In re Estate of Ibrahim Abei alias CPL Raha (Deceased) (Civil Appeal E162 of 2025) [2026] KEHC 8584 (KLR) (Family) (8 June 2026) (Ruling)

In re Estate of Ibrahim Abei alias CPL Raha (Deceased) (Civil Appeal E162 of 2025) [2026] KEHC 8584 (KLR) (Family) (8 June 2026) (Ruling) Neutral citation: [2026] KEHC 8584 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Civil Appeal E162 of 2025 CJ Kendagor, J June 8, 2026 IN THE MATTER OF THE ESTATE OF THE LATE KASSIM IBRAHIM ABEI alias CPL RAHA Between Aziz Ibrahim Appellant and Habiba Mohammed Ali Respondent (Being an appeal from the Ruling of Hon. M. G. Randu delivered on the 4th September 2025 at the Kadhis Court at Nairobi in Succession Cause No. E062 of 2020) Ruling 1.The Parties are involved in a Succession Cause before the Kadhi’s Court in the matter of the Estate of the late Kassim Ibrahim Abei alias CPL Raha. 2.The Appellant filed an appeal against the orders issued on 4th September, 2025. In the decision, the Learned Kadhi determined that the property P/NO. EH 025, located in Elwak, Mandera County, belongs to the estate of the deceased. The Kadhi directed that the property, or its proceeds after sale, be distributed among the heirs of the deceased in accordance with Islamic Law. Additionally, a conservatory order was issued restraining the Appellant from dealing adversely with the property. The order also instructed the Officer in Charge at Mandera Police Station, along with relevant departments in Mandera County, to ensure compliance with these orders. 3.The appellant has raised the following grounds for appeal:i.That the learned trial Kadhi erred in law and in fact in failing to properly consider the Respondent’s replying affidavit and submissions, thereby arriving at a decision that was against the weight of the evidence;ii.That the learned trial Kadhi erred in law by disregarding the fact that there existed a prior consent order of 3rd February, 2021, which had settled part of the succession issues, and failed to give due regard to its binding effect upon the parties;iii.That the learned trial Kadhi erred in law and fact by failing to appreciate that the alleged distribution of 22nd November, 2020 was consensual, inclusive and documented with the participation of the Appellant and clan elders, and therefore binding under the Islamic law and custom;iv.That the learned trial Kadhi erred in law and fact in holding that the property known as P/No. EH 025, Elwak, Mandera County should be redistributed, contrary to the principles of finality of family agreements and settled inheritance arrangements;v.That the learned trial Kadhi erred in law and fact by issuing preservatory and conservatory orders when there was no imminent threat of intermeddling, thereby granting orders that were unnecessary and prejudicial to the Respondent;vi.The learned trial Kadhi erred in law and in fact by issuing contradictory findings and orders on one hand acknowledging the existence of a prior consent and the legitimacy of family distribution, yet on the other hand ordering preservation and redistribution of the same estate property thereby rendering the Ruling inconsistent, ambiguous and incapable of proper enforcement;vii.That the learned trial Kadhi erred in law and fact to consider that more than five (5) years had elapsed since the consensual distribution of the estate, during which the Appellant and other heirs acted in reliance thereof, and thereby disregarded the equitable principles of laches, acquiescence and legitimate expection. 4.Simultaneously, the Appellant filed an application dated 1st October, 2025 which is the subject of this Ruling. The Application is supported by the Supporting Affidavit of even date and a Further Affidavit dated 29th October, 2025, and seeks the following orders:i.That this application be certified urgent and service be dispensed with;ii.That pending the inter partes hearing of this application, this honourable court be pleased to issue an order preserving the status quo of the parties, and/or affairs of the deceased’s estate ante 4th September, 2025;iii.That pending the hearing and determination of this application and/or the main appeal, this honourable court be pleased to issue the temporary stay of execution, implementation, or enforcement of the ruling and orders of the Kadhis Court at Nairobi (Honorable G. Randu (S.R.K) delivered on 4th September, 2025 in KCSUCC No. E062 of 2020 in so far as they relate to Plot No. EH 025, Elwak, Mandera County;iv.That pending the hearing and determination of this Application and/or the main appeal, this honourable court be pleased to set aside and/or vary the ruling and orders of the Kadhis Court at Nairobi (Honourable Mohamed G. Randu (S.R.K) delivered on 4th September, 2025 in KCSUCC No. E062 of 2020 in so far as they relate to Plot No. EH 025, Elwak, Mandera County;v.That this honourable court be pleased to issue an order staying execution, implementation and/or enforcement of, and further setting aside and/or varying, the ruling and orders of the Honourable Mohamed G. Randu (Senior Resident Kadhi) delivered on 4th September, 2025 in KCSUCC No. E062 of 2020;vi.That upon grant of prayer 4 above, this honourable Court be pleased to order that the distribution of the deceased’s estate carried out on 22nd November, 2020 and evidenced by minutes and family agreements be upheld as binding upon the parties;vii.That costs of this application be provided for. 5.The Application is opposed. The Respondent filed a Replying Affidavit dated 14th October, 2025. 6.Both parties filed submissions, which I have duly considered. 