https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10287

In re Estate of Komen (Probate & Administration 500 of 1997) [2026] KEHC 10287 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10287 (KLR) Republic of Kenya In the High Court at Nakuru Probate & Administration 500 of 1997 AM Hassan, J July 13, 2026 (In respect to the Applicant’s Notice of Motion dated 18th June, 2026) Ruling A. Introduction And Facts 1.The Applicant herein filed a Notice of Motion under a Certificate of Urgency dated 18th June 2026, together with a Supporting Affidavit sworn on the same date. 2.This court directed that the said Application be disposed of by way of written submissions. Consequently, the Applicant filed written submissions dated 24th June 2026, while the 1st and 2nd Respondents, through the firm of Karanja-Mbugua & Company Advocates, filed their submissions dated 30th June 2026. 3.In his submissions, the Applicant seeks orders for the maintenance of the prevailing status quo, suspension of the beneficiaries’ meeting convened for 20th June 2026, and a stay of all consequential actions arising there from pending the hearing and determination of the intended appeal against the Ruling delivered on 20th May 2026. 4.The Applicant submits that the present Application is not merely an invocation of Order 42 Rule 6 of the Civil Procedure Rules, but is also intended to ensure that the appellate process is not rendered illusory. He states that he is aggrieved by the Ruling delivered by this court on 20th May 2026, through which the Summons dated 2nd December 2025 was dismissed, prompting him to lodge a Notice of Appeal dated 16th June 2026. 5.The Applicant further contends that a meeting of the beneficiaries was convened on 20th June 2026 to deliberate on matters concerning the administration, management, and distribution of the estate. He argues that should the said meeting, or any subsequent meeting, proceed and the resolutions reached therein be implemented, the intended appeal would be rendered nugatory. 6.It is the Applicant’s submission that this court is clothed with the requisite jurisdiction to grant the orders sought in the Notice of Motion. 7.On the issue of whether he has demonstrated an arguable appeal deserving of preservation, the Applicant submits that he is not required to establish that the appeal will ultimately succeed. Rather, he contends that it is sufficient to demonstrate the existence of at least one bona fide and arguable issue worthy of consideration by the appellate court. 8.Relying on various authorities, the Applicant further submits that the intended appeal will be rendered nugatory unless the orders sought are granted. He argues that the implementation of decisions affecting the estate may prove difficult, costly, and, in some instances, impossible to reverse should the appeal ultimately succeed. 9.Regarding substantial loss and prejudice, the Applicant submits that the cornerstone of any application for preservation pending appeal is the demonstration of substantial loss. He argues that such loss is not limited to financial prejudice but extends to the real possibility that decisions affecting the estate may be undertaken and implemented before the Court of Appeal has an opportunity to determine the dispute. According to the Applicant, the resulting prejudice may not be adequately remedied through an award of costs. 10.On the balance of convenience, the Applicant submits that it tilts in favor of maintaining the prevailing status quo. He argues that preservation of the estate pending appeal will occasion no prejudice incapable of compensation to the Respondents or the beneficiaries, who would only experience a temporary delay pending the determination of the intended appeal. Conversely, he contends that a refusal to grant the orders sought would expose him to irreversible consequences. The Applicant therefore prays that the Application be allowed with costs. 11.The 1st and 2nd Respondents submitted that the Applicant failed to serve his written submissions within the timelines directed by the court and therefore did not comply with the court's directions. Consequently, the Respondents urged the court to dismiss the Notice of Motion dated 18th June 2026 with costs to the Administrators. 12.The 1st and 2nd Respondents further submitted that the Applicant has failed to demonstrate the substantial loss he stands to suffer should meetings of the Administrators and beneficiaries proceed, or should the estate of the deceased be distributed to the beneficiaries identified by the court pending the hearing and determination of the intended appeal before the Court of Appeal. B. Issues For Determination 13.Having considered the Notice of Motion dated 18th June 2026, the affidavits on record, and the written submissions filed by the parties, the following issues arise for determination: -i.Whether this court has jurisdiction to grant the orders sought pending the intended appeal.ii.Whether the Applicant has demonstrated that the intended appeal will be rendered nugatory if the orders sought are not granted.iii.Whether the Applicant has demonstrated that he stands to suffer substantial loss incapable of remedy if the beneficiaries' meetings proceed and the administration of the estate continues pending appeal.iv.Whether the balance of convenience favors the grant of the orders sought.v.Who should bear the costs of the Application. C. Analysis Of The Issues For Determination I. Whether this court has jurisdiction to grant the orders sought pending the intended appeal 14.There is no dispute that this court retains residual jurisdiction to entertain an application for stay of execution or preservation of the subject matter pending appeal. Such jurisdiction flows from Order 42 Rule 6 of the Civil Procedure Rules and the inherent powers of the court under Rule 73 of the Probate and Administration Rules. 15.However, the existence of jurisdiction does not automatically entitle an applicant to the orders sought. The Applicant must satisfy the legal thresholds established under the law and judicial precedent. 16.The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 held that the power to grant stay is discretionary and must be exercised judicially and in a manner that does not prevent a successful litigant from enjoying the fruits of his judgment. 17.Accordingly, while this court is clothed with jurisdiction to entertain the Application, the Applicant must still satisfy the conditions warranting the exercise of that discretion in his favor. II. Whether the Applicant has demonstrated that the intended appeal will be rendered nugatory 18.The Applicant's principal argument is that meetings of beneficiaries and administrators may proceed and resolutions affecting the estate may be implemented before the intended appeal is heard. 19.The court has carefully considered this contention. A party seeking preservation orders pending appeal must do more than merely assert that an appeal may be rendered nugatory. The Applicant bears the burden of demonstrating, through evidence, the specific prejudice likely to arise and how such prejudice would defeat the appellate process. 