https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11691

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERICHO** **SUCCESSION CAUSE NO. 138 OF 2014.** **ANDREW KOECH** ........................................................................................... **APPLICANT** **VERSUS** **EDWARD KOECH ................................................................................. 1ST RESPONDENT** **RITA CHEPKEMOI CHEROROT ...................................................... 2ND RESPONDENT** **WINNIE CHEROTICH TONUI ........................................................... 3RD RESPONDENT** **RULING.** **A. Introduction.** 1. The Applicant Andrew Koech filed Notice of Motion dated 24th September 2025, seeks the following substantive orders: 1. leave for the firms of Akiro & Associates Advocates and Odiwuor, Aomo Kelly & Associates Advocates to come on record for the Applicant; 2. an order preserving the substratum of this cause and maintaining the status quo as at 31st July 2025; 3. an order of stay of execution of the Judgment delivered on 31st July 2025 pending the hearing and determination of Nakuru Civil Appeal no. E175 of 2025; and 4. costs. 2. The application is supported by the Applicant’s own affidavit sworn on 24th September 2025 and a supplementary Affidavit sworn thereafter. It is opposed by the Replying Affidavit of the 2nd Respondent, Rita Chepkemoi Cherorot sworn on 27th October 2025. Neither the 1st or 3rd Respondents filed any response. **B. Background.** 3. By its judgment delivered on 31st July 2025, Hon Justice Sergon, J allowed the summons for confirmation of grant dated 6th March 2017and confirmed the estate of the deceased, a polygamous estate comprising three houses, to be distributed as follows: Kericho/Koiwa/101, Kericho/Koiwa/26 and Kericho/Koiwa/592 to be held in trust for the 1st house by Edward Koech; Kitale (Saboti Sikhendu)/19 and Kericho/Koiwa/76 to be held in trust for the 2nd house by the Applicant, Andrew Koech; and Kericho/Koiwa/100 and Kericho/Koiwa/568 to be held in trust for the children of the 3rd house by Rita Chepkemoi Cherorot; with a tractor, two trailers, a hydraulic pump, a plough, and the parcel known as L.R. Maji Tamu/Chemasis/Block 4/176 shared equally among the three houses, each party to bear its own costs. In the same judgment the court found devoid of merit and premature, the affidavit of protest of the Objector, Winnie Cherotich Tonui. 4. The principal contest at trial, and the substance of what is now impugned on appeal, concerned Kericho/Koiwa/100 and Kericho/Koiwa/568, parcels claimed by both the 2nd and 3rd houses, which the Court, applying Section 40 of the Law of Succession Act in the absence of consensus among the beneficiaries, awarded in their entirety to the 3rd house. 5. Aggrieved by the judgment, the Applicant caused a Notice of Change of Advocates to be filed and lodged a notice of appeal dated 12th August 2025. 6. On 24th September 2025, with the filing of the instant Application, the Applicant filed a Memorandum of Appeal and Record of Appeal at the Court of Appeal at Nakuru, thereby constituting Nakuru Civil Appeal No. E175 of 2025, as evidenced by the official court receipt of the same date exhibited in the supplementary Affidavit. 7. The Application, together with a Hearing Notice dated 14th October 2025, was served upon the advocates on record for the Respondents by electronic mail and by WhatsApp on the same date, as deposed to in the Affidavit of Service of Neema Owando. The 2nd Respondent thereafter filed her Replying Affidavit sworn on 27th October 2025. **C. The Applicant’s Case.** 8. The Applicant contends that the appeal, Nakuru Civil Appeal no. E175 of 2025 is arguable, raising among other grounds, the trial court’s disregard of Section 40 of the Law of Succession Act in the distribution of a polygamous estate, inconsistent use of units of measurement as between the houses, omission of certain properties of the deceased and improper evaluation of the evidence on record. 9. The Applicant further contends that in the absence of stay, execution of the Judgment will result in subdivision of the estate land, issuance of titles and vesting of proprietary rights in individual beneficiaries, an irreversible state of affairs that will alter the substratum of the estate and render the appeal nugatory, occasioning substantial loss for which he is prepared to abide by such terms as the Court may impose. 10. The Applicant relies on ***James Wangalwa & another v Agnes Naliaka Cheseto*, Misc. Application No. 42 of 2011 [2012] eKLR** on the meaning of substantial loss*.* ***Barasa v Nambale (Civil Appeal E134 of 2024) [2025] KEHC 4987 (KLR)*** on the assessment of delay***. Andrew Cheruiyot & Another v Anyoka Rogito, Nakuru Civil Application No. 152 of 2009*** on the low threshold for an arguable appeal and ***Butt v Rent Restriction Tribunal [1979] eKLR*** on the principles guiding the discretion to grant or refuse a stay. **D. The 2nd Respondent’s Case.** 11. The 2nd Respondent opposes the application principally on procedural grounds. First that no notice of appeal has ever been served upon her or her advocates, contrary to the mandatory requirement of service. 12. That the advocates purporting to act for the Applicant were not properly on record at the time the notice of appeal was filed, leave to come on record being sought only through the instant Application, rendering the purported notice of appeal a nullity incapable of founding a valid appellate process. 13. Further that the Applicant has exhibited only a receipt for the filing of a memorandum of appeal, without exhibiting the memorandum of appeal itself, such that neither she nor her Advocates are aware of its contents or of whether it was properly filed. 14. That in succession proceedings an appeal does not lie as of right and that a party aggrieved by a judgment or order of the High Court sitting as a succession court must first seek and obtain leave of the court before lodging an appeal, which leave the Applicant has neither sought nor obtained. 15. On the foregoing grounds, the 2nd Respondent contends that the Application is incompetent, discloses no lawful appeal capable of being protected by a stay, and amounts to an abuse of the process of the Court, and prays that it be dismissed with costs. **E. Issues for Determination.** 16. Having considered the Application, the affidavits and the rival submissions, two issues arise for determination: 1. ***Whether the procedural objections raised by the 2nd Respondent go to the competency of the application.