REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCCA NO. E001 OF 2024
IN THE MATTER OF THE ESATE OF AKOME NAKHUMICHA
WELUMIA ………………….………………………. DECEASED
AND
WYCLIFFE KISAKA WELUMIA …………………….. APPLICANT
VERSUS
JOHNSTONE WANYONYI KAITA ………………… RESPONDENT
RULING
1. Before me is an application dated 28 th day of May 2025, the applicant is seeking the following orders:-
(i) That there be a temporary stay of execution of the decree and all consequential orders pending the hearing and determination of this Application.
(ii) That there be a temporary stay of execution of the decree and all consequential orders pending the hearing and determination of this appeal.
(iii) That costs be in the cause.
2. The application is supported by grounds of opposition on the face of the application and the applicant’s affidavit dated 28th May 2025. The applicant deposes as follows: the respondent is selling the suit land. The respondent intends to transfer the suit land to third parties without anyone’s consent. The appeal is pending, has a high chance of success, and the respondent is threatening to evict the applicant’s family. The respondent filed a replying affidavit dated 26th September 2025, in response to the affidavit of Johnstone Wanyonyi Kaita. In the affidavit dated 26th September, the applicant provides a background of the succession matter which was the subject of CM’s Cause No. 395 of 2019 in the matter of the Estate of Akome Nakhumicha.
3. The application was opposed by the Respondent. The Respondent filed a replying affidavit dated 18th September, 2025, in which he avers that the following: the Applicant is neither a liability nor a beneficiary, as they are a stranger to the estate of the deceased. The trial court, in its judgement, excluded him from the distribution of the deceased's estate. The title deed for the deceased's parcel number Bokili/Bokoli/620 does not indicate whether the deceased held the land as a trustee; therefore, the applicant has no claim whatsoever in the estate of the deceased. Consequently, the appeal has limited chances of success. The Applicant is unlikely to suffer any loss if the orders sought are not granted because he has never been in possession of, nor is he in possession of, the deceased's title number Bokoli/Bokoli/620. The alleged threats of eviction are fictitious, as the Applicant and his family reside on title number Bokoli/Bokoli/611, in which he has no interest or claim. Regarding the sale agreement, he confirms he disposed of part of the estate in 2021 to cover succession costs. As the administrator of the deceased's estate, he is in the process of effecting the certificate of confirmation of grant and prays that the same not be stayed, as any claim the applicant may have falls outside the jurisdiction of the succession court. The judgement appealed from was delivered on 30th November, 2023, and the certificate of confirmation of grant was issued on 15th May, 2024. The present application has been brought after an unreasonable delay.
DETERMINATION
4. I have considered the rival affidavits, the law on stay of execution, and the judgment the applicant has appealed from, which was delivered on the 30th of November, 2023. The memorandum of appeal is dated 5th January, 2024. The application was filed on 30th April, 2024. The appeal is filed within time, only that the application was filed four months later. The application was filed within a reasonable period. The appellant is seeking a stay on the grounds that the respondent is selling the suit land to third parties without anyone’s consent and that his appeal has high chances of success. This has been countered by the respondents on the grounds that the estate was confirmed and is in the process of effecting the certificate of confirmation. The respondent admits that he has disposed of part of the estate. The applicant is required to persuade the court that he will suffer substantial loss. In his affidavit, he has failed to explain the loss he will suffer. I am therefore unable to make a finding on whether he will suffer substantial loss or not. On the issue of appeal, the applicant has listed seven grounds of appeal, attaching the magistrate’s findings on the beneficiaries of the estate. Although the applicant argues that he has an arguable appeal, I find that granting a stay at this stage will not serve any purpose, as it is evident that the respondent has moved on to dispose off some of the deceased’s estate properties. I therefore decline to grant the stay of execution as sought in the application dated 28th May, 2025. Costs shall be in the cause.
Dated, signed and delivered at Bungoma this 5 th day of March, 2026.
