administrators appointed to manage the estate of the deceased. In the alternative they prayed for stay of proceedings in that suit pending the hearing and determination of their appeal herein.
[23] Although the Court was addressed at length by the parties, some of the submissions and even the issues proposed for determination belong to the appeal itself. In my view, the issues for determination are two-fold:
[a] Whether the appeal, and by extension the interlocutory application filed therewith is incompetent for want of leave; and,
[b] Whether justifiable cause has been shown for either stay of execution or stay of proceedings.
[24] The 1 st respondent impugned the appeal and by extension the instant application on the ground that the leave of the lower court was not sought or obtained before the appeal was filed. He submitted at length on the provisions of Order 43 to demonstrate that the order appealed does not fall under Rule 1 and therefore no appeal lies as of right.
[25] It must be remembered however that the Law of Succession Act is a stand-alone legislation with its own rules of procedure as provided for in the Probate and Administration Rules. In particular, Rule 63 of the Probate and Administration Rules is therefore explicit that:
“(1) 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.), … shall apply so far as relevant to proceedings under these Rules.
(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased person shall be those existing and in force immediately prior to the coming into operation of these Rules.”
[26] The jurisdiction of the Magistrates Courts for purposes of the Law of Succession Act is provided for in Section 48 of the Act. It states:
(1)Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 , a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7 of the Magistrates' Courts Act ( Cap 10 ).
[27] Any appeals from the decision of the Magistrates Courts in the exercise of their jurisdiction under Section 48 lie to the High Court; to which end Section 50(1) of the Act provides that:
(1) An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final
[28] To my mind, the provision is plain and therefore no leave is required for one to appeal to the High Court from a decision of a magistrate’s court made pursuant to the provisions of the Law of Succession Act. In Julius Kamau Kithaka v Waruguru Kithaka Nyaga & 2 Others [2013] eKLR it was held:
“It is trite law that where any proceedings are governed by a Special Act of Parliament, like in this case, the Law of Succession Act must be strictly construed and applied. Therefore, what is in the Law of Succession Act is what was intended to be therein in the manner and extent it is there. What is not therein expressly is what was intended not to be there by the Legislature. I find that the applicant in this case was not required to seek leave to appeal from the High Court.”
[29] Similarly, in Hafswa Omar Abdalla Taib & 2 Others v Swaleh Abdalla Taib (supra) the Court of Appeal reiterated the position as follows:
In this case, the appellate jurisdiction in respect of succession causes has been donated by Section 50 (1) of the Laws of Succession Act. From this provision, it is clear that decisions from the magistrate’s courts in succession causes are appealable to the High Court; whose decision on such an appeal is final…”
[30] Therefore, the argument that the appeal is incompetent for want of leave is untenable and is for dismissal.
[31] That said, the next issue to consider is whether the appellant has made out a good case for stay of execution and stay of the proceedings in the Succession Cause. In Machira T/A Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63, it was held:
"The ordinary principle is that a successful party is entitled to the fruits of his judgment or any decision of the court giving him success at any stage. That is trite knowledge. This is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way we handle applications for stay of further proceedings or execution, pending appeal...in the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in the courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court."
[32] By the impugned ruling the lower court revoked the Grant issued to the appellants and appointed new administrators to manage the estate pending distribution. Having relieved the applicants of their duty as administrators it would hardly be in the interest of justice to leave the estate without oversight. Indeed, in Kuko & another v Ali & another; Robinson (Interested Party) (Civil Application E023 of 2023) [2024] KECA 305 (KLR) , the Court of Appeal rejected allegations of substantial loss in a succession cause, and held as follows:
“…This being a succession cause, we find that when the deceased dies without a will or the will is contested and the estate is declared intestate, the property of the deceased is to be divided equitably among the beneficiaries. It follows therefore that no substantial losses will befall the applicants in the event the property in question is divided among the beneficiaries as they will receive their equitable share of the estate of the deceased.”
[33] Since it is in the best interest of the parties that the orders issued by the lower court for purposes of preserving the estate be complied with for the ultimate benefit of all concerned, I find no basis for staying the order.
