https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1157

Asimba v Asimba (Suing on behalf of the Estate of Esau Asimba Agina and his personal capacity) (Civil Appeal (Application) E113 of 2024) [2026] KECA 1157 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1157 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal (Application) E113 of 2024 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between Joshua Nondwa Asimba Appellant and David Otieno Asimba (Suing on behalf of the Estate of Esau Asimba Agina and his personal capacity) Respondent (Being an application for stay of execution pending the hearing and determination of an appeal from the judgment and decree of the High Court of Kenya at Siaya, (Ogembo, J.) dated 2nd November, 2023 in HC Family Appeal Case No. E004 of 2022 Family Appeal E004 of 2022 ) Ruling 1.The application for consideration by this Court is one dated 5th June 2024, brought under Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2) (b), 43, 44 and 49 of the Court of Appeal rules. The application seeks in the main an order worded as follows, “stay of execution to restrain the Respondent, his agents, servants, employees, assigns and/or personal representatives from alienating, interfering with, or dispossessing the Applicant of all that piece or parcel of land known as East Gem/Anyiko/108, “the suit property”, pending the hearing and determination of the appeal”. 2.The application is supported by the grounds on its face and buttressed by the supporting affidavit by Joshua Nondwa Asimba, “the applicant”. It is the applicant’s case that he was dissatisfied with the entire judgment and decree delivered in Siaya Family Appeal Case No. E004 of 2022, by Ogembo, J. and has duly filed a Notice and Memorandum of Appeal respectively. He asserts that his homestead is situate within the suit property and that unless restrained by an order of this court, execution of the judgment and decree will ensue resulting in his eviction therefrom with his entire family. Such an eventuality will cause him and his family irreparable loss and damage as they have no other alternative home to move into. 3.He further asserts that the intended appeal has high chances of success and that unless stay is granted, the appeal will be rendered nugatory. He maintains that the respondent will suffer no prejudice if the orders sought are granted. He expresses willingness to abide by any terms that the Court may impose in granting the application. 4.The application is opposed. The respondent, through his replying affidavit, challenges the competence of both the application and the appeal. He says that section 50(1) of the Law of Succession Act, provides that appeals from Magistrates’ Courts lie to the High Court and that the decision of the High Court in such an appeal is final. To reinforce this position, he cites Francis Gachoki Murage v Juliana Wainoi Kinyua & Another [2010] eKLR. That the decision of the High Court was from an appeal from the Judgment and decree of the Chief Magistrate’s Court at Siaya, hence the incompetence of the application as well as the appeal 5.In the alternative, the respondent asserts that if the impugned judgment is construed as emanating from the High Court’s original jurisdiction, then the Applicant’s failure to seek and obtain leave to appeal renders the appeal incompetent ab initio as well. He emphasises that leave is a mandatory statutory requirement and its absence strips the appeal of its competence. The respondent further points out that the execution of the judgment and decree has been finalised with the reversion of the suit property to the estate of the deceased and the institution of fresh succession proceedings in the Chief Magistrate’s Court at Siaya, as decreed by the judgment sought to be impugned. Accordingly, this application has been overtaken by events. 6.When the application was called out for plenary hearing, Mr. Jaoko, learned counsel appeared for the applicant whereas Mr. Okumu, learned counsel represented the respondent. Counsel for the applicant maintained that the applicant was seeking to halt the execution of the judgment and decree, which had directed that a fresh petition be filed in the Magistrate’s Court at Siaya and that the suit property reverts to the deceased’s estate. He explained that in compliance with the terms of the judgment and decree of the High Court, the respondent had initiated a fresh petition for the grant of letters of administration intestate. He was therefore seeking a stay to prevent the continuation of those proceedings until the appeal was heard and determined. 7.Counsel argued that the Court of Appeal had jurisdiction to entertain the cause, citing authorities such as Rhoda Wairimu Karanja v. Mary Wangui Karanja and Margaret Mahungu John v. David John Kibwana. He submitted that section 47 of the Law of Succession Act, together with sections 66 and 67 of the Civil Procedure Act, conferred discretionary powers upon the Court to grant the relief sought. He contended that jurisprudence had evolved away from a strict positivist interpretation of section 50(1) of the Law of Succession Act, which declares High Court decisions final, and that recent decisions had recognized the Court of Appeal’s jurisdiction in succession matters, particularly where constitutional provisions such as Articles 48 and 50 on access to justice and fair hearing are invoked. 