https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10168

In re Estate of Sagony (Deceased) (Succession Cause 228 of 2007) [2026] KEHC 10168 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10168 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 228 of 2007 RN Nyakundi, J July 13, 2026 Between Esther Jemutai Koech Petitioner and Tapyotin Kipkoech 1st Objector Francis Kiptoo Koech 2nd Objector Joseph Kiptarus Koech 3rd Objector Ruling 1.Before this Court is Notice of Motion dated 21st day of October 2025, expressed to be brought under Order 40 Rule 11 and Order 22 of the Civil Procedure Rules Section 2A & 2B of the Civil Procedure Act. The Applicant seeks the following orders:a.That this application be certified urgent and service of this application be dispensed with in the first instance.b.That pending the hearing and determination of this application inter-partes, and thereafter this appeal, there be an order for stay of execution of the decision of this Court delivered on the 25th of September 2025, and this succession proceedings.c.That this honorable Court be pleased to grant the Petitioner, ESTHER JEMUTAI KOECH, leave to appeal the decision delivered by this honourable Court on 25/09/2025 to the Court of appeal.d.Costs of this application be costs in the case. 2.The application is based on the grounds that: -a.That on the 25th of September 2025 the Court delivered it’s ruling to the objector’s summons dated 2nd September 2014.b.That the Applicant/Intended Appellant is greatly aggrieved by the Ruling delivered in this Honourable Court on 25th of September 2025 and prays for another opinion from the Court of Appeal.c.That there is no automatic right of appeal from the decisions of the High Court to the Court of Appeal on probate and administration matters, and hence leave is mandatory before the appeal is filed.d.That the Applicant/Intended Appellant has an arguable appeal as more so demonstrated on the Draft Memorandum of Appeal, and it is in the interest of justice that the Applicant/Intended Appellant be granted leave by this honourable Court to appeal against this honourable Court’s Ruling that was delivered on 25th September 2025.e.That the Applicant undertakes to expeditiously prosecute the intended appeal in a timely manner, so as not to prejudice the Respondents.f.That unless the orders sought are granted, the Applicant/intended Appellant stands to suffer irreparable damage.g.That it is in the interest of justice that the matter be heard and determined on merit.h.That the Respondent shall not suffer any prejudice that can't be remedied by way of costs.i.That this application is made timeously and in the interest of justice. 3.In support of the application is the sworn affidavit of Esther Jemutai Koech who deponed as follows:i.That I am a male adult of sound mind, the Petitioner/ Applicant dully authorized and competent to depose hereto.ii.That on the 25th of September 2025 the Court delivered it’s ruling to our summons dated 02/09/2014. Annexed hereto and marked EJK1 is a copy of the said Ruling.iii.That I am greatly aggrieved by the Ruling delivered in this Honourable Court on 25th of September 2025 and pray for another opinion from the Court of Appeal.iv.That I am informed by my counsel on record which information I verily believe to be true that there is no automatic right of appeal from the decisions of the High Court to the Court of Appeal on probate and administration matters, hence this application for leave is mandatory.v.That I have an arguable appeal, and it is in the interest of justice that the Applicant/Intended Appellant be granted leave by this honourable Court to appeal against this honourable Court’s Ruling that was delivered on 25th September 2025. I intend to appeal against the decision on the grounds that:a.The learned Judge misdirected himself on the law and facts by allowing the Objectors' application despite overwhelming evidence presented during trial.b.The learned judge erred in law and fact in finding that the 2nd & 3rd objectors had proved dependency despite not being maintained by the deceased prior to his demise.c.The learned judge misdirected himself on the law and fact by finding that prolonged period of maintenance and care of the 2nd & 3rd Objectors, of itself entitled them to dependency under Section 29 of the Law of Succession Act, despite the express provision of Law.d.The learned judge therefore erred in law by failing to consider principles applicable in dependency and thereby arrived at the wrong conclusion and allowed the Objectors application.e.The learned judge erred in law in departing from the well settled principles applicable in determining dependency. As a result, the honourable judge arrived at a completely erroneous conclusion.f.The learned judge erred in law and fact in failing to appreciate evidence and the submission by the learned counsel for the Petitioner.g.The learned judge erred in law and fact by considering irrelevant facts and at the same ignoring relevant facts and thereby arrived at a completely erroneous conclusion.h.The Court failed to properly analyze the evidence on record, the submissions and thereby arrived at a completely erroneous conclusion.vi.That I undertake to expeditiously prosecute the intended appeal in a timely manner, so as not to prejudice the Respondents. In the meantime, it is important to stay the execution of the decree of the Court/ proceedings so that the subject matter of the appeal is not wasted, nor the intended appeal rendered nugatory.vii.That unless this motion is allowed, the Petitioner/ Applicant shall be condemned unheard.viii.That on the converse, the objectors shall have their day in Court as this matter shall proceed for fresh hearing.ix.That the Court has unlimited discretion to grant stay of proceedings and execution as well as the orders for leave to appeal to the Court of appeal, issued upon such terms as are just in the light of all the facts and circumstances.x.That any prejudice to the Petitioner shall be adequately addressed by an award of costs.xi.That this application is brought in good faith, timeously and in the interest of justice. 