In re Estate of Kahinga (Deceased) (Family Miscellaneous Civil Case E003 of 2026) [2026] KEHC 8971 (KLR) (Family) (25 June 2026) (Ruling)

In re Estate of Kahinga (Deceased) (Family Miscellaneous Civil Case E003 of 2026) [2026] KEHC 8971 (KLR) (Family) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 8971 (KLR) Republic of Kenya In the High Court at Nyandarua Family Family Miscellaneous Civil Case E003 of 2026 KW Kiarie, J June 25, 2026 IN THE MATTER OF THE ESTATE OF KIARII KAHINGA - DECEASED Between Abel Guchu Kiarii 1st Applicant John Nganga Karii 2nd Applicant Peter Kaguru Karii 3rd Applicant Samuel Mburu Kiarii 4th Applicant Jacob Kinyanjui Kiarii 5th Applicant Catherine Wanjiku Kiarii 6th Applicant Monica Wairimu Kiarii 7th Applicant Mary Wambui Kiarii 8th Applicant Jane Njeri Kagunda 9th Applicant and Beatrice Wanjiku Mburu Respondent Ruling 1.The applicants moved the court by way of a notice of motion dated the 23rd day of April 2026. The application was brought under sections 1A, 1B, & 3A of the Civil Procedure Act, order 42 rule 6, order 50 rule 6, & order 51 rule 1 of the Civil Procedure Rules. They are seeking the following orders:a.That this application be certified as urgent and heard ex parte in the first instance. [Spent]b.That this honourable court be pleased to grant leave to the applicants to file an appeal out of time against the ruling and orders delivered on 27th September, 2022, in Nyahururu CMCSUCC No. 217 of 1995.c.That upon grant of leave, the annexed memorandum of appeal be deemed as duly filed upon payment of the requisite court fees.d.That pending the hearing and determination of this application and the intended appeal, there be a stay of execution of the grant of letters of administration intestate; and the certificate of confirmation of grant issued on 27th September, 2022, in Nyahururu CMCSUCC No. 217 of 1995.e.That this honourable court be pleased to stay any subdivision, transfer, or dealings in respect of the estate property pending the hearing and determination of the intended appeal.f.That the costs of this application to abide by the outcome of the intended appeal. 2.The application was premised on the following grounds:a.That the applicants were not notified of the delivery of the ruling by their then advocates and only became aware of the same upon attempts at execution.b.That circumstances beyond the applicants' control occasioned the delay in filing the appeal and are therefore excusable.c.That the intended appeal raises substantial questions of law, particularly on the legality of the mode of distribution adopted.d.That the appeal was previously struck out/dismissed on a technicality (order 9 non-compliance) and not on merit.e.That the intended appeal is arguable and has high chances of success.f.That, unless a stay is granted, the response will proceed with execution, subdivision and distribution of the estate, hereby rendering the appeal nugatory.g.That the applicants stand to suffer irreparable loss and prejudice.h.That it is in the interest of justice that the orders sought be granted. 3.The application was opposed by the respondent on the following grounds:a.She was born on the 12/12/1965 on the aforesaid parcel of land, raised and educated on the land, and her mother died in the year 1971.b.In the year 1971 or thereabouts, her father married one Auxilia Wanjiru, the applicant's mother, and she joined the family at Shamata with a young child, Jane Njeri.c.Her mother had a daughter before her marriage, known as Serah Muthoni Kiarie, who was raised on the land by her father.d.The respondent and her sister Serah contributed to repaying the Settlement Fund Trustees' loan through Pyrethrum and dairy farming on the land, and produce from the sale of milk, Pyrethrum and wool would be channelled to repay the Settlement Fund Trustees' loan.e.The respondent’s father died in the year 1985, and at that time, the Settlement Fund trustee's loan had been repaid in full as he sold a portion of 7 acres of the land to complete payment of the loan.f.Serah Muthoni, the respondent’s sister, died in the year 2016, and she was buried on Parcel No 447, where she was living with her children. Before her father’s death, he had stated that she would be allocated the land she was occupying.g.Serah Muthoni left behind three children, namely Job Kiarie, Sophia Wanjiru and Guchu Muthoni, and they are in occupation of the land where their mother left them.h.It is false that the respondent’s father predeceased her mother and that she remarried after his demise.i.The applicants, members of the second house, filed a succession cause for the estate of the respondent’s deceased father and failed to include the children of the 1st house of Sophia Wanjiru. They learned the cause of the succession after they threatened to evict the children of Sarah Muthoni from the Land.j.The applicants are the authors of their own misfortune in an attempt to advance their selfish interest of disinheriting the members of the 1st house, and they should not be allowed to benefit from their own misdeeds.k.That the deceased's estate was distributed equitably, and the purported appeal has no chances of success, and the application ought to be dismissed with costs. 4.It is trite law that an appeal does not operate as a stay of execution or proceedings. For a party seeking the court's intervention to preserve the status quo, it must satisfy the court that the applicable principles have been met. order 42 rule 6(2) of the Civil Procedure Rules provides as follows:No order for stay of execution shall be made under subrule (1) unless—a.the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb.such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 5.This is a succession case concerning the estate of Kiarii Kahinga. I have reviewed the statements by both parties. If the court does not stay the execution of the contested ruling, the appeal will be purely academic and serve no purpose. In the interest of justice, it is fair to issue the requested orders pending the decision on the appeal. 6.The applicants are granted leave to file the intended appeal within 30 days of this ruling. Failure to do so will result in the stay orders lapsing. 7.This being a family dispute, each party will bear its own costs. DELIVERED AND SIGNED AT NYANDARUA, THIS 25TH DAY OF JUNE, 2026.KIARIE WAWERU KIARIEJUDGE