*** 2. ***Whether the Applicant has satisfied the conditions for the grant of a stay of execution pending appeal.*** **Analysis and Determination.** ***(i) The objections.*** 17. On the question of leave, this issue has now been conclusively settled. In ***Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira)*, Petition No. E029 of 2024, [2026] KESC 29 (KLR)**, delivered on 31st March 2026, the Supreme Court resolved the conflicting decisions of the Court of Appeal on this question and held, at paragraph 59, that: ***"Accordingly, and in the absence of any express statutory limitation, we hold that a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter is appealable to the Court of Appeal as of right. Any contrary position would be inconsistent with the Constitution's transformative vision of a fair, accessible, and non-discriminatory system of justice."*** 18. Following *Wandi v Muchira* (supra), no leave was required before the Applicant could lodge his appeal. The 2nd Respondent’s objection on this ground accordingly fails. 19. On the timeliness of the notice of appeal, the judgment herein was delivered on 31st July 2025, and the notice of appeal is dated 12th August 2025, within the prescribed period. There is no basis to impugn the notice of appeal on the ground of delay in lodging it. 20. On the question of service of the notice of appeal, this is a matter that bears on the competency of the appeal itself and it is the Court of Appeal and not this Court, that is properly seized to pronounce conclusively whether that omission is fatal to the appeal. What this Court must satisfy itself of for purposes of the present application, is whether an appeal has in fact been instituted. 21. On the objection that the Applicant's advocates were not properly on record when the notice of appeal was lodged, a litigant is at liberty to change advocates at any stage of a cause. It does not, without more, retroactively nullify a notice of appeal lodged on the client’s own instructions and within time. 22. On the absence of an exhibited Memorandum of Appeal, this omission has since been cured. The supplementary affidavit of the Applicant exhibits, as AK-1A the Notice of Appeal dated 12th August 2025 and as AK-1B the Memorandum of Appeal dated 24th September 2025. 23. For the foregoing reasons, the objections raised are accordingly dismissed. ***(ii) Whether the conditions for granting a stay are satisfied.*** 24. In ***James Wangalwa & another v Agnes Naliaka Cheseto*, Misc. Application No. 42 of 2011 [2012] eKLR**, the court held that: ***"...the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory."*** 25. This is a succession cause concerning the distribution of a polygamous estate comprising land. As held in [***Mwaniki v Mwaniki & another [2025] KEHC 394 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/394/eng%402025-01-16)***,*** once execution proceeds, the estate will be subdivided, titles will issue, proprietary and beneficial rights will vest in individual beneficiaries. Such a scenario would expose the Applicant to substantial loss in that any success in the appeal may end up being a pyrrhic victory or one that would set in motion a multiplicity of suits to revert the estate to its undistributed state. 26. The notice of appeal was lodged within the fourteen days prescribed by law. The instant application was filed on 24th September 2025, approximately two months after the judgment and on the very same day the Applicant lodged the Memorandum of Appeal and record of appeal. The Court finds no unreasonable delay in either the lodging of the appeal or the filing of this application. 27. An applicant need not demonstrate that an appeal will succeed, only that it raises bona fide, arguable issues. In ***Andrew Cheruiyot & Another v Anyoka Rogito, Nakuru Civil Application No. 152 of 2009***, the Court of Appeal held that "***an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court."*** 28. The Memorandum of Appeal raises questions on the proper application of Section 40 of the Law of Succession Act to a polygamous estate, the evaluation of contested evidence on alleged lifetime settlement, the use of inconsistent units of measurement as between houses and the alleged omission of certain properties from the distribution. This court is satisfied that these grounds are not plainly frivolous and meet the low threshold required. 29. On whether the appeal would be rendered nugatory, the same is addressed and tied with the substantial loss limb. 30. On Security, the requirement to deposit security under order 42 is for money decrees. The decree herein is not a money decree but one distributing an estate. In succession matters, the courts have taken the position that security is not necessary where parties seek stay of execution pending appeal in succession matter as they involve family members and they are very emotive. I am not inclined to make an order for deposit of security as this is not a money decree but a family **G. Orders.** 31. In an application of this nature, the court must exercise its discretion judiciously, balancing the Respondents entitlement to enjoy the fruits of the Judgment against the Applicant’s equally legitimate right of appeal. 32. The Court is accordingly inclined to allow the instant application and makes the following orders: 1. Leave is granted for the firms of Akiro & Associates Advocates and Odiwuor, Aomo Kelly & Associates Advocates to come on record for the Applicant. 2. There shall be a stay of execution of the Judgment and decree delivered on 31st July 2025, pending the hearing and determination of the appeal. 3. The parties in occupation of the various parcels forming the estate shall maintain the status quo as at the date of this Ruling, pending determination of the appeal. 4. The Applicant shall within fourteen (14) days of this ruling, serve the notice of appeal, together with the memorandum of appeal and record of appeal, upon the Respondent’s. 5. Should the Applicant fail to comply with any of the conditions, the stay granted herein shall automatically lapse. 6. Costs of this Application shall be in the cause. 7. Mention on 25.1.2027. 8. Skeleton file be opened. I am not incline to. **T.A ODERA** **JUDGE** **27.7.2026** **DATED, SIGNED AND DELIVERED AT KERICHO THIS ......27TH ... DAY OF JULY 2026. IN THE PRESENCE OF MR OKOK FOR THE 2ND RESPONDENT.** **AKIKO AND MISS MWALAA FOR THE APPLICANT**