https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8408

In re Estate of Mutula (Deceased) (Family Miscellaneous Application E008 of 2024) [2026] KEHC 8408 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEHC 8408 (KLR) Republic of Kenya In the High Court at Siaya Family Miscellaneous Application E008 of 2024 DK Kemei, J June 16, 2026 IN THE MATTER OF THE ESTATE OF GABRIEL ONYANGO RAWAYO MUTULA (DECEASED) Between Vincent Samson Oduor Applicant and Rose Otieno Respondent Ruling 1.The 1ST Petitioner/Applicant herein being dissatisfied with the whole judgment and orders of this Honourable Court delivered on 5th February, 2026 has filed the present application dated 10th February 2026 seeking the following orders; -i.Spent.ii.That there be a stay of execution of the judgment and orders of this Honourable Court delivered on the 5th February 2026 pending the hearing and determination of the intended appeal.iii.That the cancellation of title and revocation of grant ordered on 5th February 2026 be stayed pending appeal.iv.That the status quo obtaining over the suit property be maintained pending the hearing and determination of the intended appeal.v.That cost of this application be in the cause. 2.The application is supported by the grounds set out thereunder and by the supporting affidavit of the Applicant sworn on even date. The Applicant’s gravamen is inter alia; that the judgment was delivered on the 5th February 2026 cancelling the title and revoking the grant; that the Applicant has lodged a notice of appeal and intends to appeal against the said judgment; that the intended appeal raises serious and arguable points of law; that unless a stay is granted, the appeal will be rendered nugatory; that the Applicant stands to suffer substantial and irreparable loss; that this application has been made without unreasonable delay. 3.The 2nd Petitioner/Respondent opposed the application vide a replying affidavit wherein she averred inter alia; that the same is misconceived, bad in law, and an abuse of the process of this Honourable Court; that on 5th February 2026, this Honourable Court delivered judgment revoking the grant issued to the Applicant, cancelling the certificate of confirmation of grant, and ordering that the title to land parcel North Ugenya/Sega/2066 be cancelled and reverted to the estate of the deceased; that the Court further ordered that a fresh grant be issued jointly to the Applicant and the Objector to enable lawful administration and distribution of the estate; that the said judgment was grounded on clear findings that the Applicant obtained the grant fraudulently through misrepresentation and concealment of material facts and by excluding rightful beneficiaries; that the Applicant has not demonstrated any substantial loss as required under Order 42 Rule 6 of the Civil Procedure Rules; that the orders of the Court merely revert the suit property to the estate of the deceased and do not transfer or alienate the same to any third party; that the estate property remains preserved and available for lawful distribution, and therefore no irreparable or substantial loss will be suffered by the Applicant; that in the event the intended appeal succeeds, the property remains intact and capable of being re-transferred or dealt with in accordance with the appellate decision; that the Applicant’s assertion that the appeal will be rendered nugatory is unfounded and speculative; that while the Applicant has annexed a Notice of Appeal, the same merely signifies an intention to appeal and does not, in itself, satisfy the legal threshold for the grant of stay of execution; that the allegation that there exists an arguable appeal is therefore bare and unsupported; that the Applicant has not offered any security for the due performance of the decree as required by law; that failure to offer security renders the application fatally defective; that this Honourable Court made express findings regarding the Applicant inter alia: that he misrepresented himself as a son of the deceased; that he misrepresented other beneficiaries; that he concealed material facts from the Court and procured the grant fraudulently; that the findings of this Honourable Court were based on clear evidence of fraud, misrepresentation, and concealment of material facts, and the Applicant has not demonstrated how such findings raise arguable issues capable of overturning the judgment on appeal; that the Applicant therefore approaches this Court without clean hands and is undeserving of the equitable relief of stay; that granting the orders sought will delay the lawful administration and distribution of the estate and continue to prejudice the rightful beneficiaries; that the judgment of this Honourable Court restored legality and fairness in the administration of the estate, and granting stay would unjustly preserve an unlawful position; that even after delivery of judgment, the Applicant caused to be issued a Notice to Vacate Land dated 30th April 2026 (‘RAO1’) to one of the beneficiaries, asserting exclusive ownership over land parcel North Ugenya/Sega/2321; that the said notice demonstrates that the Applicant has been actively asserting ownership rights and seeking to evict other beneficiaries from the estate; that the said actions were premised on a title which this Honourable Court has since found to have been fraudulently obtained and has ordered cancelled; that granting stay would embolden the Applicant to continue acts of exclusion and eviction of lawful beneficiaries to their detriment; that the Applicant has failed to satisfy the mandatory conditions for grant of stay of execution; that this Application is devoid of merit and ought to be dismissed with costs. 4.The application was canvassed by way of written submissions. Both parties complied. 