https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9721

In re Estate of Kilonzo alias Tabia Kamene Kilonzo (Deceased) (Probate & Administration 760 of 2011) [2026] KEHC 9721 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9721 (KLR) Republic of Kenya In the High Court at Machakos Probate & Administration 760 of 2011 EN Maina, J June 25, 2026 IN THE MATTER OF THE ESTATE OF THE LATE TABIA KILONZO alias TABIA KAMENE KILONZO (DECEASED) Between Elizabeth Mbenge Kilonzo Applicant and Morris Kalonzo Wambua 1st Respondent Anita Mwikali Kilonzo 2nd Respondent Grace Mueni Kilonzo 3rd Respondent Ruling 1.By the Notice of Motion dated 30th April 2025, the 4th Administrator/Applicant seeks a stay of execution of the judgments delivered herein on 28th March 2025, pending an intended appeal. 2.The application is expressed to be brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 51 of the Civil Procedure Rules. However, the cited provisions are not among those imported into the Law of Succession Act by Section 63 of the Probate & Administration Rules which states:“63.Application of Civil Procedure Rules and the High Court (Practice and Procedure) Rules.i.Save as in the Act or 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 Orders, V, X, XL, XV, XVII, XXV, XLIV and XLIX, together with the High Court (Practice and Procedure Rules, shall apply so far as relevant to proceedings under these rules.ii...........................” 3.This court shall therefore determine this application within the powers vested upon it by Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. The Section and Rule states:“(47)Jurisdiction of the High Court –The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient ...”Rule 73 saving and inherent powers of the court.Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 4.The grounds for this application are that pursuant to the judgment, the Respondents proceeded to write to the agents of the two properties, th subject of this succession cause, giving them instructions on change of bank accounts for purposes of collecting the rent therefrom; that the Appellant is apprehensive that if this is done the Respondents will misappropriate the same before the intended appeal is heard and determined; that collection of rent is not a trivial matter as such rent is subject to statutory tax obligations, salary liabilities for workers and recurring financials commitments pertaining to liabilities. Further, that if the judgment is executed she together with the tenants in those properties shall suffer loss and the appeal shall be rendered nugatory. The Applicant has also contended that she shall suffer substantial loss but the Respondents will not suffer any prejudice that cannot be compensated by way of costs. 5.Learned counsel for the Applicant cited several cases in the written submissions and has waged this court to allow the application more so considering that there is a dispute as to whether one of the properties is part of the estate of the deceased. Counsel submitted that the essence of an order for stay of execution is to prosecute the subject matter so that the right of the Appellant who is exercising an undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory. Counsel urged this court to find that the Applicant has satisfied the conditions of stay and hence grant this application. 6.The Respondents did not file submissions on the application. If they did they were not uploaded on the CTS and neither did a physical copy reach the file. 7.That notwithstanding, I have carefully considered the application, the grounds, the submissions, the cases cited and the law. The applicant is one of the beneficiaries in this estate. She is also one of the Administrators who also protested to the summons for confirmation of grant filed by her co-administrators culminating in the judgment sought to be appealed. The order she seeks to stay is framed as follows:“2.The rent paid monthly from the property Nairobi/Block/ 97/1172/2150 shall be shared by the 3rd wife/widow of Administrator of the estate of Tabia Kilonzo now deceased. Ruth Mukuthe Muia and children of Tabitha Kilonzo Lawrence Morris Kilonzo, Anita Grace Mueni Kilonzo and Elizabeth Mbenge Kilonzo.”The gravamen of her application is that the monies once collected may be misappropriated. In my considered view mere apprehension is not a sufficient reason to stay execution of a lawful judgment and decree of a court. I am also not persuaded that substantial loss or prejudice will be occasioned to the applicant because the Court of Appeal can always order the party(ies) at fault to refund the monies misappropriated. 8.The upshot is that this application is not merited. Should I be wrong that can be remedied by a stay being sought in the Court of Appeal as provided in Rule 4 of the Rules of that court. This application is dismissed but that does not preclude the Applicant from pursuing her appeal. 9.The Parties shall bear their own costs of the application this being a family matter.Orders accordingly. RULING SIGNED, DATED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS ON THIS 25TH DAY OF JUNE, 2026.E. N. MAINAJUDGEIn the presence of:Mr. Mbaluka for Interested party/ ApplicantMr. Nzavi for RespondentsCourt Assistant – Catherine