7.The Appellant argues that the trial Court’s decision undermined an agreement made on 22nd November, 2020, between the beneficiaries concerning the division of the estate’s assets and a consent order adopted on 3rd February, 2021. 8.She asserts that the property P/NO. EH 025, situated in Elwak, Mandera County, was assigned to her under the family settlement, and that the consent dated 3rd February, 2021, which was subsequently adopted by the Court, supported the family settlement signed on 22nd November, 2020. 9.The Appellant asked the Court to grant the stay orders, asserting that the imminent risk is that the orders would dispossess her of the asset and that restitution would be impractical. 10.She has further asked the Court to vary or set aside the impugned ruling and orders and to uphold the family settlement. 11.The Respondent, on the other hand, contests the alleged family settlement and highlights that the trial Court took into account that the agreement was neither signed by all parties nor ever presented to the court for adoption as orders of the court. 12.He further submitted that the Appellant has not met the threshold for the grant of a stay of execution pending appeal and asked the Court to find accordingly. 13.Further, he asserts that the Appeal is intended to delay the lawful distribution of the estate. Analysis and determination 14.Having considered the application herein, the response thereto, and the submissions by the parties, the issues for determination are whether the Court can, at this interlocutory stage, make definitive findings on facts and law and whether the Appellant has met the threshold for the grant of stay of execution pending appeal. 15.In prayers 4, 5 and 6 of the application dated 1st October, 2025 the Appellant has asked the Court to set aside/review the impugned ruling and orders by the Hon Kadhi and to proceed to order distribution on the estate. 16.In Sitienei v Ethics & Anti-Corruption Commission & another (Civil Appeal (Application) E059 of 2023) [2026] KECA 857 (KLR) the Court of Appeal in determining an application for stay of execution held as follows;10.…..We are cognizant of the fact that when this Court hears a Rule 5 (2) (b) application, it is exercising a discretionary power at an interlocutory stage. Because the main appeal has not yet been heard on its merits, the Court must tread carefully and avoid making definitive findings of facts and law because doing so would embarrass the bench that will eventually hear the substantive appeal. If the judges in the Rule 5 (2) (b) stage were to declare a fact “proven” or a law “settled,” they would effectively be deciding the appeal before it even starts, potentially pre-judging the case. 17.The prayers 4, 5 and 6 of the application directly mirror the grounds of appeal set out in the preceding paragraphs of this ruling. 18.What is presently for determination is an interlocutory application and not the determination of the main appeal. Therefore, addressing the prayers would amount to a pre-determination of the reliefs sought in the main appeal. This Court declines to render determinations on the above prayers. 19.The second limb is whether the Appellant has met the threshold for the grant of stay of execution pending appeal. 20.Under Order 42, Rule 6 of the Civil Procedure Rules, an appeal does not automatically stay the execution of a decree or order. To obtain a stay of execution order, the applicant must demonstrate substantial loss, show there is no delay in moving the court, and provide security for the due performance of the decree or order should the appeal fail. 21.The application was filed on 1st October, 2025, which is 27 days from the date of the Ruling on 4th September, 2025. There is no undue delay in the filing of the application. 22.The Appellant argues that if a stay is not granted, she will suffer irreparable loss due to the potential deprivation of the asset. However, no substantiated evidence has been presented indicating that any actions are being taken that would adversely affect the status of the asset. 23.From the impugned ruling, as a beneficiary of the estate, the Appellant would inherently be involved in any decisions or actions concerning the asset, alongside all other beneficiaries, thereby mitigating the risk of loss she fears. 24.The impugned ruling also ordered the preservation of the asset pending distribution. The order restrained the Appellant from dealing adversely with the property. In the application, the Appellant has not offered any security for due performance. Granting the stay would effectively lift or suspend the existing preservation orders issued against the Appellant, putting the asset at risk of sale and undermining the very reason the preservation orders were put in place. After examining the circumstances surrounding this succession dispute, I conclude that the Respondent and the other beneficiaries are likely to face greater loss if the stay order is issued. 25.In my view, the most appropriate thing to do in the circumstances is to have the substantive appeal heard and determined on a priority basis. 26.The Application dated 1st October, 2025 is not merited and is hereby dismissed. Costs of this application shall abide by the outcome of the appeal. 27.The Record of Appeal to be filed within 30 days. 28.Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 8TH DAY OF JUNE, 2026.…………………..C. KENDAGORJUDGEIn the presence of:Court Assistant: BerylMr. Mugambi, Advocate holding brief for Mr. Boru, Advocate for the AppellantMs. Akinyi, Advocate holding brief for Mr. Yusuf, Advocate for the Respondent