5.The 1st Petitioner/Applicant submitted that this Honorable Court exercises its discretion to order a reasonable security for costs and or grant time within which the Applicant may comply. That the Applicant is a self-represented litigant pursuing an appeal arising from a dispute concerning family land and succession. That the appeal raises substantial issues deserving determination on their merits. That this court has wire discretion and or unfettered discretion in matters relating to security for costs and extension of time. That such discretion should be exercised judicially and in accordance with the interest of justice. That the Court should balance the Respondent's right to protection against unrecoverable costs and the Applicant's Constitutional right of access to justice and right to be heard. 6.It was submitted that financial inability should not bar access to justice. That the Applicant has demonstrated genuine financial hardship and that as he is acting in person, he does not have the financial resources ordinarily available to represented litigants. That he relies on subsistence farming and assistance from relatives which is insufficient to meet his family's obligations and litigation expenses. That he relies on limited income being a senior citizen and having pursued and still pursuing cases and this appeal. That a requirement for security that is beyond the Applicant's means would effectively deny him an opportunity to challenge the judgment. 7.The Applicant submitted that the intended appeal is arguable and is not frivolous as it raises serious questions of law and facts concerning inter alia; jurisdiction; the circumstantial nature of the matter; the succession to the estate of the deceased; ownership and administration of agricultural land; cancellation of registered titles; rights of beneficiaries. It was submitted that these are weighty issues that deserve consideration by the Court on appeal. 8.It was submitted that the Respondent will not suffer prejudice if time is extended or a reduced security is ordered or the applicant is allowed to furnish security within a reasonable period. That on the other hand, refusal of the application may permanently shut the applicant out of the appellate process. 9.The Applicant sought reliance on the relevant articles of the constitution which have principles for compliance as follows:i)Article 48 of the Constitution of Kenya, 2010 guarantees access to justice.ii).Article 50 guarantees the right to a fair hearing.iii)The Court should interpret procedural rules in a manner that facilitates the determination of disputes on their merits rather than denying a litigant a hearing solely because of poverty or temporary financial constraints. 10.It was submitted that the application has merit and should be allowed in terms inter alia; that the Court orders a reasonable and affordable security for costs, or waive or reduce the same as the Court deems fit; that the court to grant the applicant sufficient time to deposit the security ordered by the Court; that court to provide the Applicant with the records of appeal in compliance with the Court of Appeal Rules; that the court to extend time for compliance with the Court of Appeal Rules where necessary; that the court to allow the appeal to proceed on its merit; that the court makes such further orders as may be necessary in the interest of justice. 11.The 2nd Petitioner/Respondent started off by pointing out that this court had issued directions to the parties to submit only on the aspect of security for costs pending the appeal. Learned counsel submitted that the Respondent acknowledges that the Applicant is entitled to pursue his appeal and that this Honourable Court has discretion to grant stay of execution pending appeal. That the only issue for determination is the appropriate security to be deposited as a condition for stay. Learned counsel went ahead to cite two issues for determination namely, whether the Applicant should be ordered to deposit security, and if so, the nature and quantum of such security pending appeal. 12.Learned counsel cited the provisions of Order 42 Rule 6(2)(b) of the Civil Procedure Rules which provides that: "... No order for stay of execution shall be made unless such security as the court orders for the due performance of the decree has been given by the applicant..." That the requirement for security is mandatory and is intended to safeguard the interests of the successful party pending appeal.Reliance was placed In Vishram Rajji Halai v Thornton & Turpin Ltd Civil Application No. Nai. 15 of 1990 KLR 365 where the Court held that the conditions under Order 42 Rule 6 are mandatory before stay can issue.Similarly, in Focin Motorcycle Co. Limited v Ann Wambui Wanjui & Another KEHC 8358 (KLR) the Court emphasized that security guarantees the due performance of the decree should the appeal fail. 13.The Respondent submits that should this Honourable Court be inclined to grant stay pending appeal, the same should only issue upon the Applicant depositing a sum of KES. 200,000/= as security.That the Respondent's proposal is reasonable and justified in the circumstances of this matter for reasons inter alia: that the dispute concerns immovable property forming part of a deceased's estate and the beneficiaries continue to suffer prolonged uncertainty pending litigation; that the Applicant previously exercised exclusive control over the estate property pursuant to a title which was subsequently cancelled by the Court; that the intended appeal will occasion delay in the final administration and distribution of the estate, thereby prejudicing the beneficiaries; that the proposed amount is not punitive but is intended to secure due performance of the decree and ensure seriousness in the prosecution of the appeal; that the Applicant has not voluntarily proposed any security despite the mandatory provisions of Order 42 Rule 6(2)(b) of the Civil Procedure Rules. 14.The Respondent submits that security is necessary to safeguard the estate pending appeal and to balance the interests of both parties. That the Court must ensure that while the Applicant exercises his undoubted right of appeal, the beneficiaries of the estate are not left exposed without protection during the pendency of the appeal. That the proposed security therefore serves the interests of justice, fairness, and preservation of the estate. 