4.In response to the application is the Replying affidavit of Joseph Kiptarus Koech who avers as follows:a.That I am a male adult of sound mind hence competent to swear this Affidavit.b.That I have read and understood the prayers sought in the Application dated 21ST October 2025 and now wish to respond as hereunder;c.That the Applicant alleges being aggrieved by the ruling dated 25th September 2025 but fails to demonstrate any errors of law justifying grant of leave to appeal.d.That the Applicant’s claim to have an arguable appeal is vague and there are no substantial grounds of appeal.e.That granting a stay would cause irreparable prejudice to me and my co- Respondents. The Respondents have already incurred significant costs and delays in pursuing this matter and further postponement of execution will exacerbate financial hardship given that the matter has being ongoing since 2007 which is eighteen (18) years down the line.f.That the Application for stay appears to be a tactic to frustrate the execution of the Court order and will only delay justice and finalization of the case which has prejudiced me and other beneficiaries.g.That the balance of convenience tilts heavily in our favor as the Applicant has not provided any undertaking as to damages or security for costs.h.That I am of the opinion that the Applicant should surrender 3.15 Ha out of UASIN GISHU/ELGEYO BORDER/206 to me and my co-Respondent to cultivate as a condition for stay pending appeal since she has been exclusively utilizing the property herein being the estate of KIPKOECH KIBIEGO SAGONY (DECEASED) for the last 18 years and yet she is not a direct beneficiary in the Estate of the late Kipkoech Kibiego Sagony under Section 29 of the Law of Succession Act.i.That granting leave to appeal will only delay justice and finalization of the case to great prejudice of all the beneficiaries since the matter took Eighteen (18) years and matters before the Court of Appeal cannot be heard within a short time in view of the backlog.j.That the Respondents stand to suffer significant prejudice if this matter is delayed any further.k.That the Applicant has failed to demonstrate any irreparable damage she stands to suffer if leave is not granted as she has been exclusively utilizing Uasin Gishu/Elgeyo Border/206 and control during the pendency of these proceedings.l.That I am afraid if the Court does not Restrict the property pending the determination of this cause, the Applicant who transferred the Uasin Gishu/Elgeyo Border/206 in her favour may decide to sell or change the property.m.That the Applicant being a daughter in-law who is not a direct beneficiary in the order of consanguinity is just out to frustrate the beneficiaries in the Estate of the late Kipkoech Kibiego Sagony.n.That it is within the interest of justice that the Estate be concluded without unnecessary litigation and that the Court ruling dated 25th September 2025 be allowed to stand.o.That the Application should be dismissed with costs to the Respondents.p.That the Applicant is trying to re-litigate matters that have already been determined.q.That the Application is an attempt to frustrate the lawful administration of the Estate. Decision 5.In an application of this nature, Order 42 Rule 6 of the CPR is the one which is applicable. This provision empowers the Court to order a temporary stay of execution of the impugned judgment pending appeal so long as the Applicant has satisfied the following conditions among others:a.The application is timeously filed.b.That the Applicant has shown sufficient cause and if stay is not granted, he would suffer substantial loss.c.The Court is at liberty to order for deposit of security pending an appeal and it is not about depositing the decretal sum of the judgment which is being questioned.d.That the Applicant must demonstrate that he has an arguable appeal and the appeal would be rendered nugatory.e.That dependent upon the circumstances of each case the Court has powers to even order part of the decretal sum to be paid to the Respondent or judgment creditor if that discretion being judicial is exercisable on the basis of facts and sound legal principles.f.In application of stay of execution the Court should not usurp the role of an appeals Court 6.The Court of appeal in Swanya Ltd v Daima Bank Ltd. Nairobi Civil Application No. 45 of 2001 the Court observed as follows:Whilst it is true that the Court does not make a practice of depriving a successful litigant of eth fruits of his litigation and locking up funds to which prima facie he is entitled pending an appeal, it is equally true that when a party is appealing, exercising his undoubted right of appeal, if successful, is not rendered nugatory but it is however in the discretion of the Court to grant or refuse a stay.The same Court in Carter & Sons Ltd v Deposit Protection Fund Board and others, Civil Appeal No. 291 of 1997, made the following observation:a.The Superior Court's discretion is fettered by three conditions. Firstly, the Applicant must establish a sufficient cause; secondly the Court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly, the Applicant must furnish security. The application must of course, be made without unreasonable delay.b.The failure by a Judge in application for