[34] As for stay or proceedings, it is now trite that, while it is appreciated that Section 47 of the Law of Succession Act gives the Court to power to make such orders as may be expedient in the interest of justice, the exercise of the discretion must be based on good and sufficient cause. The rationale for this was aptly captured in Re Global Tours & Travel Ltd HCWC No.43 of 2000 Hon. Ringera, J . (as he then was) held that:
“…As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice ... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously…”
[35] In this instance there is an appeal pending, and the administrators have not been restrained in the administration of the estate. It is only fair and just that the appellants be given time and space to prosecute their appeal before the final accounts and distribution can be effected. In Banco Arabe v Bank of Uganda [1999] 1 EA 22, it was held:
"The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuance of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered."
[36] In the result, the application dated 18 th July 2025 is allowed only in part in that, while the appellant’s prayer for stay of implementation of the lower court’s ruling and order dated 3 rd April 2025 is declined, the alternative prayer for stay of proceedings is hereby allowed and orders granted as hereunder:
[a] That pending the hearing and determination of the appeal, the proceedings before the subordinate court in Homa Bay MCSUCC/E90/2023 be and are hereby stayed.
[d] That the costs of the application to abide the outcome of the appeal.
It is so ordered.
SIGNED AND DATED AND DELIVERED VIRTUALLY THIS 23 RD DAY OF APRIL 2026
[a] That the Court be pleased to stay the entire proceedings in Homa Bay MCSUCC/E90/2023 pending the outcome and determination of this appeal.
[b] That, in the alternative, there be stay of any further orders in Homa Bay MCSUCC/E90/2023 pending the hearing and determination of this appeal.
[d] the costs of the application be in the cause.
[2] The application was supported by the joint affidavit of the two appellants, sworn on 18 th July 2025 in which they averred that they filed this appeal because they were aggrieved by the ruling and orders made by the lower court on 3 rd April 2025. They complained that the Grant of Letters of Administration Intestate issued to them in that matter was revoked and new administrators appointed with instructions that a new bank account be opened in the joint names of the new administrators. They further averred that the matter was pending the rendering of accounts and therefore it is in the interest of justice that the impugned order and further proceedings in the lower court matter be stayed pending the hearing and determination of the appeal.
[3] The 1 st respondent, Kepha Ochieng Onuko , opposed the application vide his Replying Affidavit sworn on the 27 th July 2025. He averred that the 2 nd respondent, Kenneth Otieno Onuko , passed on in the course of the lower court proceedings and before testifying in court; and therefore he single-handedly prosecuted the application for revocation of grant. He therefore questioned why the applicants joined Kenneth Otieno Onuko as the 2 nd respondent in this appeal yet they are fully aware that he is deceased.
[4] The 1 st respondent confirmed that by an application dated the 18 th April 2024, they applied for revocation of the grant issued and confirmed in the names of the appellants on the ground that the appellants failed to disclose material facts to the court as regards the beneficiaries and the assets of the deceased. He added that the appellants also failed to seek consent of the other beneficiaries regarding the filing of the Petition and the proposed mode of distribution of the estate of their deceased father. He relied on a bundle of documents annexed to his affidavit and marked Annexure "KOO-I ".
[5] The 1 st respondent further averred that the application for revocation of grant proceeded by way of viva voce evidence and was determined in their favour on the 3 rd May 2025. He annexed a copy of the Ruling to his Replying Affidavit and added that in compliance with the orders made by the lower court, and as the administrators duly appointed by the court, they proceeded to Equity Bank with the 3 rd administrator and executed account opening forms. He further deposed that the account opening documents were duly served upon the erstwhile Advocate for the appellants, M/S Mimba & Company Advocates , to ensure that the 2 nd administrator, who is the 2 nd appellant herein, had an opportunity to sign them. He explained that the account was intended for collection of rent pending final distribution of the deceased estate.
[6] He further averred that the 2 nd administrator/2 nd appellant openly refused to sign the account opening forms and instead verbally informed the previous Advocate that she had hired another Advocate to take over the conduct of the matter and therefore the unsigned account opening forms were returned to his Advocate. He annexed them to his Replying Affidavit as Annexure "KOO-3. The 1 st respondent pointed out that, as a result of the stalemate, the rental income due to the estate has not been collected for a period of over a year as the estate continues to go to waste.
[7] Likewise, the 1 st interested party, Mary Akinyi Otieno also filed a Replying Affidavit sworn on 23 rd July 2025. She essentially supported the position taken by the 1 st respondent and reiterated that the decision of the lower court was anchored on the law, and in particular Section 76 of the Law of Succession Act. She further deposed that the appellants have deliberately set out on a pattern of deliberate misinformation as the estate continues to suffer dissipation. Accordingly, the interested party prayed for the dismissal of the application for stay.
