https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1211

Amario v Amario & 2 others (Civil Appeal (Application) E214 of 2025) [2026] KECA 1211 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KECA 1211 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E214 of 2025 JM Mativo, MB Kairaria & AI Hassan, JJA June 26, 2026 Between Elvis Karee Amario Applicant and Sheena Euston Amario 1st Respondent Miki Ng’ang’a Njoroge 2nd Respondent Marsha Dee Amario Mohamed 3rd Respondent (Being an application for stay of proceedings and partial distribution of the estate from the ruling of the High Court of Kenya at Nakuru (S. Muhochi, J.) dated 31st January 2024 in Succession Cause No. 354 of 2010) Ruling 1.By an application dated 9th December 2025, the applicant prays for stay of the proceedings and partial distribution of the estate of the late Fai Omar Amario alias Peter Gilbert (deceased) pursuant to the ruling delivered by Justice Mohochi on 31st January 2024 in Nakuru High Court Succession Cause No. 354 of 2010 pending hearing and determination of his appeal against the said ruling. The application is brought under Rule 1 (2) & 5 (2) (b) of the Court of Appeal Rules, 2022 Articles 27 and 159 of the Constitution and section 76 of the Law of Succession Act. 2.The germane grounds in support of the application are: (a) the applicant has filed a notice of appeal dated 4th December 2025 against the said ruling; (b) that the appeal is arguable and has high chances of success; (c) in the impugned ruling, the learned judge allowed partial confirmation of the grant, paving way for partial distribution of the estate; (d) there is an eminent risk of the applicant being denied inheritance of his father’s estate; (e) the learned judge in the impugned ruling dismissed the applicant’s application seeking to be included as a beneficiary of the estate citing contradictions in her mother’s name in his birth certificate which is not a conclusive proof of paternity; (f) the respondents will not suffer any prejudice if the stay sought is granted. 3.The 1st and 2nd respondents filed a replying affidavit dated 5th March 2026 sworn by the 1st respondent, a co- administrator of the estate. The salient averments are: (a) the application is fatally defective and brought in bad faith; (b) the intended appeal is not arguable; (c) it is in the interests of justice that the instant application be dismissed with costs. 4.In support of the application, the applicant’s counsel Mr. Mutanda filed written submissions dated 24th February 2026 and a list of authorities dated the same date. The germane issue urged in these submissions is that the applicant has demonstrated the existence of an arguable appeal and that absent of stay, the appeal will be rendered nugatory. In support of this assertion, the applicant cited among other decisions (which we have carefully read), Stanley Kang'ethe Kinyanjui vs. Tony Ketter & 5 Others [2013] KECA 378 (KLR). 5.The 1st and 2nd respondents filed written submissions dated 5th March 2026 mainly asserting that the intended appeal is not arguable. They cited this Court’s decisions in Attorney General & Ano. vs. Nafula & 5 Others [KECA] 1245 (KLR), Manyara vs. Manyara & Ano. [2023] KECA 1245 (KLR) and Attorney General vs. Okiya Omtatah Okoiti & Ano. [2019] KECA 774 (KLR) to underscore that an applicant under Rule 5 (2) (b) must demonstrate the existence of a bona fide ground worth consideration by this Court. 6.As to whether the appeal will be rendered nugatory, they cited this Court’s decisions among them Gikore & Ano. vs. Wanjohi [2025] KECA 2165 urging that what is sought to be stayed is a partial confirmation of a grant that allows the beneficiaries of the estate pursuant to a consent dated 20th July 2023 to dispose 4 properties to meet the financial burden of the estate. They contended that the applicant’s summons for confirmation of grant seeking to revoke the grant is scheduled for ruling on 13th April 2026 (now past) therefore, the applicant will be entitled to appeal against the said ruling in the event their application fails. 7.We have carefully considered the application and the grounds urged by both parties in support of their respective positions. This Court in Trust Bank Limited and Ano. vs. Investech Bank Limited and 3 Others [2000] eKLR described the jurisdiction of this Court under Rule 5 (2) (b) as original and discretionary. (See also the Supreme Court decision in Kenya National Union of Teachers and 3 Others, Civil Application No. 16 of 2015). 8.As to whether or not the appeal is arguable, we have to consider whether there is at least a single bona fide arguable ground that has been raised by the applicant that warrants ventilation before this Court. In Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 Others (supra), this Court described an arguable appeal as one which must not necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous. However, this Court must not make definitive or final findings of either fact or law at this stage because doing so may embarrass the ultimate hearing of the main appeal. 9.In satisfaction of the first prerequisite, the applicant claims that the learned judge erred by dismissing his application thus paving way for partial confirmation of the grant and partial distribution of the estate. Without delving into the merits of the intended appeal as this will be the preserve of another bench, we are satisfied that this is a ground meriting consideration by this Court. 