stay of execution pending appeal to make an order for security for due performance of the decree amounts to a misdirection which justifies interference by an appellate Court as it is not an exercise of discretion but a failure to give effect to an express mandatory provision of the rule. It is therefore an error for the Judge to fail to make an order for security for the due performance of the decree.c.The plaintiff's security cannot be used to provide security on behalf of the defendantsd.The mere fact that there are strong grounds of appeal cannot justify an order for stay as a party is only expected to prefer an appeal when there are stronggrounds for doing soe.An appeal is not automatically to operate as a stay of execution and the right of a decree-holder having been determined by a competent Court it is not fair that he should be deprived of the fruits of his decree mainly because the judgment debtor prefers an appeal. The Court, however, has a discretion to grant a stay provided the conditions prescribed in the sub-rule are satisfiedf.The discretion of the Superior Court in an application for stay pending appeal is fettered unlike the Court of Appeal whose discretion is not. 7.As it has been pointed out, Order 42 Rule 6 on stay of execution is not mandatory and an Applicant must convince the Court that the threshold has been met for a stay of execution pending an appeal to be issued. The Courts therefore, in exercising discretion under Order 42 Rule 6 on stay of execution of proceedings must interrogate a number of factors but more appropriately the principles of construction of the Statute. This is what is illuminated in the persuasive case of Padma Sundara Rao v. State of Tamil Nadu, reported in (2002) 3 SCC 533, it was held that two principles of construction – one relating to casus omissus, and the other in regard to reading the statute as a whole appear to be well-settled. Under the first principle, the rule of casus omissus cannot be supplied by the Court except in the case of clear necessity. The rule of casus omissus should not be readily inferred and for that purpose, all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context of the statute and other clauses thereof, so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so, if literal construction of a particular clause leads to manifestly absurd or anomalous results, which could not have been intended by the legislature. Therefore, if the language is plain, there is no necessity of taking aid of external aid for gathering the real intention of the legislature. 8.The interpretation of Order 42 Rule 6 should be a purposive interpretation more so when it comes to the condition of deposit of security as a condition for one to exercise his/her right of appeal because if it is not properly construed and interpreted it negates Article 48 of the Constitution on access to justice. Applying the aforesaid principles, if I read the plain language of Order 42 Rule 6 of the CPR, I get the clear intention of the Legislature of Kenya that deposit of the decretal amount from the impugned judgment or giving security thereof is not a condition precedent from maintaining a money appeal. As a legal system, ordained by the Constitution and applicable statutes with jurisdiction to administer justice, we are vested with the discretion to evaluate the facts of the case, the ability of the intended Appellant to deposit such an amount or give appropriate security as a condition for the disposal of the appeal. 9.In my view the constitutional right of appeal, though not absolute should not be limited by the Court if the criteria in Article 24 as read with Article 48 of the Constitution has not been met. Take a very clear case scenario in Road Traffic Claims in which a tortfeasor has been condemned on both liability and quantum and the trial Court has awarded compensation due to the injuries suffered, loss and damage at Kshs 10,000,000/- together with costs and interest of the suit. The question is if the appeal is against a decree for payment of money by the Respondent more specifically in the timeline set by the Court at 30 or 45 days for that matatu owner who has been found to be a wrongdoer in the accident claim able to raise that colossal amount of money in consonant with the conditions outlined in Order 42 Rule 6 of the Civil Procedure Rules and deposit of decretal sum in a money decree judgment. This means that Courts are clothed with jurisdiction to undertake a balancing act between the competing rights of both the Appellant and the Respondent to an appeal. In my considered view of the law under Order 42 Rule 6 of the CPR it is not mandatory but directory in nature and the failure to comply with the same shall not result in rejection of the appeal in toto. Fortunately for the Appellant to this Succession Cause the impugned ruling or judgment is not a money decree and therefore my orbiter in this ruling might not necessarily be application to the facts of this motion. 10.The beneficiaries and the Administrator have been litigating since 2007 and subsequently this Court has also addressed itself on the predominant issues bedeviling the estate and I am convinced that I release them to the Court of Appeal with a bench of three that might unlock and break the impasse of re-litigation within the four corners of the Law of Succession Act. As for us here the High Court, I down tools for some time now multiplicity of applications have been filed and determined without any legal Damascus in sight. Hence the application to pursue an appeal be and is hereby allowed with no orders as to costs. DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 13TH DAY OF JULY 2026.………………………….……….R. NYAKUNDIJUDGE