[8] Directions were thereafter given on 4 th August 2025 that the application be canvassed by way of written submissions. The appellants relied on their written submissions dated 7 th August 2025. They submitted that all they seek is to stay further directions in the lower court cause as their appeal will otherwise be rendered nugatory. In particular, the appellants submitted that:
[a] The grant issued on 19 th August 2023 and confirmed on 20 th February 2024 was revoked on 3 rd April 2025, and therefore all the proceedings and paperwork and applications filed by the appellants pertaining to the said estate were declared a nullity. In their submission no further implementation on the strength of the revoked grant, such as account opening or management of the said estate was permissible as that would be akin to intermeddling of the said estate.
[b] The trial court lacked the basis for giving directions on the rendering of accounts pursuant to a revoked grant, and therefore the subsequent orders were being implemented in a vacuum.
[9] The appellants relied on the case of Machira t/a Machira & Co. v East Africa Standard No. 2 (2002) 2 KLR 63 and added that they shall suffer substantial loss and the estate will suffer damages as new strangers and persons who had never been part of the day to day activities of the estate had been forcefully imposed upon the estate. They accordingly submitted that, having filed a Memorandum of Appeal, they are clothed with the locus standi to apply for stay pending appeal with reference to Homa Bay Magistrate’s Succession Cause No E90 of 2023 . The appellants also underscored their dissatisfaction with the order to open a new account contending that the effect thereof was to strip them of their administrative roles as administrators.
[10] In response to the 1 st respondent’s assertion that their appeal is incompetent for want of leave, the appellants submitted that the Law of Succession Act is a special Act of Parliament and therefore its provisions ought to be strictly construed and applied as was intended by Parliament. They relied on Section 50(1) of the Law of Succession Act and the decision of the Court of Appeal in Julius Kamau Kithaka Vs Waruguru Kithaka Nyaga & 2 Others [2013] eKLR and Hafswa Omar Abdalla Taib & 2 Others v Swaleh Abdalla Taib [2015] eKLR, to bolster this argument.
[11] The appellants were confident that they had met the conditions provided for in Order 42 Rule 6 of the Civil Procedure Rules 2010, They relied on Butt v Rent Restriction Tribunal [1979] eKLR and reiterated the applicable principles as hereunder:
[a] The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
[b] The general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, is that stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the impugned decision.
[c] Stay should not be refused if there are good grounds for granting it merely because a better remedy may become available to the applicant at the end of the proceedings.
[12] On the basis of the foregoing, the appellants urged the Court to find that they have made out a case to warrant issuance of the orders sought by them herein. They added that the application was brought without undue delay after the impugned ruling was made.
[13] The 1 st respondent relied on his submissions dated 17 th October 2025. His contention was that the a ppeal together with the application dated the 18 th July 2025 seeking stay of proceedings is incompetent, the appellants having failed to secure the leave of the Court to file an appeal against the interlocutory Ruling delivered on the 3 rd April 2025. In this regard, the 1st respondent cited Section 75(1) of the Civil Procedure Act as read with Order 43 Rule 1 of the Civil Procedure Rules and submitted that leave should have been sought from the lower court by way of either an oral application at the time the order was made or within 14 days from the day the order was made.
[14] The 1 st respondent also relied on Serephen Nyasani Menge v Rispah Onsase [2018] eKLR, in which it was held that where leave to appeal is a pre-requisite before an appeal can be lodged, failure to seek and obtain the leave is fatal and consequently no competent appeal can be lodged against such an order. He consequently submitted that, since the appellants failed to seek leave from the lower court to file the instant appeal, there is no competent appeal before the Court and therefore the application herein has wrongfully been presented for consideration under the said circumstances. He added that it would be futile for stay to be granted when the appeal itself is a non-starter.
[15] The 1 st respondent further argued that this appeal has not been filed against a final order or decree and ; and therefore leave of the lower court was not only necessary but mandatory. He further submitted that, having failed to seek such leave from the lower court, the appellants ought to have first applied for and obtained the leave of this Court pursuant to Section 75 of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules . He relied on Peter Nyaga Muvake v Joseph Mutunga [2015] eKLR, and Kariuki v Munyithya & 3 others (Civil Appeal E030 of 2021) [2023] KEHC 21856 (KLR) , this Court affirmed the same principle, citing Muyake with approval. The respondent also relied on Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1 as to the paramountcy of jurisdiction.