10.The next question is whether the applicant has demonstrated that his appeal will be rendered nugatory absent of stay. As was stated by this Court in David Morton Silverstein vs. Atsango Chesoni [2002] eKLR:“The Court is not laying down any principle that no order for stay of proceedings will ever be made; that would be contrary to the provisions of rule 5 (2) (b) of the Court's own rules. But as the court pointed out in the case we have already cited, each case must depend on its own facts...” 11.“Stay of proceedings” as the phrase suggests, is the stoppage of an entire case or a specific proceeding within a case. Such a disruption of judicial proceedings has been described in case law as a drastic order which is only to be deployed in extremely rare cases and with immense circumspection. The principles which should guide a court in exercising its discretion to grant or refuse an application for stay of proceedings were detailed by the Court of Appeal of Nigeria, Abuja Division in the case of NNPC & Anor vs. Odidere Enterprises Nigeria Ltd [2008] 8 NWLR (Pt. 1090) 583 at 616-618, per Aboki, JCA. as follows:“Stay of Proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation towards the trial on the basis of the substantive merit of his case, and therefore the general practice of the courts is that a stay of proceedings should not be granted, unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.” 12.In the Halsbury’s Laws of England, 4th Edition. Vol. 37, at p.330 and p.332, it is stated:“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue…This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case” 13.Our understanding of the applicant’s argument is that if the stay sought is not granted, partial distribution of the estate will proceed and in the event of his appeal succeeding, it will be rendered nugatory. In our view, this line of reasoning falls short of the required threshold for several reasons. First, an application for stay of proceedings, particularly one based solely on the applicants’ apprehension or fear, is generally not considered sufficient grounds for granting a stay of proceedings. Courts require more concrete evidence of potential harm or prejudice that would arise if the proceedings were to continue. A party seeking a stay of proceedings must demonstrate more than just a subjective feeling of apprehension or fear about the potential outcome of the case. The applicant typically needs to show that proceeding with the case would cause them substantial loss or irreparable harm, which could render their appeal, if successful, nugatory. (See James Mugo Muraya & 2 Others vs. Margaret Wairimu Muraya & Ano.[2025] KECA 1222 (KLR)). 14.Second, the threshold for obtaining a stay of proceedings is high because it can significantly impact on the progress and outcome of a case. A stay of proceedings halts a continuing legal action before a court. Unlike a stay of execution (which stops the enforcement of an existing judgment), courts are highly reluctant to pause an active trial or hearing. As authorities suggest, stay of proceedings is only granted in exceptional cases. (See Meta Platforms, Inc & Ano. vs. Samasource Kenya EPZ Limited t/a Sama & Ano.; Kenya National Humans Rights Equality Commission & 9 Others (Interested Parties) [2023] KECA 996 (KLR)). The proceedings will only be stayed if continuing the main trial would make the outcome of that appeal entirely useless. The applicant must prove that the trial will create an irreversible state of affairs or cause substantial loss that cannot be cured by monetary damages later on. A stay will be ordered if the continuing prosecution of the case is demonstrably vexatious, oppressive, or acting in bad faith. 15.Third, the Court needs to balance the applicant’s right to exercise its right of appeal and the potential for irreparable harm against the respondents’ right to have their case heard, determined and potentially benefit from a favorable judgment. (See Meta Platforms, Inc & Ano. vs. Samasource Kenya EPZ Limited(supra)). 16.As correctly argued by the 1st and 2nd respondents, the applicant has applied for revocation of the grant. In the event the grant is revoked, the applicant’s fear will have been resolved. Conversely, in the event the applicant loses, he will have a right to appeal against the decision. Further, in the event the targeted properties will have been sold, it has not been demonstrated that the loss (if any) cannot be compensated in monetary terms. 17.Consequently, for the reasons stated herein above, we are not persuaded that the applicant has demonstrated that his appeal if successful will be rendered nugatory. In view of the foregoing, we find that the applicant has failed to satisfy the twin principles for grant of the orders sought pursuant to Rule 5 (2) (b). Accordingly, the notice of motion dated 9th December, 2025 fails and is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF JUNE, 2026.J. MATIVO....................................JUDGE OF APPEALMURUNGI B. KAIRARIA....................................JUDGE OF APPEALAHMED ISSACK....................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.Deputy Registrar.