20.The court notes that the Applicant has not demonstrated what specific decisions are likely to be made during the beneficiaries' meeting that would permanently defeat the intended appeal. Equally, no evidence has been placed before the court to show that any contemplated action would be incapable of being reversed by an order of the Court of Appeal should the intended appeal ultimately succeed. 21.The mere convening of a meeting of beneficiaries and administrators does not, in itself, extinguish appellate rights. Such meetings form part of the ordinary process of estate administration envisaged under the Law of Succession Act. 22.The Applicant has therefore invited the court to speculate on possible prejudice without providing a factual foundation upon which such a conclusion may be reached. In Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227, the court observed that an applicant must demonstrate real and not merely speculative prejudice. 23.Similarly, in Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, the court emphasized that a successful litigant should not be deprived of the fruits of a judgment merely because an appeal has been filed or is intended. This court is therefore not persuaded that the Applicant has demonstrated that the intended appeal shall be rendered nugatory merely because the administration of the estate continues in accordance with the law. III. Whether the Applicant has demonstrated substantial loss 24.The cornerstone of an application for stay pending appeal is proof of substantial loss. In Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, Platt Ag. JA stated that “Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. substantial loss is the cornerstone of the jurisdiction to grant stay and without evidence of substantial loss it is difficult to justify depriving a successful party of the fruits of his judgment. 25.Likewise, in Mukuma v Abuoga [1988] KLR 645, the court held that substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. The court stated that;“That is what has to be prevented, because such loss would render the appeal nugatory. Therefore it is necessary to preserve the status quo” 26.The Applicant submits that decisions may be made affecting the estate before the appeal is heard. However, beyond this general apprehension, no tangible evidence has been presented to demonstrate the nature of the alleged loss. The Applicant has not shown; Which property is at risk of dissipation, which beneficiary is likely to dispose of estate assets, which administrator is acting contrary to the law, how the implementation of any resolution would be irreversible; or why any orders made by the Court of Appeal would be incapable of enforcement should the appeal succeed. 27.This court finds that the alleged loss remains speculative and hypothetical. More importantly, the administration of estates is governed by statutory safeguards under the Law of Succession Act. Administrators remain accountable to beneficiaries and to the court throughout the administration process. 28.Consequently, the court finds that the Applicant has failed to establish substantial loss as required under the law. IV. Whether the balance of convenience favors the grant of the orders sought 29.The estate herein has been the subject of litigation for a considerable period, that is since the year 1997. The court takes judicial notice that succession proceedings are intended to facilitate the orderly administration and eventual distribution of a deceased person's estate. Administrators are under a legal duty to complete administration and distribute the estate without unreasonable delay. 30.Section 83 of the Law of Succession Act imposes various duties upon administrators, including: completing administration of the estate, rendering accounts, preserving estate assets and distributing the estate to the beneficiaries entitled thereto. 31.The orders sought by the Applicant would effectively halt the administration process indefinitely pending an intended appeal whose outcome remains uncertain. 32.The court finds that the balance of convenience favours allowing the administrators to continue discharging their statutory obligations rather than suspending the administration of the estate on the basis of speculative apprehensions. 33.The court further notes that the Applicant has not demonstrated any exceptional circumstances warranting interference with the lawful administration of the estate. V. The need for finality in litigation 34.Courts have repeatedly emphasized that litigation must come to an end. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the court relied on the case of United Arab Emirates v Abdelghafar & Others 1995 IRLR 243 and stated that “The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. In the circumstances, parties should not be permitted to engage in endless litigation. 35.The record shows that the Applicant's Summons dated 2nd December 2025 was heard and determined by this court through the Ruling delivered on 20th May 2026. The Applicant now seeks to halt the administration of the estate solely on account of an intended appeal. 36.While every litigant has a constitutional right of appeal, that right must be balanced against the equally important rights of other beneficiaries and the need for the efficient administration of justice. 37.The estate of the deceased cannot be held at ransom through successive applications unsupported by evidence of actual prejudice or substantial loss. 38.The court must guard against a situation where the administration and distribution of an estate is perpetually delayed by speculative applications that do not satisfy the legal threshold for preservation orders. 39.The court therefore finds that the interests of justice and the principle of finality in litigation favor allowing the administration process to proceed. D. Disposition 40.In the premises, the court finds that although the Applicant has an undoubted right of appeal, he has failed to demonstrate, that the intended appeal will be rendered nugatory if the beneficiaries' meetings proceed, that he will suffer substantial loss incapable of remedy should the administration of the estate continue, that the implementation of any resolutions by the beneficiaries or administrators would be irreversible, that the intended appeal raises such exceptional circumstances as would warrant the suspension of the administration of the estate. 41.The court further finds that the balance of convenience favours the continued administration of the estate in accordance with the Law of Succession Act and that there must be finality to litigation. 42.Accordingly, the Notice of Motion dated 18th June 2026 is hereby dismissed with costs to the cause.It is so ordered. SIGNED BY/FOR:HON. JUSTICE ABDI M. HASSANNakuru High CourtDate: 2026-07-13 22:11:10