[16] On stay of proceedings, the 1 st respondent relied on Mbiti & another v Thome & another (Civil Appeal E010 of 2024) [2024] KEHC 5441 (KLR) , in which the Court observed:
“On the question of stay of proceedings, this court takes the position that a stay of proceedings is unlike stay of execution because it has serious ramifications. It has the effect to completely stall proceedings which in turn interferes with the right of a litigant to conduct litigation and access justice. A court can only issue a stay of proceedings in exceptional circumstances where such proceedings are likely to infringe on constitutional right of one of the parties or prejudice the interest of justice.”
[17] In the 1 st respondent’s view, the appellants have failed to demonstrate any exceptional circumstance warranting the issuance of stay of proceedings granted that they have not shown how the continuation of proceedings before the lower court will cause them prejudice. In his submission, the application for stay is nothing but an attempt by the appellants to avoid accountability. He pointed out that in the ruling dated 3 rd April 2025, the learned magistrate appointed administrators to the estate of the deceased upon revoking the grant earlier issued, and directed the administrators to open a joint account and render accounts of estate income within fixed timelines.
[18] The 1 st respondent added that the order for the opening a new account was necessary for the preservation of the estate pending distribution and was therefore made with the best interest of all the beneficiaries in view. In his view, the appellants have not shown any dispossession or prejudice. He consequently prayed for the striking out of the appeal and the interlocutory application for stay of execution and stay of proceedings.
[19] On her part, the 1 st interested party proposed the following issues for determination:
[a] Whether revocation of grant and addition of administrators renders the proceedings a nullity;
[b] Whether the Magistrates Court had jurisdiction to issue the impugned orders;
[c] Whether the appellants have met the legal threshold for grant of stay of execution;
[d] Whether substantial loss has been demonstrated.
[20] In her submissions, she reiterated the position taken by the 1 st respondent and contended that the learned magistrate had the power, under Section 76 of the Law of Succession Act, to revoke a grant where such an order is warranted. She further submitted that revocation of grant does not necessarily invalidate prior proceedings. The 1 st interested party relied on Re Estate of Susan Wakunyu Kahiu alias Maria Gathoni Macharia (Deceased) [2024] KEHC 4574 (KLR) to back up her arguments.
[21] The 1 st interested party also submitted, as did the 1 st respondent that the appellants fell far short of proving that they stand to suffer substantial loss if the orders prayed for are not granted; as they are still beneficiaries alongside other heirs of the deceased. She pointed out that the additional administrators are close members of the deceased family and cannot be considered strangers as the appellants suggested. In the premises, the 1 st interested party also prayed for the dismissal of the appellants’ application, contending that it is without merit.
[22] I have carefully considered the application in the light of the averments set out in the respective affidavits filed by the parties, as well as the written submissions filed by their counsel and the useful authorities relied on by them. The application seeks stay of the orders made by the lower court in Homa Bay MCSUCC/E90/2023 in which the Grant of Letters of Administration Intestate issued to the appellants was nullified and new administrators appointed to manage the estate of the deceased. In the alternative they prayed for stay of proceedings in that suit pending the hearing and determination of their appeal herein.
[23] Although the Court was addressed at length by the parties, some of the submissions and even the issues proposed for determination belong to the appeal itself. In my view, the issues for determination are two-fold:
[a] Whether the appeal, and by extension the interlocutory application filed therewith is incompetent for want of leave; and,
[b] Whether justifiable cause has been shown for either stay of execution or stay of proceedings.
[24] The 1 st respondent impugned the appeal and by extension the instant application on the ground that the leave of the lower court was not sought or obtained before the appeal was filed. He submitted at length on the provisions of Order 43 to demonstrate that the order appealed does not fall under Rule 1 and therefore no appeal lies as of right.
[25] It must be remembered however that the Law of Succession Act is a stand-alone legislation with its own rules of procedure as provided for in the Probate and Administration Rules. In particular, Rule 63 of the Probate and Administration Rules is therefore explicit that:
“(1) 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.), … shall apply so far as relevant to proceedings under these Rules.
