https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11544

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KITALE** **SUCCESSION CAUSE NO.49B OF 2023** **IN THE MATTER OF THE ESTATE OF MIKA KIPKEMBOI BWANA – DECEASED** **PHILIP KORIR BUWANA………..............PETITIONER/APPLICANT** **VERSUS** **NICHOLAS KIPLIMO KEMBOI…1ST PROTESTOR/RESPONDENT** **BENJAMIN KIPCHUMBA BILOI…2ND PROTESTOR/RESPONDENT** **RULING** 1. Philip Korir Buwana, the applicant herein has through a Notice of Motion dated 2/3/2026 sought the following reliefs namely; 2. ***Spent*** 3. ***Spent*** 4. ***That pending the hearing and determination of this application this court be pleased to restrain the respondents, their agents, and/or servants from transferring, subdividing, alienating or disposing of or in any way dealing with the estate of the deceased known as;*** 5. ***Kwanza/Kwanza Block 5/Korosi/17*** 6. ***Waitaluk/Kapkoi Block 1/Toro and*** 7. ***Kolongolo Block 3 Kapkoi West*** 8. ***Abandoned.*** 9. ***That this hon court do grant stay of execution of judgment delivered on 2/2/2026 and the Certificate of Confirmation of grant issued on 10/2/2026 pending hearing and determination of the appeal in Court of Appeal, orders in terms of prayer (3) in this application be granted.*** 10. ***Costs be provided for.*** 11. The applicant has listed the following grounds in this application namely; 12. *That this court delivered judgment in this cause distributing the estate of the deceased and issued a Certificate of Confirmation dated 10/2/2026.* 13. *That the applicant had vide summons for confirmation of grant dated 19/4/2024 suggested a mode of distribution that reflected the wishes of the deceased.* 14. *That the respondents protested and the matter was heard vide viva voce evidence.* 15. *That this court tendered a decision which aggrieved him.* 16. *That he requires leave to prefer an appeal to Court of Appeal.* 17. *That he has a right to appeal and needs to be given a chance to exercise that right.* 18. *That the judgment failed to provide for one Zipporah Chelagat Mika a daughter of the deceased from the 1st house.* 19. *That he has an arguable appeal and has listed the grounds he seeks to raise in Court of Appeal.* 20. *That unless stay is granted he stands to suffer substantial loss.* 21. The applicant vide a supporting affidavit sworn on 2/3/2026 has supported the grounds raised and reiterated the same. 22. He avers that the respondents would not suffer prejudice if the orders sought are given so that he can pursue his right of appeal. 23. In his written submissions dated 7/4/2026 done through counsel, the applicant submits that requirement for leave has changed with the recent decision in the Supreme Court in the case of **Wandi –vs- Muchira (suing as the administrator Ad Litem of Jane Muthoni Wachira) (2026) KESC 29 (KLR)** where the Supreme Court found there was no legal basis that require litigants in probate matters to seek leave to appeal from High Court to Court of Appeal and that a party does not require leave to appeal. 24. The applicant contests the respondents’ suggestion that he should pursue review instead of an appeal. He insists that he has a right to appeal and should be accorded a chance to seek justice in that route. He prays for extension of time to file the Notice of appeal, Memorandum of Appeal and Record of Appeal in that order. 25. He submits that the grounds raised are sufficient for a grant of stay and prays that the provisions of Order 42 R 6 of Civil Procedure Rules need not be applied ‘stricto sensu’ but asks this court to exercise discretion. 26. He argues that one beneficiary Zipporah Chelagat Mika was excluded and stands to suffer substantial loss if stay is not granted. 27. He submits that the requirement for deposit or security under Order 42 Civil Procedure Act is not mandatory and relies on the case of **Beatrice Waruage Kimuri –vs- Michael Lawrence Wafula & Anor (2021)eKLR** where the court held that courts may dispense with requirement of security in appropriate cases. He also relies on **RWW –vs-EKW (2019) eKLR** in urging this court to exercise discretion in his favour. 28. The applicant has further relied on the following authorities to buttress his contentions; 29. **James Wangalwa & Anor –vs- Agnes Naliaka Cheseto (2012)eKLR** 30. **Focin Motorcycle Co Ltd –vs- Ann Wanbui & Anor (2018)eKLR and** 31. **Arun .C Sharma –vs- Ashana Raikundalia T/A Raikundalia & Co Advocates (No citation given).** 32. He submits that the balance of convenience tilts in favour of granting stay in order to preserve the estate. He contends that if a stay is not granted there is a risk of rendering the appeal nugatory thereby prejudicing the applicant. 33. The respondents Nicholas Kiplimo Kemboi and Benjamin Kipchumba Biloi have opposed this application vide a joint affidavit sworn on 25/3/2026 and written submission dated 27/4/2026 done through Nasike Wafula and Associates. 34. They aver that the applicant has not demonstrated the mandatory requirements under Order 42 Rule 6 Civil Procedure Rules to warrant stay. 35. They aver that the deceased’s family met with a view to agreeing on how the confirmation of grant was to be executed but the applicant skipped the meeting. 36. They further depone that the estate is a family property whose execution would not render the intended appeal nugatory. 37. They contend that all beneficiaries are in occupation of where they were occupying before and utilizing. 38. They submit the issues raised in the intended appeal are minor errors that can be rectified vide review. 