8.On the twin principles governing Rule 5(2)(b) applications, counsel submitted that the appeal was arguable and would be rendered nugatory absent a stay. He pointed out that the challenge on the discretion exercised by the magistrate’s court under section 76 of the Law of Succession Act in granting letters of administration intestate to the respondent was certainly an arguable point. He stressed that the applicant had built his home on the suit property in 1968, and that his eviction therefrom in execution of the judgment and decree would render him destitute, bearing in mind that he was of advanced age, with no alternative land to relocate to. This, he argued, underscored the nugatory aspect of the appeal absent stay. 9.In his submissions in response, Mr. Okumu reiterated that this Court lacked jurisdiction by virtue of section 50(1) of the Law of Succession Act to entertain this application. He argued that even if jurisdiction were assumed, the appeal was fatally defective for want of leave, and therefore incompetent ab initio. He further maintained that the application was overtaken by events, moot, spent and was an abuse of process since execution of the decree had been concluded through fresh succession proceedings that had been initiated pursuant to the impugned judgment and decree. On that basis, he urged the Court to strike out both the application and the intended appeal, and affirm the lawfulness of the ongoing execution of the judgment. 10.We note that the application is omnibus and ambiguous in nature, in that though the application is couched as a stay of execution application, the wording of the prayer seems to encompass prayer for injunction as well as stay of proceedings. However, all these prayers cannot be rolled into one. For purposes of this ruling, however, we shall treat the application as that of stay of execution. Such an application is an everyday affair in this Court and the principles on which the Court acts if invited to exercise this inherent and original jurisdiction, is an old hat. 11.From the long line of decided cases (although none was cited by counsel, perhaps due to their notoriety) on Rule 5(2) (b) aforesaid, the common thread running through them is that the court exercises original and discretionary jurisdiction, the discretion is wide and unfettered, an applicant must satisfy the court on both the twin principles being whether the appeal or intended appeal is arguable and whether to refuse to grant the order(s) sought will render the appeal or intended appeal nugatory. 12.Whether the appeal is arguable, it is sufficient if a single bona- fide arguable ground of appeal is raised and is not one which must necessarily succeed, but one which ought to be interrogated fully by the court; and 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. See generally Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR. 13.Has the applicant satisfied these prerequisites?The starting point is the issue of jurisdiction being a preliminary issue raised by the respondent. It is trite that jurisdiction is everything and without it, the Court must downs its tools (Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1). Section 50(1) of the Law of Succession Act, provides in very clear terms that an appeal lies to the High Court from a Magistrate’s Court in succession matters and that the decision of the High Court thereon shall be final. The Court of Appeal in Francis Gachoki Murage v Juliana Wainoi Kinyua & Another (supra) affirmed that no appeal lies to this Court from a decision of the High Court rendered in its appellate jurisdiction under the Law of Succession Act. That holding is directly applicable to the present application. 14.We are aware nonetheless of the recent landmark judgment of the Supreme Court in Eliud Mwendia Wandi v Kevin Wanjohi Muchira - Petition No. E029 of 2024 [2026] KESC 29 (KLR), in which the Court definitely ruled that appeals originating from the High Court’s original jurisdiction in succession (Probate and Administration) causes lie as an automatic right to the court of appeal and do not require prior leave (permission) from either the High-country or Court of Appeal. This was in response to the judicially-created requirement that parties must seek leave to appeal to the Court of Appeal in succession causes. That judgment was however concerned with appeals arising from the High Court’s original jurisdiction in succession causes, where litigants had been required to obtain leave before approaching the Court of Appeal. The Court held that such a requirement was not grounded in the Constitution or statute and unjustifiably restricted access to justice. However, in the circumstances of this application, the situation is different. This is a 2nd appeal from the decision of the Chief Magistrate’s Court at Siaya. The decision of the High Court was meant to be final. Given the foregoing, we doubt whether the appeal will be arguable. 15.We also note that the judgment and decree of the High Court has been fully executed. In compliance with the said judgment and decree the respondent has filed a fresh petition for grant of letters of administration intestate in the chief Magistrate’s Court at Siaya being Succession Cause No 78 of 2011. A notice of Motion Application seeking a citation against the 1st house beneficiaries including the applicant has been filed and served, and from the record it was meant to come up for hearing on 5th March 2026. We do not know what the outcome was. We also note that, the suit property has also reverted to the deceased’s estate in terms of the judgment and decree aforesaid. In these circumstances, the application is overtaken by events and there is nothing left to stay. 16.Accordingly, the Notice of Motion dated 5th June, 2024 is devoid of merit and is accordingly dismissed with costs to the respondent. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA…………………….…….………JUDGE OF APPEALE.C. MWITA………………………..….………JUDGE OF APPEALB. ONGAYA………………………..…….……JUDGE OF APPEALI certify that this is a true copy of the originalSigned DEPUTY REGISTRAR