(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased person shall be those existing and in force immediately prior to the coming into operation of these Rules.”
[26] The jurisdiction of the Magistrates Courts for purposes of the Law of Succession Act is provided for in Section 48 of the Act. It states:
(1)Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 , a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7 of the Magistrates' Courts Act ( Cap 10 ).
[27] Any appeals from the decision of the Magistrates Courts in the exercise of their jurisdiction under Section 48 lie to the High Court; to which end Section 50(1) of the Act provides that:
(1) An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final
[28] To my mind, the provision is plain and therefore no leave is required for one to appeal to the High Court from a decision of a magistrate’s court made pursuant to the provisions of the Law of Succession Act. In Julius Kamau Kithaka v Waruguru Kithaka Nyaga & 2 Others [2013] eKLR it was held:
“It is trite law that where any proceedings are governed by a Special Act of Parliament, like in this case, the Law of Succession Act must be strictly construed and applied. Therefore, what is in the Law of Succession Act is what was intended to be therein in the manner and extent it is there. What is not therein expressly is what was intended not to be there by the Legislature. I find that the applicant in this case was not required to seek leave to appeal from the High Court.”
[29] Similarly, in Hafswa Omar Abdalla Taib & 2 Others v Swaleh Abdalla Taib (supra) the Court of Appeal reiterated the position as follows:
In this case, the appellate jurisdiction in respect of succession causes has been donated by Section 50 (1) of the Laws of Succession Act. From this provision, it is clear that decisions from the magistrate’s courts in succession causes are appealable to the High Court; whose decision on such an appeal is final…”
[30] Therefore, the argument that the appeal is incompetent for want of leave is untenable and is for dismissal.
[31] That said, the next issue to consider is whether the appellant has made out a good case for stay of execution and stay of the proceedings in the Succession Cause. In Machira T/A Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63, it was held:
"The ordinary principle is that a successful party is entitled to the fruits of his judgment or any decision of the court giving him success at any stage. That is trite knowledge. This is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way we handle applications for stay of further proceedings or execution, pending appeal...in the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in the courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court."
[32] By the impugned ruling the lower court revoked the Grant issued to the appellants and appointed new administrators to manage the estate pending distribution. Having relieved the applicants of their duty as administrators it would hardly be in the interest of justice to leave the estate without oversight. Indeed, in Kuko & another v Ali & another; Robinson (Interested Party) (Civil Application E023 of 2023) [2024] KECA 305 (KLR) , the Court of Appeal rejected allegations of substantial loss in a succession cause, and held as follows:
“…This being a succession cause, we find that when the deceased dies without a will or the will is contested and the estate is declared intestate, the property of the deceased is to be divided equitably among the beneficiaries. It follows therefore that no substantial losses will befall the applicants in the event the property in question is divided among the beneficiaries as they will receive their equitable share of the estate of the deceased.”
[33] Since it is in the best interest of the parties that the orders issued by the lower court for purposes of preserving the estate be complied with for the ultimate benefit of all concerned, I find no basis for staying the order.
[34] As for stay or proceedings, it is now trite that, while it is appreciated that Section 47 of the Law of Succession Act gives the Court to power to make such orders as may be expedient in the interest of justice, the exercise of the discretion must be based on good and sufficient cause. The rationale for this was aptly captured in Re Global Tours & Travel Ltd HCWC No.43 of 2000 Hon. Ringera, J . (as he then was) held that:
“…As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice ... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously…”
[35] In this instance there is an appeal pending, and the administrators have not been restrained in the administration of the estate. It is only fair and just that the appellants be given time and space to prosecute their appeal before the final accounts and distribution can be effected. In Banco Arabe v Bank of Uganda [1999] 1 EA 22, it was held:
"The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuance of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered."
[36] In the result, the application dated 18 th July 2025 is allowed only in part in that, while the appellant’s prayer for stay of implementation of the lower court’s ruling and order dated 3 rd April 2025 is declined, the alternative prayer for stay of proceedings is hereby allowed and orders granted as hereunder:
[a] That pending the hearing and determination of the appeal, the proceedings before the subordinate court in Homa Bay MCSUCC/E90/2023 be and are hereby stayed.
[d] That the costs of the application to abide the outcome of the appeal.
It is so ordered.
SIGNED AND DATED AND DELIVERED VIRTUALLY THIS 23 RD DAY OF APRIL 2026