https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11075

In re Estate of arap Chebogoiyo (Deceased) (Succession Cause 35 of 2015) [2026] KEHC 11075 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEHC 11075 (KLR) Republic of Kenya In the High Court at Bomet Succession Cause 35 of 2015 JK Ng'arng'ar, J July 22, 2026 IN THE MATTER OF THE ESTATE OF KIPKORIR ARAP CHEBOGOIYO (DECEASED). Between Mutai Pares 1st Petitioner Richard Pares 2nd Petitioner and Jonah Kipkoech Bares 1st Objector Richard Kimutai Langat 2nd Objector Paul Kipngetich Bares 3rd Objector Ruling 1.Through a Notice of Motion Application dated 23rd March 2026, the Applicant sought the following orders that: -I.Spent.II.Spent.III.The Honourable Court may stay the proceedings of this succession matter and all subsequent orders notably orders given on 21st December 2021 pending the hearing and determination of an appeal at the Court of Appeal at Nakuru being COACA/E014 of 2022.IV.Spent. 2.The Application was brought under on Order 51 Rule 1, Order 42 Rule 6, Order 22 Rule 22 (1) of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act. It was premised on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Mutai Pares on 23rd March 2026. The Applicant’s case. 3.The Applicant stated that this court gave a Ruling on 21st December 2021 revoking the Grant issued to the Petitioners on 1st November 2026 and further directing the County Surveyor, Bomet County to visit the suit property known as KERICHO/ EAST SOTIK 55/203 and file a comprehensive report. That being aggrieved by the said Ruling, the Petitioners appealed the Ruling at the Court of Appeal in Nakuru. 4.It was the Applicant case that during the pendency of the determination of the Appeal, the Objectors through the County Surveyor issued a notice of implementation of this court’s Ruling addressed to the Chief of Mutarakwa Location signifying their intent to visit the suit property. That if the Objectors and the County Surveyor visit the suit property in executing this court’s Ruling, the Appeal would be rendered nugatory and they (Petitioners) would suffer prejudice. 5.The Applicant stated that they would suffer substantial loss if this court’s Ruling was implemented. That when the Grant was confirmed, all the beneficiaries demarcated the suit property and were issued with Title Deeds and had developed their respective portions. The Applicant further stated that the land known as KERICHO/ EAST SOTIK 55/203 ceased to exist as the same had been closed on subdivision. 6.Through his written submissions dated 16th June 2026, the Applicant submitted that Respondents would not be prejudiced by the order of stay of proceedings. That their Appeal had raised serious and credible grounds of Appeal. The Applicant further submitted that if the order of stay of proceedings was not granted, then his Appeal would be rendered nugatory. That he had filed the present Application timeously. Response 7.Through a Replying Affidavit dated 22nd May 2026, the 1st Objector stated that the Application was vexatious and was meant to delay the legal administration of the estate. That the Applicant had not met the threshold set for grant of stay of proceedings as he had not demonstrated the substantial loss he stood to suffer if the County Surveyor visited the suit property and file a comprehensive report on its status. 8.It was the 1st Respondent’s case that the said report would become part of the evidence and was not an award by the court which would render the outcome of the Appeal nugatory. It was the 1st Respondent’s further case that the titles emanating from KERICHO/ EAST SOTIK 55/203 were cancelled and returned to the mother title. 9.The 1st Respondent stated that the Appeal was not arguable. 10.Through his written submissions dated 22nd May 2026, the 1st Respondent submitted that the Application had no merit. That the Applicant had failed to demonstrate the impediment he would suffer if the proceedings continue and his Appeal is allowed. The 1st Respondent further submitted that staying the proceedings would block the beneficiaries from taking necessary steps to obtain a new Grant. Reliance was placed on re Estate of Gachoki Ruoya (Deceased) [2020] KEHC 303 (KLR). 11.It was the 1st Respondent’s submission that the Applicant had not demonstrated that he would suffer substantial loss. He relied on re Estate of Noah Melita Nkai (Deceased) [2021] KEHC 9187 (KLR). It was the 1st Respondent’s further submission that the Applicant did not have an arguable appeal. He relied on Cape Holdings Limited vs Synergy Industrial Credit Limited & another [2026] KECA 385 (KLR). 12.I have gone through the record, the Notice of Motion Application dated 23rd March 2026 and the 1st Respondent’s Replying Affidavit and written submissions both dated 22nd May 2026. The only issue for my determination was whether this court should stay its proceedings pending the determination of the Applicant’s Appeal at the Court of Appeal in Nakuru. 13.In Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR), the court held: -“………Stay of proceeding should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore the test for stay of proceeding is high and stringent……” 14.In Waweru v Bor & another [2024] KEHC 6325 (KLR), the court extensively explained the conditions precedent for grant of a prayer of stay of proceedings to wit: -“The principles guiding stay of proceedings were laid down by a 5-judge Bench of the High Court, after looking at our jurisprudential scan on the question of stay of proceedings in the case of William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR;a.First, there must be an appeal pending before the higher Court;b.Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;c.Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;d.Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;e.Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; andf.Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.In the same vein, in Halsbury’s Laws of England, 4th Edition, Vol. 37 at p. 330:“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue….This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of this case.”From the foregoing authorities, it is evident that the stay of proceedings is a radical measure which is only exercised in the most of deserving cases. This is a discretionary power that is exercised by the court sparingly. Hence, granting stay of proceedings pending an appeal over interlocutory matters is decided on the facts of each case and with “due regard to the salutary general rule that appeals are not entertained piecemeal…..” 15.Further, the Court of Appeal in Amario v Amario & 2 others [2026] KECA 1211 (KLR) held: -“Stay of proceedings” as the phrase suggests, is the stoppage of an entire case or a specific proceeding within a case. Such a disruption of judicial proceedings has been described in case law as a drastic order which is only to be deployed in extremely rare cases and with immense circumspection. The principles which should guide a court in exercising its discretion to grant or refuse an application for stay of proceedings were detailed by the Court of Appeal of Nigeria, Abuja Division in the case of NNPC & Anor vs. Odidere Enterprises Nigeria Ltd [2008] 8 NWLR (Pt. 1090) 583 at 616-618, per Aboki, JCA. as follows:“Stay of Proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation towards the trial on the basis of the substantive merit of his case, and therefore the general practice of the courts is that a stay of proceedings should not be granted, unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.” 16.As exhibited by the above authorities, an order for stay of proceedings should be granted in deserving cases and this court’s power to grant such an order is discretionary. The court deals with such matters on a case-to-case basis depending on the facts of each particular case. 17.I have looked at the record and I have noted that the impugned Ruling dated 21st December 2021 revoked the Grant dated 1st November 2016 issued to the Petitioners. This court cancelled the titles that emanated from KERICHO/ EAST SOTIK 55/203 and further ordered the County Surveyor, Bomet County to visit the suit property and prepare a comprehensive report on its status. The 1st Applicant stated that he had appealed the Ruling at the Court of Appeal in Nakuru and attached the Memorandum of Appeal dated 25th February 2022 as “MP 2”. I have looked at the Appeal and with respect to the 1st Respondent, it is my finding that the Appeal was arguable. In the case of Kenya Industrial Estate Limited & another v Matilda Tenge Mwachia [2021] KECA 1012 (KLR) the Court of Appeal held: -“As stated earlier, an arguable appeal is one that is not frivolous but raises a bona fide issue deserving determination by a Court and a single bona fide issue would suffice”. 18.The Applicant also attached the Court of Appeal directions on how the Appeal was to be heard as “MP 4”. I have looked at the directions issued on 23rd February 2026 where the Appeal was to be heard through written submissions and the Appeal queued for hearing. In my view, the Appeal was not stagnant as the same had already come up for case management. This would lessen the prejudice of delay (if any) that would be suffered by the Respondents. It is salient to note that an Appeal is a right available to an aggrieved party and it is one of the cornerstones of justice. 19.On the issue of the Appeal being rendered nugatory, the Court of Appeal in Stanley Kangethe Kinyanjui V Tony Ketter & 5 others [2013] KECA 378 (KLR) held: -“The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling……Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” 20.The Applicant stated that the suit property KERICHO/ EAST SOTIK 55/203 no longer existed as it had been closed upon subdivision by the beneficiaries of the deceased’s estate. That the beneficiaries had then substantially developed their respective portions. It was the Applicant’s position that if the County Surveyor, Bomey County prepared a comprehensive report on the suit property before the Appeal was determined, then the Appeal would be rendered nugatory. 21.As earlier stated, I have looked at the Applicant’s Memorandum of Appeal and his appeal was against the whole of the impugned Ruling by this court dated 21st December 2021. In essence, the Appeal was against the revocation of the Grant, the cancellation of the titles resulting from KERICHO/ EAST SOTIK 55/203 and the order for a comprehensive report on KERICHO/ EAST SOTIK 55/203. 22.After considering the parties’ positions on this matter, in the interest of justice and in balancing the rights of the Applicants and the Respondents, I am of the view that if the proceedings in this court are not stayed and the Respondents proceed to obtain a new Grant with respect to KERICHO/ EAST SOTIK 55/203 (which has been challenged in the Appeal), then the Appeal would be rendered nugatory and an academic exercise. As earlier stated, the Applicant deserves his day in court and the Respondents would suffer no prejudice if the proceedings herein are stayed pending the hearing and determination of the Applicant’s Appeal. 23.In the end, the Notice of Motion Application dated 23rd March 2026 has merit. The proceedings in this matter are stayed pending the determination of the Applicant’s Appeal at the Court of Appeal in Nakuru. Each party to bear their own costs. RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 22ND DAY OF JULY, 2026..................................HON. JULIUS K. NG’ARNG’ARJUDGERuling delivered in the presence of:Siele/Zachary (Court Assistants)Koskei for Petitioners/Applicants