39. It is their position that they are amiable to necessary changes to ensure peaceful co-existence. 40. The respondents submit that the applicant ought to have filed his Notice of Appeal on time and that he has offered no explanation for delay adding that he required no leave to file the same. 41. They further contend that the judgment of this court listed Zipporah Chelagat Mika as one of the daughters entitled to 3 acres but the certificate of confirmation drawn inadvertently left her out. In their view the issue is an error that can be rectified because it is an oversight. 42. The respondents further point out that the name Patrick Buana was captured wrongly in the judgment instead of Philip Buana. 43. They submit that the applicant is in occupation of his share in Toro and would continue being there whether stay is granted or not. 44. This court has considered this application and the response made. This court for obvious reasons has not touched on grounds the applicant intends to raise in the intended appeal. This court cannot be asked to sit on its appeal because it is both undesirable and untenable. These issues should be canvassed in the right forum, the Court of Appeal. 45. This court further finds it curious that the applicant has put considerable weight to one Zipporah Chelanga Mika when the said beneficiary is well catered for in the judgment. I agree with the respondents that there was some inadvertent mistake in leaving her out yet she is well captured in paragraph 31 of the judgment. That inadvertence can easily be rectified through rectification. 46. The applicant does not and cannot act for the said Zipporah Chelagat Mika who in any event is an adult who can move the court on her own for appropriate remedy. The applicant in my view appears to have approached the court in bad faith because he has not sought for concurrence by the said Zipporah. The other issues touching on correct names or spelling can be rectified as well. 1. This court finds that because its attention has been drawn to the cited anomalies, it is necessary that the same ought to be rectified for the interest of justice. This court invokes its inherent powers under Rule 73 Probate and Administration Rules to on its own motion rectify the mistake because doing so will meet the ends of justice for Zipporah Chelagat Mika and all the beneficiaries. She will get her 3 acres like the other daughters and the share will come from Kwanza/Kwanza/Korosi/17. The surveyor will curve out the 3 acres each to Rael Cherotich, Selly Cheptoo Kemboi, Miriam Chepkosgei Serem, Grace Chebet and Zipporah Chelagat Mika as decreed by this court. The sons of the deceased mentioned in paragraph 35 of the judgment with each get 20 acres to accommodate the share going to the said Zipporah Chelagat Mika but the share going to their mother shall remain undistrubed. 2. In the same breadth this court further on its own motion under Section 47 of Law of Succession Act rectifies the name captured as Patrick Buana in Certificate of Confirmation to read Philip Korir Buana to reflect the correct name as captured in the judgment. There is no beneficiary by the name Patrick Buana as captured in the Certificate of Confirmation and so the same is an obvious error which can be rectified by review under the provisions of Order 45(i) of the Civil Procedure Rules. For avoidance of doubt the judgment of this court delivered on 2/2/2026 is hereby reviewed on court’s own motion to the extent aforesaid to meet the ends of justice. 3. This court further finds as conceded by the applicant that he actually requires no leave to appeal to Court of Appeal in light of Supreme Court decision in the case of **Eliud Mwendia Wandi –vs- Kevin Wanjohi Muchira, (2026) KESC 29 (KLR)** that removed the requirement of leave to appeal from High Court to Court of Appeal. 4. The only prayer that the applicant can invoke the discretion of this court is for leave to file Notice of Appeal out of time. I do not find cogent reasons for enlargement of time but for interest of justice and to allow the applicant pursue his right of appeal this court will grant him 14 days leave to file and serve Notice of Appeal if he so desires. 5. In regard to stay of execution, this court is not persuaded that the intended appeal will be rendered nugatory if the Certificate of Confirmation is executed and/or if the beneficiaries are allowed to take possession and occupy/utilize their respective portions as the applicant pursues his intended appeal. 6. This court again hereby invokes its powers under Section 47 of Law of Succession Act to direct that while each beneficiary is entitled to their respective share and should be allowed to utilize and take possession of the same as per the rectified Certificate of Confirmation. The beneficiaries will be restrained from selling or alienating their respective portions to 3rd parties for now pending the determination of the intended appeal. In short the orders sought in the application dated 2/3/2026 fail save for the orders made hereinabove. I will not make any order as to costs and find no basis to order for security either because this is a family matter. For clarity the restrictions on sale or disposal of respective shares by the beneficiaries are subject to intended appeal being filed and/or further orders from Court of Appeal. **DELIVERED, DATED** and **SIGNED** at **KITALE** this **……28th .…** day of **………………JULY……….……………., 2026.** **HON JUSTICE R.K. LIMO** **KITALE HIGH COURT** ***Ruling delivered in open court*** ***In the presence of*** ***Nyasimi for the applicant*** ***Kibonei for the respondent*** ***Duke/Chemosop- court assistants***