15.I have given due considerations to the application, rival affidavits and submissions. It is not in dispute that this court has already rendered a judgement regarding the Objector’s objection and protest and that the 1st Petitioner herein has already made known his intention to lodge an appeal to the Court of Appeal vide a Notice of Appeal. It is also not in dispute that the parties are agreed that the Applicant has satisfied two of the conditions imposed under Order 42 Rule 6 (2) of the Civil Procedure Rules namely, the timely filing of the application and the likelihood of substantial loss being suffered and that they were to submit on the remaining condition namely the deposit of security for due performance pending determination of the appeal at the Court of Appeal. I find the issue for determination is what conditions can this court impose? 16.Both parties herein have given varying circumstances. The Applicant on his part has maintained that he is a person of low income as he is a peasant farmer while on the other hand, the Objector contends that the Applicant should deposit reasonable security in the sum of Kshs 200, 000/ for the due performance of the decree. The Objector has sought to discredit the conduct of the Applicant who upon the delivery of the judgement herein has gone ahead to seek to evict some of the beneficiaries from the family land even while being aware that the title had been cancelled and reverted to the estate for distribution among the beneficiaries. It is the feeling of the Objector and the rest of the beneficiaries that the Applicant is out to use all the tricks in the book to stall the process to his benefit and to the prejudice of the beneficiaries. Indeed, the Applicant’s conduct in rushing to seek to evict some of his siblings from the land despite being aware that the previous title had been cancelled seems to speak volumes about his intentions. It is instructive that the Appellant in his affidavit in support did not make an averment to the effect that he was ready and willing to offer security for the due performance of the decree that would ultimately be binding upon him in the event the appeal is not successful. The Objector has already presented germane reasons why security should be deposited by the Appellant namely that the dispute concerns immovable property forming part of a deceased's estate and the beneficiaries continue to suffer prolonged uncertainty pending litigation. Further, that the Applicant previously exercised exclusive control over the estate property pursuant to a title which was subsequently cancelled by the Court. That the intended appeal will occasion delay in the final administration and distribution of the estate, thereby prejudicing the beneficiaries; that the proposed amount is not punitive but is intended to secure due performance of the decree and ensure seriousness in the prosecution of the appeal. That the Applicant has not voluntarily proposed any security despite the mandatory provisions of Order 42 Rule 6(2)(b) of the Civil Procedure Rules. Indeed, security is necessary to safeguard the estate pending appeal and to balance the interests of both parties and that the Court must ensure that while the Applicant exercises his undoubted right of appeal, the beneficiaries of the estate are not left exposed without protection during the pendency of the appeal and hence, the proposed security serves the interests of justice, fairness, and preservation of the estate. 17.In Samvir Trustee Limited vs Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 Warsame J (as he then was) held as follows:“Every party aggrieved with a decision of the High Court has a natural and undoubted right to seek the intervention of the Court of Appeal and the court should not put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. A stay would be overwhelming hindrance to the exercise of the discretionary powers of the court.....The court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant... For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss, there must be documentary evidence to support such contention. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss.... Whereas there is no doubt that the defendant is a bank, allegedly with substantial assets, the court is entitled to weigh the present and future circumstances which can destroy the substratum of the litigation.....At the stage of the application for stay of execution pending appeal the court must ensure that parties fight it out on a level playing ground and on equal footing in an attempt to safeguard the rights and interests of both sides.The overriding objective of the court is to ensure the execution of one party's right should not defeat or derogate the right of other. The court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court. Justice requires the court to give an order of stay with certain conditions." 18.Upon consideration of all the issues herein, iam of the view that the Applicant should deposit a sum of Kshs 100,000/ as security pending determination of the appeal in the Court of Appeal. I find the said sum to be reasonable in the circumstances. 19.In the result, the Applicant’s application dated 10/2/2026 is allowed in the following terms:i)That an order of stay of execution of the judgement of this court delivered on 5/2/2026 is granted pending determination of the Applicant’s appeal in the Court of Appeal on condition that the Applicant deposits the sum of Kshs 100,000/ into a joint interest earning account in the names of the Applicant and the Objector’s Advocates within fourteen (14) days from the date of this ruling failing which the stay shall lapse.ii)That the costs of the application shall abide in the appeal. DELIVERED AND DATED AT SIAYA THIS 16TH DAY OF JUNE 2026.HON. D. KEMEIJUDGEIn the presence of;-Samson Vincent Oduor.........................1st Petitioner/ ApplicantAtito.........................................for 2nd Petitioner/ RespondentMaurine.......................................Court Assistant