https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7528

In re Estate of Julius Cheruiyot Ngeno (Deceased) (Succession Cause 3 of 2019) [2026] KEHC 7528 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7528 (KLR) Republic of Kenya In the High Court at Bomet Succession Cause 3 of 2019 JK Ng'arng'ar, J June 4, 2026 IN THE MATTER OF THE ESTATE OF JULIUS CHERUIYOT NGENO (DECEASED) Between David Kimutai Cheruiyot Petitioner and Davis Kiprono Cheruiyot Petitioner Ruling 1.This is a Ruling in respect to two Applications being the Notice of Motion Application dated 28th May 2026 by the 2nd Petitioner and the Notice of Motion Application dated 2nd June 2026 by the 1st Petitioner. The Notice of Motion Application dated 28th May 2026 sought the following orders that: -i.Spent.ii.This Honourable Court be pleased to issue consequential orders directing the Bomet District Surveyor to enter upon and access the following properties below for purposes of carrying out subdivision, demarcation, survey and preparation of Mutation Forms in accordance with the Ruling of this court delivered on 20th May 2026 and share the properties below equally between the two households: -a.LR No. Kericho/Kimulot/146.b.LR No. Kericho/Kimulot/147c.Kimulot Market Plot No. 35.iii.The Officer Commanding Station (OCS) Kimulot Police Station and/or such police officers as may be designated be and are ordered to provide adequate security and maintain law and order during the exercise of entry, survey, subdivision, demarcation and implementation of the court’s Ruling dated 20th May 2026.iv.The Bomet District Surveyor do subdivide and demarcate the properties below strictly in accordance with the Ruling of this court as follows: -a.LR No. Kericho/Kimulot/146 be shared equally among the two households.b.LR No. Kericho/Kimulot/147 be shared equally among the two households.c.Kimulot Market Plot No. 35 be shared equally among the two households.v.Upon completion of the survey and subdivision exercise, the Land Registrar Bomet County is ordered to undertake and facilitate registration and transfer of the resultant portions to the respective beneficiaries in accordance with the confirmed mode of distribution.vi.The costs of the survey, subdivision and transfer thereof be borne by both parties equally.vii.In order to give effect to the court Ruling of 20th May 2026, this court be pleased to issue orders of eviction over Kericho/Kimulot/11 and Kapset Market Plot in order to pave way for the 100% occupation and ownership by the 2nd household.viii.The court be pleased to order that the above order be executed by the Court Bailiff with the OCS Kimulot Police Station and officers under him providing security to ensure that law and order prevails in the above parcels of land.ix.The OCS Kimulot Police Station to provide security to ensure compliance with this order and to ensure law and order prevails.x.The costs of this Application be in the cause. 2.The Notice of Motion Application dated 2nd June 2026 sought the following orders that: -i.Spent.ii.Spent.iii.This Honourable Court be pleased to stay the issuance, registration, transfer, subdivision, alienation and/or dealing with the estate properties and execution of the Ruling and orders delivered on 20th May 2026 in Bomet High Court Succession Cause No. 3 of 2019 pending the hearing and determination of the intended Appeal.iv.This Honourable Court be pleased to preserve the estate herein and maintain the prevailing status quo pending the hearing and determination of the intended Appeal.v.Costs of the Application to be provided for. 3.I intend to be precise and concise on the issues given the history of this matter which is well known to both parties. 4.Directions were given by this court on 3rd June 2026 that since both Applications addressed the issue of execution of this court’s Ruling dated 20th May 2026, the two Applications be treated as a response to each other on the issue of whether the orders of 20th May 2026 are to be implemented or stayed. This is the main issue. 5.I have considered the issues and history of this matter. The 1st Petitioner intends to appeal this court’s Ruling dated 20th May 2026 while the 2nd Petitioner intended to execute the confirmed Grant. In view of the numerous Applications that have been handled by this court, it would only be fair that the issues be addressed by the Appellate court. This court has made its position known and therefore ought to give effect to its findings unless there is a stay of further orders by the Appellate court. The court in Messirez v Hazina Investment Company Limited & another [2026] KEELC 834 (KLR) held: -“The Supreme Court in the case of: - “Teachers Service Commission – Versus - Kenya National Union of Teachers & 2 Others [2013] eKLR”, at paragraph 68, stated:“Court orders are not made in vain and are meant to be complied with. Disobedience of court orders erodes the dignity and authority of the courts and the rule of law itself.”Finally, the Court of Appeal in the case of: - “Hadkinson – Versus - Hadkinson [1952] 2 All ER 567”, at page 569, held: -“It is the plain and unqualified obligation of every person against whom an order is made to obey it unless and until that order is discharged” 6.In respect to the Notice of Motion Application dated 2nd June 2026, the main ground to consider for stay pending Appeal is substantial loss. in Jason Ngumba Kagu & 2 others v Intra Africa Assurance Co. Limited [2014] KEHC 2183 (KLR) held that: -“The possibility that substantial loss will occur if an order of stay of execution is not granted is the cornerstone of the jurisdiction of court in granting stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules. The Court arrives at a decision that substantial loss is likely to occur if stay is not made by performing a delicate balancing act between the right of the Respondent to the fruits of his judgment and the right of the Applicant on the prospects of his appeal. Even though many say that the test in the High court is not that of “the appeal will be rendered nugatory’’, the prospects of the Appellant to his appeal invariably entails that his appeal should not be rendered nugatory. The substantial loss, therefore, will occur if there is a possibility the appeal will be rendered nugatory. Here, it is not really a question of measuring the prospects of the appeal itself, but rather, whether by asking the Applicant to do what the judgment requires, he will become a pious explorer in the judicial process.” 7.I do not see any substantial loss being suffered by the 1st Petitioner by implementing this court’s orders of 20th May 2026. These orders gave effect to the provisions of section 29 of the Law of Succession Act. 8.As stated above, it is my position that the orders issued by this court on 20th May 2026 ought to be implemented. This court has on several occasions noted the reluctance of the 1st household to accommodate the 2nd household. Indeed, it is the 2nd household that has suffered loss. 9.I have considered the above issues against the able submissions by Mr. Arusei for the 2nd Petitioner and Mr. Kiamba for the 1st Petitioner. I have also looked at the applicable law and the obtaining circumstances. In the final analysis, I make the following orders: -i.The Notice of Motion Application dated 2nd June 2026 lacks merit and is dismissed.ii.The Notice of Motion Application dated 28th May 2026 that seeks to implement the orders of this court dated 20th May 2026 is allowed as prayed.iii.Each party to bear their own costs for the two Applications. RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 4TH DAY OF JUNE, 2026............................................HON. JULIUS K. NG’ARNG’ARJUDGERuling Delivered in the presence of;Siele/Susan – Court AssistantsKiamba for ApplicantBelion holding brief for Arusei for Respondent