R E OUGO
JUDGE
In the presence of :
Wycliffe Kisaka Welumia /Applicant
Respondent – Absent
Wilkister - C/A
HCCA NO. E001 OF 2024 1
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCCA NO. E001 OF 2024
IN THE MATTER OF THE ESATE OF AKOME NAKHUMICHA
WELUMIA ………………….………………………. DECEASED
AND
WYCLIFFE KISAKA WELUMIA …………………….. APPLICANT
VERSUS
JOHNSTONE WANYONYI KAITA ………………… RESPONDENT
RULING
1. Before me is an application dated 28 th day of May 2025, the applicant is seeking the following orders:-
(i) That there be a temporary stay of execution of the decree and all consequential orders pending the hearing and determination of this Application.
(ii) That there be a temporary stay of execution of the decree and all consequential orders pending the hearing and determination of this appeal.
(iii) That costs be in the cause.
2. The application is supported by grounds of opposition on the face of the application and the applicant’s affidavit dated 28th May 2025. The applicant deposes as follows: the respondent is selling the suit land. The respondent intends to transfer the suit land to third parties without anyone’s consent. The appeal is pending, has a high chance of success, and the respondent is threatening to evict the applicant’s family. The respondent filed a replying affidavit dated 26th September 2025, in response to the affidavit of Johnstone Wanyonyi Kaita. In the affidavit dated 26th September, the applicant provides a background of the succession matter which was the subject of CM’s Cause No. 395 of 2019 in the matter of the Estate of Akome Nakhumicha.
3. The application was opposed by the Respondent. The Respondent filed a replying affidavit dated 18th September, 2025, in which he avers that the following: the Applicant is neither a liability nor a beneficiary, as they are a stranger to the estate of the deceased. The trial court, in its judgement, excluded him from the distribution of the deceased's estate. The title deed for the deceased's parcel number Bokili/Bokoli/620 does not indicate whether the deceased held the land as a trustee; therefore, the applicant has no claim whatsoever in the estate of the deceased. Consequently, the appeal has limited chances of success. The Applicant is unlikely to suffer any loss if the orders sought are not granted because he has never been in possession of, nor is he in possession of, the deceased's title number Bokoli/Bokoli/620. The alleged threats of eviction are fictitious, as the Applicant and his family reside on title number Bokoli/Bokoli/611, in which he has no interest or claim. Regarding the sale agreement, he confirms he disposed of part of the estate in 2021 to cover succession costs. As the administrator of the deceased's estate, he is in the process of effecting the certificate of confirmation of grant and prays that the same not be stayed, as any claim the applicant may have falls outside the jurisdiction of the succession court. The judgement appealed from was delivered on 30th November, 2023, and the certificate of confirmation of grant was issued on 15th May, 2024. The present application has been brought after an unreasonable delay.
DETERMINATION
4. I have considered the rival affidavits, the law on stay of execution, and the judgment the applicant has appealed from, which was delivered on the 30th of November, 2023. The memorandum of appeal is dated 5th January, 2024. The application was filed on 30th April, 2024. The appeal is filed within time, only that the application was filed four months later. The application was filed within a reasonable period. The appellant is seeking a stay on the grounds that the respondent is selling the suit land to third parties without anyone’s consent and that his appeal has high chances of success. This has been countered by the respondents on the grounds that the estate was confirmed and is in the process of effecting the certificate of confirmation. The respondent admits that he has disposed of part of the estate. The applicant is required to persuade the court that he will suffer substantial loss. In his affidavit, he has failed to explain the loss he will suffer. I am therefore unable to make a finding on whether he will suffer substantial loss or not. On the issue of appeal, the applicant has listed seven grounds of appeal, attaching the magistrate’s findings on the beneficiaries of the estate. Although the applicant argues that he has an arguable appeal, I find that granting a stay at this stage will not serve any purpose, as it is evident that the respondent has moved on to dispose off some of the deceased’s estate properties. I therefore decline to grant the stay of execution as sought in the application dated 28th May, 2025. Costs shall be in the cause.
Dated, signed and delivered at Bungoma this 5 th day of March, 2026.
R E OUGO
JUDGE
In the presence of :
Wycliffe Kisaka Welumia /Applicant
Respondent – Absent
Wilkister - C/A
HCCA NO. E001 OF 2024 1